Gerszewski v. Rostvet , 2024 ND 141 ( 2024 )

IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2024 ND 141Renae Irene Gerszewski, Petitioner and Appellee
v.
Conrad Keith Rostvet, Respondent and Appellant
No. 20230361
Conrad Keith Rostvet, Petitioner and Appellant
v.
Renae Irene Gerszewski, Respondent and Appellee
No. 20230362
Conrad Rostvet, Petitioner and Appellant
v.
Wayne Gerszewski, Respondent and Appellee
No. 20230363
Appeal from the District Court of Walsh County, Northeast Judicial District, the Honorable
Barbara L. Whelan, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice.
Samuel A. Gereszek, Grand Forks, N.D., for appellees.
Timothy C. Lamb, Grand Forks, N.D., for appellant.
Gerszewski v. Rostvet
Nos. 20230361–20230363
Tufte, Justice.
[¶1] Conrad Rostvet appeals from a district court’s order and judgments granting Renae
Gerszewski’s petition for a disorderly conduct restraining order (DCRO) against him and
dismissing his petitions for disorderly conduct restraining orders against Renae Gerszewski
and Wayne Gerszewski. On appeal, he argues the district court abused its discretion by
granting Renae Gerszewski a DCRO when he was merely protecting his property. He also
argues the district court committed reversible error by granting Renae Gerszewski’s
petition and denying his petitions because the court took nine months to adjudicate the
petitions and made findings on information not entered into the record. Last, he argues the
district court erred in denying his petition because, without a DCRO, the Gerszewskis may
trespass on his property, which violates his constitutionally protected rights. We affirm.
I
[¶2] Renae Gerszewski filed a petition for a DCRO against Conrad Rostvet, and the court
issued a temporary DCRO against Rostvet and set a hearing date. Rostvet filed separate
petitions seeking DCROs against Renae Gerszewski and her husband, Wayne Gerszewski.
The cases were consolidated, and a new hearing was set. Continuances delayed the hearing
for nearly six months from the first hearing date.
[¶3] At the hearing, the court heard testimony concerning a dispute between Rostvet and
the Gerszewskis over the use of a road which runs from the highway past Rostvet’s
property and to the Gerszewskis’ property. The court issued an order and judgments
granting Renae Gerszewski’s petition for a DCRO and denying Rostvet’s petitions. Rostvet
appealed.
II
[¶4] This Court’s review of a district court’s decision to issue a disorderly conduct
restraining order is well established:
This Court will not reverse a district court’s decision to grant a restraining
order or to conduct a hearing absent an abuse of discretion. The district court
abuses its discretion when it acts in an arbitrary, unreasonable, or
unconscionable manner, when it misinterprets or misapplies the law, or when
its decision is not the product of a rational mental process leading to a
reasoned determination.
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Rekow v. Durheim, 2022 ND 177, ¶ 6, 980 N.W.2d 917 (quoting Combs v. Lund, 2015 ND
10, ¶ 4, 858 N.W.2d 311).
[¶5] A court may grant a disorderly conduct restraining order when a petitioner
establishes, by reasonable grounds, that the respondent engaged in disorderly conduct.
N.D.C.C. § 12.1-31.2-01(5). Disorderly conduct is defined as “intrusive or unwanted acts,
words, or gestures that are intended to adversely affect the safety, security, or privacy of
another person.” N.D.C.C. § 12.1-31.2-01(1). “Reasonable grounds is synonymous with
probable cause.” J.B. v. R.B., 2018 ND 83, ¶ 5, 908 N.W.2d 687.
[¶6] For a court to grant a disorderly conduct restraining order, the petitioner “must show
specific unwanted acts that are intended to affect the safety, security, or privacy of another
person.” Rekow, 2022 ND 177, ¶ 7. “Subjective fear is insufficient to support a disorderly
conduct restraining order.” Cusey v. Nagel, 2005 ND 84, ¶ 7, 695 N.W.2d 697. “Vague
generalities do not suffice,” and “[c]onclusory testimony that ‘he harassed me,’ ‘he abused
me,’ or ‘he threatened me’ does little to aid the trial court in determining whether the
alleged perpetrator’s actions rise to the level of disorderly conduct under the statute.” Id.
at ¶ 11 (quoting Williams v. Spilovoy, 536 N.W.2d 383, 385 (N.D. 1995)).
[¶7] “Additionally, Rule 52(a), N.D.R.Civ.P., applies to disorderly conduct restraining
orders.” Rekow, 2022 ND 177, ¶ 8. In an action tried on the facts without a jury, the court
must find the facts specially and state its conclusions of law separately. N.D.R.Civ.P.
