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Doug Zink and Ted Keller, Plaintiffs and Appellants v. Enzminger

June 21, 2011

DOUG ZINK AND TED KELLER, PLAINTIFFS AND APPELLANTS
v.
ENZMINGER STEEL, LLC, DEFENDANT AND APPELLEE



Appeal from the District Court of Stutsman County, Southeast Judicial District, the Honorable Thomas E. Merrick, Judge.

The opinion of the court was delivered by: Sandstrom, Justice.

N.D. Supreme Court

Zink v. Enzminger Steel, LLC,

2011 ND 122

This opinion is subject to petition for rehearing. [Go to Documents]

[Download as WordPerfect] Concurring and dissenting opinion filed.

REVERSED AND REMANDED.

Opinion of the Court by Sandstrom, Justice.

[¶1] Doug Zink and Ted Keller appeal from the district court judgment dismissing their complaint, denying their motions, and awarding Enzminger Steel attorney's fees and costs.*fn1 We reverse and remand the district court judgment dismissing Zink's complaint with prejudice, because he was not given notice of the court's order demanding proof of a partnership and an opportunity to respond. We also reverse and remand the dismissal of the complaint with prejudice as to Keller, and hold that the complaint is dismissed without prejudice. Finally, we reverse the district court's award of attorney's fees and costs to Enzminger Steel.

I

[¶2] Enzminger Steel contracted with Doug Zink to supply components for a new grain drying site. This contract lists Zink as the purchaser of Enzminger Steel's materials. Zink and his son, Jeremy Zink, signed this contract. Doug Zink and Keller contend, however, that they had formed a partnership for the purposes of constructing and operating this grain drying site. They further allege that it was this partnership, not the Zinks separately, that entered into the contract with Enzminger Steel.

[¶3] Sometime after construction of the grain drying site had begun, Zink and Keller allege they learned that certain unsuitable components had been used in the site's construction. As a result, Zink and Keller refused to make any further payments under the contract to Enzminger Steel. Two separate breach of contract actions followed, one brought by Enzminger Steel and one brought by Zink and Keller. The latter action is before us on appeal. The breach of contract issues have yet to be reached, however, because this case was dismissed on procedural grounds.

[¶4] After the two actions had begun, Zink and Keller moved to strike Enzminger Steel's answer and counterclaim to their complaint. Enzminger Steel moved for a protective order stemming from alleged discovery abuses, and also moved to join Jeremy Zink as a party to this action. The district court held a hearing on these motions.

[¶5] Keller represented himself at the hearing, but neither of the Zinks attended although they had been served notice. Doug Zink contends he did not attend because he did not oppose any of the motions scheduled to be considered at the hearing. When the hearing began, the district court immediately voiced its concern with what it felt was Keller's unauthorized practice of law. The court criticized Keller for preparing pleadings for the Zinks and attempting to represent them, and also for the motion to strike, which the court concluded was frivolous. Keller maintained that he and Doug Zink were partners, but that his appearance in court was only on behalf of himself, not Zink or this partnership.

[¶6] The district court repeatedly questioned whether this alleged partnership between Zink and Keller was a ruse to allow Keller to practice law without a license. When Keller stated that he and Zink were sharing pleadings, the court responded, "That means you are practicing law without a license," and "I know you think you are an attorney but you are not." Keller later told the court that he and Zink had entered into an unwritten partnership agreement to share profits and losses. The court replied, "[T]he agreement that you are in is to share profits off this lawsuit which is not allowed. What they want to do is to have you be their attorney and I am not allowing that."

[ΒΆ7] Despite the absence of the Zinks, the district court verbally ordered that it would dismiss the action brought by Keller and Doug Zink unless either could prove the existence of a partnership within four days. If documents were produced proving the existence of a partnership, Keller would be joined as a party to the action brought by Enzminger Steel. If these documents were not produced, the court stated the action brought by Zink and Keller ...


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