Livinggood v. Balsdon

2006 ND 215, 722 N.W.2d 716, 2006 N.D. LEXIS 217, 2006 WL 2948826
North Dakota Supreme Court·Decided October 17, 2006·No. 20060130·Published·Cited by 9 cases

Opinion

SANDSTROM, Justice.

[¶ 1] Aaron Balsdon appeals the district court’s judgment on remand awarding Danny Livinggood treble damages based on one year of anticipated lost profits for forcibly ejecting Livinggood from the farm property he was leasing from Balsdon. We affirm.

I

[¶ 2] In February 2003, Living-good entered into a five-year farm lease with DeWayne Balsdon. Livinggood farmed the land under the lease for one year, made the lease payment in advance for the next farm year, and prepared the land in the fall of 2003. In April 2004, Aaron Balsdon purchased the farmland from his uncle, DeWayne Balsdon. After Livinggood began work in the spring, Aaron Balsdon twice drove in front of Liv-inggood’s tractor, told him the lease was invalid, and threatened to call law enforcement. On both occasions, Livinggood or his son stopped working and left the property. Livinggood then sued Aaron Bals-don to enforce the lease, claiming damages from his lost profits, and claiming, in the alternative, triple damages for Bals-don’s forcible exclusion of Livinggood from the leased land. The district court found Livinggood held a valid lease to farm the land. The district court awarded Livinggood damages based on one year of lost profits plus court costs, $15,106.92 in total, stating any other damages would be too speculative and too difficult to ascertain. The district court did not allow Liv-inggood to continue farming under his lease, nor did the court grant triple damages for forcible exclusion from the property. Livinggood appealed. In Livinggood v. Balsdon, 2006 ND 11, ¶¶ 7-9, 709 N.W.2d 723, this Court agreed with the district court that Livinggood could no longer enforce the lease because money damages were adequate to compensate him. We remanded the case because the district court made no findings on damages under the correct legal standard for forcible ejectment or exclusion from real property. Livinggood, at ¶¶ 10-11.

[¶ 3] On remand, the district court concluded that “[wjhile the force may not have been actually applied it was clearly threatened.” Furthermore, the district court concluded:

[Livinggood] made several attempts to resolve this which [Balsdon] ignored. [Livinggood] testified he felt compelled to tell his son to leave to avoid a big fight. His impression clearly was physical force or force of some kind would follow if they failed to leave the proper *718 ty. There was also a threat to call the police.
All of these facts combined indicate the defendant did forcibly eject the plaintiff from the property....

Consequently, the district court awarded Livinggood treble damages, using its original damage calculation of lost profits for one year, multiplied by three, plus court costs. Balsdon now appeals that judgment.

[¶ 4] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2, 6, and N.D.C.C. § 27-02-04 and §§ 28-27-01 through 28-27-02.

II

[¶ 5] Balsdon impliedly argues that the district court should have held a hearing on remand. Livinggood argues that not having a hearing on remand was within the district court’s discretion because this Court did not explicitly require one. In Kautzman v. Kautzman, we addressed the issue of conducting hearings on remand:

When this Court specifies a defect to be cured and remands for redetermination of an issue without specifying the procedure to be followed, the trial court need only rectify the defect in a manner consistent with our opinion and conformable to law and justice.... Thus, when we reverse and remand for a trial court to address an issue ... unless otherwise specified, the trial court may decide based on the evidence already before it or may take additional evidence. The decision on taking additional evidence will be reversed only if the trial court abused its discretion.

2000 ND 116, ¶ 7, 611 N.W.2d 883 (internal citations omitted).

[¶ 6] In this case, we remanded “with directions to consider the issue of treble damages under N.D.C.C. § 32-03-29 and the standard set out in Wegner [v. Lubenow, 12 N.D. 95, 95 N.W. 442 (1903)].” Livinggood, 2006 ND 11, ¶ 11, 709 N.W.2d 723. The district court heard all the testimony relating to damages and the actions of the parties in the original proceeding. The final judgment consisted of multiplying the original one-year lost-profit figure by three. Neither Wegner nor N.D.C.C. § 32-03-29 requires a hearing. Balsdon admits in his brief that although he disagrees with the facts found by the district court, “there was a sufficient basis for the trial court to have found those facts from the evidence at trial.” Therefore, the district court did not abuse its discretion by not holding a hearing on remand.

Ill

[¶ 7] Balsdon argues that his actions to prevent Livinggood from farming under the lease did not amount to forcible ejection, because Livinggood failed to prove he feared physical force from Balsdon or law enforcement. Balsdon also argues that he never deceived Livinggood in any way and that deception is necessary for forcible ejectment. Balsdon argues that because Livinggood produced no evidence of forcible ejectment, the award of treble damages should not stand. Livinggood claims he feared physical force from both Balsdon and law enforcement because, upon such a threat, one assumes law enforcement may necessarily use force to remove a person from the land. Livinggood argues it was that fear that caused him to leave the property.

[¶ 8] Forcible ejectment or exclusion from real property is a conclusion of law because “that determination describes the legal effect of the underlying factual circumstances.” See Diocese of Bismarck Trust v. Ramada, Inc., 553 N.W.2d 760, 768 (N.D.1996) (internal citation omitted). *719 We apply a de novo standard of review to a district court’s conclusions of law. H-T Enterprises v. Antelope Creek Bison Ranch, 2005 ND 71, ¶ 6, 694 N.W.2d 691.

[¶ 9] Section 32-03-29, N.D.C.C., provides the tort of forcible ejectment or exclusion from real property:

For forcibly ejecting or excluding a person from the possession of real property, the measure of damages is three times such a sum as would compensate for the detriment caused to the person by the act complained of.

A district court must award treble damages if it concludes that one person forcibly ejected or excluded another from real property. N.D.C.C. § 32-03-29. First, the district court must analyze the ejecting party’s conduct and surrounding circumstances to determine whether there was sufficient evidence that the possessor apprehended fear and that fear caused the possessor to leave. Wegner, 12 N.D. at 105, 95 N.W. at 446. Second, upon the conclusion of forcible ejectment supported by its findings of fact, the district court shall apply the measure of damages under N.D.C.C. § 32-03-29.

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Livinggood v. Balsdon, 2006 ND 215, 722 N.W.2d 716, 2006 N.D. LEXIS 217, 2006 WL 2948826 (N.D. 2006).

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