Boutrous v. Transform Operating Stores , 2023 ND 35 ( 2023 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MARCH 3, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 35Ted J. Boutrous, L.L.C. and The Boutrous
Group, LLP, Plaintiffs and Appellees
v.
Transform Operating Stores, LLC d/b/a
Transformco Operating Stores LLC; Transform
SR Brands LLC d/b/a Transformco d/b/a Kmart;
and Transform KM LLC, Defendants and Appellants
No. 20220090
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Bobbi Brown Weiler, Judge.
AFFIRMED.
Per Curiam.
Tory L. Jackson, Bismarck, ND, for plaintiffs and appellees.
Ryan C. McCamy, Fargo, ND, for defendants and appellants.
Boutrous, et al. v. Transform Operating Stores, et al.
No. 20220090
Per Curiam.
[¶1] Transform Operating Stores, LLC d/b/a Transformco Operating Stores
LLC; Transform SR Brands LLC d/b/a Transformco d/b/a Kmart; and
Transform KM LLC (collectively, “Transform”) appeal after the district court
entered an order awarding damages to Ted J. Boutrous, L.L.C. and The
Boutrous Group, LLP and entered a [second] amended judgment of eviction.
We conclude the court did not err finding a material breach of the lease and in
exercising jurisdiction as a summary eviction. While the court abused its
discretion in bifurcating the eviction action, that error was harmless. We
further conclude Transform failed to timely appeal the court’s contempt order
for the untimely turnover of the property. We affirm.
I
[¶2] This action was before the Court in Ted J. Boutrous, L.L.C. v. Transform
Operating Stores, LLC, 2021 ND 100, 960 N.W.2d 801 (“Boutrous I”). Ted J.
Boutrous, L.L.C. and The Boutrous Group, LLP (collectively, “Boutrous”) are
companies whose principals inherited parcels of real estate from their fathers.
Boutrous owns the property at issue located in Bismarck.
[¶3] In 1969 Boutrous’ predecessors-in-interest, Theodore J. Boutrous and
Floyd N. Boutrous, entered into a Ground Lease with Paul O. Moore, as lessee,
which contemplated Moore would construct a “shopping center” on the
property and sublease it to S.S. Kresge (“Kmart”). In 1970 Moore and Kmart
entered into a commercial lease (“Kmart Lease”) by which Moore leased to
Kmart the property and the building to be constructed by Moore. Kmart
Corporation subsequently operated a Kmart store on the property for about 50
years.
[¶4] In 2018 Transform purchased out of bankruptcy the assets of Sears
Holding Corporation and its debtor affiliates, including Kmart Corporation,
and hold a national real estate portfolio made up of sites on which Sears and
Kmart stores were operated. Boutrous was the landlord under the Kmart
1
Lease, and one of the Transform entities, Transform Operating Stores LLC,
became the tenant sometime in 2018 or 2019, as part of the Kmart Corporation
bankruptcy case. The Ground Lease terminated years ago, and Boutrous
became the direct landlord to Kmart Corporation and then to Transform.
Transform permanently closed the Kmart store in February 2020.
[¶5] In February 2021, Boutrous commenced this action under N.D.C.C. ch.
47-32 for summary eviction and damages against Transform. Boutrous I, 2021
ND 100, ¶ 2. The district court notified the parties it would only address the
right of possession at the eviction hearing, bifurcating the claims and reserving
damages for a later hearing. Transform moved to dismiss for lack of subject
matter jurisdiction. The court denied the motion and ordered the eviction
hearing to go forward, reiterating a hearing on damages would be scheduled
later. Id.[¶6] After a February 19, 2021 eviction hearing, the district court found
Boutrous was entitled to possession of the property, ordered Transform to
vacate, and reserved damages for a later hearing. A judgment of eviction was
entered. Transform moved for reconsideration, which the court denied. An
amended judgment of eviction was entered modifying the date of surrender,
and Transform appealed. The appeal was dismissed because the orders and
“judgments” appealed from were not final. Boutrous I, 2021 ND 100, ¶¶ 1, 6.
