Zink v. Enzminger Steel LLC
Doug Zink and Ted Keller, Plaintiffs and Appellants
Enzminger Steel, LLC, Defendant and Appellee
Southeast Judicial District,
Judge Thomas E. Merrick
|Nature of Action:||Contracts|
|Term:||04/2011  Argument: 04/26/2011|
|ND cite:||2011 ND 122|
798 N.W.2d 863
Listen to recording of oral argument in MP3 format
Appellant's Statement of the Issues:|
1. Are orders issued from a biased, non-impartial judge, who subsequently recused himself, required to be reversed?
2. Did the trial judge abuse his lawful discretion by ordering sua suponte a partner to prove a partnership when the existence was not disputed by any party?
3. Did the trial judge abuse his lawful discretion by denying sua suponte an unopposed motion for joinder of a party?
4. Did the trial judge violate his lawful discretion when imposing attorney's fees and costs, pursuant to North Dakota Century Code Section 28-26-31, without making a finding of required facts and providing an opportunity to a hearing?
5. Did the trial judge violate his lawful discretion when imposing attorney's fees and costs, pursuant to North Dakota Century Code Section 28-26-31, without disclosing what pleadings caused the sanction?
1. The trial court judge violated the Court's lawful discretion when imposing attorney's fees and costs, pursuant to North Dakota Century Code Section 28-26-31, due to appellant's failure to file documents with the Court.
2. The trial judge violated the Court's lawful discretion when imposing attorney's fees and costs, pursuant to North Dakota Century Code Section 28-26-31, because the Court failed to rule on which exact pleadings were made without reasonable cause and not in good faith, and found to be untrue.
Appellee's Statement of the Issues:
[ 1] This is an appeal from the District Court's Judgment dismissing Doug Zink ("Zink") and Ted Keller's ("Keller") claim against Enzminger Steel, LLC and awarding costs and attorney's fees. (App. 76).
[ 2] Zink and Keller filed a Complaint in the District Court of Stutsman County on June 7, 2010. (Appellee's App. 1). Thereafter, on June 24, 2010, Enzminger Steel, LLC properly served and filed an Answer and Counterclaim. Id. No reply was served or filed by Zink or Keller. Id. No document was ever filed by Zink or Keller showing service of the summons and complaint. Id.
[ 3] On July 6, 2010, Zink and Keller served and filed a Motion to Strike All or Portions of Defendant's Answer and Counterclaim, thereafter, pursuant to the request of Keller, on July 16, 2010, the District Court issued an order setting a hearing for the motions pending before the Court. (App. 20). The Court sent notice of a hearing to occur on September 13, 2010 to all parties. Id.
[ 4] The district court held a hearing on pending motions on September 13, 2010. (T. 1). The Court gave Zink and Keller until September 17, 2010 to provide evidence documenting the existence of a partnership. (T. 13) They failed to file any evidence. (Appellee's App. 8) Thereafter, the court issued its Order of Dismissal with Prejudice. Id. On September 27, 2010, counsel for Enzminger Steel, LLC filed an Affidavit of Costs, Disbursements, and Attorney's Fees. (Appellee's App. 11). On October 5, 2010, the court issued a Taxation of Costs Pursuant to N.D.C.C. 28-26-31. (Appellee's App. 13). On January 3, 2011, Judgment was entered dismissing Zink and Keller's action with prejudice and awarding costs to Enzminger Steel, LLC. (App.78-80) Zink and Keller appeal from this Judgment.
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|1||11/04/2010 NOTICE OF APPEAL: 11/01/2010|
|2||12/08/2010 RECORD ON APPEAL: electronic 1-39.|
|3||12/21/2010 S.Ct. Not. of Dismissal/Failure to Proceed|
|4||12/29/2010 NO ACTION TAKEN|
|5||12/28/2010 MOT. EXT/TIME APPELLANT BRIEF by Douglas Zink|
|6||12/28/2010 1st Supplemental Clerk's Certificate of Appeal (entry nos. 40-43)|
|7||12/29/2010 ACTION BY CLERK (MAT) (Zink). Granted: 01/28/2011|
|8||01/03/2011 MOT. EXT/TIME APPELLANT BRIEF by Ted Keller|
|9||01/03/2011 ACTION BY CLERK (MAT) (Keller). Granted: 01/28/2010|
|10||01/03/2011 2nd Supplemental Clerk's Certificate of Appeal (entry nos. 44-47)|
|11||01/27/2011 APPELLANT BRIEF (Doug Zink)|
|12||01/27/2011 APPELLANT BRIEF (Ted Keller)|
|13||01/28/2011 MOTION FOR Extension of Time to file a consolidated appendix|
|14||01/28/2011 E-FILED MOTION|
|15||01/28/2011 ACTION BY CLERK (consolidated appendix due 2/15/2011). Granted|
|16||01/28/2011 MOT. EXT/TIME APPELLEE BRIEF (sua sponte). Granted|
|17||01/28/2011 ACTION BY CLERK. Granted: 03/17/2011|
|18||02/10/2011 Rec'd 1 original and 7 copies of corrected ATA's.|
|19||02/14/2011 DISK - ATB Doug Zink (e-mail)|
|20||02/14/2011 DISK - ATB Ted Keller (e-mail)|
|21||03/17/2011 APPELLEE BRIEF|
|22||03/17/2011 APPELLEE APPENDIX|
|23||03/21/2011 DISK - aeb (e-mailed)|
|24||03/22/2011 Corrected TOA & pages 3 & 4 for AEB|
|25||03/22/2011 NOTICE OF ORAL ARGUMENT SENT|
|26||04/26/2011 APPEARANCES: Douglas Zink; Ted Keller; Steven T. Ottmar|
|27||04/26/2011 ARGUED: Douglas Zink; Ted Keller; Steven T. Ottmar|
|28||04/26/2011 ORAL ARGUMENT WEBCAST|
|29||06/21/2011 DISPOSITION: REVERSED AND REMANDED|
|30||06/21/2011 SPLIT OPINION: Sandstrom, Dale V.|
|31||06/21/2011 (CONCURRING IN PART AND DISSENTENTING IN PART): Crothers, Daniel John: CON/DIS|
|32||06/21/2011 Costs on Appeal taxed in favor of Appellants|
|33||06/23/2011 Judgment Sent to Parties|
|35||07/25/2011 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE|