Mead v. Hatzenbeller

999 N.W.2d 618

2023 ND 248

Carey MEAD, Petitioner and Appellee

v.Mark Robert HATZENBELLER, Respondent and Appellant

No. 20230185

Supreme Court of North Dakota.

Filed December 28, 2023

Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Constance L. Cleveland, Judge.

Joel ?. Fremstad, Fargo, ND, for petitioner and appellee; submitted on brief.

Madison D. Marchus (argued), Tatum O’Brien and Sara Monson (on brief), Fargo, ND, for respondent and appellant.

Crothers, Justice.

[¶1] Mark Hatzenbeller appeals from a disorderly conduct restraining order. We affirm, concluding the district court did not abuse its discretion or violate Hatzenbeller’s right to due process when it issued the restraining order. We decline to address issues concerning the temporary restraining order because they are moot.

I

[¶2] On April 26, 2023, Carey Mead filed a petition for a disorderly conduct restraining order against Hatzenbeller. The petition alleged:

"Please see Case No. 09-2022-CR-03212. Mark Hatzenbeller plead guilty to Disorderly Conduct Harassment on 12/5/2022. Part of the conditions of the probation was he should have no contact with Carey or [her husband,] Michael J. Mead. Mark Hatzenbeller continues to initiate unnecessary interactions. The current status does not allow for any criminal consequences for initiating contact and offers no protection for the victims in this case. Hatzenbeller has no probation officer to revoke probation. This attempt for contact has significantly worsened to cause the victims to have concern for our safety and security. We have already exhausted all civil options and are left with nothing else. He is [sic] neighbor next door."

Mead’s husband is not named as a petitioner. An order deferring imposition of Hatzenbeller’s sentence for disorderly conduct-harassment was attached to the petition along with the register of actions for the criminal case.

[¶3] The district court issued a temporary restraining order and set a hearing. At the hearing, Mead and Hatzenbeller appeared in person with counsel. Mead moved for judgment on the pleadings, arguing Hatzenbeller’s criminal conviction was sufficient to prove he engaged in disorderly conduct. Hatzenbeller moved to dismiss, arguing the petition was insufficient because it lacked specificity. The court denied both motions. The court ruled the petition’s reference to Hatzenbeller’s criminal conviction was sufficiently specific to survive dismissal. The court also ruled judgment on the pleadings was inappropriate because Hatzenbeller had a due process right to a full hearing.

[¶4] The district court took judicial notice of the criminal disorderly conduct proceeding against Hatzenbeller, stating:

"I have reviewed 09-2022-CR-3212. I will make a specific finding that it is a criminal matter, there is a criminal conviction …. [M]y familiarity with the criminal process would include that there is a sufficient factual basis established to meet all of the elements necessary for a criminal conviction and that the defendant in this case, who is the same individual named, pled guilty to the crime of disorderly conduct…."

Mead did not offer additional evidence. Hatzenbeller testified he pleaded guilty to disorderly conduct after an incident occurred between him and the Meads, the conduct occurred in the spring of 2022, he was the Meads’ next door neighbor, and they live in a "very small" town.

[¶5] The district court found Hatzenbeller’s criminal conviction was sufficient evidence to prove he engaged in disorderly conduct. The court directed the parties to negotiate specific restrictions for a restraining order and submit a proposed order. The court informed the parties it intended to include Mead’s husband as a protected party because he was identified as a victim in the criminal action. On May 25, 2023, the court issued a one-year disorderly conduct restraining order that prohibited Hatzenbeller from having contact with the Meads. Hatzenbeller appeals.

II

[¶6] Hatzenbeller argues the district court erred when it granted the temporary restraining order because the allegations in Mead’s petition were generalized, vague, and insufficient to support issuance of a temporary restraining order.

[1–4] [¶7] A temporary restraining order is a type of injunction that is brief in duration and meant to maintain the status quo until the district court can make a determination on the merits of a petition. State v. Kenny, 2019 ND 218, ¶ 9, 932 N.W.2d 516. A temporary restraining order ceases to have any effect once a final disorderly conduct restraining order is issued. N.D.C.C. § 12.1-31.2-01(4). Final restraining orders supersede temporary orders. Jones v. Rath, 2023 ND 183, ¶ 5, 996 N.W.2d 305. After a final order has been issued, questions concerning the propriety of earlier temporary injunctive orders generally are moot. Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 314, 119 S.Ct. 1961, 144 L.Ed.2d 319 (1999) (stating "an appeal from the grant of a preliminary injunction becomes moot when the trial court enters a permanent injunction, because the former merges into the latter"); WWP, Inc. v. Wounded Warriors Family Support, Inc., 628 F.3d 1032, 1038 (8th Cir. 2011) (dismissing appeal from preliminary injunction as moot due to entry of permanent injunction).

