FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
APRIL 20, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 72
City of Glen Ullin and Park District of the
City of Glen Ullin, Plaintiffs and Appellees
v.
Karen Schirado and Jerome Schirado, Defendants and Appellants
No. 20200345
Appeal from the District Court of Morton County, South Central Judicial
District, the Honorable Thomas J. Schneider, Judge.
AFFIRMED.
Opinion of the Court by Crothers, Justice.
John J. Mahoney, Center, ND, for plaintiffs and appellees.
Benjamin C. Pulkrabek, Mandan, ND, for defendants and appellants.
City of Glen Ullin v. Schirado
No. 20200345
Crothers, Justice.
[¶1] Karen and Jerome Schirado appeal from a judgment granting the City
of Glen Ullin and the Glen Ullin Park District permanent injunctive relief and
awarding the Park District attorney’s fees. The Schirados argue the district
court erred in granting summary judgment and awarding attorney’s fees. We
affirm.
I
[¶2] This case comes to this Court on a second appeal. City of Glen Ullin, et
al. v. Schirado, et al., 2020 ND 185 (Schirado I). The dispute involves lots,
streets, and alleys within or near the City of Glen Ullin. Id. at ¶ 2. The Park
District owns the lots while the City controls the streets and alleys running
between the lots. Id. The Schirados own land near both Park District and City
property. Id.
[¶3] In 2013 the Park District sued the Schirados to enjoin them from fencing
and allowing their horses to graze on Park District lots. The Park District was
granted default judgment. In 2019 the Park District and the City brought the
present suit, alleging the Schirados violated the 2013 judgment. The suit
contained claims similar to the 2013 suit, with additional claims involving the
City’s streets and alleys which were not involved in the original action.
[¶4] The Schirados conceded they placed fencing on the properties and
allowed their horses to graze, but alleged they were given permission by the
City in exchange for removing garbage that accumulated on the streets and
alleys. The Schirados claimed they devoted many hours and thousands of
dollars removing garbage from the streets and alleys. They resisted summary
judgment, arguing partial performance of their agreement satisfied the statute
of frauds.
[¶5] The district court granted a preliminary injunction and subsequently
summary judgment in favor of the City and the Park District. The court
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concluded the suit was based on the same facts and issues as the 2013 case,
and the entire case was res judicata. The court did not address the Schirados’
arguments regarding a partially performed agreement with the City. The court
also found the Schirados in contempt of court because of their violation of the
2013 judgment and awarded attorney’s fees and costs to the City and the Park
District in the amount of $11,106.85. The Schirados appealed that judgment
and we reversed. Schirado I, 2020 ND 185, ¶ 9.
[¶6] In Schirado I, this Court held the claim concerning the Park District’s
property was res judicata, the claim concerning the City’s property was not res
judicata, and the attorney’s fees award was not adequately explained. Id. at
¶¶ 7-8. We reversed the judgment granting relief to the City, and reversed and
remanded the award of attorney’s fees for the district court to explain its
rationale for the award, including which amount is a sanction for contempt,
and which portion is allocated to each plaintiff. Id. at ¶ 9.
[¶7] On remand, the Schirados filed a motion for trial, claiming Karen
Schirado possessed additional testimony and evidence “necessary to allow her
to fully present her case.” The City and Park District opposed the motion. The
district court denied the motion for trial and concluded the Schirados had two
opportunities to present evidence of an oral or written agreement to use the
City property and failed to do so. The court granted the City’s motion for
summary judgment, concluding the Schirados failed to present admissible
evidence in resistance to the City and Park District’s motion for summary
judgment. The court also granted the City and the Park District permanent
injunctive relief and awarded the Park District $5,460.00 in attorney’s fees.
The Schirados appeal from the amended judgment.
II
[¶8] The Schirados argue summary judgment was improperly granted
because of four issues of material fact: (1) City Council meeting minutes from
May 12, 2003 establishes an enforceable agreement under N.D.C.C. § 9-06-04;
(2) Schirados partially performed an unwritten agreement; (3) Schirados’ work
cleaning up the city streets was a valuable, substantial, and permanent
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improvement; and (4) Schirados took possession of the City’s streets and alleys
after entering into the alleged unwritten agreement.
