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Gray v. Berg

Supreme Court of North Dakota

April 18, 2016

David B. Gray, Plaintiff and Appellant
v.
Terry Berg, Defendant and Appellee

Page 80

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable James S. Hill, Judge.

         David B. Gray (argued), self-represented, Bismarck, ND, plaintiff and appellant.

         Laura C. Ringsak, Bismarck, ND, for defendant and appellee; submitted on brief.

         Gerald W. VandeWalle, C.J., Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, David W. Nelson, D.J. Opinion of the Court by VandeWalle, Chief Justice. The Honorable David W. Nelson, D.J., sitting in place of Sandstrom, J., disqualified.

          OPINION

Page 81

         Gerald W. VandeWalle, Chief Justic.

          [¶1] David Gray appealed from an order denying his demand for a change of judge and from a judgment dismissing his claims and awarding costs and attorney's fees to Terry Berg. We affirm the order and the judgment. We deny Berg's request for attorney's fees for defending against this appeal.

         I

          [¶2] Gray and Berg are adjacent property owners. On October 27, 2013, Berg wounded a deer on his property. The deer ran onto Gray's property. Berg followed the deer onto Gray's property, but he did not find the deer. Berg, along with his son and an acquaintance, reentered the property the following day, but they again did not find the deer. In a subsequent conversation with Gray, Gray informed Berg he was not welcome on the property. On November 2, 2013, Gray posted his property. Gray refused Berg's subsequent requests to access the property for purposes of finding the deer.

          [¶3] Berg contacted the North Dakota Department of Game and Fish for assistance in entering Gray's property to locate the deer. On December 23, 2013, a game warden accompanied Berg to Gray's property. At trial, the game warden testified that prior to going to the property, she contacted Gray, who agreed Berg and the game warden could come onto his property. However, once at the property, Gray informed a sheriff's deputy, who had been called to the property, he wanted Berg and the game warden removed for trespassing. The district court found, as a matter of fact, Gray consented to their search for the deer after the sheriff's deputy informed Gray that Berg and the game warden wanted to search his property to recover the deer. Berg and the game warden again did not locate the deer.

          [¶4] Gray sued Berg for Berg's December 23, 2013 entry to his property. In addition to various money damages, Gray sought an injunction enjoining Berg from entering his property. Prior to trial, Gray filed a demand for a change of judge, claiming the presiding judge, Judge Gail Hagerty, engaged in ex parte communication with possible witnesses, she failed to provide him with notice of an alleged order instructing witnesses not to communicate with Gray, and she improperly denied his various evidentiary requests. Gray argued this conduct reflected Judge Hagerty's bias against him. The demand was reassigned to Judge James Hill. See N.D. S.Ct. Admin. R. 2, § 9.

Page 82

Judge Hill denied the demand as ...


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