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 Riley Kuntz, All Rights Reserved 238 5th Ave W. Dickinson, ND 58601 701-483-3459 [email protected] 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 4 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,.