from the District Court of McKenzie County, Northwest
Judicial District, the Honorable Robin Ann Schmidt, Judge.
Christopher K. LeCates (argued) and Timothy D. Lervick
(appeared), Bismarck, ND, for plaintiff and appellee.
Spencer D. Ptacek (argued) and Michael D. Schoepf (on brief),
Bismarck, ND, for defendants and appellants.
1] Steven Kelly and Spirit Energy LLC (collectively
"Spirit") appeal from a district court order
holding them in contempt for failing to return leased
vehicles to Kettle Butte Trucking ("KBT"). Spirit
challenges the district court's underlying order that was
alleged to have been violated. Spirit also argues the court
did not have jurisdiction to hold it in contempt. We affirm
the district court's order holding Spirit in contempt.
2] KBT sued Spirit, alleging Spirit failed to pay numerous
lease payments for trucks they leased from KBT. KBT requested
the district court enter an order directing Spirit to show
cause why KBT should not be entitled to immediate possession
of the vehicles, an order granting it immediate possession of
the vehicles, and a money judgment for all amounts due under
3] The district court entered an order to show cause,
directing Spirit to show cause why KBT should not be granted
immediate possession of the vehicles and why the sheriff of
the county or counties in which the vehicles were located
should not seize possession. After a hearing, the court
ordered Spirit to immediately cease using the vehicles and to
immediately make arrangements to deliver possession of the
vehicles to KBT. The court further ordered that if Spirit
failed to perform either act, the sheriff of the county or
counties where the vehicles were located was directed to
seize and take immediate possession of the vehicles and
deliver them to KBT. Spirit objected to the order, arguing
N.D.C.C. ch. 32-07 requires KBT to post bond before obtaining
prejudgment possession of the property. The court entered an
amended order, further ordering no bond was required to have
sheriffs assist in taking possession and delivery of the
vehicles to KBT.
4] KBT moved for contempt, arguing Spirit violated the
underlying amended order by refusing to make arrangements for
delivery of the vehicles. Spirit opposed the motion, arguing
the amended order was void for lack of jurisdiction. They
claimed the vehicles are stored on the Fort Berthold Indian
Reservation, Kelly is an enrolled member of the Three
Affiliated Tribes, tribal code provides specific procedures
for repossession of personal property, and the amended order
allows KBT to circumvent tribal law.
5] The district court entered an order to show cause why
Spirit should not be held in contempt for failing to obey the
court's order. After a hearing, the court concluded it
had jurisdiction and found Spirit was in contempt for
refusing to return the vehicles. The court ordered Spirit may
purge themselves of contempt by delivering the vehicles to
KBT within seven days, and ordered Spirit forfeit $100 every
day the contempt continued if the property was not delivered
within seven days.
6] This Court must have jurisdiction to consider the merits
of an appeal. Everett v. State, 2017 ND 93, ¶
6, 892 N.W.2d 898. "The right to appeal is
jurisdictional, and we will consider the appealability of an
order on our own initiative even if neither party questions
the appealability." Id. (quoting Jordet v.
Jordet, 2015 ND 73, ¶ 12, 861 N.W.2d 154).
"The right to appeal is purely statutory, and if there
is no statutory basis for appeal we must take notice of the
lack of jurisdiction and dismiss the appeal."
Nygaard v. Taylor, 2017 ND 206, ¶ 8, 900 N.W.2d
7] We have explained the two-step analysis for evaluating
First, the order appealed from must meet one of the statutory
criteria of appealability set forth in NDCC § 28-27-02.
If it does not, our inquiry need go no further and the appeal
must be dismissed. If it does, then [N.D.R.Civ.P. 54(b)], [if
applicable, ] ...