Associated General Contractors of North Dakota and American Concrete Pavement Association-North Dakota Chapter, Inc., Plaintiffs and Appellants v. City of West Fargo, a North Dakota municipal corporation, Defendant and Appellee (2026)

[¶1] Associated General Contractors of North Dakota and the American Concrete Pavement Association–North Dakota Chapter, Inc., (together the “Association”) appeal from a dismissal judgment entered in favor of the City of West Fargo. We hold the district court erred when it dismissed as moot claims for declaratory and injunctive relief alleging West Fargo violated competitive bidding requirements in N.D.C.C. ch. 48-01.2. We also hold the court erred when it denied the Association leave to amend its complaint on grounds the Association lacks standing to challenge a city ordinance. We reverse the judgment dismissing the action and remand the case for further proceedings.

I

[¶2] The Association represents contractors licensed and regulated by the State of North Dakota. In May 2025, the Association sued West Fargo claiming it violated provisions in N.D.C.C. ch. 48-01.2 that require competitive bidding for certain public improvement projects. The law at that time stated the “threshold for bidding construction of a public improvement is two hundred thousand dollars.” N.D.C.C. § 48-01.2-02.1(1).¹ Chapter 48-01.2 provides the following definition for the term “construction”:

“Construction” means the process of building, altering, repairing, improving, or demolishing any public structure or building or other improvement to any public property. The term does not include the routine operation or maintenance of existing facilities, structures, buildings, or real property or demolition projects costing less than the threshold established under section 48-01.2-02.1.

N.D.C.C. § 48-01.2-01(4). The law also provides a definition for the term “public improvement”:

“Public improvement” means any improvement undertaken by a governing body for the good of the public and which is paid for with any public funds, including public loans, bonds, leases, or alternative funding, and is constructed on public land or within an existing or new public building or any other public infrastructure or facility if the result of the improvement will be operated and maintained by the governing body. The term does not include a county road construction and maintenance, state highway, or public service commission project governed by title 11, 24, or 38.

N.D.C.C. § 48-01.2-01(21).

[¶3] The Association claimed West Fargo violated the statutory public bidding requirements while administering Improvement District No. 2290 (“the Project”). The Association alleged the Project consists of various work on roadways, including removing the surface of existing asphalt (referred to as “milling”) and replacing it with new asphalt (referred to as “overlay”). The Association alleged West Fargo, during the public bidding process, identified certain tasks that would be “self-performed” by its own work crews, including:

“Adjust Existing Utilities”; “Foam Jack Curb & Gutter”; “Traffic Control”; “Storm Water Management”; hauling millings; tack coat application; asphalt delivery and paving; and seeding behind curb & gutter.

The Association sought the following declaratory relief:

The Court should enter judgment declaring that West Fargo is precluded from self-performing a public improvement when the estimated cost of the improvement exceeds $200,000, and declare that West Fargo is in violation of N.D.C.C. ch. 48-01.2 by self-performing certain work on the Improvement District No. 2290 mill and overlay project, a public improvement project estimated to cost in excess of $200,000.

The Association also sought an injunction prohibiting “West Fargo from self-performing work on the Improvement District No. 2290 mill and overlay project and future public improvement projects required to be publicly bid under North Dakota law[.]”

[¶4] In June 2025, West Fargo approved a contract with the lowest bidder. In August 2025, the Association filed a motion for summary judgment. It is undisputed the Project was substantially completed on September 4, 2025. On September 8, 2025, West Fargo adopted Ordinance No. 1257, which states West Fargo “may self-perform routine street maintenance described in this chapter, with available funds on hand, regardless of the estimated value of the proposed maintenance if the City believes it is in the best interests of the City for the City to perform the work.” The ordinance defines “routine street maintenance” as “all activities to preserve and extend the integrity, function, and life of the existing street and related components, including but not limited to crack sealing, chip sealing, pothole repairs, leveling overlays, spray injecting, patching, and milling and overlaying.”