[¶7] On May 26, 2021, the district court entered an order on motions to stay
eviction, for writ of execution, and for order to show cause. In its order the court
denied Transform’s motion for a stay, granted Boutrous’ motion for a writ of
execution, and granted Boutrous’ motion for an order to show cause, finding
Transform in contempt for intentionally defying the amended judgment of
eviction by failing to turn over the property. The contempt order imposed
remedial sanctions of $100 a day for every day Transform refused to turn over
possession of the property, starting April 14, 2021. On November 8, 2021, the
district court held a hearing on Boutrous’ claimed damages. In January 2022,
the court awarded damages and entered a [second] amended judgment for
eviction.
2
[¶8] On March 18, 2022, Transform appealed from the initial judgment of
eviction entered on March 23, 2021, and the amended judgment of eviction
entered on April 13, 2021, among other orders. While its notice of appeal does
not appeal from the [second] amended judgment of eviction entered on
January 18, 2022, Transform appeals from the order for damages entered on
January 13, 2022, which was incorporated into the second amended judgment,
and the notice of entry of amended judgment. The appeal from the order for
damages is treated as an appeal from the subsequent, consistent second
amended judgment of eviction, which included the damages awarded. Cf.
Sadek v. Weber, 2020 ND 194, ¶ 10, 948 N.W.2d 820 (“[A]n attempted appeal
from the order granting summary judgment will . . . be treated as an appeal
from a subsequently entered consistent judgment, if one exists.”).
[¶9] On March 18, 2022, Transform also appealed from the district court’s
order on motions to stay eviction, for writ of execution, and for order to show
cause entered on May 26, 2021. This order found Transform in contempt and
awarded remedial sanctions of $100 a day from April 14, 2021, until they
returned possession of the property to Boutrous. As discussed below,
Transform’s appeal of the court’s contempt order is untimely.
II
[¶10] This Court’s standard of review for a bench trial is well established:
“In an appeal from a bench trial, the district court’s findings
of fact are reviewed under the clearly erroneous standard of
review, and its conclusions of law are fully reviewable. A finding of
fact is clearly erroneous if it is induced by an erroneous view of the
law, if there is no evidence to support it, or if, after reviewing all of
the evidence, this Court is convinced a mistake has been made. In
a bench trial, the district court is the determiner of credibility
issues and we will not second-guess the district court on its
credibility determinations. Findings of the trial court are
presumptively correct.”
Gimbel v. Magrum, 2020 ND 181, ¶ 5, 947 N.W.2d 891 (cleaned up).
3
[¶11] “[W]hether a lease has been fully complied with should . . . be treated as
a finding of fact because the rules of construction relating to contracts
generally apply to the construction of leases.” VND, LLC v. Leevers Foods, Inc.,
2003 ND 198, ¶ 31, 672 N.W.2d 445 (quoting Kolling v. Goodyear Tire & Rubber
Co., 272 N.W.2d 54, 60 (N.D. 1978)). “Whether a contract should be canceled
for breach depends upon the facts of each case.” VND, at ¶ 32 (quoting
Sandberg v. Smith, 234 N.W.2d 917, 919 (N.D. 1975)). Statutory interpretation
and lease interpretation present questions of law, fully reviewable on appeal.
Zundel v. Zundel, 2017 ND 217, ¶¶ 11-12, 901 N.W.2d 731.
III
[¶12] Transform argues the district court erred in exercising jurisdiction as a
summary eviction, in bifurcating the eviction action, and in finding a material
breach of the written lease agreement.
[¶13] Under N.D.C.C. § 47-32-01(8), an eviction action may be brought to
recover the possession of real estate if a “lessee violates a material term of the
written lease agreement between the lessor and lessee.” Eviction actions under
N.D.C.C. ch. 47-32 are designed to be summary proceedings. Spirit Prop.
Mgmt. v. Vondell, 2017 ND 158, ¶ 4, 897 N.W.2d 334; Gasic v. Bosworth, 2014
ND 85, ¶ 7, 845 N.W.2d 306. This Court has explained this procedure:
“Section 47-32-02, N.D.C.C., provides for an expedited procedure,
with the defendant allowed between three and fifteen days to
appear and defend in the action. If the court finds for the plaintiff,
the court must enter judgment granting immediate restitution of
the premises to the plaintiff, but the court may delay execution in
case of hardship for a reasonable period not exceeding five days.