[¶9] The standard of review for summary judgment is well established:
“In determining whether summary judgment was appropriately
granted, we must view the evidence in the light most favorable to
the party opposing the motion, and that party will be given the
benefit of all favorable inferences which can reasonably be drawn
from the record. On appeal, this Court decides whether the
information available to the district court precluded the existence
of a genuine issue of material fact and entitled the moving party
to judgment as a matter of law. Whether the district court properly
granted summary judgment is a question of law which we review
de novo on the entire record.”
Klein v. Sletto, 2017 ND 26, ¶ 7, 889 N.W.2d 918 (quoting Hamilton v. Woll,
2012 ND 238, ¶ 9, 823 N.W.2d 754).
[¶10] “Summary judgment is appropriate when ‘there is no dispute as to either
the material facts or the inferences to be drawn from the undisputed facts, or
whenever only a question of law is involved.’” Rooks v. Robb, 2015 ND 274,
¶ 10, 871 N.W.2d 468 (quoting First Nat’l Bank v. Clark, 332 N.W.2d 264, 267
(N.D. 1983)). Under Rule 56, N.D.R.Civ.P., the movant bears the burden of
showing no genuine issue of material fact exists. Rooks, at ¶ 10. The party
resisting the motion for summary judgment is given all favorable inferences
which may reasonably be drawn from the evidence. Id. A party resisting
summary judgment cannot only rely on the pleadings, but must present
competent admissible evidence raising an issue of material fact. Swenson v.
Raumin, 1998 ND 150, ¶ 9, 583 N.W.2d 102. A non-moving party cannot rely
on speculation. Beckler v. Bismarck Pub. Sch. Dist., 2006 ND 58, ¶ 7, 711
N.W.2d 172.
A
[¶11] Under the statute of frauds, a contract for an interest in real property is
invalid “unless the same or some note or memorandum thereof is in writing
and subscribed by the party to be charged.” N.D.C.C. § 9-06-04. “A subscription
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is the same as signing.” Bouten v. Richard Miller Homes, Inc., 321 N.W.2d 895,
899 (Minn. 1982); 2A. Corbin, Contracts § 521; 4 S. Williston, A treatise on the
Law of Contracts § 585 (3d ed. 1961). For purposes of this decision we will, as
the parties did, assume without deciding that the right to graze horses on
another person’s land is an interest in real property.
[¶12] The Schirados assert the City Council’s May 12, 2003 meeting minutes
constitute a sufficient memorandum to satisfy the statute of frauds and allow
the Schirados to use the city streets and alleys. Although the writing might
constitute a sufficient memorandum in the proper circumstance, this writing
does not contain what the Schirados claim.
[¶13] An agreement allowing the Schirados to use city streets and alleys does
not appear in the City Council’s minutes. Rather, the minutes state: “Karen
Schirado was present to inquire if she can graze horses on the Schultz land
located on the extreme north side of Glen Ullin. The Council determined that
this is permissible.” A member of the City Council on May 12, 2003, explained
her understanding of the agreement was that the Schirados purchased “the
Schultz land,” and the City agreed the Schirados could graze horses on their
land only. Karen Schirado asserted in her affidavit “she and her husband had
an agreement with the Glen Ullin City Counsel [sic],” the “land could be used
by she and her husband as pasture land,” “there was a lot of garbage,” “if she
cleaned it up she and her husband could use the platted streets and alleys as
part of their pasture land,” and “she has cleaned up the garbage.” However, no
terms of the “agreement” were provided and affidavits containing conclusory
statements unsupported by specific facts are insufficient to raise a material
factual dispute. BTA Oil Producers v. MDU Res. Group, Inc., 2002 ND 55, ¶ 49,
642 N.W.2d 873.
[¶14] The district court concluded the Schirados’ evidence failed to provide
competent admissible evidence of an agreement allowing the Schirados to use
anything but their own land. We therefore agree with the district court that no
genuine issue of material fact exists whether the minutes created an effective
agreement to allow the Schirados to use City land.
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B
[¶15] Part performance may remove an agreement from the statute of frauds.
