Avila v. Weaver , 2019 ND 20 ( 2019 )

Filed 1/15/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2019 ND 20Irene Avila, Plaintiff and Appellee
v.
Maria G. Weaver, a.k.a. Maria G. Berlin,
and William G. Berlin, Defendants and Appellants
No. 20180111
Appeal from the District Court of Richland County, Southeast Judicial District,
the Honorable Bradley A. Cruff, Judge.
AFFIRMED.
Opinion of the Court by Jensen, Justice.
Jonathan L. Green, Wahpeton, ND, for plaintiff and appellee.
Erica L. Chisholm, Wahpeton, ND, for defendants and appellants.
Avila v. Weaver
No. 20180111
Jensen, Justice.
[¶1] William Berlin and Maria Berlin (formerly Maria Weaver) (“the Berlins”)
appeal from an amended judgment awarding attorney fees following resolution of
litigation between the parties over a contract for deed. The Berlins argue that the
district court’s initial denial of an award of attorney fees to either party precludes a
subsequent motion for the recovery of attorney fees under N.D.R.Civ.P. 54. We
affirm the amended judgment.
I.
[¶2] Irene Avila and the Berlins were involved in a dispute regarding a contract for
deed. The district court ruled in favor of Avila and on September 29, 2017, entered
a judgment in the amount of $6,650, plus costs in the amount of $660.64, against the
Berlins. The judgment provided that neither Avila nor the Berlins were awarded a
recovery of their attorney fees. The underlying litigation over the contract for deed
has not been appealed by either party.
[¶3] Following the entry of the judgment, Avila filed a motion requesting a
recovery of $13,450 of attorney fees and to amend the judgment in order to reflect the
correct description of the property. The district court granted Avila’s request for
attorney fees, but reduced the amount to be recovered to $12,450. A notice of the
order granting the attorney fee award was served upon the Berlins’ counsel on
November 30, 2017. An amended judgment and a monetary award judgment were
entered January 30, 2018. The Berlins’ notice of appeal contesting the attorney fee
award was filed March 19, 2018.
II.
[¶4] Avila challenges the timeliness of the Berlins’ appeal. Avila contends the
timeliness of the appeal should be measured from November 30, 2017, the date the
notice of entry of the order awarding attorney fees was served to the Berlins’ attorney.
1
Measuring the timeliness of the appeal from the date that notice of the order was
served would result in the 60-day window for appeal closing on January 29, 2018,
making the Berlins’ appeal untimely.
[¶5] The relevant portions of N.D.R.App.P. 4 read as follows:
(a) Appeal in Civil Case.
(1) Time For Filing Notice of Appeal. In a civil case, except as
provided in paragraph (a)(4), the notice of appeal required by Rule 3
must be filed with the clerk of the supreme court within 60 days from
service of notice of entry of the judgment or order being appealed.
....
(3) Effect of Motion on Notice of Appeal.
(A) If a party files with the clerk of district court any of the following
motions under the North Dakota Rules of Civil Procedure, however
titled, and does so within the time allowed by those rules, the full time
to file an appeal runs for all parties from service of notice of the entry
of the order disposing of the last such remaining motion:
(i) for judgment under Rule 50(b);
(ii) to amend or make additional factual findings under Rule
52(b), whether or not granting the motion would alter the judgment;
(iii) for attorney’s fees under Rule 54;
(iv) to alter or amend the judgment under Rule 59;
(v) for a new trial under Rule 59; or
(vi) for relief under Rule 60 if the motion is served and filed no
later than 28 days after notice of entry of judgment;
....
[¶6] The order granting Avila’s request for attorney fees and ordering the entry of
the amended judgment was noticed and entered on November 30, 2017. The amended
judgment was entered January 30, 2018. The Berlins’ notice of appeal was filed on
March 19, 2017, within 60 days from the amended judgment, but more than 60 days
from the entry of the order for the amended judgment.
[¶7] Rule 4(a)(1), N.D.R.App.P. and N.D.R.App.P. 4(a)(3), must be read together.
Subsection (a)(3) pertains to post-judgment motions which may or may not require
the entry of a subsequent amended judgment. A reasonable interpretation of the two
subsections, read together, is that if the post trial motion does not require the
amendment of the judgment, subsection (a)(3) applies and the time for appeal begins
upon service of the notice of the order disposing of the motion. However, where the
2
order disposing of the motion necessitates the entry of an amended judgment,
subsection (a)(1) applies and the time for appeal begins upon the service of the notice
of the entry of the amended judgment. As such, the Berlins’ notice of appeal from the
amended judgment filed on March 19, 2018, was within 60 days from the notice of
the entry of the amended judgment and was timely.
III.
[¶8] The initial judgment included the following statement: “No attorney fees shall
be awarded to either party.” The same language also appears in the district court’s
findings of fact, conclusions of law, and order for judgment along with recognition
that Avila was the prevailing party, that the contract for deed allows for attorney fees
to be awarded to the prevailing party, but that the court did not have a formula to
determine an appropriate award of attorney fees. The Berlins argue that because the
district court determined that neither party was entitled to attorney fees in the original
judgment, Avila was precluded from filing the subsequent N.D.R.Civ.P. 54(e) motion
requesting a recovery of attorney fees.
[¶9] The Berlins rely on the following language of N.D.R.Civ.P. 54(e)(3): “A claim
for attorneys’ fees and related nontaxable expenses not determined by the judgment
must be made by motion.” (Emphasis added). The Berlins argue the original
judgment included a determination of attorney fees by stating that neither party was
to be awarded attorney fees.
[¶10] In the district court’s order granting Avila’s request for attorney fees, the court
noted it had not initially awarded attorney fees because no evidence of attorney fees
had been received during the trial. In its post-trial order, the district court noted it
could have used more accurate language in the original judgment to communicate that
no decision had been made regarding attorney fees, but nonetheless, “no decision on
attorney fees had been made and the matter had not been foreclosed by the court.”
The court did not err in its conclusion that it had not previously made a determination
regarding the award of attorney fees and did not misapply N.D.R.Civ.P. 54 by
considering Avila’s post-trial request for attorney fees.
3
IV.
[¶11] The Berlins also argue the district court’s attorney fee award is unreasonable.
The Berlins response to Avila’s motion for attorney fees in the district court was
limited to challenging the application of N.D.R.Civ.P. 54(e)(3) under their argument
that the attorney fees had already been subject to determination in the initial
judgment. The court’s order awarding attorney fees notes the Berlins did not object
to the amount of attorney fees.
[¶12] “[T]his Court does not consider questions that were not presented to the trial
court and that are raised for the first time on appeal.” Hoff v. Gututala-Hoff, 2018 ND
115, ¶ 7, 910 N.W.2d 896. The purpose of an appeal is to review the actions of the
district court, not to grant the appellant an opportunity to advance new strategies or
theories. Mahoney v. Mahoney, 1997 ND 149, ¶ 13, 567 N.W.2d 206. Because the
Berlins did not object to the reasonableness of Avila’s attorney fees in the district
court, the reasonableness of the fees is not properly before this Court.
V.
[¶13] The Berlins appeal from the amended judgment entered following the award
of attorney fees was timely. The district court was not precluded from consideration
of Avila’s request for attorney fees in the absence of a prior decision regarding
attorney fees. The Berlins waived their challenge to the reasonableness of the
attorney fee award by failing to raise the challenge in the district court. We affirm the
amended judgment.
[¶14] Jon J. Jensen
Lisa Fair McEvers
Daniel J. Crothers
Jerod E. Tufte
Gerald W. VandeWalle, C.J.
4