The FEDERAL LAND BANK OF SAINT PAUL, Plaintiff and Appellee, v. Carol A. ZIEBARTH, Defendant and Appellant. Silver Ziebarth, also known as Sylvester A. Ziebarth; Rocky Mountain Investment Properties, Inc.; Dakota Western Bank; United States of America; Leslie L. Wade; Idella S. Wade; and William W. Binek, individually and doing business as Binek Law Office, Defendants.
Civ. No. 930276.
Supreme Court of North Dakota.
July 18, 1994.
The change from contributory negligence to modified comparative fault had no effect on proximate causation requirements. See
I see no reason to rely on a case which was based on language no longer contained in the statute to reach that result. Certainly, by creating a claim for relief in a tort action based on comparative fault, the legislature intended that the basic tort principles of causation apply. Thus, to infer that the statute imposes liability on the dram shop where negligence or reckless or willful conduct because it is a statutorily created liability. To infer that by naming dram shop liability, the legislature intended a different theory of liability to apply to the dram shop violation contributes to the intoxicated person‘s intoxication, the injury is inflicted by the intoxicated person, and there is no “superseding, intervening cause” that breaks the chain of causation between the intoxication and the injury, one only need apply fundamental tort law. I would construe “[l]egal requirements of causal relation” as simply incorporating the basic tort principles of proximate causation.
Because I agree that the existence of a “superseding, intervening cause” is ordinarily a question of fact not resolvable by summary judgment, see W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 45, at 321 (5th ed. 1984), I concur in the reversal on this issue and join in the reversal.
Carol A. Ziebarth (present, but did not argue), and Sylvester A. “Silver” Ziebarth, pro se.
MESCHKE, Justice.
Carol Ziebarth appeals from a supplemental judgment denying her motion to amend a prior judgment and assessing costs and attorney‘s fees, and from an order imposing sanctions limiting her ability to further litigate the foreclosure of her property. We modify the order imposing sanctions and otherwise affirm.
Ziebarth and her husband defaulted on loans from the Federal Land Bank of St. Paul.1 In 1987, the Bank sued to foreclose on mortgages of real property securing those loans. Following a series of bankruptcy filings, dismissals, and appeals, we summarily affirmed judgment of foreclosure against Ziebarth in Farm Credit Bank of St. Paul v. Ziebarth, 458 N.W.2d 513 (N.D.1990). We then affirmed a judgment evicting Ziebarth from the property. Farm Credit Bank of St. Paul v. Ziebarth, 485 N.W.2d 788 (N.D.), cert. denied, U.S., 113 S.Ct. 501, 121 L.Ed.2d 437 (1992). The long and tortuous history of this litigation, and related cases, is set out in greater detail in Ziebarth v. Farm Credit Bank of St. Paul, 494 N.W.2d 145 (N.D.1992). See also Binek v. Ziebarth, 456 N.W.2d 515 (N.D.1990). Ziebarth has continued to attempt to relitigate these matters in a variety of state and federal forums.
This appeal involves Ziebarth‘s motion to amend the judgment of foreclosure, based upon claims that have been previously litigated. The Bank responded to the motion and requested an injunction restricting Ziebarth and her husband from further litigating questions previously decided about the land, the foreclosure, and the eviction. The trial court entered a supplemental judgment denying Ziebarth‘s motion to amend the judgment, and entered an order imposing sanctions that prohibited Ziebarth and her husband from further litigating issues related to the land, the foreclosure, and the eviction without first receiving permission from the trial court and paying prior judgments assessing costs and attorney‘s fees for frivolous litigation. Ziebarth appealed.
I. RELITIGATED ISSUES
Ziebarth again attempts to rehash issues that we have before decided adversely to her. One last time, we will for Ziebarth‘s benefit reiterate these well-settled rules of law that are res judicata in this case.
A. Foreign Corporation
We earlier rejected Ziebarth‘s argument that the Bank was not entitled to maintain an action in state court because it was a “foreign corporation” required to register with the Secretary of State under
B. Homestead Exemption
Ziebarth asserts that
C. Bankruptcy Stay
Ziebarth asserts that the district court was without jurisdiction to enter summary judgment in July 1989 because the action was stayed by Ziebarth‘s pending appeal from dismissal of her bankruptcy filing. This question was raised in Ziebarth‘s original appeal from the judgment of foreclosure that we summarily affirmed in 1990. See Farm Credit Bank of St. Paul v. Ziebarth, 458 N.W.2d 513 (N.D.1990). We will address this issue to finally put it to rest.