N.D.C.C. § 47-32-04. The statute strictly limits the parties’ ability
to combine the eviction with other claims and precludes the
defendant from interposing a counterclaim, except as a setoff to
the plaintiff ’s claim for damages, rent, or profits. N.D.C.C. § 47-32-
04. The proceeding is limited to a speedy determination of the right
to possession of the property, without bringing in extraneous
matters. The purpose of the statute is to provide an inexpensive,
expeditious, and simple means to determine possession.”
4
Cheetah Props. 1, LLC v. Panther Pressure Testers, Inc., 2016 ND 102, ¶ 20,
879 N.W.2d 423 (quoting Gasic, at ¶ 7). “[T]he defendant may show the
character of the possessory rights claimed by the parties[,] . . . [but] the right
to the possession of the real estate is the only fact that can be rightfully
litigated unless damages or rent is claimed.” Gasic, at ¶ 8 (quoting Anderson
v. Heinze, 2002 ND 60, ¶ 11, 643 N.W.2d 24). A party seeking damages in a
summary eviction is “limited to those specified under N.D.C.C. § 47-32-04.”
Cheetah Props., at ¶ 20. “Specifically, a party may seek damages resulting from
‘rents and profits accrued or for damages arising by reason of the defendant’s
possession.’” Id. (quoting N.D.C.C. § 47-32-04).
A
[¶14] Transform argues the district court erred in exercising jurisdiction as a
summary eviction.
[¶15] Relying on Riverwood Commercial Park, LLC v. Standard Oil Co., 2005
ND 118, ¶¶ 11-12, 698 N.W.2d 478 (holding underground sewer line permit was
not a lease, defendants were not lessees under the permit, and eviction statutes
were inapplicable), Transform contends eviction under N.D.C.C. ch. 47-32 is
not available in cases when an extremely long-term and complex relationship
involving multiple parties exists, and when the statutory remedies are ill-
suited to resolve complex legal and factual issues. Transform argues the court
erred in allowing the matter to proceed under the summary eviction statutes
because this case did not involve the simple possession of property.
[¶16] Boutrous responds that section 24 of the Kmart Lease provides that if
Transform is in default, Boutrous, after giving proper notice, may “re-enter
[the] demised premises by summary proceedings or otherwise.” Boutrous also
argues that the eviction action falls squarely within the statute’s substantive
and procedural requirements, and that summary eviction under N.D.C.C. ch.
47-32 was straightforward since Transform was not occupying the property,
having closed the Kmart store a year before the eviction hearing. Boutrous
contends Transform was entitled to take full advantage of any procedures
available in the district court, and much of the delay was attributable to
Transform’s litigation strategy.
5
[¶17] When jurisdictional facts are not in dispute, subject matter jurisdiction
presents a question of law, reviewed de novo. Spirit Prop. Mgmt., 2017 ND 158,
¶ 7. “Jurisdiction of the court does not depend upon whether its decision is
right or wrong, correct or incorrect.” Id. (quoting Mills v. City of Grand Forks,
2012 ND 56, ¶ 10, 813 N.W.2d 574). Section 47-32-01(8), N.D.C.C., provides an
eviction action to recover possession of real property may be maintained in the
proper district court when “[t]he lessee violates a material term of the written
lease agreement between the lessor and lessee.” A district court has
jurisdiction over eviction actions under N.D. Const. art. VI, § 8, and N.D.C.C.
§§ 27-05-06 and 47-32-01. Spirit Prop. Mgmt., at ¶ 9; see also State ex rel. Bd.
of Univ. & School Lands v. Alexander, 2006 ND 144, ¶ 6, 718 N.W.2d 2.
