Kuntz v. Leiss , 2020 ND 253 ( 2020 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
DECEMBER 17, 2020
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 253Riley S. Kuntz, Plaintiff and Appellant
v.
Ashlynn D. Leiss and
Joseph R. Westbrook, Defendants
No. 20200119
Appeal from the District Court of Stark County, Southwest Judicial District,
the Honorable Dann E. Greenwood, Judge.
AFFIRMED.
Opinion of the Court by VandeWalle, Justice.
Riley S. Kuntz, self-represented, Dickinson, ND, plaintiff and appellant;
submitted on brief.
Ashlynn D. Leiss and Joseph R. Westbrook, defendants; no appearance.
Kuntz v. Leiss
No. 20200119
VandeWalle, Justice.
[¶1] Riley Kuntz appealed from the district court’s default judgment entered
in his favor. Kuntz argues the district court erred by denying his damages for
trespass. We affirm.
I
[¶2] Kuntz sued Ashlynn Leiss and Joseph Westbrook for trespass and theft
of his cat trap. Neither Leiss nor Westbrook answered the complaint or
otherwise appeared. Following an evidentiary hearing, the district court
granted default judgment in favor of Kuntz. The court found a trespass and
conversion of the cat trap had occurred. The court awarded Kuntz a money
judgment for conversion of the cat trap, but found he did not suffer any actual
damages as a result of the trespass.
II
[¶3] Kuntz argues the district court erred by denying his damages for
trespass, including punitive damages and damages for emotional distress.
[¶4] When a non-prevailing party at the district court appeals from a default
judgment our review is limited to determining whether irregularities appear
on the face of the judgment. Burgard v. Burgard, 2013 ND 27, ¶ 11, 827 N.W.2d
1. However, here Kuntz was the plaintiff and is the appellant. He was the
prevailing party and now argues the district court erred by denying him
damages for trespass. The appropriate standard of review in an appeal
challenging a district court’s award of damages is whether the court’s findings
of fact are clearly erroneous. Buri v. Ramsey, 2005 ND 65, ¶ 17, 693 N.W.2d
619. A finding of fact is clearly erroneous if there is no evidence to support it,
if it is clear to the reviewing court that a mistake has been made, or if the
finding is induced by an erroneous view of the law. Id. A district court’s
conclusions of law are fully reviewable. Fargo Foods, Inc. v. Bernabucci, 1999
ND 120, ¶ 10, 596 N.W.2d 38.
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[¶5] “Civil trespass is a common law tort in North Dakota and is not
statutorily defined.” Tibert v. Slominski, 2005 ND 34, ¶ 15, 692 N.W.2d 133.
“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 so
to do.” Id. (quotations 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.” Id.[¶6] The district court found that Leiss and Westbrook trespassed on Kuntz’s
land. However, it denied him an award of damages on this cause of action
because he did not prove he suffered any actual damages from the trespass. In
fact, the court noted that Kuntz testified that he suffered no actual damages.
[¶7] Although Kuntz claims the district court erred by denying him damages
for trespass, he does not specifically argue that he suffered any actual or
compensatory damages, or the district court erred in finding he had no actual
damages. Thus, at most, nominal damages could be awarded. See N.D.C.C. §
32-03-38 (“When a breach of duty has caused no appreciable detriment to the
party affected, the party may recover nominal damages.”); Smith v. Carbide
and Chemicals Corp., 226 S.W.3d 52, 55 (Ky. 2007) (stating that “in intentional
trespass, in order to recover more than nominal damages, a property owner
must prove ‘actual injury’”). Although we conclude the district court should
have awarded Kuntz nominal damages for succeeding on his trespass claim,
its failure to do so does not warrant reversal of the judgment. See Hummel v.
Mid Dakota Clinic, P.C., 526 N.W.2d 704, 709 (N.D. 1995) (stating that
“because of the trivial amount, the failure to award nominal damages does not
warrant reversal of a judgment unless a significant right or a question of costs
is involved”).
[¶8] Further, the district court did not err by failing to award exemplary
damages. Section 32-03.2-11, N.D.C.C., provides, in relevant part:
Upon commencement of the action, the complaint may not seek
exemplary damages. After filing the suit, a party may make a
motion to amend the pleadings to claim exemplary damages. The
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motion must allege an applicable legal basis for awarding
exemplary damages and must be accompanied by one or more
affidavits or deposition testimony showing the factual basis for the
claim.
The record does not show Kuntz moved to amend the pleadings to claim
exemplary damages as required by statute. Thus, exemplary damages were not
properly before the district court, and we will not consider such damages on
appeal.
[¶9] Kuntz does not identify any evidence in the record, or otherwise provide
supporting facts or argument that he suffered emotional distress as a result of
the trespass. Accordingly, the issue is waived. See State v. Obrigewitch, 356
N.W.2d 105, 109 (N.D. 1984) (“Where a party fails to provide supporting
argument for an issue listed in his brief, he is deemed to have waived that
issue.”).
[¶10] We conclude the district court did not err by failing to award damages
for Kuntz’s trespass claim.
III
[¶11] We affirm the default judgment.
[¶12] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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