BRIEF Trespass

20200119

FILED IN THE OFFICE OF THE CLERK OF SUPREME COURT MAY 14, 2020 STATE OF NORTH DAKOTA

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

Riley S. Kuntz, ) Plaintiff ) Supreme Court Case # 20200119 ) vs. ) Civil Case # 45-2019-CV-00685 ) Ashlynn D. Leiss and ) Joseph R. Westbrook ) Defendants. ) ______

APPEAL FROM THE DISTRICT COURT JUDGMENT DATED 17TH March, 2020 STARK COUNTY, NORTH DAKOTA SOUTHWEST JUDICIAL DISTRICT

HONORABLE DANN GREENWOOD

BRIEF OF PLAINTIFF AND APPELLANT Riley Kuntz Oral Argument Requested

TABLE OF CONTENTS

Page

Table of Authorities……………………………………………………………………. ii

Paragraphs

Statement of Issues…………………………………………………………………… 1

Whether the district court properly applied existing law by denying Plaintiff damages for a willful trespass by Defendants………….. 1

Statement of the Case………………………………………………………………… 2

Statement of Facts…………………………………………………………………….. 3

Law and Argument…………………………………………………………………….. 7

I. The district court improperly denied Plaintiff damages for trespass…………………………………………………………….. 7

A. Plaintiff’s damages are additionally compensable as punitive damages………………… 10

B. Plaintiff’s damages of mental distress are awardable damages…………………………………. 11

Conclusion……………………………………………………………………………. 12

i TABLE OF AUTHORITIES

Cases Paragraph(s)

Bank of Steele v. Lang, 423 N.W.2d 504 (ND 1988)…………………………....……………… 8

Benson v. State, 2006 SD 8, 710 N.W.2d 131………………………………………….. 9

Bethards v. Shivvers, Incorporated, 355 N.W.2d 39 (Iowa Supreme Court 1984)...... 10

Gallagher v. Grant-Lafayette Electric Cooperative, 249 Wis.2d 115, 2001 WI App 276, 637 N.W.2d 80...... 11

Gregory v. Sorenson, 242 N.W. 91, 214 Iowa 1374………………………………………... 10

Herzog v. Grosso, 41 Cal.2d 219, 259 P.2d 429………………………………………... 11

In re Peterson Trust, 2008 ND 210, 757 N.W.2d 740……………………………………….. 7

Johnson v. Supersave Markets, Inc., 686 P.2d 209 (Mont Sup Court 1984)…………………….………... 11

Kornoff v. Kingsburg Cotton Oil Co., 45 Cal. 2d 265 (Cal. Supreme Court 1955)………………...... …… 11

Loeblich v. Garnier, 113 So.2d 95 (La.App 1st Cir. 1959)…………………..……..…….. 11

McDermott v. Sway, 50 N.W.2d 235 (ND 1951)…………………………………...……….. 9

Medearis v. Miller, 306 N.W.2d 200 (ND 1981)…………………………………...…….. 10

Olmstead v. Miller, 383 N.W.2d 817 (ND 1986)………………………………..….…….. 10

Roark v. Musgrave, 41 Ill. App.3d 1008, 355 N.E.2d 91 (IL App. Ct 5th Dist. 1976)....… 8

Rodrian v. Seiber, 194 Ill. App.3d 504, 551 N.E.2d. 772 (IL App. Ct. 5th Dist. 1990).... 8

Smith v. American Family Mut. Ins. Co., 294 N.W.2d 751 (ND 1980)………………………………………….. 10 ii Tibert v. Slominski, 2005 ND 34, 692 NW2d 133………………………………………….. 9

Turner v. Southern Excavation, Inc., 322 So.2d 326 (La.App. 2nd Circuit 1975)…………….….……….. 11

Whetmore v. Ladies of Loretto, 73 Ill. App.2d 454, 220 N.E.2d 491 (IL App. Ct. 2nd Dist. 1966).… 10

Whittington v. Grand Valley Lakes, Inc. 547 S.W.2d 241 (TN Supreme Court 1977)……………………….. 10

Statutes

N.D.C.C. §§ 32-03-01, 02……………………………………………….……. 9

iii STATEMENT OF ISSUES

¶1 Whether the district court properly applied existing law by denying Plaintiff damages for a willful trespass by Defendants.

STATEMENT OF THE CASE

¶2 Appellant appeals from the district court’s decision that excluded Plaintiff’s claim of damages from Defendants trespass. Defendants did not file any response or answer. Despite Plaintiff providing the district court a supplemental brief with additional ample authority in favor of Plaintiff’s claim, the district court did not award Plaintiff damages for the trespass claim.

STATEMENT OF FACTS

¶3 Plaintiff has a fenced back yard which is posted with signage. The signs measure 8” x 12” and are reflective with a red background and white letters.

