Summary judgment is a procedural device available for the prompt and expeditious disposition of controversies without trial when, after viewing the evidence in a light most favorable to the opposing party and giving that party the benefit of all favorable inferences, there is no genuine dispute as to either the material facts or the inferences to be drawn from undisputed facts. Production Credit Association of Fargo v. Ista, 451 N.W.2d 118, 120 (N.D. 1990). Although the party seeking summary judgment has the burden of showing that there is no genuine issue of material fact, the party resisting the motion may not simply rely upon the pleadings.
See Burgmeier, 499 N.W.2d at 50; Lillard, 831 S.W.2d at 629; Overboe, 404 N.W.2d at 449. In Production Credit Ass'n of Fargo v. Ista, 451 N.W.2d 118 (N.D. 1990), the North Dakota Supreme Court explained: "There is a vast difference between allowing use of a regulatory violation as a `shield' in the form of an equitable defense to foreclosure, and allowing its use as a `sword' to create a state-based tort action for recovery of damages where no direct private right of action for damages is recognized."
An officer or director of a corporation owes a fiduciary duty to the corporation and its stockholders. Production Credit Ass'n of Fargo v. Ista, 451 N.W.2d 118, 121 (N.D. 1990). This duty, however, extends only to the stockholders collectively.
See generally Robert C. Williamson Brenda Kay Tanner, Lender Liability in Mississippi: A Survey, Comparison and Comment, 57 Miss.L.J. 1, 21-35 (1987). See also Production Credit Ass'n v. Ista, 451 N.W.2d 118, 121 (N.D. 1990) (Production Credit Association does not owe fiduciary duty to borrower/shareholder except under special circumstances). Williams alleges no facts suggestive of a special relationship; and she cites no cases supporting her claim that an agricultural cooperative owes a fiduciary duty to its members.
Directors and shareholders in closely held corporations owe duties to both the corporation and to shareholders.Prod. Credit Ass 'n of Fargo v. Ista, 451 N.W.2d 118, 121 (N.D. 1990); Schumacher v. Schumacher, 469 N.W.2d 793, 797 (N.D. 1991).
The Court finds that no fiduciary relationship existed between Clausen and the Defendants. As the director of the fund, Clausen would owe the fund a fiduciary duty, but the fund would not owe him the same duty. See Prod. Credit Ass'n of Fargo v. Ista, 451 N.W.2d 118, 121 (N.D. 1990) (finding that officer or director of corporation owes a fiduciary duty to the corporation). The mere fact that Clausen donated to the MSU Foundation, which in turn contributed to the fund, does not give rise to the formation of a fiduciary relationship between Clausen and the Defendants. Since no contract or fiduciary relationship existed between Clausen and the Defendants, Clausen has not alleged facts sufficient to support a claim of constructive fraud.
Assuming for now Spolum labors under this burden, the court nevertheless declines to resolve the question of duty at the summary judgment stage. North Dakota courts have consistently declared in fraud cases that the existence of a fiduciary relationship is generally a question of fact. L.C. v. R.P., 563 N.W.2d 799, 802 (N.D. 1997); In re Estate of Lutz, 563 N.W.2d 90, 98 (N.D. 1997); Production Credit Ass'n of Fargo v. Ista, 451 N.W.2d 118, 121 (N.D. 1990). Cf. § 551 cmt. m ("If there are disputed facts bearing upon the existence of the duty, . . . they are to be determined by the jury under appropriate instructions as to the existence of the duty.").
Effectively, then, the statute prevented secured creditors from taking security interests in any other than a current year's crops. See e.g., Production Credit Assoc. v. Ista, 451 N.W.2d 118, 125 n. 6 (N.D. 1990). However, effective August 1, 1997, § 35-05-01.1 was amended to permit security interests in future crops, as follows:
"Whether a fiduciary relationship exists is generally a question of fact, dependent upon a showing of special circumstances." Prod. Credit Ass'n of Fargo v. Ista, 451 N.W.2d 118, 121 (N.D. 1990). In viewing the facts in a light most favorable to Bergers as the non-movant on this claim in the summary judgment stage, a genuine dispute of material fact exists as to whether a fiduciary relationship exists between Bergers and the Association.
See Kortum, 2008 ND 154, ¶¶ 21–42, 755 N.W.2d 432;Lonesome Dove, 2000 ND 104, ¶¶ 29–30, 611 N.W.2d 154. [¶ 26] Leach's reliance on Production Credit Ass'n v. Ista, 451 N.W.2d 118, 121 (N.D.1990), and cases from other jurisdictions for the principle that a director's duties and obligations are to the corporation and shareholders collectively is misplaced. Ista involved a loan transaction and claims of a fiduciary relationship by borrowers and shareholders of a lender against the lender, the Production Credit Association; Ista did not involve a claimed freeze out of a shareholder in a closely-held corporation, which was found to have been “orchestrated” by a director. See451 N.W.2d at 121.