Heiser v. Dan's Super Market, Inc.Civil No. 11,283

Gierke, Justice.

Merle Heiser appeals from the district court's decision granting judgment to Dan's Super Market on the pleadings and dismissing Heiser's amended complaint for failing to state a claim upon which relief could be granted. Heiser raises two issues on appeal.

One of the two issues raised by Heiser involves his contention that his libel claim was improperly dismissed. However, even after Heiser was given the opportunity to amend his complaint this matter was never raised nor argued before the lower court. It is axiomatic that issues not raised or argued before the trial court may not be raised for the first time on appeal. We affirm the district court's dismissal of Heiser's amended complaint in accordance with Farmers State Bank of Leeds v. Thompson, 372 N.W.2d 862 (N.D.1985), and Rule 35.1(a) (6), North Dakota Rules of Appellate Procedure.

Heiser also argues that the district court should not have granted judgment to Dan's Super Market on the pleadings based upon his assertion that there is a public policy exception to § 34-03-01, N.D.C.C., against using polygraph test results as a basis for terminating Heiser's employment. Section 34-03-01, N.D.C.C., is North Dakota's flat will" termination-of -employment provision and provides: "An employment having no specified term may be terminated at the will of either party on notice to the other, except when otherwise provided by this title." After reviewing the record, we affirm the findings of the district court in accordance with our holding in Lee v. Walstad, 368 N.W.2d 542 (N.D.1985), and pursuant to Rule 35.1(a)(6) of the North Dakota Rules of Appellate Procedure.

H.F. Gierke III
Gerald W. VandeWalle
Beryl J. Levine
Herbert L. Meschke
Ralph J. Erickstad, C.J.