[¶18] Here, N.D.C.C. § 47-32-01(8) allows a lessor to recover possession of real
property if a lessee violates a lease’s material term. The Kmart lease also
allows the landlord to use “summary proceedings.” Transform’s reliance on
Riverwood, a case involving a sewer line permit, is inapposite. In Riverwood,
2005 ND 118, ¶¶ 9-10, this Court held that N.D.C.C. § 47-32-01(1), (2), and (3)
did not apply under the facts of the case and that N.D.C.C. § 47-32-01(4), (7)
and (8) required a showing that there is a lease. This Court ultimately held
Riverwood chose the wrong remedy and was not entitled to invoke the
expedited summary eviction procedure:
“The major distinction between a lease and an easement or
license is that a lease confers exclusive use and possession of the
property against the world, including the landowner, whereas an
easement or license merely grants a right or permission to
nonexclusive use of the land for a specific, limited purpose.
Riverwood has at all times had possession of its property. The 1953
permit did not grant Standard exclusive use and possession of any
part of NP’s land, but merely permitted non-exclusive use of a
portion of NP’s land for the specific, limited purpose of maintaining
a sewer pipeline. The 1953 permit is not a lease, neither Tesoro nor
Standard is a lessee under the permit, and therefore subsections
(4), (7), and (8) of N.D.C.C. § [47-32-01] on their face are
inapplicable in this case.
6
“Riverwood has chosen the wrong remedy to attempt to
resolve its claims against Tesoro and Standard, and Riverwood’s
attempt to ‘shoehorn’ this case into the summary eviction
procedure is unpersuasive. Summary eviction under N.D.C.C. ch.
[47-32] is primarily designed to quickly place a landowner back in
possession in certain circumstances when there is little or no
dispute to his right to possession. The expedited, summary
procedure provides no meaningful opportunity for discovery and
places the landowner back in possession within a matter of days of
serving the summons and complaint. This remedy is particularly
ill-suited to resolve complex legal and factual issues arising from
an underground sewer line which has been in place for half a
century. Although Riverwood may perhaps have some other
remedy against Tesoro or Standard, such as an action for trespass
or breach of the 1953 permit, it is not entitled to invoke the
expedited summary eviction procedure under N.D.C.C. ch. [47-
32].”
Riverwood, at ¶¶ 11-12 (cleaned up). Transform does not deny the existence of
a lease, but argues the factual and legal issues involved here are too complex
to proceed under the summary eviction statutes. However, complexity does not
divest the district court of jurisdiction under N.D.C.C. § 47-32-01.
[¶19] Chapter 47-32, N.D.C.C., while containing time limitations, does not
limit the applicability of these expedited procedures to simple proceedings. For
example, in Aurora Med. Park, LLC v. The Kidney & Hypertension Ctr., PLC,
2010 ND 122, ¶¶ 11-12, 784 N.W.2d 151, this Court rejected the lessees’
argument that “the five-day maximum period for vacating the premises
allowed under N.D.C.C. § 47-32-04, which was extended to 30 days in this case
by agreement of [the lessor], violates public policy when applied to a medical
clinic.” There, we explained:
“Public policy is declared by the Legislature’s action, Warner
and Co. v. Solberg, 2001 ND 156, ¶ 20, 634 N.W.2d 65, and the
Legislature, through its recent recodification of the eviction
statutes, has continued to declare the public policy to be a five-day
limit on stays of special executions under N.D.C.C. § 47-32-04. ‘It
is for the Legislature to weigh conflicting public policy arguments
and to enact accordingly.’ Ficek v. Morken, 2004 ND 158, ¶ 36, 685
7
N.W.2d 98 (VandeWalle, C.J., concurring specially). The public
policy arguments made by the [lessees] are issues for the
Legislature to consider, and we decline the invitation to rewrite
N.D.C.C. ch. 47-32.”
See also Tornabeni v. Creech, 2018 ND 204, ¶¶ 15-17, 916 N.W.2d 772 (rejecting
arguments that “the summary eviction proceedings provided by N.D.C.C. ch.
47-32 violated [defendant’s] right to due process” and that “a dispute over the
title to property is complex, requires an opportunity for discovery, and the
requirement that the hearing be held no fewer than three days or more than
15 days after service of the summons does not provide sufficient time for
preparation,” where the district court granted a limited continuance from the
initial eviction hearing).