[¶5] The Association filed a motion to amend its complaint to include, among other changes, a request for a declaration that Ordinance No. 1257 is invalid. The district court entered an order granting leave to supplement factual allegations in the complaint relating to the Project but denying leave to challenge the ordinance. The court reasoned the Association lacked standing to challenge the ordinance because the Association had not alleged “an actual or threatened injury stemming from action under the ordinance” or that “the City has exercised authority under the ordinance[.]”

[¶6] The district court held oral argument on the Association's motion for summary judgment. At the hearing, the court announced it would deny the motion. The court explained:

[T]he issue whether the City of West Fargo violated N.D.C.C. Chapter 48-01.2 by self-performing part of the project is now moot. The project has been substantially completed.

․

There are no competing District Court decisions on the topic, there are no other—no inactive cases on the topic, the record shows the dispute involves simply the plaintiffs’ and the defendant's different interpretations of N.D.C.C. Chapter 48-01.2 in what happened in the one project, 2290, that has been completed.

The court entered a written order consistent with its ruling from the bench and subsequently entered judgment stating “all claims ․ are dismissed without prejudice and without costs, disbursements, or attorney's fees to any party.” The Association appeals.

II

[¶7] We must first address whether the dismissal without prejudice is appealable. See Estate of Finch, 2021 ND 159, ¶ 4, 963 N.W.2d 754 (explaining jurisdictional questions must be considered before the merits of an appeal). The words “without prejudice” mean a dismissal does not affect the parties’ rights or remedies. Hager v. City of Devils Lake, 2009 ND 180, ¶ 11, 773 N.W.2d 420. The phrase indicates the case has not been decided on the merits and the dismissal has no res judicata effect. Id. Dismissals without prejudice do not finally determine an action or prevent the issuance of judgment from which an appeal might be taken. Roussea v. Armstrong, 2026 ND 31, ¶ 9, 31 N.W.3d 649. They are typically not appealable because either side remains free to commence another lawsuit. Id.; see also Gum v. Muddy Boyz Drywall LLC, 2026 ND 5, ¶ 7, 30 N.W.3d 316. “However, a dismissal without prejudice may be final and appealable if the plaintiff cannot cure the defect that led to dismissal, or if the dismissal has the practical effect of terminating the litigation in the plaintiff's chosen forum.” Conrad v. Wilkinson, 2017 ND 212, ¶ 5, 901 N.W.2d 348 (quoting Rodenburg v. Fargo-Moorhead Young Men's Christian Ass'n, 2001 ND 139, ¶ 12, 632 N.W.2d 407).

[¶8] West Fargo argues the dismissal without prejudice in this case is not appealable because there is nothing preventing the Association from filing another lawsuit. However, another lawsuit challenging the Project would presumably meet the same fate as this one—dismissal on mootness grounds—because it is undisputed the Project has been substantially completed. There is no way for the Association to cure this defect. Although the dismissal judgment was entered without prejudice, the Association's ability to obtain the relief it seeks has been terminated. The dismissal judgment is appealable.

III

[¶9] The Association argues the district court erred when it dismissed the case as moot. The Association does not dispute that the Project has been completed. It instead asserts the case fits within an exception to the mootness doctrine.

A

[¶10] A case is moot when the occurrence of an event or the lapse of time has made it so there is no actual controversy and no effective relief for a court to provide. Estate of Shubert, 2013 ND 215, ¶ 12, 839 N.W.2d 811. A legal opinion issued on an abstract question of law in a moot case is merely advisory. Id. Although some state constitutions permit courts to render advisory opinions, North Dakota's constitution prohibits them. Langer v. State, 284 N.W. 238, 251 (N.D. 1939); see also N.D. Const. art. VI, § 10 (“No duties shall be imposed by law upon the supreme court or any of the justices thereof, except such as are judicial ․”).

