Fish v. Dockter

20030080 Gerald D. Fish, Plaintiff and Appellant
v.
Neil E. Dockter, Defendant and Appellee

Appeal from: District Court, East Central Judicial District, Cass County
Judge Lawrence A. Leclerc
Nature of Action: Personal Injury
Counsel:
Appellant: Pro se
Appellee: Morley Law Firm, Ltd.
Term: 10/2003   Argument: 10/01/2003  Waived
ND cite: 2003 ND 185
NW cite: 671 N.W.2d 819


Issues: Appellant's Statement of the Issues:
ISSUE ONE: Whether the District Court abused discretion by deciding disputed facts and granting the defendant's summary judgment motion? After.
(a) the defense filed affidavits bad faith.
(b) the defense and the court refused to allow cross-examination of defense affiants .
(c) the court ignored Fish affidavits and "comparable means" of raising an issue to defeat the defense motion for summary judgment.
(e) the court restricted the plaintiff time to respond to thirty minutes after giving the defense all afternoon to present argument a summary judgment argument.
ISSUE TWO Whether the District Court abused it's discretion by denying Fish a full and fair hearing or any hearing at all on Fish's Summary Judgment Motion? By.
(a) scheduling, only enough time at the defense motion hearing to hear the defense argument and then cutting short, the plaintiff's time to respond.
ISSUE THREE Weather the District Court abused its discretion and denied Fish's constitutional right to due process, cross-examination, a full fair hearing and equal access to the court because of Fish is disabled and was proceeding pro se.
(a) by prematurely deciding the alleged low engine oil level was "four gallons" low.
(b) by finding the defendant was protected by qualified privilege and absolute immunity.
(c) by finding there was no evidence of damages to Fish.
(d) by failing to review Fish affidavit and exhibits
ISSUE FOUR Whether the North Dakota Supreme Court should reverse the grant of summary judgment for Dockter and grant Fish's summary judgment motion and award damages of $288,111.64 to Gerald Fish for loss of potential income and personal injury by intentional infliction of physic pain and suffering

Appellee's Statement of the Issues:
1. Did the trial court abuse its discretion in granting Dockter's motion for summary judgment and denying Fish's motion for summary judgment, based upon its finding that statements by Dockter were either subject to a qualified privilege which was not abused, or were subject to an absolute privilege?
2. Did the trial court abuse its discretion in refusing to permit cross-examination of witnesses at the summary judgment hearing?
3. Did the trial court abuse its discretion in refusing to consider Fish's fourth brief and attachments at the summary judgment proceedings where the materials were filed untimely under N.D.R.Civ.P. 5(d)(2) and 6(a), and where the arguments generally were submitted in Fish's three previous briefs?
4. Did the trial court abuse its discretion in refusing to void the judgment under N.D.R.Civ.P. 60(b)(iv) where Fish invoked personal jurisdiction of the court by bringing the action in state court and where Fish's claims for defamation under state statutory provisions of N.D.C.C.  14-02-01 et seq. (2002) created subject matter jurisdiction?
5. Did the trial court abuse its discretion in refusing to "nullify" or vacate the judgment under the general provisions of N.D.R.Civ.P. 60(b)?

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Docket entries:
103/27/2003 NOTICE OF APPEAL: 03/25/2003
204/04/2003 Petition in Forma Pauperis to waive filing fee
304/09/2003 ACTION BY SUPREME COURT-Petition In Forma Pauperis to waive filing fee. Granted
404/09/2003 Order Mailed to Parties
504/10/2003 DEFENDANT'S NOTICE OF MOTION AND MOTION REQUESTING REMAND FROM THE ND SUPREME COURT, BRIEF IN
604/10/2003 SUPPORT OF MOTION FOR REMAND with copies of Defendant's Objection to Statement of Evidence,
704/10/2003 Affidavit of Lolita Romanick and Defendant's Notice of Motion and Motion for clarification of
804/10/2003 statement of evidence
904/10/2003 ACTION BY CHIEF JUSTICE (Mot Requesting Remand). Granted
1004/10/2003 ORDER OF TEMPORARY REMAND
1104/14/2003 Objection to Remand & Brief in Support
1204/14/2003 ACTION BY CHIEF JUSTICE (Objection to Remand & Brief in Support). Denied
1305/21/2003 MOT. EXT/TIME APPELLANT BRIEF (letter from Gerald Fish dated 5-20-03)
1405/22/2003 ACTION BY CLERK. Granted: 06/18/2003
1506/03/2003 Amended Notice of Appeal (filed in trial court on 5-28-03)
1606/03/2003 RECORD ON APPEAL (3 vols.) & Separates 36, 44, 50, 57, 108, & 115, which includes 2 transcripts
1706/03/2003 (Not rec'd: #54 & 113 -- Tapes)
1806/10/2003 DISK - TRA (5-19-03) (e-mailed)
1906/10/2003 DISK - TRA (1-27-03) (e-mailed)
2006/11/2003 MOTION FOR EXTENSION OF WORD LIMITS
2106/11/2003 E-FILED MOTION (fax)
2206/12/2003 ACTION BY CHIEF JUSTICE (MOT/additional 1250 words for total of 11,750). Granted
2306/13/2003 MOT. EXT/TIME APPELLANT BRIEF
2406/13/2003 E-FILED MOTION (via fax)
2506/13/2003 ACTION BY CHIEF JUSTICE. Granted: 06/25/2003
2606/19/2003 APPELLANT BRIEF (Original only)
2706/19/2003 APPELLANT APPENDIX (Only 1 received)
2806/24/2003 Copies of the Appellant's Brief and affidavit of service
2906/24/2003 Copies of the Appellant's Appendix
3006/25/2003 DISK - ATB
3107/23/2003 APPELLEE BRIEF
3207/23/2003 APPELLEE APPENDIX
3307/29/2003 Corrected TOA & pages 7 & 8 for AEB
3407/29/2003 DISK - AEB
3509/16/2003 S.CT. DETERMINED ORAL ARGUMENT NOT NECESSARY
3610/01/2003 APPEARANCES: submitted on briefs
3710/01/2003 ARGUED: submitted on briefs (Vol. Y; Page 150)
3812/02/2003 DISPOSITION: AFFIRMED
3912/02/2003 UNANIMOUS OPINION: Sandstrom, Dale V.
4012/02/2003 Costs on appeal taxed in favor of appellee
4112/04/2003 Judgment Mailed to Parties
4212/31/2003 MANDATE
4301/07/2004 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
4402/09/2010 EXPUNGED - Nonpermanent record items destroyed

Generated from Supreme Court Docket on 10/24/2014