Said signs read: NO TRESPASSING, This means any entry, unauthorized by undersigned, whatsoever is unwanted by property owners. Civil and/or criminal penalties will apply to violators. If in doubt, KEEP OUT! Riley and Michelle

Kuntz 701-483-3459. Said signs are located at the two corners if the property in the alley side and are located in the front yard on the fence. Plaintiff’s property was posted with said signage prior to 17 June, A.D. 2019.

¶4 Plaintiff has a problem with stray cats roaming onto his property and using the property as a litter box. A neighbor has the same problem with stray cats.

Trespassers lost one of their stray cat(s) that are not licensed, collared or kept on

1 a leash. In addition, Trespassers allow their cat(s) to roam free.

¶5 Trespassers were in a fit of rage after losing their cat(s) and were walking around the alley and Plaintiff’s neighbor’s yards. Plaintiff heard the Trespassers exclaim he has a trap. Plaintiff cut down a small tree, which might have been blocking one of said trespass signs in the alley. On or about the evening of 1

July or early morning of 2 July A.D. 2019, one of Trespassers cat(s) was trapped by Plaintiffs trap. Trespassers intentionally entered Plaintiff’s property and removed the cat and trap. Plaintiffs were told by the animal control officer that a neighbor’s cat trap, owned by the city, was also recently stolen. Trespassers stole a trap from one of Plaintiff’s neighbors. Trespassers, in a fit of rage, were again searching the neighborhood and walked into Plaintiff’s neighbor’s yard and looked over our fence to see another trap.

¶6 Trespassers sought to speak with Plaintiff about the cat(s) issue. During this conversation, Trespassers exclaimed that Plaintiff nearly killed their other cat and that their daughter(s) were distraught about their cat being trapped in

Plaintiff’s trap. Trespassers agreed to return Plaintiff’s trap in exchange for the location where Plaintiff dropped stray, trapped cats. Trespassers have not returned Plaintiff’s trap. Thus, Plaintiff initiated a civil action in Stark County

District Court. Defendants have not answered, or otherwise responded to the

Complaint. Any and all emphasis may be construed to be added.

LAW AND ARGUMENT

The district court improperly denied Plaintiff damages for trespass.

2 ¶7 Oral argument will prove beneficial to this Court, as the Plaintiff will be able to answer any questions which might arise from the briefing due to the party(s) innate inability. The district court determined a trespass occurred, however, was unsatisfied with Plaintiff’s briefing in support of his associated claim for damages. The district court’s order for judgment denying Plaintiff’s trespass claim is a mixed question of law and fact, and therefore is reviewed de novo. “This court reviews both conclusions of law and mixed questions of law and fact under the de novo standard of review.” In re Peterson Trust, 2008 ND

210, ¶17, 757 N.W.2d 740 (citations omitted).

¶8 “An award of damages is intended to compensate an injured party for the wrong done to him. The goal is to place that injured party as nearly as reasonable possible in the same position he would have been had the injury not been inflicted.” Roark v. Musgrave, 41 Ill. App.3d 1008, 355 N.E.2d 91 (1976).

They (rules) are not to be applied in an arbitrary, formulaic or inflexible manner in every instance so as to deprive an injured party of just compensation.” Rodrian v.

Seiber, 551 N.E.2d. 772, 194 Ill. App.3d 504, 509 (1990). “The right to oust a stubborn trespasser is one twig in the bundle of property rights.” Bank of Steele v. Lang, 423 N.W.2d 504, 506 (ND 1988).

¶9 “Civil trespass is a common law tort in North Dakota and is not statutorily defined. This court has defined trespass as ‘an intentional harm,’ where a person ‘intentionally and without a consensual or other privilege … enters land in possession of another or any part thereof or causes a thing or third person to do

3 so. (citation omitted). A person who commits a trespass ‘is liable as a trespasser to the other irrespective of whether harm is thereby caused to any of his legally protected interests.’ The district court of stark county is mistaken by requiring a heightened standard of ‘credible admissible evidence of actual damages’. “While actual harm is not one of the requisite elements to a claim for trespass, actual interference with another’s property is.” See generally McDermott v. Sway, 78 N.D. 521, 529-30, 50 N.W.2d 235, 240 (1951);

75 Am. Jur. 2d Trespass §§ 8, 14 (1991). Tibert v. Slominski, 2005 ND 34, ¶¶15,

16, 692 NW2d 133. See also N.D.C.C. §§ 32-03-01, 02. Trespass is further defined by South Dakota and confirmed by the United States Supreme Court.

[T]he elements of the tort of civil trespass require only that one who intentionally and without a consensual or other privilege (a) enters land in possession of another or any part thereof or causes a thing or third person to do so, or

(b)remains thereon is liable as a trespasser to the other irrespective of whether harm is thereby caused to any of his legally protected interests.