[¶11] Opinions on certain types of issues in moot cases are not merely advisory. “Courts will determine a moot issue rather than dismiss an appeal ․ if the controversy is one of great public interest and involves the authority and power of public officials, or if the matter is capable of repetition, yet evading review.” Estate of Shubert, 2013 ND 215, ¶ 12. These are two separate tests. Id. “Whether the matter in controversy is one of great public interest and involves the authority and power of public officials is the test this court has historically employed in resolving mootness issues.” State v. Liberty Nat'l Bank & Tr. Co., 427 N.W.2d 307, 309 n.1 (N.D. 1988). We later adopted, “as an alternate test,” the United States Supreme Court's “capable of repetition, yet evading review” standard. Id.

[¶12] When addressing mootness questions, this Court reviews factual findings under the clearly erroneous standard of review. Tibert v. City of Minto, 2004 ND 97, ¶ 9, 679 N.W.2d 440. “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after reviewing all of the evidence, this Court is convinced a mistake has been made.” Great Plains Royalty Corp. v. Earl Schwartz Co., 2022 ND 156, ¶ 13, 978 N.W.2d 715 (quoting Great Plains Royalty Corp. v. Earl Schwartz Co., 2021 ND 62, ¶ 10, 958 N.W.2d 128). Whether facts and circumstances have created a moot controversy is a legal determination reviewed de novo. Dixon v. Dixon, 2018 ND 25, ¶ 6, 905 N.W.2d 748.

B

[¶13] The public interest exception to mootness may apply when a claim involves a law facilitating scrupulous handling of government affairs. This Court's decision in Forum Publishing Co. v. City of Fargo, 391 N.W.2d 169 (N.D. 1986), is an example of a case involving a law protecting the public's interests in the administration of government. The question was whether a city was legally required to provide a newspaper with information about the applicants for a police chief position. Id. at 170. The city disclosed the information before the litigation concluded. Id. This Court, addressing mootness, explained “public interest” is a term that “means something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected.” Id. (quoting Hart v. Bye, 86 N.W.2d 635, 637 (N.D. 1957)). The Court opted to decide the appeal under the public interest exception to mootness because the question about what information the city was obligated to disclose, “involves the right of the public and community at large to be informed of matters of public concern.” Id. at 171.

[¶14] The public interest exception does not extend to issues that are particular to a specific locality. Our decision in Poochigian v. City of Grand Forks, 2018 ND 144, 912 N.W.2d 344, demonstrates the public interest exception only applies when a legal issue has broader applicability. Electors sought to void a special election on an initiated measure relating to development of a park. Id. ¶¶ 2-4. They claimed the election violated the city's home rule charter and city ordinances because there was only one designated voting location. Id. ¶ 4. They argued that, although the election had already occurred, the issue should be decided under the public interest exception to mootness. Id. ¶ 14. We decided the exception did not apply explaining the case “involves the interpretation of the city ordinances of a particular locality” and noting “the absence of a statutory or constitutional” question. Id. ¶ 15.

[¶15] A dispute, although local, may affect the public interest when it implicates the scope of authority of public officials across the state. Our decision in Schwartzenberger v. McKenzie County Board of County Commissioners, 2017 ND 211, 901 N.W.2d 64, is an example of a case with statewide implications for the conduct of public officials. A county commission voted to discipline a sheriff's deputy. Id. ¶ 2. The sheriff sued to enjoin the commission from taking any action. Id. ¶ 3. The district court denied the request. Id. ¶ 4. The deputy was no longer employed (for unrelated reasons) while the case was on appeal. Id. ¶ 5. We decided the public interest exception applied because the issues in the case were matters “involving the authority of elected county commissioners and elected sheriffs throughout the State.” Id. ¶ 8.