52(a)(1). “Under N.D.R.Civ.P. 52(a), a district court trying an action upon the facts without
a jury ‘shall find the facts specially.’ A district court must make findings of fact that are
sufficient to enable an appellate court to understand the factual determinations made by the
district court and the basis for its conclusions of law.” Id. (quoting Combs, 2015 ND 10, ¶
17). A district court’s findings of fact should be sufficiently specific to provide an appellate
court a clear understanding of the district court’s decision. Id. “Findings that do not
specifically identify intrusive or unwanted acts that were intended to affect the safety,
security, or privacy of another are inadequate.” Id.III
A
[¶8] Rostvet argues the district court abused its discretion by issuing the DCRO, because
he defended his road that is on his land, which is a constitutionally protected activity, and
he had no intent to harm his neighbors.
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[¶9] The district court found specific facts showing Rostvet’s conduct would lead a
reasonable person to fear for his or her safety, security, or privacy:
May 22, 2020: While meeting Renae Gerszewski on the disputed road,
Rostvet stopped his motor vehicle, got out of the car and pointed something
at Gerszewski. No criminal charge was brought, but the disorderly conduct
behavior occurred when Rostvet stopped, exited his car and pointed at
Gerszewski. See File 50-2022-CV-258, Doc. 7.
July 31, 2020: Rostvet committed disorderly conduct by cultivating his
property across the road from where Renae Gerszewski was mowing.
Gerszewski was mowing the roadside ditch on property owned by the
Peterkas. Knowing Gerszewski was outside mowing, Rostvet then drove his
cultivator to his property across the road from Gerszewski, coming within
300 feet of Gerszewski. The temporary restraining order provided Rostvet
could not be within 300 feet of Gerszewski. See 11H, supra. Gerszewski was
mowing prior to Rostvet arriving. Rostvet should have left the area and
returned to cultivate only after Gerszewski had finished mowing the Peterka
ditch and returned to her own property. Gerszewski testified to this incident.
See also File No. 50-2022-CV-258, Doc. 6.
November 21, 2020: Rostvet committed disorderly conduct when he was
blading the contested roadway and failed to move to the side of the roadway
to allow Renae Gerszewski to pass. Gerszewski testified about this incident.
Rostvet stopped his tractor for a few seconds and waved at Gerszewski,
acknowledging he knew it was Gerszewski. Rostvet also hindered members
of the public from driving on the roadway by failing to pull over with his
blade when they approached. Members of the public were 3rd party
contractors hired by Gerszewskis to work at their residence and were
utilizing the public road to gain access. Rostvet eventually pulled into his
driveway allowing the contractors to drive past him. Rostvet was in a
heightened state of agitation, as evidenced by his response to law
enforcement investigating the matter. See File No. 50-2022-CV-258, Doc. 5.
April 23, 2022: Rostvet committed disorderly conduct by pushing snow into
the roadway and blocking Renae Gerszewski’s ability to pass safely. She was
required to drive partially into the ditch in order to go around the snow pile.
Gerszewski testified about this event. See also File No. 50-2022-CV-258,
Doc. 4.
[¶10] Rostvet argues he was protecting his land, but according to the survey evidence
presented to the district court, he owns only a triangular portion of the road, and his actions
also disrupted the use of the larger part of the road not on his property. See State v. Starke,
2011 ND 147, ¶ 18, 800 N.W.2d 705 (explaining “defense of premises may not be used if
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the actor is otherwise acting unlawfully”). He also contends he had no intent to harass his
neighbors, but the district court’s findings provided specific facts and previous cases
tending to show Rostvet’s repeated intent to harass his neighbors. The district court did not
clearly err in finding Rostvet’s conduct impacted the safety, security, and privacy of his
neighbors. See N.D.C.C. § 12.1-31-01(d); Jones v. Rath, 2023 ND 69, ¶ 18, 989 N.W.2d
92. The district court did not abuse its discretion by granting the Gerszewskis a DCRO on
the basis of its finding the Gerszewskis proved by reasonable grounds that Rostvet engaged
in disorderly conduct.
B
[¶11] Rostvet argues the district court abused its discretion because he has been denied
his ability to protect his property from trespassing.
[¶12] Rostvet does not appear to challenge the court’s conclusion that the Gerszewskis
did not engage in disorderly conduct by reporting his actions to the police; rather, his
argument is that the court erred because he cannot protect his property from trespass. A
trespass is not disorderly conduct if there is no intent to adversely affect the safety, security,
or privacy of another. See Rekow, 2022 ND 177, ¶ 9. The district court did not abuse its
discretion by denying Rostvet’s petition for a disorderly conduct restraining order, because
Rostvet did not present reasonable grounds to show the Gerszewskis had engaged in
disorderly conduct.
IV
A
[¶13] Rostvet argues the district court abused its discretion by attaching to its order
documents it obtained from the Walsh County Recorder, which were not presented as
exhibits.