(citing State v. Rumpca, 2002 SD 124, ¶10 n. 2, 652 N.W.2d 795) (citing

Restatement (Second) of Torts § 158). Benson v. State, 2006 SD 8, ¶74, 710

N.W.2d 131. (cert. denied 126 S.Ct. 2971, 548 U.S. 905, 165 L.Ed.2d. 953).

A. Plaintiff’s damages are additionally compensable as punitive damages.

¶10 “While our courts previously have held that an intentional trespass, under

a mistaken claim of right, does not entitle the landowner to punitive damages, it is equally true that when a wrongful act is accompanied by aggravating circumstances such as willfulness, wantonness, malice or oppression, punitive damages are recoverable.1 Willful and wanton misconduct is that intentionally done or that act taken, under the circumstances known, in reckless or conscious disregard of probable injurious consequences.” (citation omitted)

Rodrian, supra, at 772,. Plaintiff claimed that his property was posted to ‘keep out’. Plaintiff claimed that he has a fence to help keep out unwanted people.

Despite the foregoing, Defendants crossed into Plaintiff’s property, past the gate and committed an act of theft. In addition, Plaintiff alleges the Defendants show a continued disregard for Plaintiff’s property. These facts are more than sufficient to submit the issue of punitive damages. What is more, ND law allows

Kuntz the opportunity to file another action for punitive damages.” Medearis v.

Miller, 306 N.W.2d 200, 204 (ND 1981). ND does not require that an award of punitive damages be reasonably proportionate to an award of compensatory damages.” Smith v. American Family Mut. Ins. Co., 294 N.W.2d 751 (ND 1980).

“The purpose of awarding punitive damages is to punish the wrongdoing defendant in order to deter him, and others, from repetition of the wrongful conduct.” Olmstead v. Miller, 383 N.W.2d 817, 823. (ND 1986). “There is proof in the record from which the jury might have found, as it obviously did, that Grand

1 See Whetmore v. Ladies of Loretto, 73 Ill. App.2d 454, 467, 220 N.E.2d 491, 497-98. Valley Lakes ran rough-shod over rights of this landowner-that its acts were in knowing, willful and deliberate disregard of her property rights and that Grand

Valley should therefore pay punitive damages.” Whittington v. Grand Valley

Lakes, Inc. 547 S.W.2d 241, 243 (TN Supreme Court 1977).2 Further, “In trespass, punitive damages are recoverable if ‘malice’ is present: ‘Malice’ need not be actual ill will or hatred toward another. When that state of mind is present, there is actual malice. However, more commonly in cases of this kind, there is simply legal malice, which may be established by showing a wrongful or illegal conduct committed or continued with a willful or reckless disregard of another's rights. We have also defined legal malice as the intentional commission of a wrongful act without just cause or excuse.” (quoting Hagenson v. United

Telephone Co. of Iowa, 209 N.W.2d at 82). Bethards v. Shivvers, Incorporated,

355 N.W.2d 39, 47 (Iowa Supreme Court 1984).

B. Plaintiff’s damages of mental distress are awardable damages.

¶11 “It appears to us that the discomfort and annoyance suffered by plaintiffs is an injury directly and proximately caused by defendant’s invasion of their property and that such damages would naturally result from such an invasion. It also appears to us that discomfort and annoyance may be suffered where there is no physical injury suffered. In Herzog v. Grosso, 41 Cal.2d 219, 225 [259 P.2d 429], the trial court found that plaintiffs were caused to suffer ‘nervousness, worry, and mental distress for the safety of themselves and their daughter and others obliged to use said road on account of the dangerous conditions under which said defendant, Paul J. Grosso, forced them … to use said parcels… in going to and from their said home.’ We said: ‘Once a cause of action for trespass or nuisance is established, an occupant of land may recover damages for annoyance and discomfort that would naturally ensue therefrom. (citations omitted). Simarily, in the present case the suffering caused by fear for the safety of 6

2 See also, Gregory v. Sorenson, 242 N.W. 91, 214 Iowa 1374. the daughter and visitors was a natural consequence of defendant’s conduct and an invasion of a protectable interest of an occupant of real property.

Section 929 of the Restatement of Torts sets forth the rule as follows: ‘Where a person is entitled to a judgment for harm to land resulting from a past invasion and not amounting to a total destruction in value, the damages include compensation for … (c) discomfort and annoyance, in an action brought by the occupant. Comment on Clause (c): g. Discomfort and other bodily and mental harms. Discomfort and annoyance to an occupant of the land and to the members of his household are distinct grounds of compensation for which in ordinary cases the person in possession is allowed to recover in addition to the harm to his proprietary interests.” Kornoff v. Kingsburg Cotton Oil Co., 45 Cal. 2d 265, 272- 73 (Cal. Supreme Court 1955).