[5, 6] [¶8] In Gonzalez v. Witzke, 2012 ND 60, ¶¶ 9-13, 813 N.W.2d 592, this Court addressed arguments concerning the propriety of a temporary restraining order in an appeal from a final disorderly conduct restraining order. Although the Court discussed the temporary order, it was not the order on appeal. Id. at ¶¶ 1, 27 (stating the final restraining order was on appeal and affirming it). The Court’s discussion of the temporary order was dicta because the temporary order had ceased to have any effect on the appellant and was superseded by the final restraining order. When events have occurred that make it impossible for this Court to issue relief, no actual controversy exists. Interest of ?.R., 2022 ND 68, ¶ 3, 972 N.W.2d 94. This Court generally does not issue advisory opinions on moot issues. Id. We repudiate Gonzalez, ¶¶ 9-13, to the extent it suggests issues concerning a superceded temporary restraining order will be addressed on appeal absent an actual controversy.

[7] [¶9] Here, after issuing a temporary restraining order based on the allegations in Mead’s petition, the district court held an evidentiary hearing, found Hatzenbeller committed disorderly conduct, and entered a final restraining order. When the court issued its final order, the temporary order ceased to have any effect. The court’s final order superseded the earlier temporary order. Even if the temporary order was improvidently granted, we can provide no relief from the expired order. Therefore, the propriety of the temporary order is moot and will not be addressed in this appeal.

III

[¶10] Hatzenbeller raises multiple issues concerning the final disorderly conduct restraining order. He argues the evidence is insufficient to support a finding he engaged in disorderly conduct; the disorderly conduct alleged in the petition is not sufficiently recent; his due process right to a full hearing was violated; and the district court erred by including Mead’s husband as a protected party.

[8–10] [¶11] A petitioner for a disorderly conduct restraining order must show there are "reasonable grounds to believe that the respondent has engaged in disorderly conduct." N.D.C.C. § 12.1-31.2- 01(5)(d). Disorderly conduct is "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). The petitioner must allege "specific facts or threats." Holm v. Holm, 2023 ND 228, ¶ 6, 998 N.W.2d 806 (quoting Cusey v. Nagel, 2005 ND 84, ¶ 7, 695 N.W.2d 697); see also Rekow v. Durheim, 2022 ND 177, ¶ 7, 980 N.W.2d 917. Vague generalities will not suffice. Rekow, at ¶ 7. When a petitioner provides evidence "sufficient to warrant a person of reasonable caution to believe" disorderly conduct occurred, reasonable grounds exist for the court to issue a restraining order. Cusey, at ¶ 6 (quoting Svedberg v. Stamness, 525 N.W.2d 678, 682 (N.D. 1994)). "[R]easonable grounds for a disorderly conduct restraining order is ‘synonymous with probable cause.’ " Baker v. Mayer, 2004 ND 105, ¶ 13, 680 N.W.2d 261 (quoting Tibor v. Lund, 1999 ND 176, ¶ 7, 599 N.W.2d 301).

[11–13] [¶12] Whether to grant a disorderly conduct restraining order is left to the discretion of the district court. Hanisch v. Kroshus, 2013 ND 37, ¶ 9, 827 N.W.2d 528. We will not reverse a district court’s decision to issue a disorderly conduct restraining order absent an abuse of discretion. Id. "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." Id.

A

[¶13] Hatzenbeller argues Mead failed to offer specific evidence to support a finding he engaged in disorderly conduct. Hatzenbeller claims Mead only offered generalized allegations and no evidence proves he engaged in conduct intending to adversely affect her safety, security, or privacy. Mead argues Hatzenbeller’s criminal conviction for disorderly conduct is sufficient evidence to support issuance of the restraining order.

[14, 15] [¶14] "Disorderly conduct is analyzed in the same manner for both civil and criminal cases because the reasonable grounds for a restraining order are synonymous with probable cause for an arrest." Hoggarth v. Kropp, 2010 ND 197, ¶ 14, 790 N.W.2d 22. The elements of criminal disorderly conduct by harassment are the same as those required to prove disorderly conduct in the context of a petition for a restraining order. Compare N.D.C.C § 12.1-31.2-01(1) (stating disorderly...