### IN THE SUPREME COURT STATE OF NORTH DAKOT A

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. Pulkrabe k, Mandan, ND

, for defendants and appellants.1 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 award ing 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 ) . Th e 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 runni ng 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, wi th 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 a nd 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 co urt granted a preliminary injunction and subsequently summary judgment in favor of the City and the Park District. The court2

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 Ci ty. 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 Par k 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 grantin g 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

. a t ¶ 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 conclud ed the Schirados had two opportunities to present evidence of an oral or written ag reement to use the City property and failed to do so. The court granted the City’s motion for summary judgment

, conclud ing the Schirados failed to present a dmissible evidence in resistance to the City and Park District’s motion for summary judgment. T he 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 permanent3

improvement; and (4) Schirados took possession of the City’s street s and alleys after entering into the allege d 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 pa rty 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 e ntitled the moving par ty 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 mo tion 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 materi al 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 prope rty is invalid “unless the same or some not e or memorandum thereof is in writing and subscribed by the party to be charged.” N.D.C.C. § 9

- 06

- 04. “A subscription4

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 t he right to graze horses on another pe rson’s land is an interest in real property

.
[¶12] The Schirados assert t he 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 i n the proper circumstance , this writing
does not contain what the Schirados claim

.
[¶13] An agreement allow ing 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 determ ined 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 S chirado 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 ra ise a material factual dispute. BTA Oil Producers v. MDU Res. Group, Inc. , 2002 ND 55, ¶ 49,
642 N.W.2d 873.

[¶14] The d istrict c ourt concluded the Schirados ’ evidence failed to pr ovide competent admissible evidence of an agreement allow ing 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.5 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

. a t ¶ 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 performa nce of an oral contract which is consistent only with the existence of the alleg ed 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 justi fication for enforcing an oral contract to convey land, partial payment together with other acts such as possessi on 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 86 4 (N.D. 1966). When improvements to the property are relied upon as part performance of an oral contract for purposes of rem oving 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 pro perty interest.”

Williston Co

- Op Credit Union v. Fossum , 459 N.W.2d 54 8, 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 th e Schirados provide d 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 not6

consistent only with a conclusion the Schirados received permission to utilize
the C ity 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 Cit y’s streets so she could use them as pasture land. Karen Schirado’s affidavit and testimony provide nothing more than conclusor y 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 agre ement with the City from the statute of frauds.

III

[¶17] T he 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 at tributable 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 award ing attorney’s fees. The Schirados also claim the City was not entitled to attorney’s fe es 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. T he court stated:

“Since the 2013 litigation, Defendants have admitted to again using and occupying the Park District property, while being aware7

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 ac tion 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.”

( Emphas is added

. )

[¶19] A district court is not required to describe its calculations in detail when making its findings regard ing 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, t he 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 th at the Park Distr ict was award ed recovery of attorney ’ s fees from the Sch i rados for their contempt, and the fee amount was half the invoice total. Th e district court also explained it only awarded attorney’s fees to the Park District because the City was not protected under
the 201 3 injunction

. These findings provid e d a discernible basis for the award
and , while a more th orough explanation of how the fee award wa s calculated
would be welcome , on this record we conclude t he district court did not abuse
its discretion.

IV

[¶20] T he 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