Schwab v. Zajac, 823 N.W.2d 737

Background

In 2008 Zajac agreed to buy land from the Schwabs for $196,000 with $10,000 earnest money and a closing deadline; title was to be marketable subject to recorded easements.
The Schwabs provided a seller disclosure stating no knowledge of U.S. Fish or Wildlife easements; the disclosure warned it was not a warranty.
A title abstract later disclosed a recorded U.S. Fish and Wildlife waterfowl easement; Zajac refused to close and recorded an affidavit of interest asserting misrepresentation.
Schwabs sued for return of the earnest money, quiet title, and damages for slander of title, plus attorney fees under N.D.C.C. § 47-19.1-09.
Zajac, self-represented, defended; the jury found no fraud but held Zajac liable for slander of title in the amount of $4,000; the district court ordered Zajac to execute a disclaimer and ordered the $10,000 earnest money disbursed to Schwabs; Schwabs were awarded trial costs and attorney fees.
On appeal, Zajac challenges evidentiary rulings, due process arguments, and seeks relief related to the未slander-of-title damages and appellate fees.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Mootness/waiver of appeal	Zajac contends the appeal is moot since the earnest-money disbursement resolved part of the judgment.	Schwabs claim non-mootness because the slander-of-title damages and appellate fees remain unsatisfied.	Not moot; unresolved damages and appellate-fee issues keep the appeal viable.
Admissibility of settlement-related evidence about the easement cure	Zajac argues evidence of attempts to cure the easement was admissible to prove misrepresentation.	Schwabs contend settlement discussions are inadmissible under Rule 408 and not properly admitted.	Exclusion not an abuse of discretion; settlement-evidence rule properly applied.
Present value evidence of the land	Zajac sought admission of current land value to mitigate damages and support fraud claim.	Schwabs argue excluding value evidence was proper and lacked offer of proof.	No reversible error; district court's exclusion was proper given lack of offer of proof and self-representation.
Due process and fairness when self-represented	Zajac claims the court took over his case and restricted his presentation.	Schwabs maintain the court provided fair opportunity and did not take over the case.	No due process violation; the court administered a fair trial within its discretion and Zajac was bound by same rules as counsel.
Attorney fees on appeal under N.D.C.C. § 47-19.1-09	Schwabs seek appellate attorney fees under the statute for slander of title.	Zajac challenges entitlement to appellate fees and applicability of the statute on appeal.	Schwabs are entitled to attorney fees on appeal; remand to determine amounts for the slander-of-title claim.

Key Cases Cited

City of Bismarck v. Mariner Constr., Inc., 714 N.W.2d 484 (N.D. 2006) (settlement evidence restrictions under Rule 408; balancing probative value and prejudice)
Hartleib v. Simes, 776 N.W.2d 217 (N.D. 2009) (procedural due process requires fairness; flexible requirements)
Danzl v. Heidinger, 677 N.W.2d 924 (N.D. 2004) (American Rule on attorney fees unless statutorily or contractually provided)
Troutman v. Pierce, Inc., 402 N.W.2d 920 (N.D. 1987) (prevailing-party fee awards on appeal when authorized by statute)
State v. Hernandez, 707 N.W.2d 449 (N.D. 2005) (opening the door doctrine; evidentiary discretion in admissibility after door has been opened)