IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2020 ND 300

Riley S. Kuntz, Plaintiff and Appellant

v.

Ashlynn D. Leiss and 

Joseph R. Westbrook, Defendants 

No. 20200119

Appeal from the District Court of Stark County, Southwest Judicial District, 

the Honorable Dann E. Greenwood, Judge.

AFFIRMED.

Opinion of the Court by VandeWalle, Justice.

Riley S. Kuntz, self-represented, Dickinson, ND, plaintiff and appellant; 

submitted on brief.

Ashlynn D. Leiss and Joseph R. Westbrook, defendants; no appearance.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

DECEMBER 17, 2020 

STATE OF NORTH DAKOTA
1

Kuntz v. Leiss

No. 20200119

VandeWalle, Justice.

[¶1] Riley Kuntz appealed from the district court’s default judgment entered 

in his favor. Kuntz argues the district court erred by denying his damages for 

trespass. We affirm.

I

[¶2] Kuntz sued Ashlynn Leiss and Joseph Westbrook for trespass and theft

of his cat trap. Neither Leiss nor Westbrook answered the complaint or 

otherwise appeared. Following an evidentiary hearing, the district court 

granted default judgment in favor of Kuntz. The court found a trespass and 

conversion of the cat trap had occurred. The court awarded Kuntz a money 

judgment for conversion of the cat trap, but found he did not suffer any actual 

damages as a result of the trespass.

II

[¶3] Kuntz argues the district court erred by denying his damages for 

trespass, including punitive damages and damages for emotional distress.

[¶4] When a non-prevailing party at the district court appeals from a default 

judgment our review is limited to determining whether irregularities appear 

on the face of the judgment. Burgard v. Burgard, 2013 ND 27, ¶ 11, 827 N.W.2d 

1. However, here Kuntz was the plaintiff and is the appellant. He was the 

prevailing party and now argues the district court erred by denying him 

damages for trespass. The appropriate standard of review in an appeal 

challenging a district court’s award of damages is whether the court’s findings 

of fact are clearly erroneous. Buri v. Ramsey, 2005 ND 65, ¶ 17, 693 N.W.2d 

619. A finding of fact is clearly erroneous if there is no evidence to support it, 

if it is clear to the reviewing court that a mistake has been made, or if the 

finding is induced by an erroneous view of the law. Id. A district court’s 

conclusions of law are fully reviewable. Fargo Foods, Inc. v. Bernabucci, 1999 

ND 120, ¶ 10, 596 N.W.2d 38.
2

[¶5] “Civil trespass is a common law tort in North Dakota and is not 

statutorily defined.” Tibert v. Slominski, 2005 ND 34, ¶ 15, 692 N.W.2d 133. 

“This Court has defined trespass as an intentional harm, where a person 

intentionally and without a consensual or other privilege . . . enters land in 

possession of another or any part thereof or causes a thing or third person so 

to do.” Id. (quotations omitted). A person who commits a trespass “is liable as 

a trespasser to the other irrespective of whether harm is thereby caused to any 

of his legally protected interests.” Id.

[¶6] The district court found that Leiss and Westbrook trespassed on Kuntz’s 

land. However, it denied him an award of damages on this cause of action 

because he did not prove he suffered any actual damages from the trespass. In 

fact, the court noted that Kuntz testified that he suffered no actual damages.

[¶7] Although Kuntz claims the district court erred by denying him damages 

for trespass, he does not specifically argue that he suffered any actual or 

compensatory damages, or the district court erred in finding he had no actual 

damages. Thus, at most, nominal damages could be awarded. See N.D.C.C. § 

32-03-38 (“When a breach of duty has caused no appreciable detriment to the 

party affected, the party may recover nominal damages.”); Smith v. Carbide 

and Chemicals Corp., 226 S.W.3d 52, 55 (Ky. 2007) (stating that “in intentional 

trespass, in order to recover more than nominal damages, a property owner 

must prove ‘actual injury’”). Although we conclude the district court should 

have awarded Kuntz nominal damages for succeeding on his trespass claim,

its failure to do so does not warrant reversal of the judgment. See Hummel v. 

Mid Dakota Clinic, P.C., 526 N.W.2d 704, 709 (N.D. 1995) (stating that 

“because of the trivial amount, the failure to award nominal damages does not 

warrant reversal of a judgment unless a significant right or a question of costs 

is involved”).

[¶8] Further, the district court did not err by failing to award exemplary

damages. Section 32-03.2-11, N.D.C.C., provides, in relevant part: 

Upon commencement of the action, the complaint may not seek 

exemplary damages. After filing the suit, a party may make a 

motion to amend the pleadings to claim exemplary damages. The 
3

motion must allege an applicable legal basis for awarding 

exemplary damages and must be accompanied by one or more 

affidavits or deposition testimony showing the factual basis for the 

claim.

The record does not show Kuntz moved to amend the pleadings to claim 

exemplary damages as required by statute. Thus, exemplary damages were not 

properly before the district court, and we will not consider such damages on 

appeal.

[¶9] Kuntz does not identify any evidence in the record, or otherwise provide 

supporting facts or argument that he suffered emotional distress as a result of 

the trespass. Accordingly, the issue is waived. See State v. Obrigewitch, 356 

N.W.2d 105, 109 (N.D. 1984) (“Where a party fails to provide supporting 

argument for an issue listed in his brief, he is deemed to have waived that 

issue.”).

[¶10] We conclude the district court did not err by failing to award damages 

for Kuntz’s trespass claim.

III

[¶11] We affirm the default judgment.

[¶12] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte