                 Filed 1/23/20 by Clerk of Supreme Court

                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                               2020 ND 20

Gene Vincent Hondl,                                   Plaintiff and Appellant
     v.
State of North Dakota and Stark County,            Defendants and Appellees



                               No. 20190099

Appeal from the District Court of Stark County, Southwest Judicial District,
the Honorable James D. Gion, Judge.

VACATED AND REMANDED.

Opinion of the Court by VandeWalle, Justice.

Gene Vincent Hondl, self-represented, Lexington, KY, plaintiff and appellant;
on brief.

Brittney A. Bornemann, Assistant State’s Attorney, Dickinson, ND, for
defendants and appellees; on brief.
                               Hondl v. State
                               No. 20190099

VandeWalle, Justice.

[¶1] Gene Hondl appealed from an order that granted the State’s motion to
dismiss his “motion for writ of replevin” and dismissed his case with prejudice.
We vacate the order and remand for further proceedings.

                                       I

[¶2] On January 23, 2019, Hondl filed a “motion for writ of replevin” in the
district court, in addition to filing a notice of motion, motion for evidentiary
hearing, motion for appointment of counsel, and a certificate of service. Hondl
named the State and Stark County as defendants (collectively, “the State”),
seeking the return of certain personal property seized when he was arrested
on drug charges and forfeited in separate civil forfeiture proceedings. Hondl’s
certificate of service indicates the documents were served by U.S. Mail on
December 28, 2018.

[¶3] On February 5, 2019, the State served and filed an answer and response
to the motions, in addition to its motion to dismiss with supporting documents.
In seeking a dismissal, the State alternatively asserted that Hondl did not
appropriately serve or commence an action with proper pleadings under the
North Dakota Rules of Civil Procedure and that the issues Hondl seeks to
address were previously adjudicated in prior civil forfeiture proceedings filed
in 2017, leading to a 2018 judgment that was not appealed.

[¶4] On February 19, 2019, the district court entered its order dismissing the
matter with prejudice. The order stated: “The Court, having reviewed the
Motion to Dismiss brought by the State of North Dakota and Stark County, it
is hereby ORDERED that the Motion is GRANTED. The Plaintiff’s Motions for
Evidentiary Hearing and for Writ of Replevin are hereby DENIED and the
matter is DISMISSED WITH PREJUDICE.”




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                                       II

[¶5] This Court reviews a district court’s decision granting a motion to
dismiss de novo. See Great W. Cas. Co. v. Butler Mach. Co., 2019 ND 200, ¶ 5,
931 N.W.2d 504. A motion to dismiss under N.D.R.Civ.P. 12(b)(6) tests the
legal sufficiency of the claim presented in the complaint. Great W. Cas. Co., at
¶ 5. On appeal this Court construes the complaint in the light most favorable
to the plaintiff and accepts as true the well-pleaded allegations in the
complaint. Id.

                                       III

[¶6] To the extent Hondl’s “motion for writ of replevin” is an attempt to
commence a replevin action, this Court has said that “[a] claim and delivery
action under N.D.C.C. ch. 32-07 is the proper action to recover possession of
personal property.” Hildenbrand v. Capital RV Ctr., Inc., 2011 ND 37, ¶ 12,
794 N.W.2d 733 (citing Dickinson v. First Nat’l Bank, 64 N.D. 273, 285, 252
N.W. 54, 59 (1933)).

[¶7] A claim and delivery action to recover possession of personal property “is
a modified form of the old common-law action of replevin.” Dickinson, 252 N.W.
at 59; see N.D.C.C. § 1-01-06 (“In this state there is no common law in any case
in which the law is declared by the code.”); see also 66 Am.Jur.2d Replevin § 3
(2011) (“In some jurisdictions, the state’s claim and delivery statutes replaced
the common-law action of replevin.”); 77 C.J.S. Replevin § 2 (2017) (“The action
of replevin is not generally a common-law action any longer, and is now usually
based on the applicable state statute.”). This Court has also explained,
however, that it is well established that “replevin will not lie for goods in the
custody of the law,” and “claim and delivery will not lie to recover possession
of property seized by [the government under] an act of the legislature.” State
v. One Black 1989 Cadillac, 522 N.W.2d 457, 465 (N.D. 1994) (quoting Shaide
v. Brynjelfson, 78 N.D. 531, 539, 50 N.W.2d 500, 504 (1951)); see 66 Am.Jur.2d
Replevin § 3 (“[C]laim and delivery will not lie to recover possession of a
property seized by the government.”).




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[¶8] Hondl’s arguments on appeal challenge the district court’s purported
errors and alleged bias or conflict of interest in the prior civil forfeiture
proceedings. He essentially attempts to collaterally attack the judgment from
the prior proceeding. The State responds, as it did in its motion to dismiss,
that Hondl’s case was not properly commenced and his case was properly
dismissed as an attempt to relitigate matters previously adjudicated. In its
motion to dismiss, the State provided the court with alternate grounds: 1)
failure to commence an action by properly serving a summons, and 2) res
judicata.

[¶9] In its order, the district court did not provide the grounds or any
explanation for its dismissal with prejudice. If the court dismissed the matter
based on Hondl’s failure to properly serve the State, see N.D.R.Civ.P. 4(d)(2)(E)
and 4(d)(2)(F), the order of dismissal should have been “without prejudice.” See
Riemers v. State, 2006 ND 162, ¶ 10, 718 N.W.2d 566 (“Absent personal
jurisdiction, ‘the court is powerless to do anything beyond dismissing without
prejudice.’”). If the court dismissed with prejudice on the basis of res judicata,
that disposition requires consideration of matters beyond the pleadings,
including the earlier civil forfeiture proceedings, rendering a dismissal on the
pleadings inappropriate. See N.D.R.Civ.P. 12(d); Mills v. City of Grand Forks,
2012 ND 56, ¶ 7, 813 N.W.2d 574 (“If . . . matters outside the pleadings are
presented to and not excluded by the district court, the motion [must be]
treated as a motion for summary judgment under N.D.R.Civ.P. 56.”).

[¶10] Our decision in Franciere v. City of Mandan, 2019 ND 233, 932 N.W.2d
907, is dispositive of this case. In Franciere, at ¶ 7, the district court dismissed
an action with prejudice after finding the case was moot, without ruling on the
City’s request to dismiss the case for insufficient service of process and lack of
personal jurisdiction. However, because “a determination of subject matter
and personal jurisdiction must precede any dismissal with prejudice,” we
vacated the judgment and remanded for the court to decide the motion to
dismiss for insufficiency of service of process and lack of personal jurisdiction.
Id. at ¶¶ 12-13.




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[¶11] Here, the district court dismissed the case with prejudice without
providing any explanation. We therefore vacate the order and remand for the
court to decide the State’s motion to dismiss for insufficiency of service of
process and lack of personal jurisdiction.

                                     IV

[¶12] The order is vacated, and the case is remanded.

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




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