[¶16] We have not directly addressed whether litigation relating to statutes governing competitive bidding for public projects falls within an exception to the mootness doctrine. Other jurisdictions have reached different results. Some courts have dismissed as moot appeals challenging aspects of completed public projects. See, e.g., Plaquemines Port, Harbor & Terminal Dist. v. Dep't of Transp. & Dev., 405 So.3d 695, 701-04 (La. Ct. App. 2024) (collecting cases); Wilson & Wilson v. City Council of Redwood City, 191 Cal. App. 4th 1559, 1576 (2011) (same). Other courts have decided such cases fall within their version of the public interest exception. See, e.g., Rath v. City of Sutton, 673 N.W.2d 869, 881 (Neb. 2004) (explaining competitive bidding requirements “exist solely for the protection of the public” and a decision would “provide guidance to every municipality and state official entrusted with procuring products and services”); R. W. Rhine, Inc. v. City of Tacoma, 536 P.2d 677, 678 (Wash. Ct. App. 1975) (same).

[¶17] This Court's decision in Danzl v. City of Bismarck, 451 N.W.2d 127 (N.D. 1990), did not address mootness directly, but the case indicates challenges related to the bidding process for public projects are matters of great public concern warranting declaratory relief. A taxpayer sought to enjoin a city from proceeding with a construction project on grounds the city violated North Dakota's competitive bidding statutes. Id. at 128. Construction had “moved well along” by the time the case was on appeal. Id. at 131. This Court nonetheless issued an opinion deciding the city violated competitive bidding statutes, id. at 131, and in the course of doing so the Court explained the purpose for such laws:

Statutory competitive bidding requirements are enacted for the benefit of the public and taxpayers to invite competition; to prevent favoritism, fraud, corruption, improvidence, extravagance, and collusion; and to secure the best work or supplies at the lowest price practicable. Competitive bidding requirements promote honesty, economy, and aboveboard dealing in the letting of public contracts.

Id. at 130 (cleaned up). The Court recognized ordering injunctive relief was no longer an option, id. at 131, and consequently affirmed summary judgment in favor of the city. Id. at 132. But the Court awarded the taxpayer costs reasoning he achieved the objective of protecting the public against similar harms in the future:

In view of Danzl's lack of attention toward a remedy for Bismarck's violation of the competitive bidding statutes, we assume that his purpose in bringing suit was to have the invalidity of the proceedings by which the award was made adjudicated and determined as a protection to himself and to the public against similar irregularities in the future. That end is attained by our decision as already announced.

Id. at 133 (cleaned up). We have reiterated our recognition of the public importance of competitive bidding statutes on at least one other occasion. See Baukol Builders, Inc. v. Cnty. of Grand Forks, 2008 ND 116, ¶ 17, 751 N.W.2d 191 (explaining the laws are enacted for the public's benefit).

C

[¶18] West Fargo argues the Association's claims are not the type that will inherently evade review. West Fargo asserts the Association could have avoided mootness by seeking injunctive relief to halt work on the Project while the case was litigated. Adopting West Fargo's position would penalize litigants for refraining to use the legal process to obstruct repairs to public projects. We decline to take that approach.

[¶19] We hold the public interest exception to mootness applies in this case. Like the law in Forum Publishing Co., 391 N.W.2d 169, the purpose of the N.D.C.C. ch. 48-01.2 competitive bidding statutes is to protect the public's interests in relation to the administration of government. Unlike Poochigian, 2018 ND 144, the statutes here have statewide applicability and are not specific to a certain locality. Similar to Schwartzenberger, 2017 ND 211, a decision will provide guidance applicable to public officials overseeing political subdivisions across the State. In Danzl, 451 N.W.2d 127, under similar circumstances, this Court issued the type of declaratory relief the Association seeks. The district court erred when it dismissed the case.

IV

[¶20] The Association argues the district court abused its discretion when it denied leave to amend the complaint to seek declaratory relief challenging Ordinance No. 1257, which West Fargo adopted after the Project was completed. The Association asserts the court erroneously determined the Association lacked standing. The Association argues it has standing under N.D.C.C. ch. 32-23 to seek declaratory relief on behalf of its members.

