IN THE SUPREME COURT OF THE STATE OF NORTH DAKOTA

Plaintiff and appellee  John L. Wagner moves the Court for an order dismissing this appeal. This motion is supported by the attached Brief in Support of Motion to Dismiss and all papers on file with this Court and is made on the following grounds:

1. This appeal constitutes a frivolous pleading pursuant to Rule 11 of the North Dakota Rules of Civil Procedure. The purpose of this appeal is to allow continued vicious harassment of John Wagner by the appellant and to cause additional legal expense.

2. The appellant, Ms. Miskin, failed to provide a transcript of testimony given during the 4½ days of evidentiary hearing. As pursuant to N.D.R.App.P 10(b), this is the responsibility of the appellant. Instead she wishes the Court to take her recollections of what was said in lieu of the verbatim record. She provides no evidence for claims made in her appeal; claims easily shown to be false.

John Wagner prays for the dismissal of this appeal as authorized by N.D.R.Civ.P. 12(b).

Dated this 9 th day of December, 2002

IN THE SUPREME COURT OF THE STATE OF NORTH DAKOTA

In June 1999, John Wagner brought a lawsuit against Glenda Miskin for libel, slander and interference with business relations. Following a 4 ½ day jury trial in March/April 2002, a judgment was entered against the plaintiff Glenda Miskin totally $3,000,964.75. In July 2002, Glenda Miskin filed her appeal in this case. John Wagner files this Motion to Dismiss the appeal.

I. Claim of US Constitutional Privilege, Lack of State Jurisdiction.

Miskin's claim that her actions are protected by US Constitutional Privileges is a broad, meaningless, conclusory statement. This claim is not supported by and North Dakota Case law, North Dakota Constitutional law or United States Constitutional law.

The matter of legal privileges has previously been heard many times by the Honorable Judge Bruce E.Bohlman throughout the course of this case. At no time in the past has Glenda Miskin alleged privileges applicable to this case that would insulate her from liability. Her present appeal is no different in that she fails to cite any applicable case law providing her privilege. The Honorable Judge Bruce E. Bolhman simply and succinctly stated this in his Memorandum Decision & Order on Post-Judgment Motions dated June 11, 2002 (attachment 1):

If the plaintiff never made any of the statements to the defendant that she claims a privilege for, the privileges simply do not apply. The jury so found. The defendant simply cannot manufacture false accusations against the plaintiff and then claim that she has a privilege to publish those accusations. In this case, there are no privileges applicable that would insulate the defendant's conduct.

Her claim that the court has no jurisdiction over the Internet is not supported by any legal authority. The court has jurisdiction over activity that takes place within the state of North Dakota including the articles and postings on websites targeting John Wagner, a resident of North Dakota, and soliciting discussions from North Dakotans and University of North Dakota employees.

II. Confidential and Privileged report to a licensed Counselor.

The case has never been about what Glenda Miskin said to UND Psychologist Dr. Dick Grosz, but what she has to said to countless others by direct contact and through the internet. If her confidentiality had been violated, she should sue the University of North Dakota as she attempted in her unsuccessful counter-suit to this case.

There is no basis for her argument that exemplary or punitive damages were awarded. There was no request of exemplary or punitive damages: there were no instructions for exemplary or punitive damages; and the jury did not award exemplary or punitive damages. The jury verdict was based on compensatory damages, commensurate to the harm done to the plaintiff by the defendant.

IV. Lack of Effective Counsel by Pro se Defendant.

While this may be true, this is not a reason to grant an appeal. She continues to represent herself Pro se. Perhaps she can sue herself.

V. Failure to File Trial Transcript or Provide Supporting Evidence.

Glenda Miskin failed to provide a transcript of testimony given during the 4½ days of evidentiary hearing. As pursuant to N.D.R.App.P 10(b), this is the responsibility of the appellant. Instead she wishes the Court to take her recollections of what was said in lieu of the verbatim record. She provides no evidence for claims made in her appeal, but merely states them as fact. Many are easily demonstrated false, such as her claim under Statement of Facts concerning the campus police investigation confirming the existence of the mutually romantic relationship. See Attachment 2 from Chief of Police Duane Czapiewski stating: "Our investigation found no mutual romantic relationship existed between the two parties".

Without the transcript, there is no meaningful way in which the Court can determine the findings of facts are in error. It is left to assume that the evidence supports the findings of fact made by the trial court. The burden is upon the appellant to call attention of the Court to the lack of or evidence to the contrary that makes the findings erroneous. See Sabot v. Fargo Women's Health Organization, 500 N.W.2d 889 (N.D. 1993) and Owan v. Kindel 347 N.W.2d 577 (N.D. 1984).

CONCLUSION

For the above reasons, John Wagner respectfully requests the Court dismiss this appeal.

Dated this 9th day of December, 2002