Wangler v. Lerol

VANDE WALLE, Chief Justice,

concurring specially.

[¶ 32] I authored the opinion in State Bank of Kenmare v. Lindberg, 471 N.W.2d 470 (N.D.1991) for the Court. In that case we did review the merits of the argument of the appellants “contained in their original counterclaim even though it was not raised in their amended counterclaim,” while citing Dahl v. Winter-Truesdell-Diercks Co., 62 N.D. 351, 243 N.W. 812 (1932) for the proposition ascribed by the majority opinion.

[¶ 33] With one exception I agree with the majority’s reliance on the federal cases which refuse to require a plaintiff to re-plead dismissed claims to preserve the right to appeal the dismissal. My exception concerns whether the defendant understands the plaintiff has not repleaded the dismissed claim solely because it was dismissed and not for other reasons such as a new theory of the cause of action or a concession on the plaintiffs part, that the trial court was legally correct in its rea*841sons for dismissing the claim. While a “rule requiring plaintiffs who file amended complaints to replead claims previously dismissed on their merits in order to preserve those claims merely sets a trap for unsuspecting plaintiffs,” Davis v. TXO Production Corp., 929 F.2d 1515, 1518 (10th Cir.1991), so too may the failure to replead the dismissed claim be a trap for unsuspecting defendants who are led to believe the plaintiffs intend to abandon the dismissed claim by their failure to replead. It is not inconceivable that plaintiffs may abandon a dismissed claim because the trial court was obviously correct in dismissing the claim or that the amended pleading frames a new cause of action which is inconsistent with the continued viability of the dismissed claim. The paramount purpose of a complaint is, after all, to inform the defendant of the nature of the claim being asserted against the defendant by the plaintiff. N.D.R.Civ.P. 7; Vande Hoven v. Vande Hoven, 399 N.W.2d 855 (N.D.1987).

[¶ 34] There is no assertion here that Lerol and Farmers Union were misled by Wangler’s failure to reallege the responde-at superior claim in the amended complaint. It may be that Lerol and Farmers Union were misled by State Bank of Kenmare’s citation to Dahl. However, it is clear both defendants realized we might review the dismissed claim, as we did in State Bank of Kenmare, because both defendants briefed the respondeat superior claim on its merits.

[¶ 35] I concur in the result reached by the majority opinion.

[¶ 36] Gerald W. Vande Walle, C. J.