Pozorski v. Trucks, Trailers & More ( 2023 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MARCH 31, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 54Kurt and Jackie Pozorski, Plaintiffs and Appellants
v.
Trucks, Trailers & More, Inc.
and Cody Fleck, Defendants and Appellees
No. 20220267
Appeal from the District Court of Morton County, South Central Judicial
District, the Honorable Douglas A. Bahr, Judge.
AFFIRMED.
Per Curiam.
Garrett D. Ludwig, Mandan, ND, for defendants and appellees.
Christopher A. Wills, St Cloud, MN, for plaintiffs and appellants.
Pozorski, et al. v. Trucks, Trailers & More, et al.
No. 20220267
Per Curiam.
[¶1] Kurt and Jackie Pozorski (“the Pozorskis”) appeal from a district court
judgment dismissing their claims against Trucks, Trailers & More, Inc. and
Cody Fleck (collectively “TTM”). On appeal, the Pozorskis argue the district
court abused its discretion by issuing sanctions for spoliation of evidence. The
Pozorskis also argue the court erred by finding they failed to provide sufficient
notice of repair of a truck they purchased from TTM. Finally, they argue the
court erred by finding TTM established prejudice.
[¶2] A court’s decision to exercise its inherent power to sanction when
relevant evidence is destroyed or spoiled will only be reversed on appeal if the
court abused its discretion. Fines v. Ressler Enters., Inc., 2012 ND 175, ¶ 7, 820
N.W.2d 688. Whether a party had notice is a finding of fact subject to the clearly
erroneous standard of review. Desert Partners IV, L.P. v. Benson, 2019 ND 19,
¶ 14, 921 N.W.2d 444. Findings of prejudice are reviewed under the clearly
erroneous standard of review. Hunter v. State, 2020 ND 224, ¶ 16, 949 N.W.2d
841. We conclude the district court’s findings are not clearly erroneous and it
did not abuse its discretion. We summarily affirm under N.D.R.App.P.
35.1(a)(2) and (4).
[¶3] Jon J. Jensen, C.J.
Lisa Fair McEvers
Jerod E. Tufte
David W. Nelson, S.J.
Stacy J. Louser, D.J.
[¶4] The Honorable David W. Nelson, S.J., and the Honorable Stacy J. Louser,
D.J., sitting in place of Crothers, J., and Bahr, J., disqualified.
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