Newman Signs, Inc. v. BackesCivil No. 880377

Erickstad, Chief Justice.

The State Highway Commissioner and the North Dakota Highway Corridor Board [hereinafter "the State"] appeal from a district court judgment requiring the State to compensate Newman Signs, Inc. ["Newman"] for thirteen signs which have been inversely condemned. Newman has cross-appealed from that part of the judgment denying Newman's requested damages for leasehold interests and attorney's fees.

The factual and procedural history of this case are fully discussed in Newman Siqns, Inc. v. Hielle, 268 N.W.2d 741 (N.D. 1978), appeal dismissed, 440 U.S. 901, 99 S.Ct. 1205, 59 L.Ed.2d 449 (1979), and Newman Signs, Inc. v. Hjelle, 317 N.W.2d 810 (N.D. 1982).

The State asserts on appeal that the trial court erred in ordering compensation for thirteen signs which have never been removed. The trial court determined that its 1980 judgment had held those signs to be inversely condemned.1 The court in essence held that its 1980 judgment was the law of the case on this issue. We determine that there has been no reversible error of law as to this issue and affirm under Rule 35.1(a), N.D.R.App.P.

Newman raises two issues on its cross-appeal. Newman asserts that the trial court erred in failing to award damages based upon the value of its leasehold interests. The owner of Newman Signs testified to his opinion of the value of the leasehold interests in the sites for its signs. An expert called by the State testified that the leasehold interests had no value. Based upon this conflicting expert testimony, the trial court determined that Newman had failed to sustain its burden of proving value of the leasehold interests. We determine that as to this issue there is no reversible error of law and the trial court's findings of fact are not clearly erroneous, and we affirm pursuant to Rule 35.1(a)(2), N.D.R.App.P.

Newman asserts that the trial court erred in failing to award Newman its attorney's fees expended in this action. The trial court concluded that the parties had waived any right to recover attorney's fees based upon a 1982 stipulation which had been incorporated into a subsequent judgment. We determine that there has been no reversible error of law and we affirm under Rule 35.1(a), N.D.R.App.P.

The judgment of the district court is affirmed.

Ralph J. Erickstad, C. J.
Beryl J. Levine
Herbert L. Mescke

H.F. Gierke III
A. C. Bakken, S. J.

Bakken, S. J., sitting in place of VandeWalle, J., disqualified.

Footnotes:

1. This litigation was commenced in 1974. The trial court severed the issue of damages, and the case went to trial on the issue of liability. See Newman Signs, Inc. v. Hjelle, supra, 317 N.W.2d at 812. This resulted in the judgment of September 30, 1980, which we affirmed in our 1982 opinion. Newman Signs, Inc. v. Hjelle, supra. The current appeal arises from the subsequent trial on damages. In a memorandum opinion, the trial court discussed the effect of its 1980 judgment:

"The determination of inverse condemnation was made by that Partial Judgment. The State cannot be heard at this late date to claim they do not wish to condemn the property or signs. The proceedings held before this Court in June of 1983, dealt only with Count 6 of Plaintiff's Complaint dealing with compensation. All other issues had been determined."

There was also a question raised at oral argument whether the 1980 judgment covered all thirteen signs or only eleven signs. The confusion apparently arose because two of the signs in question were double-sided, and each sign face was given a number. Thus, there are eleven structures but thirteen sign faces. The trial court's findings, conclusion, and judgment clarify this matter, and the court awarded compensation for each double-faced sign as a single unit.

Finally, we note that if the State is arguing that the trial court's findings of fact regarding damages are in error, we have reviewed the findings and we are not convinced that they are clearly erroneous.