A

[¶21] The Uniform Declaratory Judgment Act, N.D.C.C. ch. 32-23, authorizes courts “to declare rights, status, and other legal relations whether or not further relief is or could be claimed.” N.D.C.C. § 32-23-01. Section 32-23-02, N.D.C.C., states:

Any person ․ whose rights, status, or other legal relations are affected by a ․ municipal ordinance ․ may have determined any question of construction or validity arising under the ․ ordinance ․ and may obtain a declaration of rights, status, or other legal relations thereunder.

The Act was adopted in 1923 with the intent of providing a means for litigants to have controversies “determined by a court in advance of any invasion of rights, or breach of obligation.” Langer, 284 N.W. at 244. Its purpose is to relieve litigants of the ordinary rule requiring an injury before relief. Id. The Act is “remedial” and must “be construed and administered liberally.” N.D.C.C. § 32-23-12.

[¶22] Plaintiffs must demonstrate standing for each type of relief they seek. Nw. Landowners Ass'n v. State, 2025 ND 147, ¶ 9, 25 N.W.3d 220. The declaratory judgment statutes do not displace ordinary jurisdictional requirements. State v. J.P. Lamb Land Co., 359 N.W.2d 368, 369 (N.D. 1984); see also N.D. Const. art. VI, § 8 (providing for the jurisdiction of district courts); N.D.C.C. § 32-23-01 (a court “within its jurisdiction” has the power to declare rights); N.D.C.C. § 27-05-06 (jurisdiction of district courts). The following “prerequisites” must be satisfied for a court to issue declaratory relief:

(1) there must exist a justiciable controversy; that is to say, a controversy in which a claim of right is asserted against one who has an interest in contesting it; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must have a legal interest in the controversy, that is to say, a legally protectible interest; and (4) the issue involved in the controversy must be ripe for judicial determination.

Kauk v. Kauk, 2017 ND 118, ¶ 9, 895 N.W.2d 295 (quoting Great N. Ry. Co. v. Mustad, 33 N.W.2d 436, 442 (N.D. 1948)); see also Langer, 284 N.W. at 245.

[¶23] The Act specifically permits certain types of associations to seek declaratory relief on behalf of their members:

Any trade or professional association authorized to do, and doing, business in the state and whose members are licensed and regulated by state or federal agencies has standing to bring an action for declaratory judgment to determine any question of construction or validity of any statute, ordinance, resolution, rule, or regulation that threatens to injure its members.

N.D.C.C. § 32-23-11. The statute's requirement that a trade or professional association's members be threatened with injury mirrors our general standing requirements. See Rebel v. Nodak Mut. Ins. Co., 1998 ND 194, ¶ 8, 585 N.W.2d 811 (explaining standing is the concept used to determine whether a party is sufficiently affected to ensure a justiciable controversy exists).

[¶24] In this case, the district court decided the Association lacks standing to challenge the ordinance because there was no evidence West Fargo “has exercised authority under the ordinance ․” However, future action contemplated by a municipality, although not yet taken, may constitute a threat of injury providing standing to seek declaratory relief. For example, in Park District City of Fargo v. City of Fargo, 129 N.W.2d 828 (N.D. 1964), a school petitioned a city to close a portion of a public street. The park district filed suit before the petition was granted and alleged closure of the street would cause harm by eliminating access to a park. Id. at 829-30. The park district sought declaratory relief challenging the validity of the petition. Id. at 829-30. The district court dismissed the complaint as “premature” on grounds the city had not completed vacation of the public street. Id. at 830. This Court reversed the dismissal judgment deciding the city's “contemplated acts” relating to the road closure constituted an actual controversy. Id. at 831. The Court explained the purpose of the Uniform Declaratory Judgment Act was to provide a means for determining controversies before rights are invaded and that “[i]t was not necessary for the plaintiff to wait until its rights were actually invaded to commence such an action.” Id.

