Orwig v. Orwig , 2023 ND 113 ( 2023 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JUNE 21, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 113Steven Mark Orwig, Plaintiff, Appellee, and Cross-Appellant
v.
Mary Caroline Orwig, Defendant, Appellant, and Cross-Appellee
No. 20220247
Orwig’s Livestock Supplements, Inc.,
Orwig’s Tubs International Inc., and
MVP Transport, Inc., Plaintiffs
v.
Mary C. “Marcy” Orwig, Defendant, Third-Party Plaintiff,
Appellant, and Cross-Appellee
v.
Steven Orwig, Third-Party Defendant, Appellee,
and Cross-Appellant
No. 20220248
Appeal from the District Court of Dickey County, Southeast Judicial District,
the Honorable Cherie L. Clark, Judge.
AFFIRMED.
Opinion of the Court by Bahr, Justice.
Gregory W. Liebl, Fargo, ND, for plaintiff, appellee, and cross-appellant, and
third-party defendant, appellee, and cross-appellant.
Jonathan T. Garaas, Fargo, ND, for defendant, appellant, and cross-appellee,
and defendant, third-party plaintiff, appellant, and cross-appellee.
Orwig v. Orwig
Nos. 20220247 & 20220248
Bahr, Justice.
[¶1] Mary Orwig appeals after the district court entered a corrected summary
real estate disposition judgment, an order on plaintiff ’s attorney’s fees, an
order denying her motion for contempt, and an order granting Steven Orwig’s
motion on redistribution of property. Steven Orwig cross-appeals from the
order on redistribution of property and an order denying his motion to
reconsider. We affirm the corrected summary real estate disposition judgment,
order on plaintiff ’s attorney’s fees, and order denying the motion for contempt.
We also affirm the order on redistribution of property and the order denying
the motion to reconsider.
I
[¶2] Relevant facts and extensive procedural background are set forth in our
decisions resolving prior appeals of this case in Orwig v. Orwig, 2019 ND 78, ¶
1, 924 N.W.2d 421 (“Orwig I”) (reversing contempt order and affirming order
denying a motion to vacate); Orwig v. Orwig, 2021 ND 33, ¶ 1, 955 N.W.2d 34(“Orwig II”) (affirming the divorce judgment distributing the parties’ property
and awarding spousal support, and reversing an attorney’s fees award); and
Orwig v. Orwig, 2022 ND 29, ¶ 1, 970 N.W.2d 179 (“Orwig III”) (affirming
contempt order and remanded attorney’s fees award), and we will not repeat
them here except as necessary to resolve the issues raised in the present appeal
and cross-appeal.
[¶3] After our decision in Orwig III, additional contentious proceedings
continued in the district court. Steven Orwig filed a proposed summary real
estate disposition judgment, to which Mary Orwig objected. Mary Orwig moved
for entry of a money judgment on the $105,000 of attorney’s fees she was
awarded under the February 26, 2020 divorce judgment (as provided in the
district court’s May 6, 2021 order following remand entered after Orwig II and
affirmed in Orwig III). Mary Orwig, alternatively, requested an order of
contempt asserting Steven Orwig failed to comply with the divorce judgment.
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Steven Orwig moved to redistribute property under N.D.C.C. § 14-05-24(3) and
also requested attorney’s fees.
[¶4] The district court held a July 19, 2022 hearing. After the hearing, the
court entered a summary real estate disposition judgment on July 19, 2022,
and a corrected summary real estate disposition judgment on July 21, 2022.
The court held another hearing on July 29, 2022, to address all remaining
motions.
[¶5] On July 29, 2022, the district court entered an order allowing Steven
Orwig to sell horses Mary Orwig had refused to retrieve under the divorce
judgment. The court also entered a separate order awarding Steven Orwig
attorney’s fees of $522 for having to respond to Mary Orwig’s “unfounded
opposition” to the summary real estate disposition judgment. On August 19,
2022, the district court entered an order denying Mary Orwig’s motion for
contempt and also entered an order on redistribution of property.