Although the record on this appeal does not include all of the relevant documents from Ziebarth‘s bankruptcy, the procedural and chronological history of her bankruptcy case is outlined in Binek v. Ziebarth, 456 N.W.2d at 516-517. The Bank brought this foreclosure action in 1987. On January 13, 1988, Ziebarth filed a bankruptcy petition, and all further proceedings in this action were stayed pursuant to
Ziebarth argues that the filing of the notice of appeal from dismissal of her bankruptcy petition continued the automatic stay under
We conclude that the district court had jurisdiction when the summary judgment was entered on July 12, 1989.
II. AUTHORITY TO ENTER “AMENDED” SUMMARY JUDGMENT
Ziebarth asserts that the July 12, 1989 summary judgment was not entered pursuant to the North Dakota Rules of Civil Procedure, because the Rules do not expressly provide for entry of an “amended summary judgment.” Ziebarth claims that amendment of a judgment can only be done in accordance with
We need not address the merits of Ziebarth‘s claim, because the July 12, 1989 judgment was not an amended judgment, but was in fact the first judgment entered in this case. Ziebarth‘s reference to a prior judgment in June, and entry of an amended judgment in July, clearly refers to the court‘s orders for judgment. The court‘s first “Order Granting Summary Judgment” was dated June 21, 1989. Ziebarth then made a
The judgment entered on July 12, 1989, was not an “amended” judgment, but was the original judgment of foreclosure. The court had the authority to enter an amended order for judgment any time before judgment was entered. See
III. EX PARTE ORDER GRANTING EXTENSION OF TIME
Ziebarth asserts that the court erred in refusing to strike as untimely the Bank‘s response to her motion to amend judgment.
On April 12, 1993, a supplemental judgment was entered assessing costs and attorney‘s fees against Ziebarth for filing frivolous motions in this case. Ziebarth filed a motion to amend that supplemental judgment. Counsel for the Bank telephoned the trial court judge, requesting additional time to respond to Ziebarth‘s motion, and the judge orally granted a ten-day extension. Counsel for the Bank wrote a letter confirming that telephone conversation, but inadvertently failed to send a copy to Ziebarth. Ziebarth‘s motion to strike the Bank‘s return as untimely was denied by the trial court.
Under
(b) Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order....
Although it would have been far better to notify Ziebarth by a copy of the follow-up letter, the inadvertent failure to do so is not fatal. We conclude that the court did not abuse its discretion in denying Ziebarth‘s motion to strike the Bank‘s response.
IV. INJUNCTION
Ziebarth asserts that the trial court erred in entering its Order Imposing Sanctions that enjoined Ziebarth from further litigating issues about the property, the foreclosure, and the eviction without first paying prior judgments imposing sanctions and obtaining permission of the court.
As a prelude to imposing sanctions, the court in its order detailed the lengthy history of Ziebarth‘s forays into the legal system, federal and state, over the last five years. That history demonstrates an endless series of vexatious and meritless litigation, including: numerous lawsuits against the Bank, Bank employees, county officials, and judicial officials; baseless notices of lis pendens, notices of “rescission,” financing statements, and security agreements; and assorted frivolous motions and appeals. All of these matters relate, in one way or another, to the foreclosure and eviction actions that have been previously decided on appeal to this court. The two main issues stressed by Ziebarth on this appeal—the Bank‘s failure to register as a foreign corporation and the homestead exemption—have apparently been raised no fewer than a half-dozen times each, and have been expressly decided by this court in one of Ziebarth‘s previous appeals. Ziebarth‘s actions have resulted in seven pending judgments or orders requiring her to pay costs and, some, attorney‘s fees.
We expressed our exasperation at Ziebarth‘s ongoing litigation of baseless claims when awarding attorney‘s fees and costs against her in Ziebarth v. Farm Credit Bank of St. Paul, 494 N.W.2d at 148:
Furthermore, we recognize Ziebarth‘s litigious nature and her propensity to appeal meritless claims, as evidenced by the above history of her legal forays. Her appellant‘s brief and reply brief attempt to raise issues that were decided against the Ziebarths in those prior proceedings.