[¶14] We review “a district court’s decision to take judicial notice of evidence under an
abuse of discretion standard.” Orwig v. Orwig, 2021 ND 33, ¶ 6, 955 N.W.2d 34. A district
court may take judicial notice on its own of facts that are generally known within the court’s
territorial jurisdiction or facts that can be accurately determined from sources which cannot
reasonably be questioned. N.D.R.Ev. 201(b) and (c). When a district court takes judicial
notice before notifying the parties, the parties, on request, are entitled to be heard.
N.D.R.Ev. 201(e).
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[¶15] Rostvet raises this issue for the first time on appeal, and nothing in the record
indicates he requested a hearing after learning the court took judicial notice of documents
from the Walsh County Recorder. See State v. Cleavenger, 2018-Ohio-446, 93 N.E.3d
1027, at ¶¶ 31-32 (rejecting claim of improper judicial notice where appellant had not made
a timely request to the trial court under Rule of Evidence 201(e)).
[¶16] It is well-settled law that issues not raised in the district court may not be raised for
the first time on appeal:
The purpose of an appeal is to review the actions of the trial court, not to
grant the appellant an opportunity to develop and expound upon new
strategies or theories. The requirement that a party first present an issue to
the trial court, as a precondition to raising it on appeal, gives that court a
meaningful opportunity to make a correct decision, contributes valuable
input to the process, and develops the record for effective review of the
decision. It is fundamentally unfair to fault the trial court for failing to rule
correctly on an issue it was never given the opportunity to consider.
Accordingly, issues or contentions not raised ... in the district court cannot
be raised for the first time on appeal.
Albertson v. Albertson, 2023 ND 225, ¶ 8, 998 N.W.2d 811 (quoting Schrodt v. Schrodt,
2022 ND 64, ¶ 7, 971 N.W.2d 861). Under N.D.R.Ev. 201(e), Rostvet was entitled to
hearing upon request, but he did not request one from the district court. Thus, he cannot
raise this issue for the first time on appeal.
B
[¶17] Rostvet also argues the psychological evaluation the district court included in its
findings was not offered or received at trial.
[¶18] At trial, the district court took judicial notice of the criminal case containing the
psychological evaluation, and Rostvet’s attorney did not object.
MR. GERESZEK: At this time, Your Honor, I would ask the Court to take
judicial notice of 50-2019-CR-148. It is the terrorizing case I just referenced
with Mr. Jurgens — or with Sheriff Jurgens, sorry.
THE COURT: CR-148?
MR. GERESZEK: One, four, eight.
THE COURT: All right. Mr. Lamb?
MR. LAMB: No objection.
BY MR. GERESZEK:
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Q. Do you know why it was dismissed?
A. Because of Mr. Rostvet’s ability to defend himself.
Q. So lack of competency to stand trial?
A. Correct.
MR. LAMB: I’d object to that, Your Honor. He’s leading the witness.
THE COURT: Well, I’m going to take judicial notice of it, so whatever —
MR. LAMB: Right.
THE COURT: — what’s ever in there is in there.
MR. LAMB: Okay. I understand.
THE COURT: Overruled.
[¶19] Although it appears the district court may have intended to take judicial notice of
an entire criminal file, which would include some adjudicative facts properly subject to
judicial notice and other facts not properly subject to judicial notice, Rostvet waived this
argument because he specifically stated “No objection” and “Okay” to the court judicially
noticing the criminal file and everything in it. State v. Studhorse, 2024 ND 110, ¶ 25, 7
N.W.3d 253.
V
[¶20] Rostvet argues the district court abused its discretion by not holding a hearing within
fourteen days after the issuance of the temporary restraining order.
[¶21] Section 12.1-31.2-01(5)(c), N.D.C.C., requires the court to set “a hearing for not
later than fourteen days after issuance of the temporary restraining order or at a later date
if good cause is shown.”
[¶22] The district court has the discretion whether to grant a continuance for good cause.
Pinkney v. State, 2021 ND 155, ¶ 8, 963 N.W.2d 737. Here, the district court granted
multiple continuances, and a hearing was held almost six months after the initial filing of
the petitions, well beyond the statutory fourteen-day period. But Rostvet did not object to
this delay until appeal. He did not file a motion to dismiss or object at the outset of the
hearing on the basis that the statutory time period had run. He argues he tried to raise this
issue through his questioning of a witness at the hearing, but merely asking a witness why
it took so long to have a hearing does not raise an objection to the district court.
[¶23] The district court was not asked to consider this question, and we decline to consider
it further. Albertson, 2023 ND 225, ¶ 8.
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VI
[¶24] We affirm the district court’s order and judgments granting Renae Gerszewski’s
petition for a disorderly restraining order against Rostvet and denying Rostvet’s petitions
for disorderly conduct restraining orders against Wayne Gerszewski and Renae
Gerszewski.
[¶25] Jon J. Jensen, C.J.
Daniel J. Crothers
Jerod E. Tufte
Douglas A. Bahr
Norman G. Anderson, S.J.
[¶26] The Honorable Norman G. Anderson, Surrogate Judge, sitting in place of McEvers,
J., disqualified.
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