[¶6] In its August 19, 2022 order on redistribution of property, the district
court partially granted Steven Orwig’s motion under N.D.C.C. § 14-05-24(3).
The court ordered the $24,000 value of the 2014 Dodge Ram previously
awarded to Steven Orwig in the divorce judgment be subtracted, or offset, from
the $105,000 in attorney’s fees he owed to Mary Orwig under the judgment.
The court, however, denied his request to offset from the attorney’s fees award
the $35,000 value of the 2009 Dodge Challenger also awarded to him. The court
also subtracted the attorney’s fees awarded to Steven Orwig for Mary Orwig’s
frivolous arguments in the Orwig III appeal ($1,000) and frivolous objection to
the summary real estate disposition judgment ($522) from the attorney’s fees
award. Allowing for the offsets in redistributing the property, the court ordered
Steven Orwig to pay Mary Orwig $79,478 for the attorney’s fees awarded under
the divorce judgment, plus post-judgment interest at a rate of 8 percent for
2020 and at the rate of 6.5 percent for 2021 and 2022, for a total award of
$93,180.
[¶7] Steven Orwig moved the district court to reconsider its order on
redistribution regarding the Dodge Challenger. On September 8, 2022, the
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court denied his motion, again refusing any additional offset for the value of
the Dodge Challenger.
II
[¶8] Mary Orwig raises twelve separate issues on appeal. As relevant to our
disposition, she argues the district court did not have jurisdiction to
redistribute the property or to modify the final judgment. She claims the court
did not have jurisdiction because the statutory requirements of N.D.C.C. § 14-
05-24.2 were not met, Steven Orwig did not seek relief under N.D.R.Civ.P.
60(b), and Steven Orwig’s prior requests for offset had been denied. She
contends his requests to modify the divorce judgment were therefore precluded
by res judicata, finality of judgment, and the mandate rule.
A. Summary Real Estate Disposition Judgment
[¶9] Section 14-05-24.2, N.D.C.C., governs entry of a summary real estate
disposition judgment. It states, in relevant part:
1. If real estate is described in a judgment and decree of divorce,
the court may direct either of the parties . . . to prepare and submit
to the court, in a form prescribed by the court, a proposed summary
real estate disposition judgment. Upon approval by the court and
filing of the summary real estate disposition judgment with the
clerk of court, the clerk of court shall provide to any party upon
request certified copies of the summary real estate disposition
judgment.
[¶10] Mary Orwig argues the district court did not have jurisdiction to issue
the summary real estate disposition judgment because the statutory
requirements of N.D.C.C. § 14-05-24.2 were not met. She first argues the court
lacked jurisdiction because it did not “direct” either party to prepare and
submit to the court a proposed summary real estate disposition judgment.
[¶11] Section 14-05-24.2(1), N.D.C.C., provides the district court “may” direct
a party prepare and submit to the court a proposed summary real estate
disposition judgment. Nothing in the language of N.D.C.C. § 14-05-24.2(1)
prohibits a party from submitting a proposed summary real estate disposition
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judgment for the court’s consideration absent direction from the court to do so.
See Int. of Guardianship of G.V., 2023 ND 19, ¶ 8, 985 N.W.2d 655 (“When used
in a statute, the word ‘may’ is ordinarily understood as permissive rather than
mandatory and operates to confer discretion.”). We conclude the court directing
a party prepare and submit to the court a proposed summary real estate
disposition judgment is not a jurisdictional prerequisite to the court entering
a summary real estate disposition judgment.
[¶12] Mary Orwig further argues the statutory requirements of N.D.C.C. § 14-
05-24.2 were not met because the real property was not properly described in
the underlying divorce judgment. The statute requires the summary real
estate disposition judgment to contain “[t]he legal description of each parcel of
real estate[.]” N.D.C.C. § 14-05-24.2(2)(k). The statute further allows the
district court to issue an order authorizing the clerk of court to issue an
amended summary real estate disposition judgment to correct an erroneous
legal description of real estate contained in the divorce judgment. N.D.C.C. §
14-05-24.2(3)(a).
