IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2021 ND 72

City of Glen Ullin and Park District of the 

City of Glen Ullin, Plaintiffs and Appellees

v.

Karen Schirado and Jerome Schirado, Defendants and Appellants

No. 20200345

Appeal from the District Court of Morton County, South Central Judicial 

District, the Honorable Thomas J. Schneider, Judge.

AFFIRMED.

Opinion of the Court by Crothers, Justice.

John J. Mahoney, Center, ND, for plaintiffs and appellees.

Benjamin C. Pulkrabek, Mandan, ND, for defendants and appellants.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

APRIL 20, 2021 

STATE OF NORTH DAKOTA
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City of Glen Ullin v. Schirado

No. 20200345

Crothers, Justice.

[¶1] Karen and Jerome Schirado appeal from a judgment granting the City 

of Glen Ullin and the Glen Ullin Park District permanent injunctive relief and 

awarding the Park District attorney’s fees. The Schirados argue the district 

court erred in granting summary judgment and awarding attorney’s fees. We 

affirm. 

I

[¶2] This case comes to this Court on a second appeal. City of Glen Ullin, et 

al. v. Schirado, et al., 2020 ND 185 (Schirado I). The dispute involves lots, 

streets, and alleys within or near the City of Glen Ullin. Id. at ¶ 2. The Park 

District owns the lots while the City controls the streets and alleys running 

between the lots. Id. The Schirados own land near both Park District and City 

property. Id. 

[¶3] In 2013 the Park District sued the Schirados to enjoin them from fencing 

and allowing their horses to graze on Park District lots. The Park District was 

granted default judgment. In 2019 the Park District and the City brought the 

present suit, alleging the Schirados violated the 2013 judgment. The suit 

contained claims similar to the 2013 suit, with additional claims involving the 

City’s streets and alleys which were not involved in the original action. 

[¶4] The Schirados conceded they placed fencing on the properties and 

allowed their horses to graze, but alleged they were given permission by the 

City in exchange for removing garbage that accumulated on the streets and 

alleys. The Schirados claimed they devoted many hours and thousands of 

dollars removing garbage from the streets and alleys. They resisted summary 

judgment, arguing partial performance of their agreement satisfied the statute 

of frauds. 

[¶5] The district court granted a preliminary injunction and subsequently 

summary judgment in favor of the City and the Park District. The court 
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concluded the suit was based on the same facts and issues as the 2013 case, 

and the entire case was res judicata. The court did not address the Schirados’ 

arguments regarding a partially performed agreement with the City. The court 

also found the Schirados in contempt of court because of their violation of the 

2013 judgment and awarded attorney’s fees and costs to the City and the Park 

District in the amount of $11,106.85. The Schirados appealed that judgment

and we reversed. Schirado I, 2020 ND 185, ¶ 9.

[¶6] In Schirado I, this Court held the claim concerning the Park District’s 

property was res judicata, the claim concerning the City’s property was not res 

judicata, and the attorney’s fees award was not adequately explained. Id. at 

¶¶ 7-8. We reversed the judgment granting relief to the City, and reversed and 

remanded the award of attorney’s fees for the district court to explain its 

rationale for the award, including which amount is a sanction for contempt, 

and which portion is allocated to each plaintiff. Id. at ¶ 9.

[¶7] On remand, the Schirados filed a motion for trial, claiming Karen 

Schirado possessed additional testimony and evidence “necessary to allow her 

to fully present her case.” The City and Park District opposed the motion. The 

district court denied the motion for trial and concluded the Schirados had two 

opportunities to present evidence of an oral or written agreement to use the 

City property and failed to do so. The court granted the City’s motion for 

summary judgment, concluding the Schirados failed to present admissible 

evidence in resistance to the City and Park District’s motion for summary 

judgment. The court also granted the City and the Park District permanent 

injunctive relief and awarded the Park District $5,460.00 in attorney’s fees. 

The Schirados appeal from the amended judgment. 

II

[¶8] The Schirados argue summary judgment was improperly granted 

because of four issues of material fact: (1) City Council meeting minutes from 

May 12, 2003 establishes an enforceable agreement under N.D.C.C. § 9-06-04; 

(2) Schirados partially performed an unwritten agreement; (3) Schirados’ work 

cleaning up the city streets was a valuable, substantial, and permanent
3

improvement; and (4) Schirados took possession of the City’s streets and alleys 

after entering into the alleged unwritten agreement. 

