Zink v. Enzminger Steel LLC

20100359 Doug Zink and Ted Keller, Plaintiffs and Appellants
v.
Enzminger Steel, LLC, Defendant and Appellee

Appeal from: District Court, Southeast Judicial District, Stutsman County
Judge Thomas E. Merrick
Nature of Action: Contracts
Counsel:
Appellant: Pro se
Appellant: Pro se
Appellee: Steven Timothy Ottmar
Term: 04/2011   Argument: 04/26/2011  2:45pm
ND cite: 2011 ND 122
NW cite: 798 N.W.2d 863

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
Zink's 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?

Keller's Issues
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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Docket entries:
111/04/2010 NOTICE OF APPEAL: 11/01/2010
212/08/2010 RECORD ON APPEAL: electronic 1-39.
312/21/2010 S.Ct. Not. of Dismissal/Failure to Proceed
412/29/2010 NO ACTION TAKEN
512/28/2010 MOT. EXT/TIME APPELLANT BRIEF by Douglas Zink
612/28/2010 1st Supplemental Clerk's Certificate of Appeal (entry nos. 40-43)
712/29/2010 ACTION BY CLERK (MAT) (Zink). Granted: 01/28/2011
801/03/2011 MOT. EXT/TIME APPELLANT BRIEF by Ted Keller
901/03/2011 ACTION BY CLERK (MAT) (Keller). Granted: 01/28/2010
1001/03/2011 2nd Supplemental Clerk's Certificate of Appeal (entry nos. 44-47)
1101/27/2011 APPELLANT BRIEF (Doug Zink)
1201/27/2011 APPELLANT BRIEF (Ted Keller)
1301/28/2011 MOTION FOR Extension of Time to file a consolidated appendix
1401/28/2011 E-FILED MOTION
1501/28/2011 ACTION BY CLERK (consolidated appendix due 2/15/2011). Granted
1601/28/2011 MOT. EXT/TIME APPELLEE BRIEF (sua sponte). Granted
1701/28/2011 ACTION BY CLERK. Granted: 03/17/2011
1802/10/2011 Rec'd 1 original and 7 copies of corrected ATA's.
1902/14/2011 DISK - ATB Doug Zink (e-mail)
2002/14/2011 DISK - ATB Ted Keller (e-mail)
2103/17/2011 APPELLEE BRIEF
2203/17/2011 APPELLEE APPENDIX
2303/21/2011 DISK - aeb (e-mailed)
2403/22/2011 Corrected TOA & pages 3 & 4 for AEB
2503/22/2011 NOTICE OF ORAL ARGUMENT SENT
2604/26/2011 APPEARANCES: Douglas Zink; Ted Keller; Steven T. Ottmar
2704/26/2011 ARGUED: Douglas Zink; Ted Keller; Steven T. Ottmar
2804/26/2011 ORAL ARGUMENT WEBCAST
2906/21/2011 DISPOSITION: REVERSED AND REMANDED
3006/21/2011 SPLIT OPINION: Sandstrom, Dale V.
3106/21/2011 (CONCURRING IN PART AND DISSENTENTING IN PART): Crothers, Daniel John: CON/DIS
3206/21/2011 Costs on Appeal taxed in favor of Appellants
3306/23/2011 Judgment Sent to Parties
3407/21/2011 MANDATE
3507/25/2011 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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