[¶13] Here, the corrected summary real estate disposition judgment included
the following legal description:
The real property is located at 9725 94th St. S.E., Ellendale,
North Dakota 58436 and legally described as:
Northeast Quarter (NE1/4) of Section Ten (10), Township
One Hundred Twenty-Nine (129), Range Sixty-Two (62)
[¶14] Under N.D.C.C. § 14-05-24.2(6), the summary real estate disposition
judgment controls if there is a conflict between it and the divorce judgment.
While the divorce judgment did not explicitly include a legal description of the
distributed real property, it stated the distribution was included in the
attached amended exhibit A, and the property was described as “Farmland”
and “Residential Site/Pasture” in exhibit A. Mary Orwig does not contend the
legal description is incorrect or for the wrong property; rather, she persists in
her claim the manufacturing site was not distributed.
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[¶15] Mary Orwig previously argued in Orwig II the manufacturing site was
not included in the property distribution. This Court, however, specifically
rejected that argument, determining the manufacturing facility and the land
upon which it sits were distributed to Steven Orwig. Orwig II, 2021 ND 33, ¶¶
23-26. This Court affirmed the property distribution. Id. at ¶ 33. That the
manufacturing site was included in the property distribution is the law of the
case. See Twin City Tech. LLC v. Williams Cnty., 2022 ND 63, ¶ 6, 971 N.W.2d
822 (stating under the law of the case doctrine, a party cannot on a second
appeal relitigate issues which were resolved in a prior appeal); Frisk v. Frisk,
2006 ND 165, ¶ 14, 719 N.W.2d 332 (“The law of the case doctrine applies when
an appellate court has decided a legal question and remanded to the district
court for further proceedings.”).
[¶16] We conclude the district court had jurisdiction to enter the summary real
estate disposition judgment. We affirm the corrected summary real estate
disposition judgment and the related order awarding Steven Orwig’s attorney’s
fees.
B. Redistribution of Property
[¶17] Steven Orwig moved to redistribute property and debts under N.D.C.C.
§ 14-05-24(3). He requested the district court to liquidate assets he received in
the divorce which Mary Orwig has refused to give to him. The court partially
granted Steven Orwig’s motion, determining it has broad equitable powers
under N.D.C.C. § 14-05-24(3).
[¶18] Section 14-05-24, N.D.C.C., governs property and debt division in divorce
cases and specifically allows for post-judgment redistribution. This statute
provides, in part:
The court may redistribute property and debts in a postjudgment
proceeding if a party has failed to disclose property and debts as
required by rules adopted by the supreme court or the party fails
to comply with the terms of a court order distributing property and
debts.
N.D.C.C. § 14-05-24(3).
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[¶19] We have explained the district court has broad equitable powers under
N.D.C.C. § 14-05-24(3) to grant relief from a divorce judgment. See Wald v.
Wald, 2020 ND 174, ¶ 29, 947 N.W.2d 359. While the court generally does not
retain jurisdiction to modify a final property distribution, the court has
jurisdiction under N.D.C.C. § 14-05-24(3) to redistribute property in a post-
judgment proceeding when a party fails to comply with the terms of the order
distributing property. Jacobs-Raak v. Raak, 2020 ND 107, ¶ 10, 942 N.W.2d
879. We review the court’s decision whether to exercise its equitable powers for
an abuse of discretion. Wald, at ¶ 29; Estate of Albrecht, 2018 ND 67, ¶ 23, 908
N.W.2d 135. A court abuses its discretion if it acts in an arbitrary,
unreasonable, or unconscionable manner; it misinterprets or misapplies the
law; or its decision is not the product of a rational mental process leading to a
reasoned determination. Wald, at ¶ 29; Estate of Albrecht, at ¶ 23.
