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State ex rel. City of Marion v. Alber

Supreme Court of North Dakota

December 12, 2019

State of North Dakota, ex rel, City of Marion, Plaintiff and Appellee
v.
Larry Alber, Defendant and Appellant

          Appeal from the District Court of LaMoure County, Southeast Judicial District, the Honorable Mark T. Blumer, Judge.

          Delvin J. Losing, City Attorney, Casselton, ND, for plaintiff and appellee.

          Larry Alber, self-represented, Marion, ND, defendant and appellant.

          OPINION

          JENSEN, JUSTICE.

         [¶1] Larry Alber appeals from a district court order denying his motion for injunctive relief against the City of Marion. Alber also appeals from an order denying his motion for reconsideration. We affirm, concluding the court did not abuse its discretion in denying Alber's motions.

         I

         [¶2] In 2003, the City sued Alber, alleging certain abandoned vehicles on Alber's property violated a City ordinance and were a public nuisance. The district court entered a judgment against Alber finding the vehicles on Alber's property were a public nuisance. The judgment required Alber to remove or lawfully maintain the vehicles.

         [¶3] In 2013, the district court found Alber in contempt for violating the 2003 judgment's requirement that he maintain the vehicles or remove them from his property. The court ordered Alber to remove all nuisance vehicles from his property. The court also ordered that any vehicles not removed by Alber could be removed by the City. This Court affirmed the contempt order on appeal. State ex rel. City of Marion v. Alber, 2013 ND 189, ¶ 21, 838 N.W.2d 458.

         [¶4] In March 2014, Alber moved the district court to reconsider the order under N.D.R.Civ.P. 60(b)(6). The motion was denied by the court in May 2014. Alber did not appeal the order. Alber then filed a "Report of Compliance," claiming he had complied with the 2003 judgment, the 2013 contempt order, and the May 2014 order denying Alber's motion for reconsideration. Alber's report did not request any relief from the court. The City filed an objection to the report, and no action was taken by the court.

         [¶5] In December 2016, Alber moved for injunctive relief, requesting a temporary restraining order prohibiting the City from entering his property to remove nuisance vehicles. The district court denied Alber's motion, concluding he made the same request in his March 2014 motion to reconsider the contempt finding. Alber did not appeal the order denying injunctive relief.

         [¶6] In January 2018, the district court issued an order amending the 2013 contempt order. The order clarified the property subject to the contempt order. Alber appealed, and a majority of this Court affirmed the amended order. State ex rel. City of Marion v. Alber, 2018 ND 267, ¶ 9, 920 N.W.2d 739.

         [¶7] In January 2019, Alber moved for injunctive relief, requesting a temporary restraining order prohibiting the City from entering his property to remove vehicles. The district court denied the motion, concluding the issue relating to Alber's nuisance vehicles had already been litigated and decided. Alber then moved for reconsideration, which the court denied.

         II

         [¶8] Alber argues the district court erred in denying his motion for injunctive ...


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