Application of Bjerke
2011 ND 101
| N.D. | 2011Background
- Zink and Keller appeal district court dismissal of their complaint against Enzminger Steel, and the court’s award of attorney’s fees to Enzminger.
- Plaintiffs allege a partnership between Zink and Keller entered into the Enzminger contract, though the contract lists Zink as purchaser and signs with Zink and his son.
- After construction began, plaintiffs alleged unsuitable components were used and ceased further payments; two breach actions ensued, with Keller and Zink separately named in this appeal.
- District court sua sponte demanded proof of the alleged partnership within four days and warned of dismissal with prejudice and fee awards if not produced; Keller would be joined if partnership proved; otherwise Zink and Keller’s actions would be dismissed.
- Zink did not attend the hearing and received no adequate notice of the impending dismissal; Keller attended and was not a licensed attorney, raising concerns about unauthorized practice of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the dismissal improper without notice? | Zink, Keller argue lack of adequate notice to pursue partnership proof. | Enzminger contends court properly demanded proof and dismissed for failure to prove partnership. | Zink: reversal; Keller: dismissal without prejudice |
| Did the court err in sua sponte dismissal and treating it as summary judgment? | Dismissal based on outside-pleadings evidence was improper without motion. | Documented partnership proof was required; proceeding appropriate. | Dismissal considered without prejudice for Keller; with prejudice for Zink reversed; remand |
| Is awarding attorney’s fees to Enzminger improper given notice flaw? | Fees should be reversed due to lack of proper notice affecting partnership proof. | Fees were warranted for frivolous pleadings. | Fees award reversed |
| Should Keller’s case be dismissed without prejudice if partnership proof could be produced later? | Keller should have chance to prove partnership; dismissal without prejudice appropriate. | Lack of partnership evidence justifies dismissal. | Keller’s dismissal without prejudice affirmed on remand |
Key Cases Cited
- Ennis v. Dasovick, 506 N.W.2d 386 (N.D. 1993) (trial court may dismiss for failure to state a claim but must be cautious)
- Albrecht v. First Federal Savings & Loan Ass’n, 372 N.W.2d 893 (N.D. 1985) (dismissal without prior motion patently frivolous)
- City of Jamestown v. Snellman, 586 N.W.2d 494 (N.D. 1998) (due process notice required before sua sponte dismissal)
- Davidson v. State, 781 N.W.2d 72 (N.D. 2010) (summary judgment standard when no genuine issues of material fact)
- Ward v. Shipp, 340 N.W.2d 14 (N.D. 1983) (trial court has broad docket-control discretion)