In light of this legal history, the trial court ordered:
Carol A. Ziebarth and Silver Ziebarth, also known as Sylvester A. Ziebarth, are here-
by enjoined and restrained from filing any further actions, motions, or other claims in any North Dakota court in the counties of Bowman, Slope, Golden Valley, Billings, Dunn, Stark, Hettinger and Adams relating to or in any way arising out of or touching upon the real property, foreclosure and sale of the land which was the subject of the above entitled action or the subject of Bowman County Civil Action No. 67CV87-617, or any part of the premises therein, or filing or recording notice of any such claim with any public officer of any of such counties, the same being lands described as follows.... until such time as (a) All Judgments and Orders for costs and attorneys fees hereinabove described at paragraph 2 of this Order shall have been paid; and
(b) Carol A. Ziebarth and Silver Ziebarth, also known as Sylvester A. Ziebarth, or such of them as desires to seek additional legal relief, shall have obtained the order of this Court allowing the filing of any such action, motion or notice as is hereinabove prohibited.
The court explained the reasons for its order:
[T]he sanctions which are the subject of this Order do not infringe upon the right of said Defendants to obtain access to the courts to present proper causes of action, but only regulates their right to seek judicial relief with regard to the matters which are the subject of this Order; and the Court having further determined and concluded that any inconvenience to the said Defendants is necessary to protect and outweighed by the rights of AgriBank, FCB, its predecessor corporations, purchasers from any of them, the public officials of Bowman County, the judiciary of the State of North Dakota, and the State of North Dakota itself from the vexatious, oppressive, harassing and annoying litigation which is directed not toward the attainment of justice but to further or satisfy the individual malice of said Defendants Ziebarth towards those whom their litigation is directed; and the Court having further concluded that pecuniary compensation will not provide adequate relief to those injured and that restraint of said Defendants Ziebarth is necessary to prevent a multiplicity of judicial proceedings, as a result of all of which this Court has determined to impose sanctions against the Defendants Carol A. Ziebarth and Silver Ziebarth, also known as Sylvester A. Ziebarth....
Ziebarth asserts that the sanctions in this case violate the “open courts” provision of
The United States Supreme Court has also had to face the problem of a prodigious litigant. In In re McDonald, 489 U.S. 180, 109 S.Ct. 993, 103 L.Ed.2d 158 (1989), the Court ordered that a litigant who had made 73 separate in forma pauperis filings would henceforth be denied in forma pauperis status, and directed the clerk of court not to accept from McDonald any further petitions for extraordinary relief unless accompanied by the docket fee.
In three prior cases we have addressed injunctive relief restricting future actions of particularly litigious parties. In State ex rel. Employees of the State Penitentiary v. Jensen, 331 N.W.2d 42 (N.D.1983), an inmate filed multiple civil rights actions against employees of the state penitentiary, and attempted to file frivolous liens against real and personal property of those employees. The State sued Jensen and obtained an injunction prohibiting him from filing liens that were not authorized by law. This court upheld the injunction against an overbreadth challenge, concluding that the trial court had not abused its discretion.
In Brakke v. Rudnick, 409 N.W.2d 326 (N.D.1987), the trial court enjoined the plaintiffs from commencing any lawsuit against any party within that judicial district without prior approval of the court. Suggesting that “injunctive relief to prevent plaintiffs from commencing future actions” may be appropriate “against litigants who have instituted frivolous and vexatious actions or who have endlessly sought to raise anew stale claims,” we nevertheless reversed the injunction on the facts of that case. Brakke v. Rudnick, 409 N.W.2d at 334-335. We stressed that, although the Brakkes had been involved in a great deal of litigation, they were not always the instigators of the litigation; the other litigation did not involve the same transactions, parties, or factual circumstances as the current action; the record on appeal did not include evidence showing the other litigation; and the present action was not frivolous as to all defendants. On those facts, we concluded that the court erred in enjoining all future lawsuits by the Brakkes.
