                    Filed 5/7/20 by Clerk of Supreme Court

                    IN THE SUPREME COURT
                    STATE OF NORTH DAKOTA

                                 2020 ND 105

Alan J. Albrecht,                                        Plaintiff and Appellant
      v.
Mark Albrecht,                                           Defendant and Appellee
    and
Kim Albrecht,                                                        Defendant



                                 No. 20190222

Appeal from the District Court of Stutsman County, Southeast Judicial
District, the Honorable Troy J. LeFevre, Judge.

AFFIRMED.

Opinion of the Court by McEvers, Justice.

Alan J. Albrecht, Blaine, MN, plaintiff and appellant.

Kasey D. McNary, Fargo, ND, for defendant and appellee.
                           Albrecht v. Albrecht
                              No. 20190222

McEvers, Justice.

[¶1] Alan Albrecht appeals from a district court judgment dismissing his
complaint against Mark Albrecht with prejudice. We conclude Alan Albrecht
lacks standing to bring the action. We affirm.

                                      I

[¶2] The background for this case stems from prior litigation in the divorce
proceedings of Glen and Sharleen Albrecht, who are the parents of Alan
Albrecht and Mark Albrecht, see Albrecht v. Albrecht, 2014 ND 221, 856
N.W.2d 755, and continuing in the probate of Sharleen Albrecht’s estate, see
In re Estate of Albrecht, 2020 ND 27, 938 N.W.2d 151; In re Estate of Albrecht,
2018 ND 67, 908 N.W.2d 135.

[¶3] In this case, Alan Albrecht served a summons and complaint on Mark
Albrecht in December 2018, naming his brother and brother’s wife as
defendants and alleging contempt of court and unjust enrichment. He alleges
that, while Glen and Sharleen Albrecht’s divorce was pending and restraining
provisions were in effect, their late-mother Sharleen Albrecht changed the
beneficiary designation on an investment account owned by her, removing
Alan Albrecht as one of the beneficiaries and naming only Mark Albrecht as
the transfer-on-death beneficiary. He further alleges that, in contravention of
the divorce summons and interim order’s restraining provisions, Sharleen
Albrecht liquidated the investment account and the proceeds from the
liquidated account were subsequently transferred to Mark Albrecht after
Sharleen Albrecht’s death.

[¶4] Mark Albrecht answered and moved to dismiss the complaint. Alan
Albrecht moved for summary judgment. In May 2019, the district court held a
hearing on the motion to dismiss. The court declined to hear the summary
judgment motion at that time. In June 2019, the court dismissed the complaint
in its entirety with prejudice, and judgment was subsequently entered.



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                                       II

[¶5] Our standard for reviewing a district court’s decision under N.D.R.Civ.P.
12(b)(6) dismissing a complaint for failure to state a claim is well established:

            A motion to dismiss a complaint under N.D.R.Civ.P.
      12(b)([6]) tests the legal sufficiency of the statement of the claim
      presented in the complaint. Under N.D.R.Civ.P. 12(b)([6]), a
      complaint should not be dismissed unless it is disclosed with
      certainty the impossibility of proving a claim upon which relief can
      be granted. On appeal, the complaint must be construed in the
      light most favorable to the plaintiff, taking as true the well-
      pleaded allegations in the complaint. We will affirm a judgment
      dismissing a complaint for failure to state a claim if we cannot
      discern a potential for proof to support it.

In re Estate of Dionne, 2013 ND 40, ¶ 11, 827 N.W.2d 555 (internal quotation
marks and citations omitted) (emphasis added); see also Hale v. State, 2012 ND
148, ¶ 13, 818 N.W.2d 684. This Court reviews the district court’s decision
granting a motion to dismiss under N.D.R.Civ.P. 12(b)(6) de novo. In re Estate
of Nelson, 2015 ND 122, ¶ 5, 863 N.W.2d 521.

[¶6] A claim should not be dismissed under N.D.R.Civ.P. 12(b)(6) unless it
appears beyond a doubt the plaintiff can prove no set of facts in support of the
claim which would entitle the plaintiff to relief. Bala v. State, 2010 ND 164, ¶
7, 787 N.W.2d 761. This Court will affirm a dismissal of the claim only if it
cannot discern a potential for proof to support it. Moseng v. Frey, 2012 ND 220,
¶ 5, 822 N.W.2d 464.

                                      III

[¶7] Alan Albrecht argues the district court erred in granting the motion to
dismiss with prejudice. He argues that the court failed to exercise independent
judgment by adopting the personal representative’s findings, conclusions and
order; that Sharleen Albrecht was prohibited from changing the beneficiary on
the investment account under restraining provisions of the summons and the
interim order in place in the divorce action; and that the court erred in



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concluding he did not have standing to bring the lawsuit and erred in
dismissing the suit as a claim for contempt.

[¶8] The dispositive issue is whether Alan Albrecht has standing in this
action to seek relief for Sharleen Albrecht’s alleged violation of the summons
and interim order in the divorce action.