[¶20] Mary Orwig argues the district court lacked jurisdiction to redistribute
the property because Steven Orwig did not seek relief under N.D.R.Civ.P. 60(b).
However, Steven Orwig moved for relief under N.D.C.C. § 14-05-24(3), not
under Rule 60(b). Section 14-05-24(3) and Rule 60(b) provide different
remedies. Walstad v. Walstad, 2012 ND 204, ¶ 13, 821 N.W.2d 770. For that
reason, Mary Orwig’s arguments about Rule 60(b) are without merit. The court
had jurisdiction under N.D.C.C. § 14-05-24(3) to consider whether to
redistribute property.
[¶21] Mary Orwig also argues the district court could not offset the amount
awarded for attorney’s fees with other property because the court had
previously denied a request from Steven Orwig for offset in previous contempt
proceedings and the doctrines of res judicata, finality of judgment, and the
mandate rule preclude his attempt to modify the judgment.
[¶22] In April 2020, Steven Orwig moved for contempt and requested the
district court deduct from the attorney’s fees the value of certain property that
Mary Orwig refused to deliver to Steven Orwig, including the 2014 Dodge Ram
and 2009 Dodge Challenger. The court held a contempt hearing. The court
found Mary Orwig did not provide any defense about why she had not or could
not give the assets to Steven Orwig. In its May 6, 2021 order for contempt, the
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district court ordered Mary Orwig to return the Ram, the Challenger, and other
property within 60 days; if she refused to comply with the order, she would
serve 60 days in jail; and if she did not comply, another hearing would be
scheduled for October 2021 to address the issue and more serious sanctions
could be ordered. This Court affirmed the contempt order in Orwig III, 2022
ND 29, ¶¶ 1, 26.
[¶23] The district court’s order for contempt did not preclude an offset from
being ordered at a later date. Steven Orwig’s subsequent motion for
redistribution of property invoked the court’s discretion under N.D.C.C. § 14-
05-24(3) to redistribute property and debt on the ground Mary Orwig failed “to
comply with the terms of a court order distributing property and debts.” The
court was not precluded from granting equitable relief under N.D.C.C. § 14-05-
24(3) because of its prior order on Steven Orwig’s motion for contempt. Mary
Orwig’s arguments to the contrary are without merit.
III
[¶24] Mary Orwig argues she was entitled to a money judgment for the
attorney’s fees she was awarded. She argues, alternatively, the district court
erred by denying her contempt motion because evidence established Steven
Orwig has not paid the previously ordered attorney’s fees.
[¶25] A party seeking a contempt sanction has the burden to clearly and
satisfactorily prove the alleged contempt was committed. Orwig III, 2022 ND
29, ¶ 12. Whether contempt has been committed lies within the district court’s
discretion, and the court’s decision will not be overturned on appeal absent an
abuse of discretion. Id.[¶26] After the hearing, the district court did not order that a money judgment
be entered on the attorney’s fees Mary Orwig was awarded under the divorce
judgment. See In re Emelia Hirsch Trust, 2022 ND 89, ¶ 13, 973 N.W.2d 427(holding motions not ruled on are deemed denied by operation of law). Rather,
the court denied her alternate motion for contempt, finding she failed to prove
Steven Orwig intentionally or willfully disobeyed the judgment. The court
explained the attorney’s fees award was part of the property and debt
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distribution and the money was owed to Mary Orwig, not to her attorneys. The
court found Mary Orwig did not testify at the contempt hearing but rather her
attorney testified, and her attorney’s testimony did not show Mary Orwig had
not received the money.
[¶27] At the hearing, Mary Orwig’s attorney called himself as a witness. Her
attorney testified he made five written requests to Steven Orwig to pay the
indebtedness to his law firm but Steven Orwig never responded, he was asking
the court for a judgment and an execution be issued, and Steven Orwig had not
paid any part of the court-ordered attorney’s fees. Mary Orwig did not testify.