In Farm Credit Bank of St. Paul v. Brakke, we again reviewed the trial court‘s imposition of sanctions against the litigious Brakke family. The trial court entered an injunction prohibiting the Brakkes from (1) holding any “trustee‘s sale” of certain property; (2) filing any document “that purports to transfer, affect, attack or assert any right, title or interest” in certain property “with any office (including, without limitation, any clerk of court, any bankruptcy court, any register of deeds, any disciplinary board of any bar association, any judicial conduct commission, any newspaper publisher, any taxing authority, etc.), whether within or outside the State of North Dakota“; (3) removing crops from the described land; (4) “[m]olesting, hindering, harassing, annoying or interfering with the present titleholders” of the land; and (5) interfering with the present titleholders’ quiet enjoyment and possession of the land. Farm Credit Bank of St. Paul v. Brakke, 483 N.W.2d at 171. We upheld those portions of the injunction prohibiting Brakkes from holding a “trustee‘s sale,” removing crops, or interfering with quiet enjoyment and possession. However, we reversed as too broad those parts restricting the
Both Brakke cases differ from this case. The trial court in the first Brakke case attempted to restrict the plaintiffs’ right to file any lawsuit, regardless of subject matter, against any party. It was not narrowly tailored to address only the particular abuses caused by the plaintiffs’ prior litigation. In this case, the court made clear that the restrictions against Ziebarth applied only to future litigation about the land, the foreclosure, and the eviction, which have already been litigated ad infinitum. This injunction is narrowly tailored to enjoin conduct specifically related to Ziebarth‘s prior abuses, i.e., endless relitigation of the same stale claims.
The court in the first Brakke case also stressed that the Brakkes’ prior litigation did not always involve the same transactions, factual circumstances, or parties, and that not all current claims were frivolous. In this case, Ziebarth‘s prior litigation has focused entirely upon the same transactions, factual circumstances, and issues, and virtually all claims in all of Ziebarth‘s myriad pleadings, motions, and filings may be characterized as frivolous. This particular appeal arose from Ziebarth‘s motion to amend the judgment, based upon the homestead claim that has repeatedly been decided against her. This claim was patently frivolous.
The second Brakke case is also different. The injunction prohibited the Brakkes from filing any document relating to the land in any office without limitation. There was no conditional provision allowing the Brakkes to raise meritorious claims by leave of court. Furthermore, the injunction was so broad as to prohibit conduct protected by the First Amendment. The injunction in this case is not nearly as broad, limiting only relitigation of the foreclosure and eviction. It also protects Ziebarth‘s right to raise nonfrivolous claims by seeking leave of the court, and does not raise First Amendment concerns. We conclude that the Brakke decisions are not barriers to the injunction issued in this case.
We agree with those federal appellate courts that have, under similar factual circumstances, upheld injunctions limiting litigants’ access to the courts. As noted in In re Hartford Textile Corp., 659 F.2d 299, 305 (2d Cir.1981), courts “are not powerless to protect the public, including litigants who appear before the Courts, from the depredations of those ... who abuse the process of the Courts to harass and annoy others with meritless, frivolous, vexatious or repetitive appeals and other proceedings.” See also In re Martin-Trigona, 737 F.2d at 1262. A court‘s authority to stem abuses of the judicial process arises not only from the applicable rules and statutes, like FRCivP 11 and
The record in this case demonstrates a lengthy pattern of abuse of the legal process, characterized by Ziebarth‘s relentless attempts to relitigate issues that long ago became res judicata. The injunction was narrowly tailored to specifically address those past abuses. We conclude that the court did not abuse its discretion in enjoining certain future litigation by Ziebarth.
Finally, we repeat the admonitions we have in the past given to particularly recalcitrant litigants. The public interest demands that, at some point, there be an end to litigation, so the parties may go about their normal business. Friedt v. Moseanko, 498 N.W.2d 129, 132 (N.D.1993); In re Estate of Kjorvestad, 395 N.W.2d 162, 164 (N.D.1986). As we reiterated in Texaro Oil Co. v. Mosser, 299 N.W.2d 191, 196 (N.D.1980) (quoting City of Wahpeton v. Drake-Henne, Inc., 228 N.W.2d 324, 331 (N.D.1975)), overruled on other grounds by GeoStar Corp. v. Parkway Petroleum, Inc., 495 N.W.2d 61, 67 (N.D. 1993):
“It is for the public interest and policy to make an end to litigation * * * so that * * * suits may not be immortal, while men are mortal.... there should be at some point an end to litigation.... Let this be it.”
We affirm the supplemental judgment. We modify the order imposing sanctions in accordance with this opinion and, as modified, we affirm.
LEVINE, NEUMANN and SANDSTROM, JJ., concur.
VANDE WALLE, Chief Justice, concurring and dissenting.
In this case, I would require the Court‘s permission for future filings regardless of the payment of prior judgments for costs and attorney fees.
HERBERT L. MESCHKE
JUSTICE