[¶20] The district court did not err in exercising jurisdiction under N.D.C.C.
ch. 47-32, governing summary eviction.
B
[¶21] Transform argues the district court erred in finding a material breach of
the written lease.
[¶22] Whether a lessee has violated a material term of the lease is a question
of fact, see VND, 2003 ND 198, ¶ 31, while the interpretation of a lease presents
a question of law. Zundel, 2017 ND 217, ¶ 12. Transform raises a number of
arguments that it contends shows the district court erred in finding a material
breach of the lease agreement.
[¶23] Transform argues the Kmart Lease at section 24, provides Boutrous’
remedies for any alleged breaches of the lease. Transform essentially contends
Boutrous did not comply with the lease requirements of notice and time
allowing Transform the opportunity to cure a continuing default. Transform
argues that Boutrous’ notice was vague and insufficient, and that Boutrous
instituted the eviction proceedings without proper notice or the ability for
Transform to cure, as required under the lease.
8
[¶24] Transform argues the district court erred in finding abandonment
because the Kmart Lease and Ground Lease do not require the store to remain
open. Transform argues evidence showing its actions in paying rent, having
present and future maintenance plans in place, and maintaining insurance
could only lead a reasonable person to conclude Transform did not abandon the
premises. Transform argues the court erred in its findings regarding the
condition of the premises because, absent the notice required under the lease,
it cannot be held to Boutrous’ subjective and minor complaints when the
complained of items no longer existed at the time of the action. Transform
contends it was prejudiced when the court allowed Boutrous to solicit
testimony and present evidence regarding maintenance deficiencies dating
back as far as 2013, because Transform did not assume the lease until 2019.
[¶25] Transform further contends the district court erred in “stacking” the
alleged violations to reach its ultimate finding Transform had materially
breached the lease. Transform asserts evidence showing alleged violations,
such as missed utility payments, failure to provide proof of insurance occurring
in 2016, and alleged homeless people found on the site, were nonissues or had
been resolved before the eviction hearing. Transform argues the court erred in
collectively considering these issues a breach of a material lease term.
[¶26] In its March 23, 2021 order, the district court made findings of fact
detailing events occurring at or with the property. The court made clear that it
did not consider any problems with the property before April 16, 2019, which
the court found was the only date suggesting when Transform had taken over
the lease. The court detailed the categories of issues considered at the eviction
hearing including the parking lot condition; water leak and broken pipe
damage; break-ins, homeless encampments, illegal activity, unauthorized
vendors and sales, and de facto used-car lot; trash and debris on the property;
long grass and nonpayment of water bill; and violations of specific local
ordinances.
[¶27] The district court rejected Transform’s main argument that it had no
notice of the problems at the property. The court found “Transform essentially
abandoned the K-Mart property,” and admitted it had no one regularly
9
checking the property. The court found Transform had actual notice of the
problems on August 10, 2020, but found Transform should have been aware of
the problems starting in March 2020 when police reports showed issues at the
property. The court rejected Transform’s attempt to argue ignorance to avoid
responsibility under the lease.
[¶28] The district court’s findings of fact are considered presumptively correct.
Gimbel, 2020 ND 181, ¶ 5. On this record, we cannot conclude the findings
were induced by an erroneous view of the law. Evidence in the record supports
the findings and, after reviewing all of the evidence, we are not convinced a
mistake has been made. Therefore, the court’s findings of fact regarding notice
and the existence of a material breach of the lease are not clearly erroneous.
C
[¶29] Transform argues the district court erred by bifurcating the eviction
action into two proceedings—one for possession of the property and the other
for damages.