[¶9] To have standing to litigate an issue, a party must have suffered some
injury from the putatively illegal action and must assert the party’s own legal
rights and interests. In re J.D.F., 2010 ND 160, ¶ 14, 787 N.W.2d 738; see also
McColl Farms, LLC v. Pflaum, 2013 ND 169, ¶ 10, 837 N.W.2d 359 (holding
plaintiff did not have standing to raise any issues about whether the court
erred in deciding a non-appealing party’s claims on the merits or ordering
sanctions).

[¶10] “The litigant must have an interest, either in an individual or
representative capacity, in the cause of an action, or a legal or equitable right,
title, or interest in the subject matter of the controversy in order to invoke the
jurisdiction of the court.” Whitecalfe v. N.D. Dep’t of Transp., 2007 ND 32, ¶
15, 727 N.W.2d 779. Standing involves a two-prong inquiry:

      First, the plaintiff must have suffered some threatened or actual
      injury resulting from the putatively illegal action. Secondly, the
      asserted harm must not be a generalized grievance shared by all
      or a large class of citizens; the plaintiff generally must assert his
      own legal rights and interests, and cannot rest his claim to relief
      on the legal rights and interests of third parties.

Id. at ¶ 16 (quoting Flatt v. Kantak, 2004 ND 173, ¶ 38, 687 N.W.2d 208
(citations omitted)). Whether a party has standing to litigate an issue presents
a question of law, which we review de novo. Whitecalfe, at ¶ 15.

[¶11] In its June 2019 order, the district court addressed multiple grounds for
dismissing the complaint. The court held Alan Albrecht failed to allege facts
sufficient to support a claim for unjust enrichment against Mark Albrecht; that
the divorce summons and interim order did not prohibit the conduct Alan
Albrecht alleges gives rise to a claim for unjust enrichment; and that, to the


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extent his claim could be construed as one for contempt of court, that claim
must be dismissed because contempt actions must be prosecuted in the same
case in which the contempt occurred.

[¶12] The district court also concluded that Alan Albrecht lacked standing to
seek redress based on the alleged violation of the summons or interim order in
the divorce action between Glen and Sharleen Albrecht. The court held Alan
Albrecht never had a vested interest in the investment account and the
summons and interim order were not entered for Alan Albrecht’s protection.
The court held Alan Albrecht’s claim failed under N.D.C.C. § 30.1-31-08
because the account did not exist at the time of Sharleen Albrecht’s death and
he never acquired an interest in the “sums on deposit.”

[¶13] We note courts have held, in some circumstances, that a plaintiff has
standing to sue when beneficiary designations on P.O.D. accounts have been
changed due to allegations of constructive fraud, undue influence, or lack of
testamentary capacity. See, e.g., In re Estate of Owens, 413 P.3d 255, 261 (Colo.
Ct. App. 2017); Crosby v. Luehrs, 669 N.W.2d 635, 648 (Neb. 2003). Standing
is proper for the court to have jurisdiction to grant equitable relief when
appropriate, e.g., to impose a constructive trust and to review a plaintiff’s
claims. See Owens, at 261. Nevertheless, the present action is distinguishable.

[¶14] Here, Alan Albrecht’s complaint challenges Sharleen Albrecht’s alleged
conduct and transfers during her lifetime while the prior divorce action was
pending. The summons and interim order’s restraining provisions in the
divorce apply to and are generally for the benefit of the parties to the divorce
action. While Alan Albrecht appears to claim an interest in the investment
account as a beneficiary, under N.D.C.C. § 30.1-31-08(3), “[a] beneficiary in an
account having a P.O.D. designation has no right to sums on deposit during
the lifetime of any party.” Alan Albrecht had no vested interest to the sums in
the investment account at the time of alleged beneficiary change and
subsequent account liquidation, therefore,          under these facts and
circumstances, he lacks standing under N.D.C.C. § 30.1-31-08(3).




                                       4
[¶15] On its face, this action seeks to vindicate the interest of Glen Albrecht in
the divorce action. Under our two-prong inquiry for standing, even assuming
Alan Albrecht “suffered some threatened or actual injury resulting from the
putatively illegal action,” we conclude he is not “assert[ing] his own legal rights
and interests,” but rather his claims rest on the legal rights and interests of a
third party, Glen Albrecht, in the divorce action. See McColl Farms, 2013 ND
169, ¶ 10, 837 N.W.2d 359; Whitecalfe, 2007 ND 32, ¶ 16, 727 N.W.2d 779. We
therefore conclude Alan Albrecht lacks standing to bring this separate action,
seeking relief for his mother’s alleged violations of the parents’ divorce action’s
restraining provisions.

                                       IV

[¶16] We have considered Alan Albrecht’s remaining arguments and deem
them without merit or unnecessary to our opinion. The judgment is affirmed.

[¶17] Lisa Fair McEvers
      Gerald W. VandeWalle
      Jon J. Jensen, C.J.
      Daniel J. Crothers
      Jerod E. Tufte




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