Steven Orwig conceded during cross-examination he had not paid Mary Orwig
any of the $105,000 of the attorney’s fees awarded under the judgment. Steven
Orwig’s concession he had not paid the attorney’s fees awarded under the
judgment is not a concession he intentionally or willfully disobeyed the
judgment. The record supports the district court’s conclusion Mary Orwig
failed to prove Steven Orwig “intentionally or willfully disobeyed the
judgment,” a requirement for the court to find Steven Orwig in contempt. We
conclude the court did not abuse its discretion in denying Mary Orwig’s
alternative motions.
[¶28] In its August 19, 2022 order on redistribution, the district court did not
enter a money judgment but rather ordered the value of the Dodge Ram offset
the attorney’s fees, ordered an offset for attorney’s fees awarded to Steven
Orwig, calculated interest on Mary Orwig’s award of attorney’s fees, and
ordered Steven Orwig pay $93,180. While the district court could have ordered
an amended divorce judgment also be entered for the new amount, we conclude
the court did not abuse its discretion by issuing the order on redistribution.
Wald, 2020 ND 174, ¶ 29.
IV
[¶29] Mary Orwig argues she is entitled to post-judgment interest on the
attorney’s fees award at a rate of 8 percent and the interest must be calculated
before any offset would apply.
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[¶30] As discussed, in its August 19, 2022 order on redistribution, the district
court offset the value of the Dodge Ram with the attorney’s fees it had ordered
Steven Orwig to pay Mary Orwig and then calculated interest on the remaining
amount. The court ordered interest at a rate of 8 percent for 2020 and 6.5
percent for 2021 and 2022.
[¶31] Section 28-20-34, N.D.C.C., allows interest on judgments and states that
“the state court administrator shall determine the rate . . . . As established, the
rate shall be in effect beginning the first day of the following January through
the last day of December in each year.” The statute further states, “Except as
otherwise provided in this section, interest on all judgments entered in the
courts of this state before January 1, 2006, must remain at the rate per annum
which was legally prescribed at the time the judgments were entered[.]”
[¶32] The plain language of the statute does not specifically require the
interest rate to remain at the rate established when the judgment was entered,
unless the judgment was entered before 2006. This Court has recognized the
state may legislate to reduce the rate of interest on judgments previously
obtained in court. See Swanson v. Flynn, 31 N.W.2d 320, 323 (N.D. 1948).
[¶33] In Dick v. Dick, 434 N.W.2d 557, 559 (N.D. 1989), this Court stated, “[A]
trial court has broad authority in a divorce action to provide for the payment
of interest in order to achieve an equitable distribution of the property.” This
Court further explained the court is not limited to awarding interest at the
legal rate specified by statute but may award interest at any appropriate rate,
commencing on any appropriate day, or may deny interest. Id. If the judgment
does not reference interest on a monetary award, the award draws interest at
the statutory rate for judgments under N.D.C.C. § 28-20-34. Id. The district
court has discretion in deciding what interest rate to apply to a monetary
award in a divorce action. See Schultz v. Schultz, 2018 ND 259, ¶¶ 29-30, 920
N.W.2d 483.
[¶34] On our review, Mary Orwig is not entitled to an interest rate of 8 percent
on the attorney’s fees award for the entire period subsequent to the entry of
the divorce judgment. Although she contends the interest had to be applied
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before the offset was ordered, the district court ordered a redistribution of
property and had broad discretion in awarding interest. We conclude the
district court did not abuse its discretion in its award of post-judgment interest.
V
[¶35] In his cross-appeal, Steven Orwig argues the district court erred by
failing to subtract the Dodge Challenger’s value from the attorney’s fees that
he owes to Mary Orwig.
[¶36] In its August 19, 2022 order, the district court partially granted Steven
Orwig’s motion to redistribute property, determining it has broad equitable
powers under N.D.C.C. § 14-05-24(3). The court found Mary Orwig had
possession of the Dodge Ram at the time of the judgment, she crashed it after
the judgment was entered, and she did not return the vehicle as ordered in the
judgment and contempt order. The court ordered the $24,000 value of the
vehicle be subtracted, or offset, from the $105,000 in attorney’s fees Steven
Orwig owes Mary Orwig.