[¶30] Generally, “[a] trial court’s ruling on bifurcation of trials . . . will not be
overturned on appeal unless the complaining party demonstrates the court
abused its discretion.” Piatz v. Austin Mut. Ins. Co., 2002 ND 115, ¶ 6, 646
N.W.2d 681; see also Haider v. Moen, 2018 ND 174, ¶ 13, 914 N.W.2d 520;
N.D.R.Civ.P. 42(b) (“For convenience or to avoid prejudice, the court may order
a separate trial of one or more separate issues, claims, crossclaims,
counterclaims, or third-party claims.”). A district court abuses its discretion
when it acts in an arbitrary, unreasonable, or unconscionable manner; its
decision is not the product of a rational mental process leading to a reasoned
decision; or it misinterprets or misapplies the law. Tornabeni, 2018 ND 204, ¶
16. An abuse of discretion is never assumed, and the party seeking relief must
affirmatively establish it. Piatz, at ¶ 6.
[¶31] Transform claims N.D.C.C. ch. 47-32 does not allow the district court to
bifurcate the eviction hearing from a damages hearing, but requires the court
to enter judgment for the plaintiff to have “immediate restitution of the
premises” under N.D.C.C. § 47-32-04. Transform argues allowing the court to
10
bifurcate proceedings for eviction and damages is contrary to an inexpensive,
expeditious, and simple means to determine possession and permits
improperly enlarging the time constraints in N.D.C.C. §§ 47-32-02 and 47-32-
04. See Boutrous I, 2021 ND 100, ¶¶ 9-13 (Jensen, C.J., specially concurring)
(“[S]ubstantial delay in the resolution of the damage claim has the potential to
also delay an appeal of the initial eviction determination, despite the fact that
restitution of the premises has already been reduced to a ‘judgment’ with a
statutorily limited period the judgment can be stayed.”). Transform argues the
court’s decision to bifurcate the matter into two hearings caused it prejudice,
in that it lost its rights to the property while the lease was still in effect but
was required to pay rent and maintain the property. Transform also was not
allowed an immediate appeal. Boutrous I, 2021 ND 100.
[¶32] Boutrous responds the district court entered the decision to bifurcate the
eviction and damage actions to provide Transform time to respond to the
damage claims, to which Transform raised no objection. Boutrous argues the
court was ensuring the eviction action was a speedy determination of the right
to possession without bringing in extraneous matters. Boutrous contends the
statutes support bifurcation; the relevant inquiry is whether the decision to
bifurcate was prejudicial to Transform; and Transform could have requested
Rule 54(b) certification for the eviction decision but did not. Boutrous asserts
Transform did not suffer harm because of the additional time the case has
taken, payment of monthly damages was the only obligation remaining after
eviction, and only Boutrous was harmed by the bifurcation and resulting
length of the proceedings.
[¶33] As discussed, N.D.C.C. § 47-32-02 provides an expedited procedure: “In
any action for eviction the time specified in the summons for the appearance of
the defendant may not be fewer than three nor more than fifteen days from the
date on which the summons is issued.” Section 47-32-04, N.D.C.C., limits the
claims that may be brought in the action for eviction and provides for
immediate restitution of the premises:
“An action of eviction cannot be brought in a district court in
connection with any other action, except for rents and profits
accrued or for damages arising by reason of the defendant’s
11
possession. No counterclaim can be interposed in such action,
except as a setoff to a demand made for damages or for rents and
profits. If the court finds for the plaintiff in the action, the court
shall enter judgment that the plaintiff have immediate restitution
of the premises. Upon a showing by the defendant that immediate
restitution of the premises would work a substantial hardship on
the defendant or the defendant’s family, except in cases in which
the eviction judgment is based in whole or in part on a disturbance
of the peace, the court may stay the special execution for a
reasonable period, not to exceed five days.”
(Emphasis added.)
[¶34] Section 47-32-04, N.D.C.C., makes a clear distinction between the
eviction proceedings and “any other action,” stating that “[a]n action of eviction
cannot be brought . . . in connection with any other action, except for rents and
profits accrued or for damages arising by reason of the defendant’s possession.”
