Tarnavsky v. Rankin

• Decision Date: 18 August 2009
• Docket Number: No. 20090085.,20090085.
• Citation: 771 N.W.2d 578,2009 ND 149
• Parties: Edward J. TARNAVSKY, Plaintiff and Appellant v. Ron RANKIN, Sheriff of McKenzie County, personally and in his professional capacity, Defendant and Appellee.
• Court: North Dakota Supreme Court

771 N.W.2d 578

2009 ND 149

Edward J. TARNAVSKY, Plaintiff and Appellant v. Ron RANKIN, Sheriff of McKenzie County, personally and in his professional capacity, Defendant and Appellee.

No. 20090085.

Supreme Court of North Dakota.

August 18, 2009.

Rehearing Denied September 16, 2009.

Edward J. Tarnavsky, self-represented, Grassy Butte, N.D., for plaintiff and appellant.

David Ray Phillips (argued) and Scott Kenneth Porsborg (appeared), Smith Bakke, Porsborg & Schweigert, Bismarck, N.D., for defendant and appellee.

KAPSNER, Justice.

[¶ 1] Edward Tarnavsky appeals from a summary judgment dismissing his action against Ron Rankin personally and in his capacity as sheriff of McKenzie County for claims involving separate sheriff's sales of Tarnavsky's real and personal property. Tarnavsky generally challenges the propriety of the sheriff's sales and the district court's discovery rulings. We affirm.

I

[¶ 2] Tarnavsky sued Rankin personally and in his capacity as sheriff of McKenzie County, alleging that Rankin committed "misfeasance" and "malfeasance" by ignoring Tarnavsky's lawful exemptions in separate June 2007 and August 2007 sheriff's sales of Tarnavsky's real and personal property, each sale arising out of a prior litigation. The sheriff's sales were related to prior litigation involving Tarnavsky, his brother, and Union Bank. See Tarnavsky v. Tarnavsky, 2008 ND 179, ¶ 1, 756 N.W.2d 548 (summarily affirming orders denying Tarnavsky's post-judgment motions); Tarnavsky v. Tarnavsky, 2006 ND 124, ¶ 7, 717 N.W.2d 534 (remanding with instruction to vacate September 2005 sheriff's sale and order confirming sheriff's sale); Tarnavsky v. Tarnavsky, 2003 ND 110, ¶ 1, 666 N.W.2d 444 (affirming judgment ordering Tarnavsky to pay his brother more than $260,000 for contribution and legal fees for federal court judgment).

[¶ 3] A June 5, 2007, sheriff's sale of Tarnavsky's land stemmed from the foreclosure of a promissory note and real estate mortgage by Union Bank, in which the Bank obtained a judgment against Tarnavsky for $130,837.69, plus interest. The district court issued a writ of special execution directing Rankin to advertise and sell the property to satisfy the judgment against Tarnavsky. Rankin served the writ of special execution on Tarnavsky on April 20, 2007. Tarnavsky provided Rankin with an "Affidavit of Exemptions, NDCC 28-22 and NDCC 47-18" in which Tarnavsky claimed: (1) "[a]ll absolute exemptions" under "NDCC 28-22-02(1)-(7), (9)-(10), especially NDCC 28-22-02(5), provisions and fuel necessary for one year in the amount of $38,000"; (2) a homestead exemption valued at $80,000 for land next to Tarnavsky's "physical homestead"; and (3) a $2,500 exemption as a single person.

[¶ 4] At the June 5 sheriff's sale, Tarnavsky provided Rankin with a document in which Tarnavsky demanded: (1) immediate payment of all absolute exemptions listed in the affidavit of exemptions; (2) liquidation of an assignment of rents and leases that Tarnavsky made to the Bank on April 19, 2007; and (3) postponement of the sale until after collection of the money from the assignment of rents and leases. The sheriff's sale was held as scheduled, and the property was sold to the highest bidder for $134,000, which resulted in a surplus of $1,006.09. Rankin's "sheriff's report of sale" stated he transferred the proceeds from the sale, minus the surplus, to Union Bank, and issued a sheriff's deed to the purchasers. Rankin's affidavit also stated he deposited the surplus with the clerk of court. On May 22, 2008, Tarnavsky's brother and Tarnavsky's brother's wife redeemed the property.

[¶ 5] The second sheriff's sale, on August 3, 2007, involved Tarnavsky's personal property and stemmed from a lawsuit between Tarnavsky and his brother in which his brother obtained a judgment against Tarnavsky for $308,961.49. By a writ of execution dated May 31, 2007, Rankin was directed to satisfy the judgment out of Tarnavsky's personal property. Rankin served a notice of levy on Tarnavsky on July 10, 2007. Tarnavsky thereafter provided an "Amended Affidavit of Exemptions Execution #9" in which he asserted: (1) all absolute exemptions under N.D.C.C. § 28-22-02(1)-(7) and (9)-(10); (2) provisions for one year and fuel necessary in the amount of $38,000; and (3) a $2,500 exemption as a single person. Tarnavsky's personal property was sold to his brother at the August 3, 2007, sale.

