Nordquist v. Alonge

1

2024 ND 157

Benjamin J. Nordquist, Petitioner and Appellant v. Jessica Alonge, Stutsman County Auditor, Maureen McGilvrey, Stutsman County Recorder, and Stutsman County, a Politicial Subdivision of the State of North Dakota, Respondents and Appellees

No. 20230329

Supreme Court of North Dakota

August 1, 2024

Appeal from the District Court of Stutsman County, Southeast Judicial District, the Honorable Nicholas D. Thornton, Judge.

Joseph F. Larson II, Jamestown, ND, for petitioner and appellant.

Brian D. Schmidt (argued) and Scott K. Porsborg (on brief), Special Assistant State's Attorneys, Bismarck, ND, for respondents and appellees.

OPINION

BAHR JUSTICE.

[¶1] Benjamin Nordquist appeals a judgment dismissing his petition for a writ of mandamus. We conclude the district court abused its discretion by determining the land conveyed in the 2018 and 2021 quitclaim deeds. We affirm the court's denial of Nordquist's petition. We affirm in part and reverse in part.

I

[¶2] Diane and Duane Witzig owned Witzig's Fifth Addition located in Stutsman County near Jamestown. The Witzigs had the land surveyed and platted into three lots in 2014. The plat provided a "metes and bounds" boundary description to identify the 60.14 acres being platted. See Metes and Bounds, Black's Law Dictionary 1184 (12th ed. 2024) (defining "metes and bounds" as "[t]he territorial limits of real property as measured by distances and angles from designated landmarks and in relation to adjoining properties;" "The method of describing a tract by limits so measured, esp. when the descriptions of the limits are arranged as a series of instructions that, if followed, result in traveling along the tract's boundaries"). The plat map depicts and sets forth three streets. The plat designates "6TH Street SW" as the north 60 feet of Witzig's Fifth Addition except the east 33 feet which the plat designates as "17TH Avenue SW." The plat designates "10TH Street SW" as the south 60 feet of Witzig's Fifth Addition, except the east 33 feet which the plat designates as "17TH Avenue SW." The plat designates three lots and auditor's lots. The plat then provides the following "New Description: Lots 1 through 3, Block 1 of Witzig's Fifth Subdivision, being within Midway Township Stutsman County, Extraterritorial Lands of the City of Jamestown, North Dakota." The signed owner's certificate of approval and dedication reads:

Duane G. Witzig and Diane M. Witzig being the Owners and Proprietors of the above described tract of land has caused said tract of land to be platted as 'Witzig's Fifth Subdivision' shown on the plat and do hereby agree to said platting and dedication of 17^th Avenue SW as shown.

The streets depicted on the plat map as 6th Street SW and 10th Street SW are not dedicated in the certificate of approval and dedication. The "New Description" does not mention the three streets depicted on the plat map.

[¶3] Duane Witzig passed away in 2015. In 2018, Diane Witzig deeded the three lots to Gannon Van Gilder and Levi Hintz as joint tenants; they recorded the deed. The deed was to Lots 1, 2 and 3, Block 1 of Witzig's Fifth Subdivision, less and except the auditor's lots. Levi Hintz and Alecia Hintz, husband and wife, deeded their interest in the three lots to Gannon Van Gilder and Brandi Van Gilder, husband and wife, in 2021, who recorded the deed. Again, the deed was to Lots 1, 2 and 3, Block 1 of Witzig's Fifth Subdivision, less and except the auditor's lots. In 2022, Witzig provided a quitclaim deed to Nordquist for "[t]he North 60.00 feet, less and except the East 33.00 thereof, of Witzig's Fifth Subdivision[.]" The deed also described the conveyed land using metes and bounds. The North 60.00 feet, less the East 33.00, of Witzig's Fifth Subdivision is depicted as 6th Street SW on the plat map.

[¶4] Nordquist attempted to record the quitclaim deed with Stutsman County. The Recorder refused to record the deed without a certificate of transfer statement from the Auditor. The Recorder explained: "Upon my initial review, the property description in the Quit Claim Deed did not match any previously recorded property descriptions in the Witzig's Fifth Addition plat. The Quit Claim Deed changed the current property description and also defined a platted parcel by metes and bounds." Thus, the Recorder did not record the deed and instead forwarded it to the Auditor.