See Trosen v. Trosen, 2014 ND 7, ¶ 21, 841 N.W.2d 687. A party asserting part
performance removed an unwritten agreement from the statute of frauds must
prove that a contract existed. Id. at ¶ 22. This Court has said:
“The general rule is that contracts for the sale of real
property and transfers of real property interests must be made by
an instrument in writing. Section 9-06-04, N.D.C.C.; Section 47-
10-01, N.D.C.C. However, part performance of an oral contract
which is consistent only with the existence of the alleged contract
removes it from the statute of frauds. Poyzer v. Amenia Seed &
Grain Co., 409 N.W.2d 107 (N.D. 1987). While partial payment of
the purchase price alone is not justification for enforcing an oral
contract to convey land, partial payment together with other acts
such as possession or the making of valuable improvements may
be sufficient to take a contract out of the statute of frauds. See
Parceluk v. Knudtson, 139 N.W.2d 864 (N.D. 1966). When
improvements to the property are relied upon as part performance
of an oral contract for purposes of removing it from the statute of
frauds, the improvements made on the land must be valuable,
substantial, and permanent. Vasichek v. Thorsen, 271 N.W.2d 555
(N.D. 1978). Thus, part payment of the purchase price and
substantial improvements to the property may remove an oral
contract from the statute of frauds and create an enforceable
contract constituting an enforceable equitable property interest.”
Williston Co-Op Credit Union v. Fossum, 459 N.W.2d 548, 551 (N.D. 1990)
(emphasis added).
[¶16] The Schirados’ remaining three arguments arise under the doctrine of
part performance. Thus, for any of the arguments to succeed the Schirados
must prove an agreement existed and their part performance was consistent
only with that agreement. As noted by the district court, despite several
opportunities to provide evidence of an agreement, oral or written, the
Schirados were unable to do so. While the Schirados provided evidence the City
granted them permission to “graze horses on the Schultz [ultimately Schirado]
land located on the extreme north side of Glen Ullin,” that agreement is not
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consistent only with a conclusion the Schirados received permission to utilize
the City streets and alleys as they suggest. Although Karen Schirado stated in
her affidavit she and her husband had an agreement with the City to utilize
the streets and alleys if she removed the garbage from them, nothing more
than her bare statement was provided. Karen Schirado’s testimony went no
further than to allege she spent eight years cleaning the City’s streets so she
could use them as pasture land. Karen Schirado’s affidavit and testimony
provide nothing more than conclusory allegations of part performance. The
Schirados were unable to raise a material factual dispute as to either of the
requirements under part performance. The Schirados failed to raise an issue
of material fact that part performance removed the alleged agreement with the
City from the statute of frauds.
III
[¶17] The Schirados assert the district court erred in its calculation of
attorney’s fees under this Court’s direction in Schirado I. There, we vacated
the district court’s original award of attorney’s fees to both the City and the
Park District, stating:
“[T]he court did not specify which portion of the award is a sanction
for the contempt, nor did it articulate which portion of the award
was attributable to each plaintiff. We therefore vacate the award
of attorney’s fees and costs with instructions for the district court
to explain its rationale for the award, including which amount is a
sanction for the contempt, and which portion is allocated to each
plaintiff.”
Schirado I, 2020 ND 185, ¶ 8 (citations omitted).
[¶18] The Schirados argue the district court erred by failing to adequately
explain the basis for awarding attorney’s fees. The Schirados also claim the
City was not entitled to attorney’s fees for contempt because the City possesses
no prior judgment. Despite this assertion, the district court’s order makes clear
no attorney’s fees were awarded to the City for contempt. The court stated:
“Since the 2013 litigation, Defendants have admitted to again
using and occupying the Park District property, while being aware
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of their objections . . . Defendants are in contempt of court by their
knowing and intentional resistance to and disobedience of the
previous order of this court issued in the 2013 case, and reasonable
attorney fees are awarded for the present action with respect to
Plaintiff Park District of Glen Ullin; the Park District of Glen Ullin
in the amount of $5,460.00, which is one-half of Plaintiffs’ attorney
fees in this action.”
(Emphasis added.)
[¶19] A district court is not required to describe its calculations in detail when
making its findings regarding attorney’s fees, so long as this Court is able to
discern a basis for the award. See Greenwood, Greenwood & Greenwood, P.C.
v. Klem, 450 N.W.2d 745, 748 (N.D. 1990). Here, the district court was
presented with an invoice listing the time and amounts billed by counsel to the
City and the Park District since the commencement of this litigation. The
district court explained that the Park District was awarded recovery of
attorney’s fees from the Schirados for their contempt, and the fee amount was
half the invoice total. The district court also explained it only awarded
attorney’s fees to the Park District because the City was not protected under
the 2013 injunction. These findings provided a discernible basis for the award
and, while a more thorough explanation of how the fee award was calculated
would be welcome, on this record we conclude the district court did not abuse
its discretion.
IV
[¶20] The district court’s summary judgment is affirmed.
[¶21] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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