Kemp v. City of Grand Forks

12 Citing cases

  1. In re Miller

    718 A.2d 422 (Vt. 1998)

    The overwhelming weight of authority concludes that a motion to disqualify a judge should not be entertained where the litigant knew of the grounds for disqualification but waits until after receiving an adverse decision before filing the motion. See, e.g., E. J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1295 (9th Cir. 1992) (holding motion for disqualification of trial judge filed with motion for new trial was untimely where litigant knew when judge was assigned case that judge had been partner in firm representing opposing party); Katzman v. Victoria's Secret Catalogue, 939 F. Supp. 274, 278 (S.D.N.Y. 1996) (denying post-judgment motion for disqualification as simply attempt to get "second bite at the apple"); Kemp v. City of Grand Forks, 523 N.W.2d 406, 408 (N.D. 1994) (rules of judicial disqualification are not tactical devices to be used after the judge has ruled against the litigant); Myers v. Garson, 614 N.E.2d 742, 745 (Ohio 1993) (not persuaded that decision of appeals court was tainted where appellant raised no objection to judge until after receiving adverse decision). We agree that, generally a motion for disqualification filed after judgment should be denied absent good cause for the tardiness.

  2. L.C. v. R.P

    1997 N.D. 96 (N.D. 1997)   Cited 22 times
    Holding that rule is "premised on avoiding a circle of indemnity that would have resulted if the release of the servant did not also release the master from vicarious liability"

    Kummer v. City of Fargo, 516 N.W.2d 294, 296-97 (N.D. 1994). Factual assertions in a brief are insufficient under NDRCivP 56(e) to raise an issue of material fact. Kemp v. City of Grand Forks, 523 N.W.2d 406, 408 (N.D. 1994). A litigant resisting a motion for summary judgment may not merely reassert allegations in pleadings in order to defeat the motion.

  3. Sisk v. Sisk

    2006 N.D. 55 (N.D. 2006)   Cited 7 times

    Stewart claims the trial court ridiculed him and called him inappropriate names that intimidated both Stewart and his counsel. An issue of judicial disqualification for bias generally cannot be raised for the first time on appeal. Kemp v. City of Grand Forks, 523 N.W.2d 406, 408 (N.D. 1994). [ΒΆ 25] Further, our review of the record and the specific incidents Stewart claims violated his due process rights, when taken in context with the nature of the proceeding and Stewart's recalcitrance in taking any responsibility in this matter, do not indicate behavior on the part of the trial court that rises to the level of a due process violation.

  4. Evenson v. Quantum Industries

    2004 N.D. 178 (N.D. 2004)   Cited 6 times
    In Evenson v. Quantum Industries, Inc., 687 N.W.2d 241, 244-45 (N.D. 2004), the plaintiff alleged that he was fraudulently induced to enter into a dealership agreement based on the defendant's oral representations that the product line would not be sold.

    "Factual assertions in a brief do not raise an issue of material fact satisfying Rule 56(e)." Kemp v. City of Grand Forks, 523 N.W.2d 406, 408 (N.D. 1994). "Nor may a party merely reassert the allegations in his pleadings in order to defeat a summary judgment motion." Id.

  5. Investors Real Estate Trust Properties v. Terra Pacific Midwest

    2004 N.D. 167 (N.D. 2004)   Cited 15 times
    Holding that in any negligence action the plaintiff has the burden of demonstrating a duty, a breach of that duty, causation, and damages

    "Factual assertions in a brief do not raise an issue of material fact satisfying Rule 56(e)." Kemp v. City of Grand Forks, 523 N.W.2d 406, 408 (N.D. 1994). "Nor may a party merely reassert the allegations in his pleadings in order to defeat a summary judgment motion." Id.

  6. Ag Acceptance Corp. v. Glinz

    684 N.W.2d 632 (N.D. 2004)   Cited 4 times
    Applying federal case law to determine whether a tying arrangement was illegal under the NDUSAA

    "Factual assertions in a brief do not raise an issue of material fact satisfying Rule 56(e)." Kemp v. City of Grand Forks, 523 N.W.2d 406, 408 (N.D. 1994). "Nor may a party merely reassert the allegations in his pleadings in order to defeat a summary judgment motion." Id.

  7. Zuger v. State

    2004 N.D. 16 (N.D. 2004)   Cited 36 times

    Iglehart, 2003 ND 154, ΒΆ 10, 670 N.W.2d 343. "Factual assertions in a brief do not raise an issue of material fact satisfying Rule 56(e)." Kemp v. City of Grand Forks, 523 N.W.2d 406, 408 (N.D. 1994). "Nor may a party merely reassert the allegations in his pleadings in order to defeat a summary judgment motion." Id.

  8. Wachter Development, L.L.C. v. Gomke

    544 N.W.2d 127 (N.D. 1996)   Cited 16 times
    Explaining trial court found acts insufficient as a matter of law to take contract out of statute of frauds

    The owners state in their brief on appeal that "the intention of the parties at all times relevant was the purchase by Wachter of the entire ownership interests and . . . it was never contemplated that it would seek to purchase individual fractional interests." Factual assertions in a brief are insufficient to raise a genuine issue of material fact to preclude summary judgment under Rule 56, N.D.R.Civ.P. Kemp v. Grand Forks, 523 N.W.2d 406 (N.D. 1994); Northwestern Equipment, Inc. v. Badinger, 403 N.W.2d 8 (N.D. 1987). The owners contend, however, that Wachter may not force the three signing owners to convey or pay damages because the complaint sought "specific performance as to all of the owners or monetary damages," and did not "seek the alternative relief to force the sale of the land by three owners that signed the contract.

  9. MEDD v. FONDER

    543 N.W.2d 483 (N.D. 1996)   Cited 18 times
    Explaining a Miller-Shugart settlement as adopted in North Dakota

    First Nat'l Bank of Hettinger v. Clark, 332 N.W.2d 264, 268 (N.D. 1983). Factual assertions in briefs do not raise genuine issues of material fact. Kemp v. Grand Forks, 523 N.W.2d 406, 408 (N.D. 1994). Medd has not shown by evidence "probable grounds for believing that [Walle Mutual] might be held liable under the policy involved here." Poor Richards, Inc. at 227, quoting Gudbrandsen at 117-18.

  10. American State Bank v. Sorenson

    539 N.W.2d 59 (N.D. 1995)   Cited 14 times

    But conclusory statements in briefs do not effectively dispute material facts. Kemp v. City of Grand Forks, 523 N.W.2d 406, 408 (N.D. 1994) ("Factual assertions in a brief do not raise an issue of material fact satisfying Rule 56(e)."); First Nat'l Bank of Hettinger v. Clark, 332 N.W.2d 264, 268 (N.D. 1983) ("The above-quoted statements from the Clarks' motion brief are mere conclusions and not evidence which would support or establish a factual issue.").