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State ex rel. City of Marion v. Alber

Supreme Court of North Dakota

October 22, 2013

The STATE of North Dakota, ex rel. The CITY OF MARION, Plaintiff and Appellee
v.
Larry ALBER, Defendant and Appellant.

Page 459

Delvin J. Losing (argued), Casselton, N.D. and Andrew D. Cook (appeared), West Fargo, N.D., for plaintiff and appellee.

Sean T. Foss, Fargo, N.D., for defendant and appellant.

SANDSTROM, Justice.

[¶ 1] Larry Alber appeals from a district court order finding him in contempt and requiring him to pay attorney fees to the City of Marion. We affirm, concluding the district court did not abuse its discretion in finding Alber in contempt.

I

[¶ 2] In February 2003, the City brought a nuisance action against Alber, seeking the removal and proper storage of abandoned vehicles on his property. In that proceeding, the district court found the vehicles were a public nuisance and ordered they either be removed or be lawfully maintained.

[¶ 3] In October 2012, the City brought this contempt proceeding against Alber, alleging his property failed to conform with the 2003 judgment. Alber testified at a contempt hearing, claiming he believed the prior order had been satisfied in 2003 when he crushed almost 60 vehicles and hired an attorney to send the City a letter to ensure compliance. He testified there was no response from the City until he received a letter in June 2012 asking him to clean up his property. After receiving the letter, Alber informed the town board members he had suffered a rotator cuff injury and his doctor had not yet cleared him for physical work, so he would be unable to do the necessary clean-up until August. He testified that on August 25 he contacted a Jamestown company to rent a crusher and that during the fall, four semi-loads of cars were removed from his property and crushed. He testified he intended

Page 460

to have the crusher return in the spring because it was difficult to complete necessary prep work on the remaining vehicles during the winter.

[¶ 4] Following the contempt hearing, the district court found Alber in contempt for violating the 2003 judgment. The court found the vehicle storage areas on Alber's property were overgrown with weeds, and trees had taken root around many of the vehicles. The court stated, " Common sense reveals that wild animals must be present as well." The court further found Alber had not established he was unable to abide by the 2003 judgment. The court said Alber's physical complications may have limited his ability to personally prepare the vehicles for crushing, but those obstacles were insufficient to justify non-compliance, and others could have performed the services for a fee. The court ordered Alber to remove all nuisance vehicles from his property and awarded the City attorney fees.

[¶ 5] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. §§ 27-05-06 and 27-10-01.2. Alber's appeal is timely under N.D.R.App.P. 4(c). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. §§ 27-10-01.3(3), 28-27-01, and 28-27-02.

II

[¶ 6] Alber argues the evidence presented at the contempt hearing is insufficient to clearly establish contempt, because the evidence does not show he willfully and intentionally failed to abide by the 2003 judgment. To support this contention, he argues he was physically unable to perform remediation during the time requested by the City in 2012, but once able, he made good-faith efforts to clean up his property. Alber also argues his neglect ...


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