Regarding the time constraints, N.D.C.C. § 47-32-02 refers only to the “action
for eviction,” rather than any other action or claims for relief. Therefore, when
claims “for rents and profits accrued or for damages” are brought with the
action for eviction, the time limitations in N.D.C.C. § 47-32-02 necessarily
apply. Splitting this cause of action is permitted. Riverwood Com. Park, L.L.C.
v. Standard Oil Co., 2007 ND 36, ¶ 17, 729 N.W.2d 101 (“It is axiomatic that
res judicata claim preclusion and rules against splitting a cause of action are
inapplicable when a statute explicitly prohibits inclusion of additional claims
in the original action.”).
[¶35] “[C]laims tried separately under Rule 42(b), N.D.R.Civ.P., usually result
in only one judgment.” Farmers Elevator & Mercantile Co. v. Farm Builders,
Inc., 432 N.W.2d 864, 869 (N.D. 1988) (emphasis added). “[I]f a separate trial
of a claim is ordered under Rule 42(b), a Rule 54(b) order expressly stating
there is no just reason for delay in directing the entry of final judgment is
necessary to make the judgment final and appealable.” Farmers Elevator, at
870 (citing Buurman v. Central Valley School Dist., 371 N.W.2d 146, 148 (N.D.
1985)). In contrast, claims that are “severed” under N.D.R.Civ.P. 21 “can
become an entirely independent action with a separate judgment
independently entered on it.” Farmers Elevator, at 869. “If a claim against a
12
party is severed under Rule 21, a judgment entered in the severed action
requires no Rule 54(b), N.D.R.Civ.P., order to make that judgment final and
appealable.” Farmers Elevator, at 870 (citing Buurman, 371 N.W.2d at 148);
see also Albrecht v. Albrecht, 2014 ND 221, ¶ 13, 856 N.W.2d 755 (“Severed
claims are appealable without a certification under N.D.R.Civ.P. 54(b).”).
[¶36] Here, in bifurcating the proceedings and delaying a hearing on damages
for a later date, the district court went beyond the court’s broad discretion in a
special proceeding under N.D.C.C. ch. 47-32 for controlling the time allotted
for the initial eviction hearing. See Tornabeni, 2018 ND 204, ¶¶ 16-17 (“An
eviction is a special proceeding governed by N.D.C.C. ch. 47-32.”). The court’s
bifurcation resulted in the entry of multiple purported “judgments,” with the
initial “judgment” not being final. Boutrous I, 2021 ND 100, ¶ 6 (“The district
court ruled on the eviction claim, but failed to rule on damages. Thus, the court
adjudicated fewer than all of the claims.”).
[¶37] The district court’s bifurcation of the proceedings was inconsistent with
N.D.C.C. §§ 47-32-02 and 47-32-04, and therefore an abuse of discretion. An
appropriate procedure under these circumstances would have been to sever the
claim for damages. Nevertheless, because the court found abandonment, in
addition to finding the accumulation of issues constituted a material breach of
the lease, the error was harmless with respect to Transform under the
circumstances of this case.
IV
[¶38] Transform argues the district court erred in awarding sanctions for the
delayed turnover of the property, and erred in ordering it to turn over the
property to Boutrous before the eviction proceeding concluded.
[¶39] Generally, “the party to whom [an] order was issued must obey it as long
as it remains in force or until it is reversed, modified or set aside on appeal,
and the failure to obey such an order is punishable as contempt of court.” Kettle
Butte Trucking LLC v. Kelly, 2018 ND 110, ¶ 14, 910 N.W.2d 882 (quoting
Flattum-Riemers v. Flattum-Riemers, 1999 ND 146, ¶ 11, 598 N.W.2d 499). “An
order holding a person in contempt is a final order for purposes of appeal.” Id.13
at ¶ 8; see also N.D.C.C. § 27-10-01.3(3). As such, “[a] contempt order is
immediately appealable.” Dieterle v. Dieterle, 2022 ND 161, ¶ 13, 978 N.W.2d
722.
[¶40] “A contempt order is a final order, incidental to the procedure for
obtaining a judgment in the action, collateral to the merits of the case, and
specifically made appealable by a special statute . . . [and] may be appealed
while the underlying action is pending.” Kettle Butte Trucking, 2018 ND 11, ¶
9 (cleaned up); N.D.C.C. § 27-10-01.3(3). A party appealing a contempt order
must file a notice of appeal with the clerk of the supreme court within 60 days
after entry of the judgment or order being appealed. N.D.R.App.P. 4(c).
