Lang v. Basin Elec. Power Co-op.

• Decision Date: 08 January 1979
• Docket Number: No. 8992A,8992A
• Citation: 274 N.W.2d 253
• Parties: Ernest R. LANG and Rosemary Lang, Plaintiffs and Appellants, v. BASIN ELECTRIC POWER COOPERATIVE, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 253

274 N.W.2d 253

Ernest R. LANG and Rosemary Lang, Plaintiffs and Appellants, v. BASIN ELECTRIC POWER COOPERATIVE, Defendant and Appellee.

Civ. No. 8992A.

Supreme Court of North Dakota.

Jan. 8, 1979.

Rehearing Denied Feb. 1, 1979.

Joseph A. Vogel, Jr., Mandan, for plaintiffs and appellants.

Bruce B. Bair, of Bair, Brown & Kautzmann, Mandan, for defendant and appellee.

VANDE WALLE, Justice.

Ernest and Rosemary Lang ("Langs") sued Basin Electric Power Cooperative ("Basin") in the district court, alleging that Basin trespassed upon their land and falsely imprisoned Ernest Lang. Here, the Langs appeal from the district court's summary judgment entered against them and in favor of Basin. We affirm the summary judgment of the district court.

FACTS

This controversy arises from Basin's attempt, ultimately successful, to obtain an easement for the construction and maintenance of a power transmission line over land belonging to the Langs. After fruitless negotiations with Mr. Lang concerning this easement, on December 17, 1971, Basin initiated condemnation proceedings against the Langs for its acquisition by serving a summons and complaint. The summons and complaint were properly served upon the Langs. The Langs did not file an answer, but communicated with Basin about the easement on divers occasions. On May 29, 1973, with the Langs present neither in person nor by attorney, Judge Hamilton E. Englert conducted a hearing on the matter. On the same date, Judge Englert entered a judgment and order of possession, which granted to Basin possession of the easement three days after service of the order, and ordered Basin to pay $1,100 to Mr. Lang. A deputy sheriff served this order upon Mr. Lang on May 29, 1973.

In early June, Basin attempted to begin construction of the transmission line on the Langs' property, but was asked to leave the property by the Langs' son. Basin complied with this request. Upon motion by Basin, Judge Alfred A. Thompson entered an order to show cause dated June 5, 1973, which in pertinent part restrained and enjoined the Langs from engaging in acts that would interfere with Basin's "immediate taking of On June 7, 1973, Mr. Lang hired Attorney Floyd B. Sperry to represent him. Mr. Sperry immediately filed a motion to vacate the judgment and order of possession issued by Judge Englert on May 29, 1973. After a hearing on June 26, 1973, at which he took the matter under advisement, Judge Englert denied the motion in an order dated October 29, 1973, but at the same time, in an amended judgment and order of possession, increased the award for damages from $1,100 to $3,280. Finally, on November 5, 1973, upon his own motion, Judge Englert filed a memorandum decision and order granting the Langs a new trial on the issue of damages and just compensation.

possession of such land as is necessary for the building of said power line." On June 6, 1973, despite being served with a copy of this order to show cause, Mr. Lang, in violation of the order, ordered Basin to leave his land. Mr. Lang's disobedience of the order caused a deputy sheriff to arrest him. Consequently, Judge Thompson entered a writ of attachment for contempt, dated June 6, 1973, and conducted civil contempt proceedings against Mr. Lang. In his findings and order, announced on June 6 and dated June 8, 1973, Judge Thompson found Mr. Lang guilty of civil contempt, fined him $100, and sentenced him to fifteen days in jail. Judge Thompson, however, suspended these penalties for six months to enable Mr. Lang "to purge himself of such contempt."

After the events in early June resulting in the civil contempt proceedings, Basin refrained from further work on the transmission lines until September, 1973. In late September and early October, a series of incidents occurred similar to those of early June. On September 27, 1973, Rosemary Lang requested that a construction crew, which carried steel transmission towers for installation on the easement, leave the Langs' property. On October 1, 1973, Mr. Lang, driving a tractor equipped with a farmhand loader, pushed together two vehicles belonging to members of the installation crew. Mr. Lang thereupon was arrested and subsequently charged with disturbing the peace and disorderly conduct. After posting bond, he was released. On October 2, 1973, in another attempt to block the construction crew's entrance, Rosemary Lang and the Langs' son parked two "diggers" in front of the gates leading to their property. On the same date, again to prevent the crew's entrance, Mr. Lang parked a "semi" on the section line running through the property.

