Gray v. Berg, 2016 ND 82

Gray and Berg are adjoining landowners; Berg wounded a deer on his land that ran onto Gray’s property in late 2013. Berg attempted to retrieve the deer on multiple occasions.
Gray posted his land and denied Berg permission to enter after earlier attempts; Berg later sought assistance from a game warden and, on December 23, 2013, returned to Gray’s property accompanied by the warden and a sheriff’s deputy.
The district court found Gray consented to Berg and the game warden entering his property on December 23, 2013; they did not find the deer and left without causing damage.
Gray sued Berg for civil trespass and sought damages and an injunction; Gray also filed a demand for change of judge claiming bias by Judge Hagerty. The demand was reassigned to Judge Hill, who initially denied it as untimely; this denial was reversed and remanded by this Court for a merits ruling.
On remand Judge Hill denied the change-of-judge demand on the merits, the district court entered judgment dismissing Gray’s trespass claim, found the claim frivolous, and awarded Berg costs and attorney’s fees. Gray appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Gray proved judicial bias warranting change of judge	Judge Hagerty engaged in ex parte contacts, denied evidentiary requests, and issued orders without notice showing bias	Alleged conduct amounts only to dissatisfaction with rulings; no evidence of actual bias	Denied — Gray failed to prove bias; denials were mere dissatisfaction with rulings
Whether Berg committed civil trespass on Dec. 23, 2013	Berg entered without consent after Gray had posted property and refused access	Berg had Gray’s consent that day (per game warden and deputy) and had statutory authority to recover legally taken game	Dismissed — factual finding Gray consented; no trespass
Whether N.D.C.C. § 20.1-01-19 (right to enter to recover game) is unconstitutional	Gray contended the statute violated N.D. Const. art. I, § 1	Berg relied on statute and facts showing consent; procedural defaults apply to constitutional challenge	Not reached on merits — Gray failed to follow appellate rule requiring AG notice and provided insufficient authority; Court declined to address constitutionality
Whether Gray’s claim was frivolous and fees properly awarded under N.D.C.C. § 28-26-01(2)	Claim was reasonable given disputed facts and rights to exclude	Claim was frivolous because consent precluded trespass and no reasonable basis to prevail	Affirmed — court did not abuse discretion finding claim frivolous and awarding fees

Tibert v. Slominski, 692 N.W.2d 133 (N.D. 2005) (defines common-law civil trespass elements in North Dakota)
State v. Stockert, 684 N.W.2d 605 (N.D. 2004) (presumption that a judge is not biased)
Evenstad v. Buchholz, 567 N.W.2d 194 (N.D. 1997) (general allegations of dissatisfaction with rulings insufficient to show judicial bias)
Estate of Pedro v. Scheeler, 856 N.W.2d 775 (N.D. 2014) (district court must award fees when claim is frivolous under N.D.C.C. § 28-26-01(2))
Sagebrush Res., LLC v. Peterson, 841 N.W.2d 705 (N.D. 2014) (standard for frivolous claim and appellate review of discretionary fee determinations)
United Valley Bank v. Lamb, 669 N.W.2d 117 (N.D. 2003) (defines frivolous appeal for sanctions under N.D.R.App.P. 38)
Spring Creek Ranch, LLC v. Svenberg, 595 N.W.2d 323 (N.D. 1999) (requiring substantial argument/authority for constitutional attacks)