[¶41] Transform asserts on appeal that the district court’s sanction for
contempt “in the amount of $4,100.00 would be due from Transform to
Boutrous concerning the forty-one days that Boutrous did not take possession.”
While conceding that an amount has never been reduced to judgment,
Transform asserts it “now appeals the sanctions award.”
[¶42] Here, the district court’s order, which specifically found Transform in
contempt and awarded remedial sanctions of $100 a day, was entered on
May 26, 2021. Evidence shows the parties had notice of the order by at least
May 28, 2021. Transform’s notice was filed on March 18, 2022, appealing the
court’s contempt order entered on May 26, 2021. That attempted appeal is well
beyond 60 days and is untimely. See Orwig v. Orwig, 2019 ND 78, ¶ 10, 924
N.W.2d 421 (“The time limit for filing a notice of appeal is jurisdictional, and
we dismiss an appeal if we conclude we do not have jurisdiction.”). We therefore
do not have jurisdiction to review the order finding Transform in contempt and
imposing a remedial sanction. See, e.g., Rhodenbaugh v. Rhodenbaugh, 2019
ND 109, ¶ 27, 925 N.W.2d 742 (dismissing appeal from contempt order, holding
this Court lacked jurisdiction to review the contempt order when appeal of
contempt order was not filed within 60 days of entry of the order). While
Transform asserts a sanction of $4,100 “would be due” from Transform under
the contempt order, this amount has not been reduced to a money judgment so
it does not appear to be ripe for our review.
14
[¶43] Transform further contends the district court erred in ordering it to turn
over the property to Boutrous before the eviction proceeding concluded.
Because the action was bifurcated, Transform argues it had “no choice” but to
exhaust all potential legal remedies for fear that voluntarily turning over the
property would destroy its appeal right, generally citing DeMers v. DeMers,
2006 ND 142, ¶ 27, 717 N.W.2d 545 (holding “individuals that unconditionally,
voluntarily and consciously accept a substantial benefit from a divorce
judgment waive the right to appeal the judgment”).
[¶44] Transform asserts it sought to stay the eviction judgment so that either
the first appeal could occur or that the damages hearing could conclude and a
final judgment be entered. Transform argues the district court’s erroneous
findings denying a stay supported Transform remaining in possession of the
property to avoid harm to both parties and harm to the public. Transform
contends it could not challenge the eviction until the damages judgment was
entered, and the court prejudiced Transform by ordering it to turn over the
premises despite the pending appeal while continuing to pay rent. Boutrous
responds that Transform was not prejudiced when the court ordered Transform
to turn over possession. Boutrous asserts Transform was paying damages, in
an amount equal to the monthly rent, and subject to Boutrous’ duty to mitigate,
and the DeMers case is inapplicable.
[¶45] Transform’s arguments here are largely tied to its issues that the district
court erred in bifurcating the proceedings and in awarding sanctions. We have
held the bifurcation was harmless error, and Transform did not timely appeal
the order finding it in contempt. While Transform argues a stay of the eviction
would have prevented prejudice and asserts its concerns of waiving its rights
on appeal, DeMers does not properly apply under these circumstances. A lessee
subject to eviction would not be “unconditionally, voluntarily and consciously”
accepting a “substantial benefit” from an eviction judgment when complying
with a court’s order, even if the court had erred in entering the order. See Kettle
Butte Trucking, 2018 ND 110, ¶ 14 (“[P]arty to whom [an] order was issued
must obey it as long as it remains in force or until it is reversed, modified or
set aside on appeal.”). Nevertheless, because the court properly granted the
judgment of eviction, this issue is moot.
15
V
[¶46] The parties’ remaining arguments are either without merit or
unnecessary to our decision. The amended judgment of eviction is affirmed.
[¶47] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
[¶48] Justice Gerald W. VandeWalle was not a member of the Court when this
opinion was considered and did not participate in the decision. Justice Douglas
A. Bahr was disqualified and did not participate in this decision.
16