These incidents culminated in the filing of an affidavit of contempt, dated October 23, 1973, and signed by Deputy Sheriff Clifford Jacobson, to support a request for revocation of the order suspending imposition of the earlier civil contempt sentence. Judge Thompson issued an order to show cause dated October 25, 1973, on the issue of civil contempt. After several postponements owing to Mr. Lang's inability to obtain counsel, Judge Thompson held a contempt proceeding on December 31, 1973. Mr. Lang appeared without an attorney. Judge Thompson announced that he was revoking suspension of the civil contempt sentence, which was initially entered on June 6, 1973, and entered this order on January 2, 1974. At the same hearing, Judge Thompson found Mr. Lang guilty of criminal contempt of court for his part in the October 1, 1973, incident. For this violation Judge Thompson fined Mr. Lang $500, sentenced him to thirty days in jail, but suspended both the fine and sentence for six months upon Mr. Lang's good behavior, and entered his findings and order on January 4, 1974. In a subsequent order, dated January 28, 1974, Judge Thompson reduced Mr. Lang's civil contempt sentence to seven days on a motion by Alfred C. Schultz, an attorney employed by Mr. Lang.

In December, 1973, the Langs filed with this court an appeal of the amended judgment and order of possession issued by Judge Englert on October 29, 1973. That appeal was argued on May 6, 1974. On August 30, 1974, this court ordered a new eminent-domain trial because, in the initial proceeding, Basin failed to give notice of trial to the Langs in accordance with Section 32-15-17, N.D.C.C. See Basin Electric Power Cooperative v. Lang, 221 N.W.2d 719 (N.D.1974). Subsequently, Judge Norbert On October 13, 1975, the Langs filed in the district court a tort action upon which they predicate this appeal. After discovery, Basin moved for summary judgment. Judge Eugene A. Burdick granted Basin's motion for summary judgment and dismissed the Langs' action with prejudice. Judge Burdick held, in essence, that although this court found the original condemnation proceedings herein involved to be erroneous (Basin Electric Power Cooperative v. Lang, 221 N.W.2d 719 (N.D.1974)), the Supreme Court's decision merely rendered those proceedings voidable, not void. This meant that Basin continued to hold possessory rights in the Langs' property until the judgment was reversed. Basin therefore lawfully entered upon the Langs' property and committed no tort.

J. Muggli, whom the Supreme Court designated to preside over the new trial, conducted a further eminent-domain proceeding that resulted in an award to the Langs of $4,300 as just compensation and a final order of condemnation which was entered on July 18, 1975. This order was not appealed.

DECISION

Mr. Lang, found in both civil and criminal contempt for having violated orders of the district court, and Mrs. Lang base their complaint for trespass and false arrest in this action on the following language of this court in Basin Electric Power Cooperative v. Lang, supra, 221 N.W.2d at 721:

"Trial on March 27 was postponed and later set for May 29, 1973, a date during the May 1973 jury term of district court for Burleigh County. At this time, the defendants had not served or filed an answer, or answers, to the plaintiff's complaint, and it follows that issue had not been joined. On May 22, and again on May 24, the clerk of court forwarded notice of the trial date by certified mail to Mr. Lang only. Mrs. Lang was not so notified. It is our view, notwithstanding the attempted service of the notice of trial by the clerk of court, that the failure to comply with the provisions of § 32-15-17, N.D.C.C., is jurisdictional as to both Mr. and Mrs. Lang. If it were to be argued that the Langs waived the jurisdiction over their persons by their appearance in connection with their motion to vacate the judgment, the result would be the same in that it is our opinion that the trial court erred in not granting the motion to vacate the judgment under Rule 60(b), N.D.R.Civ.P."

This statement, the Langs argue, necessarily leads to the conclusion that the order of possession of the district court on May 29, 1973, was void, and therefore any orders of the district court resulting therefrom, including the contempt orders, are also void. They further argue that since the contempt orders are void, Basin, which caused these orders to be issued, is liable for false arrest and, since the order of possession is void, also liable for trespass.

Basin Electric Power Cooperative v. Lang, supra, concerned the taking of the property and the damages for such taking. In that case this court noted that the issue of necessity was not raised in the trial court and that only in oral argument in this court on appeal did the defendant Mr. Lang raise that issue. 221 N.W.2d at 721. However, this court did order that the judgment of the trial court of October 29, 1973, and all orders thereafter issued by Judge Englert be vacated, and granted a new trial as to all issues. This court did not set aside Judge Englert's previous orders, including the order of possession of May 29, 1973, nor did it consider or set aside any of Judge Thompson's contempt orders which provide the basis for the complaint the Langs filed against Basin in ...