[¶5] After receiving Nordquist's quitclaim deed, the Auditor reviewed it to determine if she could affix the certificate of transfer statement. When reviewing the deed, she "noticed various irregularities." The first irregularity noticed by the Auditor "was that the description of property on the Quitclaim Deed had never been described before in any filing with the County." She explained: "After I reviewed the property description, it was apparent after reviewing the plat that the portion of the land attempted to be conveyed in the Quit Claim Deed was already contained in the 'New Description' on the Plat for Witzig's Fifth Addition." Thus, "[i]t appeared [to the Auditor] the Quit Claim Deed attempted to change an existing property description." The Auditor further explained:

[S]ince Witzig's Fifth Addition had already been platted into block and lots, this Quit Claim Deed appeared to try to convey interest in portions of 3 separate previously identified lots on the plat. It was incredibly difficult to ascertain how the Quit Claim Deed would interact with the existing property description. I believed it would have been appropriate to replat the property to account for this new property description.

[¶6] The second irregularity noticed by the Auditor is Diane Witzig previously conveyed Lots 1, 2 and 3, Block 1 of Witzig's Fifth Addition to Gannon Van Gilder and Levi Hintz by warranty deed recorded in June 2018, and Levi Hintz conveyed Lots 1, 2 and 3, Block 1 of Witzig's Fifth Addition to Gannon Van Gilder by quitclaim deed recorded in February 2021.

[¶7] "As a result of these two irregularities," the Auditor explained, "there was substantial confusion in attempting to ascertain the property being conveyed in Nordquist's Quit Claim Deed." That is because "the description in the Quit Claim Deed changed the current property description," and "it did not appear Diane Witzig . . . had any ownership in Witzig's Fifth Addition after it was conveyed by the Warranty Deed recorded" in June 2018. Thus, the Auditor concluded she "could not accurately evaluate the property identified in the Quit Claim Deed to issue the Auditor's Certificate" unless the "property was replatted to account for the description on the Quit Claim Deed and clarity could be provided to ascertain ownership of the property[.]"

[¶8] The Recorder provided Nordquist the following reasons for not recording the quitclaim deed: "The legal description contained in the deed is not a valid legal description in Stutsman County"; "The legal description you've attempted to create is part of property previously deeded by Diane Witzig to Gannon Van Gilder"; "The Auditor's Office cannot accept a new metes and bounds description and would require the land be surveyed and platted and the plat thereof recorded"; and "Each real estate instrument must have a legal description considered to be adequate by the recorder before such instrument will be accepted for recording."

[¶9] Nordquist filed a petition for writ of mandamus requesting the district court issue a writ of mandamus requiring the Auditor "to sign certificate of transfer statement on the Quit Claim Deed dated November 14, 2022" and the Recorder "to record the Quit Claim Deed dated November 14, 2022[.]" After briefing and oral argument, the court entered an order and judgment denying the writ with prejudice.

II

[¶10] "A petitioner for a writ of mandamus must show a clear legal right to performance of the act sought to be compelled and must establish no plain, speedy, and adequate remedy exists in the ordinary course of law." Burgum v. Jaeger, 2020 ND 251, ¶ 10, 951 N.W.2d 380 (quoting Onstad v. Jaeger, 2020 ND 203, ¶ 8, 949 N.W.2d 214). "To be enforceable by mandamus, the law must require an act to be done; mandamus cannot compel an official's discretionary actions." Berg v. Jaeger, 2020 ND 178, ¶ 9, 948 N.W.2d 4. "The decision to issue a writ of mandamus is left to the sound discretion of the district court." Kalvoda v. Bismarck Pub. Sch. Dist. #1, 2011 ND 32, ¶ 20, 794 N.W.2d 454. This Court will not reverse a district court's denial of a writ of mandamus absent an abuse of discretion. Larson v. N.D. Workforce Safety & Ins., 2022 ND 118, ¶ 17, 975 N.W.2d 552. "A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or it misinterprets or misapplies the law." Id.

III

A

[¶11] Nordquist argues the quitclaim deed did not change the legal description of the property.

[¶12] One of a recorder's duties is to record and file instruments. N.D.C.C. § 11-18-01. "[R]ecording documents is a ministerial action on the part of a county recorder." Capps v. Weflen, 2014 ND 201, ¶ 22, 855 N.W.2d 637; see also Loran v. Iszler, 373 N.W.2d 870, 874 (N.D. 1985) (referring to "the ministerial action of recording a mortgage"). Under N.D.C.C. § 11-18-02, a recorder may not record a deed that changes the current property description absent the auditor's certificate of transfer statement. Section 11-18-02 provides, in part:

Except as otherwise provided in section 11-18-03, the recorder shall refuse to receive or record any deed contract for deed, plat, replat, patent, auditor's lot or any other instrument that changes the current property description unless there is entered thereon a certificate of the county auditor showing that a transfer of the lands

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