Balvitsch v. Dakota Burger N Fries Corp., 842 N.W.2d 908

Plaintiffs Balvitsch and Weisgram sued defendant Jon Tollefson alleging breach of contract, conversion, unjust enrichment, and related claims.
At a February 8, 2013 scheduling conference, the district court allegedly gave oral instructions limiting Tollefson’s attacks on parties and non-parties; no written February 8 order with that restriction appears in the record.
On April 12, 2013 plaintiffs moved for contempt, alleging Tollefson violated the February 8 order by threatening defamatory websites; they filed an affidavit and exhibits.
The court issued an order to show cause setting an April 29, 2013 contempt hearing referencing a February 8, 2013 order; the order to show cause did not identify any other written order.
After the hearing the district court found Tollefson in contempt and imposed a remedial sanction of $750 in attorney fees to plaintiffs.
The Supreme Court reversed, concluding Tollefson lacked adequate notice of the contempt charge because the specific order he allegedly disobeyed did not appear in the record and the notice was insufficient to satisfy procedural and due process requirements.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether remedial contempt may be imposed for violating an alleged February 8, 2013 order restricting attacks on parties/non-parties	The court orally ordered Tollefson at the Feb. 8 scheduling conference not to attack parties/non-parties, and he violated that order	No written Feb. 8 order exists; Tollefson lacked adequate notice of the specific order he allegedly disobeyed	Reversed: contempt order vacated because notice was inadequate and the specified order was not in the record, failing due process and statutory notice requirements
Whether an order to show cause satisfied N.D.C.C. § 27-10-01.3 notice/hearing requirements for remedial sanctions	Order to show cause provided notice of hearing and described the alleged violation (referencing Feb. 8 order)	The order was not sufficiently precise about which order was violated and did not permit preparation of a defense	Court held the order to show cause was insufficient to inform Tollefson of the nature of charges; procedural and due process rules unmet

Holkesvig v. Welte, 809 N.W.2d 323 (N.D. 2012) (procedural compliance with § 27-10-01.3 is required before remedial contempt sanctions)
Jorgenson v. Ratajczak, 592 N.W.2d 527 (N.D. 1999) (motions and notices must be sufficiently precise to advise parties of the issues)
Baier v. Hampton, 417 N.W.2d 801 (N.D. 1987) (due process requires notice and a fair hearing when contempt occurs outside the court’s presence)
Groppi v. Leslie, 404 U.S. 496 (U.S. 1972) (same due process principle for contempt not in court’s presence)
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (U.S. 1950) (notice must be reasonably calculated to apprise interested parties and allow defense)
Autotech Tech. LP v. Integral Research & Dev. Corp., 499 F.3d 737 (7th Cir. 2007) (notice requirement’s purpose is to avoid unfair surprise and enable defense)
Morrell v. North Dakota Dep’t of Transp., 598 N.W.2d 111 (N.D. 1999) (due process notice principles applied in ND administrative context)