Grager v. Schudar

20080302 Michele DeeAnn Grager, Plaintiff and Appellant
v.
Kevin Schudar, individually
and as an Employee of Barnes
County, North Dakota, and
Barnes County, a political
subdivision of the State of
North Dakota, Defendants and Appellees

Appeal from: District Court, Southeast Judicial District, Barnes County
Judge James M. Bekken
Nature of Action: Torts (Negligence, Liab., Nuis.)
Counsel:
Appellant: Pro se
Appellee: Smith Bakke Porsborg Schweigert & Armstrong
Appellee: Howard D. Swanson
Term: 04/2009   Argument: 04/07/2009  2:45pm
ND cite: 2009 ND 140
NW cite: 770 N.W.2d 692

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Issues: Appellant's Statement of the Issues:
I.The Court erroneously submitted an instruction allowing consent as an absolute defense to all tort and constitutional claims.
II.The Court failed to properly instruct the jury on the issue of scope of employment.
III.The Court erred in giving a specific instruction on consensual sexual act.
IV.The Court erred in instructing the jury on judicial notice regarding the affect of an Attorney General's opinion.
V.The failure of Barnes County to produce audio recordings of the interview with the female inmates and Kevin Schudar which deprived MG of a reasonable opportunity to cross examine key defense witnesses including Kevin Schudar and Tom Fiebiger.
VI.The District Court prejudiced MG's claim by barring introduction of evidence concerning Barnes County hiring of Jailor Moe Gibbs who abused inmates in a similar manner.
VII.The Court erred in allowing Defendant Schudar to call Special Agent Cal Dupree ostensibly as a rebuttal witness when MG provided no rebuttal testimony.
VIII.The Court erred in barring MG from having Susan Delmore testify as to the sexual assault by Jailor Kevin Schudar.

Appellee's Statement of the Issues:
Kevin Schudar's Statement of Issues
I.Whether the trial court's jury instruction on "consent" was a proper statement of law.
II.Whether the trial court's instructions regarding scope of employment were a proper statement of law.
III.Whether the trial court's instruction on "consensual sexual act" was a proper statement of the law.
IV.Whether the trial court properly took judicial notice of the existence of Attorney General's opinions.
V.Whether production of audio recordings of investigative interviews during trial deprived plaintiff of an opportunity for cross-examination of witnesses.
VI.Whether the trial court abused its discretion by excluding evidence concerning Barnes County's subsequent hiring of Jailor Moe Gibbs.
VII.Whether the trial court's admission of "rebuttal/impeachment" testimony by Special Agent Cal Dupree was in error.
VIII.Whether the trial court's exclusion of Susan Delmore's testimony concerning her alleged prior sexual contact with Kevin Schudar was in error.

Barnes Co. Statement of Issues
1. Whether the trial court's jury instructions regarding "consent" were a proper statement of law.
2. Whether the trial court's instruction regarding "scope of employment" was a proper statement of law.
3. Whether the trial court properly took judicial notice of North Dakota Attorney General's Opinions.
4. Whether the production of audio recordings of investigative interviews during trial deprived Plaintiff of an opportunity for cross-examination of witnesses.
5. Whether the trial court abused its discretion by excluding evidence of subsequent incidents of alleged assaults at the Barnes County Correctional Center.

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Docket entries:
111/19/2008 NOTICE OF APPEAL: 11/18/2008
211/19/2008 ORDER FOR TRANSCRIPT: 11/18/2008
312/02/2008 Petition In Forma Pauperis to Waive Filing Fee
412/02/2008 ACTION BY CLERK (Pet/In/Forma/Pauperis). Granted
512/09/2008 RESET DUE DATE OF APPELLANT'S BRIEF - TRANSCRIPT PREPARATION SUSPENDED.
612/09/2008 ACTION BY CLERK (MAT - transcript preparation suspended). Granted: 12/29/2008
712/22/2008 RECORD ON APPEAL (3 Vol.) including separate exhibits and depositions (Nos 139 & 140 were not sent)
812/28/2008 MOT. EXT/TIME APPELLANT BRIEF
912/28/2008 E-FILED MOTION - MAT
1012/29/2008 ACTION BY CLERK - MAT. Granted: 01/28/2009
1101/26/2009 DISK-ATB (E-MAILED)
1201/29/2009 APPELLANT BRIEF (see replacement ATB filed 2-11-09)
1301/30/2009 MOT. EXT/TIME APPELLANT BRIEF (letter dated 1/29/09)
1401/30/2009 ACTION BY CHIEF DEPUTY CLERK (mat). Granted: 01/29/2009
1502/06/2009 DISK - CORRECTED ATB (E-MAILED)
1602/11/2009 CORRECTED APPELLANT BRIEF
1702/11/2009 APPELLANT APPENDIX
1802/25/2009 Supplemental Clerk's Certificate dated 2-24-09 (Entry No. 215--original TRA dated 8-14-08)
1903/12/2009 APPELLEE BRIEF (Kevin Schudar)(e-filed)
2003/12/2009 E-FILED BRIEF (AEB)(Schudar)
2103/12/2009 APPELLEE APPENDIX (Kevin Schudar)(e-filed)
2203/12/2009 E-FILED APPENDIX (AEA) (Schudar)
2303/12/2009 APPELLEE BRIEF (Barnes Co.)
2403/13/2009 DISK - aeb (Barnes Co.) (CD-ROM)
2503/13/2009 Received $55 surcharge for AEB & AEA (Schudar)
2603/12/2009 Received 7 copies of AEB from CSD
2703/12/2009 Received 6 copies of AEA from CSD
2804/07/2009 APPEARANCES: Michele Grager/Randall J. Bakke/Howard D. Swanson
2904/07/2009 ARGUED: Grager/Bakke/Swanson
3004/07/2009 ORAL ARGUMENT WEBCAST
3107/21/2009 DISPOSITION: REVERSED AND REMANDED
3207/21/2009 UNANIMOUS OPINION: Kapsner, Carol Ronning
3307/21/2009 Costs on appeal taxed in favor of Appellant
3407/22/2009 Judgment E-Mailed to Parties
3507/31/2009 PETITION FOR REHEARING - Schudar (e-filed)
3607/31/2009 E-FILED BRIEF (PER) - Schudar
3708/03/2009 Received 7 copies of PER from Central Duplicating.
3808/04/2009 PETITION FOR REHEARING - Barnes County (e-filed)
3908/04/2009 E-FILED BRIEF (PER) - Barnes County
4008/04/2009 Received 7 copies of PER - Barnes County from Central Duplicating
4108/27/2009 Substitute Opinion Pages 9, 10, 11, & 12 (Change was in paragraph 19 on page 9, however it changed
4208/27/2009 the pagination of pages 10, 11, & 12.)
4308/27/2009 Order Mailed to Parties
4408/27/2009 ACTION BY SUPREME COURT (Pet/Rehearing). Denied
4508/27/2009 ACTION BY SUPREME COURT (Pet/Rehearing 2nd party). Denied
4609/10/2009 MANDATE
4709/22/2009 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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