David B. Gray, Plaintiff and Appellant
Terry Berg, Defendant and Appellee
from the District Court of Burleigh County, South Central
Judicial District, the Honorable James S. Hill, Judge.
B. Gray (argued), self-represented, Bismarck, ND, plaintiff
C. Ringsak, Bismarck, ND, for defendant and appellee;
submitted on brief.
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.,
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.
[¶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.
Judge Hill denied the demand as ...