[¶25] West Fargo asserts Northwest Landowners, 2025 ND 147, supports the district court's conclusion that the Association lacks standing. In that case, a landowner organization sought declaratory and injunctive relief challenging laws related to underground pore space storage projects. Id. ¶ 5. The organization argued a provision permitting the North Dakota Industrial Commission to grant exceptions to statutory requirements constituted an improper delegation of power. Id. ¶ 10. The organization also claimed provisions relating to underground storage of oil and gas were unconstitutional. Id. ¶ 11. We held the organization had not demonstrated standing to bring the claims. Id. ¶¶ 10-11. As to the non-delegation claim, we explained there was no evidence an exception had ever been requested. Id. ¶ 10. As to the other claim, we explained none of the organization's members had interests in lands where an oil and gas storage project had been proposed. Id. ¶ 11. We decided the organization had standing to challenge other laws relating to underground carbon dioxide storage projects because it had members who owned interests where projects had been permitted or approved. Id. ¶ 12.

[¶26] The Association's challenge to West Fargo's ordinance is different than the claims in Northwest Landowners. Nothing in that decision indicates the landowner group was a trade or professional association with members licensed and regulated by the State, and consequently the case was not decided under N.D.C.C. § 32-23-11. The threat of injury here also is not hypothetical like the claims in Northwest Landowners. The Association alleges West Fargo, by its course of conduct in administering the Project, has already acted consistent with the ordinance. The Association's allegation that the ordinance now authorizes the type of conduct that has already occurred is demonstrative of a real controversy. Unlike the plaintiff in Northwest Landowners, whose members had no interests in property affected by the challenged law, the Association's members have an interest in contesting the ordinance. The Association's members include construction contractors, with state licensure, who may bid on public projects. They are not merely raising a generalized grievance.

[¶27] The district court erred as a matter of law when it decided the Association lacks standing to challenge Ordinance No. 1257 because West Fargo had not yet invoked its authority. The circumstances in this case demonstrate the ordinance presents a threat to the interests of the Association's members and there is an actual controversy concerning its validity. However, our holding does not necessarily mean the Association is entitled to amend its complaint. The district court has “wide discretion” when determining whether to grant leave to amend. Ward Farms P'ship v. Enerbase Co-op Res., 2015 ND 136, ¶ 25, 863 N.W.2d 868. A motion to amend filed after the summary judgment stage must be “solidly grounded in the record” and not just “theoretically viable.” Darby v. Swenson Inc., 2009 ND 103, ¶¶ 12-13, 767 N.W.2d 147 (quoting Hatch v. Dep't for Child., Youth & Their Families, 274 F.3d 12, 19 (1st Cir. 2001)). Given our decision that the claims in this case fit within an exception to mootness and our determination the Association has standing to challenge Ordinance No. 1257, we instruct the court to reconsider on remand whether leave to amend is appropriate.

V

[¶28] The Association requests a decision on the merits of its claims despite the district court not adjudicating them. “The purpose of an appeal is to review the actions of the district court. Resolution of issues by the district court before appellate review contributes valuable input to the process, and develops the record for effective review of the decision.” Kath v. Prochnow, 2024 ND 112, ¶ 9, 8 N.W.3d 295 (cleaned up). We will not adjudicate the merits of the case for the first time on appeal.

VI

[¶29] The claims in this case fall within the public interest exception to mootness because the competitive bidding laws are designed to protect the public and a decision will guide public officials administering political subdivisions across the state. The Association has standing to challenge Ordinance No. 1257 because it has alleged facts demonstrating the ordinance presents a threat to its members’ interests. Standing alone does not warrant leave to amend a complaint. The dismissal judgment is reversed, and the case is remanded for further proceedings.

[¶30] Lisa Fair McEvers, C.J.

Jerod E. Tufte

Jon J. Jensen

Douglas A. Bahr

Richard L. Hagar, D.J.

[¶31] The Honorable Richard L. Hagar, District Judge, sitting in place of Friese, J., disqualified.

FOOTNOTES

1.   Section 48-01.2-02.1(1), N.D.C.C., was amended, effective July 1, 2025, to increase the threshold to $250,000. See 2025 N.D. Sess. Laws ch. 195, § 5.

Opinion of the Court by Jensen, Justice.