[¶ 6] Tarnavsky's complaint in this action alleged he provided Rankin with an affidavit of exemptions for the June 5, 2007, sale, which Rankin "ignored," and Rankin failed to account for the surplus from that sale. Tarnavsky alleged Rankin's actions at the June 5 sale constituted "misfeasance." Tarnavsky alleged "malfeasance" by Rankin at the August 3 sale, claiming the execution was illegally done without jurisdiction of the court and Rankin's sale of the personal property ignored Tarnavsky's lawful exemptions. Tarnavsky also alleged the August 3 sale constituted "the second predicate act required for civil racketeering." The district court granted Rankin summary judgment and dismissed Tarnavsky's action with prejudice.

II

[¶ 7] Summary judgment is a procedural device for promptly resolving a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if resolving factual disputes will not alter the result. Red River Wings, Inc. v. Hoot, Inc., 2008 ND 117, ¶ 16, 751 N.W.2d 206. Whether summary judgment was proper is a question of law that we review de novo on the record. Id. A party seeking summary judgment bears the initial burden of showing there is no genuine dispute regarding the existence of a material fact. Riemers v. City of Grand Forks, 2006 ND 224, ¶ 7, 723 N.W.2d 518. On appeal, we view the evidence in the light most favorable to the party opposing the motion. Id.

[¶ 8] A party resisting a motion for summary judgment may not simply rely upon the pleadings or upon unsupported, conclusory allegations. Id. Rather, the party resisting the motion must set forth specific facts by presenting competent, admissible evidence, whether by affidavit or by directing the court to relevant evidence in the record, demonstrating a genuine issue of material fact. Id. See N.D.R.Civ.P. 56(e). The party opposing summary judgment has the duty to direct the court's attention to relevant evidence in the record, and "[t]he court has no duty to scour the record for evidence that would preclude summary judgment." Riemers, at ¶ 7. We explained the obligations placed upon a party resisting a summary judgment motion in Earnest v. Garcia, 1999 ND 196, ¶ 10, 601 N.W.2d 260 (citations omitted):

Judges, whether trial or appellate, are not ferrets, obligated to engage in unassisted searches of the record for evidence to support a litigant's position. In Umpleby By and Through Umpleby v. State, 347 N.W.2d 156, 160 (N.D.1984), this Court explained:

A party resisting a motion for summary judgment has the responsibility of presenting competent admissible evidence by affidavit or other comparable means, and, if appropriate, drawing the court's attention to evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising a material factual issue, or from which the court may draw an inference creating a material factual issue.

In summary judgment proceedings the trial court has no legal obligation or judicial duty to search the record for evidence opposing the motion for summary judgment. This principle is equally applicable, if not more so, to appellate proceedings because the appellate court, except for jurisdictional matters and the taking of judicial notice, generally considers only those issues raised in the trial court.

A party opposing a summary judgment motion "must also explain the connection between the factual assertions and the legal theories in the case, and cannot leave to the court the chore of divining what facts are relevant or why facts are relevant, let alone material, to the claim for relief." Peterson v. Zerr, 477 N.W.2d 230, 234 (N.D.1991).

III

[¶ 9] Tarnavsky argues the district court erred in granting Rankin summary judgment because Rankin sold Tarnavsky's property after ignoring Tarnavsky's claimed exemptions and the assignment of rents and leases. Tarnavsky claims the district court did not confirm the sheriff's sales as required by law and Rankin transferred the property without authority. Tarnavsky also asserts he was denied discovery before the district court ruled on the summary judgment motion and he had a legitimate civil claim against Rankin under the provisions of N.D.C.C. ch. 12.1-06.1, Racketeer Influenced and Corrupt Organizations ("RICO"). Tarnavsky essentially claims the sheriff's sales were not conducted according to law and Rankin's conduct constituted theft, which gave rise to the RICO claim.

[¶ 10] An action for wrongful execution may be based upon a wrongful sale in violation of a statutory duty. See Lang v. Barrios, 472 N.W.2d 464, 465 (N.D. 1991); see generally 30 Am.Jur.2d Executions and Enforcement of Judgments §§ 522 et seq. (2005). Here, however, Tarnavsky has not demonstrated there is a genuine issue of material fact that Rankin violated any statutory duties for sheriff's sales.

[¶ 11] Although Tarnavsky asserts the sale of the real property violated his homestead exemption, Tarnavsky waived any homestead exemption under N.D.C.C. § 47-18-05.1(1). See N.D.C.C. § 47-18-04. Tarnavsky's other claimed exemptions were for personal property and are not applicable to the sheriff's sale of land on June 5, 2007. Tarnavsky contends Rankin should have postponed the June 5 sale, but he has not cited any authority for a sheriff to postpone the sale without a court order. Tarnavsky also asserts Rankin did not account for the $1,006.09 surplus from the sheriff's sale, but Rankin's...