“Likewise, the courts of Louisiana have consistently awarded damages in cases of deliberate, forcible trespass for ‘invasion of property rights’ and mental anguish’ or the like. The nature of such damages is most clearly described in

Loeblich v. Garnier, 113 So.2d 95 (La.App 1st Cir. 1959) as follows;

‘The often found general statement that only compensatory and not punitive damages are awardable in Louisiana is in apparent conflict with the awards often made for damages for mental anguish and embarrassment caused by an illegal and deliberate violation of property rights or for such violation itself irrespective of any pecuniary damage caused thereby (which damages, according to the definition above cited, are regarded in other states as exemplary or punitive damages). The key to resolution of this conflict seems to be that in such circumstances such awards in Louisiana are regarded as compensatory for violations of a recognized property right, rather than punitory.

After citing numerous cases in which such awards were made, the court in

Loeblich affirmed an award ‘for the wrongful and forceful invasion of plaintiffs’ inherent property rights and for their mental anguish, humiliation, and

embarrassment thereby sustained.” Turner v. Southern Excavation, Inc., 322 So.

2d 326, 329-30, La Court of Appeals, 2nd Circuit 1975. “Courts generally allow damages for embarrassment, humiliation and other mental distress, absent injury, where defendant’s conduct is intentional or outrageous.” Johnson v.

Supersave Markets, Inc., 686 P.2d 209, 213 (Mont: Supreme Court 1984).

Wisconsin courts agree: “We agree with the Gallaghers that nothing in either

Vogel or Andersen suggests a reason not to allow damages for discomfort and annoyance in a trespass action. Neither does Threlfall. Indeed, our reasoning in

Threlfall for allowing damages for restoration in a trespass action provides a solid rationale for applying RESTATEMENT (SECOND) OF TORTS § 929(1)(c) as well as subsection (a) in trespass actions. Citing the prior case of Gilman v.

Brown, 115 Wis. 1, 7, 91 N.W. 227 (1902), we stated that "[b]ecause recovery in trespass is based on a wrongful invasion of a plaintiff's rights, the rule of damages adopted should more carefully guard against failure to compensate the injured party than against possible overcharge to the wrongdoer," Threlfall, 190

Wis. 2d at 133, and we noted the importance of being able to enjoy the real estate one owns.” Id. at 135. Gallagher v. Grant-Lafayette Electric Cooperative,

249 Wis.2d 115 at ¶ 29 (2001), 2001 WI App 276, 637 N.W.2d 80.

CONCLUSION

¶12 An overwhelming amount of authority supports Plaintiff’s claim for damages. An equally proportionate amount of authority supplements gaps

currently existing in North Dakota case law, due to a lack of subject matter issues presented, which otherwise exists in neighboring jurisdictions. This Court should reverse and remand the judgment denying Plaintiff’s damages, in their entirety, and order a finding of fact on actual damages sustained by Plaintiff as it pertains to the trespass claim.

Dated this 14th Day of May, A.D. 2020

9 IN THE SUPREME COURT

STATE OF NORTH DAKOTA

Riley S. Kuntz, ) Plaintiff ) Supreme Court Case # 20200119 ) vs. ) Civil Case # 45-2019-CV-00685 ) Ashlynn D. Leiss and ) Joseph R. Westbrook ) CERTIFICATE OF COMPLIANCE Defendants. ) ______

¶1 The undersigned hereby certifies that pursuant to N.D.R.App.P. § 32(a)(8)(A), the text of the Brief of Appellant (excluding the table of contents and table of authorities) contains 2,275 words. This Brief was formatted in a proportionally spaced typeface using Microsoft Office Word 2010 in Arial 12 point font.

Dated this 14th Day of May, A.D. 2020

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

Riley S. Kuntz, ) Plaintiff ) Supreme Court Case # 20200119 ) vs. ) Civil Case # 45-2019-CV-00685 ) Ashlynn D. Leiss and ) Joseph R. Westbrook ) CERTIFICATE OF SERVICE Defendants. ) ______

I, Riley Kuntz, am of age and on the 14th Day of May, A.D. 2020, pursuant to

Rule 5(b)(3) of the N.D.R.Civ.P., I served the following:

Appellant’s Appendix, Brief and Certificate of Compliance

in the above entitled case, by postage prepaid mail, on the following parties:

Ashlynn D. Leiss Joseph R. Westbrook 221 4th Ave W 221 4th Ave W Dickinson, ND 58601 Dickinson, ND 58601

Dated this 14th Day of May, A.D. 2020,

Certificate of Service Page 1 of 1 Kuntz v Liess/Westbrook