[¶37] The district court further found, however, Steven Orwig did not prove
Mary Orwig had possession of the Dodge Challenger at the time the judgment
was entered and held the court would not subtract, or offset, the $35,000 value
of the vehicle from the attorney’s fees award. The court held contempt may still
be a remedy “because nothing in the record demonstrates it is impossible for
Mary to return that vehicle[.]”
[¶38] In its September 8, 2022 order, the district court again denied Steven
Orwig’s request to redistribute the Dodge Challenger. The court explained that
Steven Orwig did not call Mary Orwig to testify and he did not prove she had
possession of the Challenger at the time judgment was entered or that she
contemptuously transferred ownership to defeat his interest. The court stated
that “[n]othing in the record demonstrates Mary to be in egregious
noncompliance concerning the 2009 Dodge Challenger[.]” The court also found
the vehicle’s value did not result in a significant shift in equity because Steven
Orwig was awarded all the business equipment and assets and he had not paid
Mary Orwig the attorney’s fees she was awarded.
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[¶39] We review the district court’s decision whether to exercise its broad
equitable powers to redistribute property under N.D.C.C. § 14-05-24(3) for an
abuse of discretion. Wald, 2020 ND 174, ¶ 29. A court abuses its discretion if it
acts in an arbitrary, unreasonable, or unconscionable manner; it misinterprets
or misapplies the law; or its decision is not the product of a rational mental
process leading to a reasoned determination. Id. This Court has also said the
equitable remedy of offset, also referred to as setoff, is exercised “to promote
substantial justice” resting largely in the district court’s sound discretion
which will not be reversed absent an abuse of discretion based on arbitrary,
unreasonable, or unconscionable acts. See Jordet v. Jordet, 2012 ND 231, ¶ 8,
823 N.W.2d 512 (quoting Marmarth Sch. Dist. No. 12 v. Hall, 260 N.W. 411,
414 (N.D. 1935)).
[¶40] Here, the district court explained the basis for its decision not to
redistribute the property to provide an offset of the attorney’s fees award for
the $35,000 value of the Dodge Challenger. In its order on redistribution, the
district court found Steven Orwig’s testimony at the hearing failed to prove
Mary Orwig had possession of the Dodge Challenger at the time of the
judgment. This finding appears inconsistent with the divorce judgment and the
court’s prior order holding Mary Orwig in contempt in this case.
[¶41] In the February 26, 2020 divorce judgment, the district court specifically
awarded Steven Orwig the Dodge Challenger valued at $35,000, as listed in
the amended exhibit A to the judgment. We affirmed the judgment’s property
award in Orwig II, 2021 ND 33. In the court’s May 6, 2021 order for contempt,
the court ordered Mary Orwig to return the Dodge Challenger, valued at
$35,000, to Steven Orwig within 60 days. The order requiring Mary Orwig
return the Dodge Challenger to Steven Orwig indicates the court concluded the
vehicle was in Mary Orwig’s possession. We also affirmed this contempt order
in Orwig III, 2022 ND 29. The court’s present finding is arguably not supported
by the record or its prior finding.
[¶42] However, the district court’s finding Steven Orwig failed to prove Mary
Orwig had possession of the Dodge Challenger at the time of the judgment was
only one reason for the court not exercising its discretion to redistribute the
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value of the Dodge Challenger. The court also did not exercise its equitable
power to redistribute the Challenger concluding doing so would not result in a
“significant shift in equity”:
The original trial was held well before judgment was
entered. The judgment was appealed. Nothing in the record
demonstrates Mary to be in egregious noncompliance concerning
the 2009 Dodge Challenger, nor does the value of this vehicle result
in a significant shift in equity. Additionally, Steve received
virtually all of the business equipment and assets, and the court
ordered him to pay Mary for her attorney’s fees. Although Mary
has not fully complied with the judgment, neither has Steve—as
he has not yet paid Mary for her attorney’s fees.