[¶9] The standard of review for summary judgment is well established:

“In determining whether summary judgment was appropriately 

granted, we must view the evidence in the light most favorable to 

the party opposing the motion, and that party will be given the 

benefit of all favorable inferences which can reasonably be drawn 

from the record. On appeal, this Court decides whether the 

information available to the district court precluded the existence 

of a genuine issue of material fact and entitled the moving party 

to judgment as a matter of law. Whether the district court properly 

granted summary judgment is a question of law which we review 

de novo on the entire record.” 

Klein v. Sletto, 2017 ND 26, ¶ 7, 889 N.W.2d 918 (quoting Hamilton v. Woll, 

2012 ND 238, ¶ 9, 823 N.W.2d 754). 

[¶10] “Summary judgment is appropriate when ‘there is no dispute as to either 

the material facts or the inferences to be drawn from the undisputed facts, or 

whenever only a question of law is involved.’” Rooks v. Robb, 2015 ND 274, 

¶ 10, 871 N.W.2d 468 (quoting First Nat’l Bank v. Clark, 332 N.W.2d 264, 267 

(N.D. 1983)). Under Rule 56, N.D.R.Civ.P., the movant bears the burden of 

showing no genuine issue of material fact exists. Rooks, at ¶ 10. The party 

resisting the motion for summary judgment is given all favorable inferences 

which may reasonably be drawn from the evidence. Id. A party resisting 

summary judgment cannot only rely on the pleadings, but must present 

competent admissible evidence raising an issue of material fact. Swenson v. 

Raumin, 1998 ND 150, ¶ 9, 583 N.W.2d 102. A non-moving party cannot rely 

on speculation. Beckler v. Bismarck Pub. Sch. Dist., 2006 ND 58, ¶ 7, 711 

N.W.2d 172. 

A 

[¶11] Under the statute of frauds, a contract for an interest in real property is 

invalid “unless the same or some note or memorandum thereof is in writing 

and subscribed by the party to be charged.” N.D.C.C. § 9-06-04. “A subscription 
4

is the same as signing.” Bouten v. Richard Miller Homes, Inc., 321 N.W.2d 895, 

899 (Minn. 1982); 2A. Corbin, Contracts § 521; 4 S. Williston, A treatise on the 

Law of Contracts § 585 (3d ed. 1961). For purposes of this decision we will, as 

the parties did, assume without deciding that the right to graze horses on 

another person’s land is an interest in real property.

[¶12] The Schirados assert the City Council’s May 12, 2003 meeting minutes

constitute a sufficient memorandum to satisfy the statute of frauds and allow 

the Schirados to use the city streets and alleys. Although the writing might

constitute a sufficient memorandum in the proper circumstance, this writing

does not contain what the Schirados claim. 

[¶13] An agreement allowing the Schirados to use city streets and alleys does 

not appear in the City Council’s minutes. Rather, the minutes state: “Karen 

Schirado was present to inquire if she can graze horses on the Schultz land 

located on the extreme north side of Glen Ullin. The Council determined that 

this is permissible.” A member of the City Council on May 12, 2003, explained

her understanding of the agreement was that the Schirados purchased “the 

Schultz land,” and the City agreed the Schirados could graze horses on their 

land only. Karen Schirado asserted in her affidavit “she and her husband had 

an agreement with the Glen Ullin City Counsel [sic],” the “land could be used 

by she and her husband as pasture land,” “there was a lot of garbage,” “if she 

cleaned it up she and her husband could use the platted streets and alleys as 

part of their pasture land,” and “she has cleaned up the garbage.” However, no 

terms of the “agreement” were provided and affidavits containing conclusory 

statements unsupported by specific facts are insufficient to raise a material 

factual dispute. BTA Oil Producers v. MDU Res. Group, Inc., 2002 ND 55, ¶ 49, 

642 N.W.2d 873. 

[¶14] The district court concluded the Schirados’ evidence failed to provide

competent admissible evidence of an agreement allowing the Schirados to use

anything but their own land. We therefore agree with the district court that no 

genuine issue of material fact exists whether the minutes created an effective 

agreement to allow the Schirados to use City land. 
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B 

[¶15] Part performance may remove an agreement from the statute of frauds. 

