State ex rel. City of Marion v. Alber
838 N.W.2d 458
N.D.2013Background
- In 2003 the City of Marion obtained a judgment finding abandoned vehicles on Larry Alber’s property were a public nuisance and ordering removal or lawful maintenance.
- In 2012 the City initiated contempt proceedings alleging Alber’s property again failed to conform with the 2003 judgment.
- Alber testified he had crushed about 60 vehicles in 2003, hired counsel to notify the City, later suffered medical problems (including a rotator cuff injury), and undertook further crushing/removal efforts in fall 2012 but left additional vehicles for spring work.
- At the contempt hearing the district court found vehicle storage areas were overgrown, trees had taken root around vehicles, and wild animals likely present, indicating long-term noncompliance.
- The district court held Alber in contempt, ordered removal of nuisance vehicles, and awarded the City attorney fees; Alber appealed asserting lack of willfulness, inadequate findings, and improper receipt of post-hearing evidence.
Issues
| Issue | Plaintiff's Argument (City) | Defendant's Argument (Alber) | Held |
|---|---|---|---|
| Whether contempt was clearly and satisfactorily proven (willfulness) | Evidence showed ongoing noncompliance with 2003 judgment warranting contempt | Alber lacked willful intent: believed he complied in 2003 and was physically unable to timely complete cleanup in 2012 | Court affirmed contempt: sufficient evidence of willful, inexcusable violation; district court didn’t abuse discretion |
| Whether Alber’s physical incapacity justified noncompliance | Compliance was feasible because others could be hired to do the work | Alber’s medical limitations prevented timely remediation | Court rejected excuse: Alber offered no evidence he could not hire others or that help was unavailable |
| Whether district court made adequate findings under N.D.R.Civ.P. 52(a) | District court’s statements identified noncompliance and inability claim rejected, enabling appellate review | Rule 52(a) required more specific findings because contempt hearing was like a bench trial | Court held findings were sufficient to understand factual basis and rationale for decision |
| Whether consideration of post-hearing evidence deprived Alber of fair hearing | City submitted post-hearing materials supporting noncompliance | Alber argued late evidence denied opportunity to respond | Court refused to consider the argument raised for first time on appeal and noted record did not show reliance on the materials; no reversible error |
Key Cases Cited
- Berg v. Berg, 606 N.W.2d 903 (N.D. 2000) (party seeking contempt must clearly and satisfactorily prove alleged contempt)
- Harger v. Harger, 644 N.W.2d 182 (N.D. 2002) (contempt includes intentional disobedience; remedial contempt requires willful, inexcusable intent)
- Millang v. Hahn, 582 N.W.2d 665 (N.D. 1998) (district court’s contempt determination reviewed for abuse of discretion)
- Prchal v. Prchal, 795 N.W.2d 693 (N.D. 2011) (standards and deference for contempt proceedings summarized)
- Woodward v. Woodward, 776 N.W.2d 567 (N.D. 2009) (district court has broad discretion to hold contempt)
- Glasser v. Glasser, 724 N.W.2d 144 (N.D. 2006) (review of contempt findings is very limited)