The court explained N.D.C.C. § 14-05-24(3) presents an equitable option for
the court and accordingly declined to exercise its equitable power “on the issue
of the 2009 Dodge Challenger at this time.”
[¶43] The district court’s second reason for not exercising its equitable power
to redistribute the Dodge Challenger under N.D.C.C. § 14-05-24(3) is not based
on its arguably unsupported factual finding Steven Orwig failed to prove Mary
Orwig had possession of the Dodge Challenger at the time of the judgment.
The court’s analysis took into account the original equitable distribution of the
marital estate and the overall equity of a property redistribution. Although the
court denied relief under N.D.C.C. § 14-05-24(3) “at this time” on the evidence
presented at this hearing, the court in both orders leaves open the possibility
of future contempt or redistribution proceedings.
[¶44] Based on its second reason for not providing an offset for the value of the
Dodge Challenger, we conclude the district court’s decision not to provide an
offset for the Dodge Challenger’s value “at this time” was not arbitrary,
unreasonable, or unconscionable; did not misinterpret or misapply the law; and
was the product of a rational mental process leading to a reasoned
determination. While we may have reached a different conclusion on whether
to exercise the equitable power to redistribute this property under N.D.C.C. §
14-05-24(3), on this record we cannot conclude the court abused its discretion
in refusing to redistribute the Dodge Challenger.
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[¶45] We affirm the order on redistribution and the order denying the motion
to reconsider.
VI
[¶46] Steven Orwig requests this Court to award his attorney’s fees on appeal,
claiming the appeal is frivolous.
[¶47] The Court may award damages and single or double costs, including
reasonable attorney’s fees, if an appeal is frivolous. N.D.R.App.P. 38. “An
appeal is frivolous if it is flagrantly groundless, devoid of merit, or
demonstrates persistence in the course of litigation which evidences bad faith.”
Buchholz v. Buchholz, 2022 ND 203, ¶ 43, 982 N.W.2d 275 (quoting Harty Ins.,
Inc. v. Holmes, 2022 ND 45, ¶ 2, 971 N.W.2d 400). Damages and costs may be
awarded under N.D.R.App.P. 38 when an argument on appeal is devoid of merit
and demonstrates persistence in the course of litigation which evidences bad
faith. See Buchholz, at ¶ 43 (awarding attorney’s fees and costs for
“sanctionable” argument despite presenting other weak or poorly supported
nonfrivolous arguments); Lessard v. Johnson, 2022 ND 32, ¶ 10, 970 N.W.2d
160 (awarding attorney’s fees for “nonsensical and frivolous” argument when
other nonfrivolous issues were also raised); Estate of Pedro v. Scheeler, 2014
ND 237, ¶ 18, 856 N.W.2d 775 (awarding attorney’s fees and double costs when
some but not all of appellant’s arguments were “flagrantly groundless, devoid
of merit and demonstrate persistence in the course of litigation evidencing bad
faith”). See also Orwig III, 2022 ND 29, ¶ 25.
[¶48] We conclude Mary Orwig’s argument on appeal that the manufacturing
site was never distributed, was specifically decided in Orwig II, and was
flagrantly groundless, devoid of merit and demonstrates persistence in the
course of litigation evidencing bad faith. We order Mary Orwig pay damages in
the amount of $1,000 plus double costs for this appeal under N.D.R.App.P. 38.
VII
[¶49] We have considered the parties’ remaining arguments and deem them
either without merit or unnecessary to our decision. The corrected summary
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real estate disposition judgment, order on plaintiff ’s attorney’s fees, and order
denying a motion for contempt are affirmed. The order on redistribution of
property and the order denying a motion to reconsider are also affirmed.
[¶50] Jon J. Jensen, C.J.
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
David W. Nelson, S.J.
[¶51] The Honorable David W. Nelson, S.J., sitting in place of Crothers, J.,
disqualified.
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