See Trosen v. Trosen, 2014 ND 7, ¶ 21, 841 N.W.2d 687. A party asserting part 

performance removed an unwritten agreement from the statute of frauds must 

prove that a contract existed. Id. at ¶ 22. This Court has said:

“The general rule is that contracts for the sale of real 

property and transfers of real property interests must be made by 

an instrument in writing. Section 9-06-04, N.D.C.C.; Section 47-

10-01, N.D.C.C. However, part performance of an oral contract 

which is consistent only with the existence of the alleged contract 

removes it from the statute of frauds. Poyzer v. Amenia Seed & 

Grain Co., 409 N.W.2d 107 (N.D. 1987). While partial payment of 

the purchase price alone is not justification for enforcing an oral 

contract to convey land, partial payment together with other acts 

such as possession or the making of valuable improvements may 

be sufficient to take a contract out of the statute of frauds. See 

Parceluk v. Knudtson, 139 N.W.2d 864 (N.D. 1966). When 

improvements to the property are relied upon as part performance 

of an oral contract for purposes of removing it from the statute of 

frauds, the improvements made on the land must be valuable, 

substantial, and permanent. Vasichek v. Thorsen, 271 N.W.2d 555 

(N.D. 1978). Thus, part payment of the purchase price and 

substantial improvements to the property may remove an oral 

contract from the statute of frauds and create an enforceable 

contract constituting an enforceable equitable property interest.” 

Williston Co-Op Credit Union v. Fossum, 459 N.W.2d 548, 551 (N.D. 1990) 

(emphasis added). 

[¶16] The Schirados’ remaining three arguments arise under the doctrine of 

part performance. Thus, for any of the arguments to succeed the Schirados 

must prove an agreement existed and their part performance was consistent 

only with that agreement. As noted by the district court, despite several 

opportunities to provide evidence of an agreement, oral or written, the 

Schirados were unable to do so. While the Schirados provided evidence the City 

granted them permission to “graze horses on the Schultz [ultimately Schirado] 

land located on the extreme north side of Glen Ullin,” that agreement is not 
6

consistent only with a conclusion the Schirados received permission to utilize 

the City streets and alleys as they suggest. Although Karen Schirado stated in 

her affidavit she and her husband had an agreement with the City to utilize 

the streets and alleys if she removed the garbage from them, nothing more 

than her bare statement was provided. Karen Schirado’s testimony went no 

further than to allege she spent eight years cleaning the City’s streets so she 

could use them as pasture land. Karen Schirado’s affidavit and testimony 

provide nothing more than conclusory allegations of part performance. The 

Schirados were unable to raise a material factual dispute as to either of the 

requirements under part performance. The Schirados failed to raise an issue 

of material fact that part performance removed the alleged agreement with the 

City from the statute of frauds.

III

[¶17] The Schirados assert the district court erred in its calculation of 

attorney’s fees under this Court’s direction in Schirado I. There, we vacated 

the district court’s original award of attorney’s fees to both the City and the 

Park District, stating:

“[T]he court did not specify which portion of the award is a sanction 

for the contempt, nor did it articulate which portion of the award 

was attributable to each plaintiff. We therefore vacate the award 

of attorney’s fees and costs with instructions for the district court 

to explain its rationale for the award, including which amount is a 

sanction for the contempt, and which portion is allocated to each 

plaintiff.”

Schirado I, 2020 ND 185, ¶ 8 (citations omitted). 

[¶18] The Schirados argue the district court erred by failing to adequately 

explain the basis for awarding attorney’s fees. The Schirados also claim the 

City was not entitled to attorney’s fees for contempt because the City possesses 

no prior judgment. Despite this assertion, the district court’s order makes clear 

no attorney’s fees were awarded to the City for contempt. The court stated: 

“Since the 2013 litigation, Defendants have admitted to again 

using and occupying the Park District property, while being aware 
7

of their objections . . . Defendants are in contempt of court by their 

knowing and intentional resistance to and disobedience of the 

previous order of this court issued in the 2013 case, and reasonable 

attorney fees are awarded for the present action with respect to 

Plaintiff Park District of Glen Ullin; the Park District of Glen Ullin 

in the amount of $5,460.00, which is one-half of Plaintiffs’ attorney 

fees in this action.”

(Emphasis added.) 

[¶19] A district court is not required to describe its calculations in detail when 

making its findings regarding attorney’s fees, so long as this Court is able to 

discern a basis for the award. See Greenwood, Greenwood & Greenwood, P.C. 

v. Klem, 450 N.W.2d 745, 748 (N.D. 1990). Here, the district court was 

presented with an invoice listing the time and amounts billed by counsel to the 

City and the Park District since the commencement of this litigation. The 

district court explained that the Park District was awarded recovery of

attorney’s fees from the Schirados for their contempt, and the fee amount was 

half the invoice total. The district court also explained it only awarded

attorney’s fees to the Park District because the City was not protected under 

the 2013 injunction. These findings provided a discernible basis for the award

and, while a more thorough explanation of how the fee award was calculated

would be welcome, on this record we conclude the district court did not abuse 

its discretion. 

IV

[¶20] The district court’s summary judgment is affirmed. 

[¶21] Jon J. Jensen, C.J. 

Gerald W. VandeWalle 

Daniel J. Crothers 

Lisa Fair McEvers 

Jerod E. Tufte