Broten v. Carter , 2019 ND 268 ( 2019 )


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  •                 Filed 11/20/19 by Clerk of Supreme Court
    IN THE SUPREME COURT
    STATE OF NORTH DAKOTA
    
    2019 ND 268
    James Broten,                                      Plaintiff and Appellant
    v.
    Ralph Carter; Carter, McDonagh & Sandberg,
    PLLP; and Carter Law Firm,                      Defendants and Appellees
    No. 20190098
    Appeal from the District Court of Grand Forks County, Northeast Central
    Judicial District, the Honorable Steven E. McCullough, Judge.
    AFFIRMED.
    Opinion of the Court by Jensen, Justice.
    Lee M.Grossman (argued) and Nathan D. Severson (on brief), Fargo, ND, for
    plaintiff and appellant.
    Ronald H. McLean (argued) and Ian R. McLean (on brief), Fargo, ND, for
    defendants and appellees.
    Broten v. Carter, et al.
    No. 20190098
    Jensen, Justice.
    [¶1] James Broten appeals the dismissal of his attorney malpractice claim.
    Broten argues the district court erred in granting summary judgment after
    finding his claim was barred by the applicable statute of limitations. He also
    challenges the inclusion of expert witness fees within the expenses awarded by
    the district court for experts who were unnecessary for resolution of the statute
    of limitations issue. We affirm.
    I
    [¶2] Broten was appointed to serve as the personal representative of his
    father’s estate. Broten was subsequently sued by his sisters who claimed
    Broten had breached his fiduciary duties as personal representative by
    transferring land held in the trust to himself. In 2011, attorney Ralph Carter
    was retained by Broten to defend him against his sisters’ claims.
    [¶3] During Carter’s representation, Broten showed Carter approximately
    sixty boxes of records Broten believed documented payments to his parents and
    provided a defense to his sisters’ claims. Broten repeatedly inquired with
    Carter about his review of the records. The records were not disclosed to the
    opposing party during discovery but disclosed after Carter was replaced as
    Broten’s counsel in March of 2013.
    [¶4] On August 15, 2013, the district court entered findings of fact,
    conclusions of law, and an order finding Broten had breached his fiduciary
    duties as personal representative of his father’s estate. The court reserved its
    findings on damages and ordered an evidentiary hearing to determine the
    amount of damages. On January 21, 2014, following the evidentiary hearing,
    the court issued a memorandum opinion and order for judgment requiring
    Broten to pay damages to his sisters in an amount of $1,300,054.
    [¶5] On January 14, 2016, Broten commenced this action for legal
    malpractice claiming Carter failed to review the records Broten had provided
    1
    to Carter to support Broten’s defense to the breach of fiduciary duty claim
    asserted by his sisters. Broten alleges Carter’s failure to review and disclose
    the documents prevented all of the records from being introduced as evidence
    and resulted in the liability to his sisters. Carter moved for summary
    judgment, arguing the applicable two year statute of limitations barred
    Broten’s claim. The district court granted summary judgment in favor of
    Carter and awarded to Carter the recovery of costs and fees, including the costs
    expended for expert witnesses who were unnecessary for resolution of the
    statute of limitations issue. On February 25, 2019, the district court entered a
    judgment dismissing Broten’s claims in their entirety, with prejudice.
    [¶6] Broten argues the district court erred in granting summary judgment
    because the statute of limitations had not run on his malpractice claim against
    Carter. He also argues the district court erred in granting expert witness fees
    for experts who were unnecessary for Carter to prevail on the summary
    judgment motion.
    II
    [¶7] Broten contends the district court erred in granting Carter summary
    judgment after finding the statute of limitations for asserting his malpractice
    claim had expired before he initiated this action. This Court’s standard of
    review for summary judgment is well established:
    Summary judgment is a procedural device under N.D.R.Civ.P.
    56(c) for promptly resolving a controversy on the merits without a
    trial if there are no genuine issues of material fact or inferences
    that can reasonably be drawn from undisputed facts, or if the only
    issues to be resolved are questions of law. The party seeking
    summary judgment must demonstrate there are no genuine issues
    of material fact and the case is appropriate for judgment as a
    matter of law. In deciding whether the district court appropriately
    granted summary judgment, we view the evidence in the light
    most favorable to the opposing party, giving that party the benefit
    of all favorable inferences which can reasonably be drawn from the
    record. A party opposing a motion for summary judgment cannot
    simply rely on the pleadings or on unsupported conclusory
    2
    allegations. Rather, a party opposing a summary judgment motion
    must present competent admissible evidence by affidavit or other
    comparable means that raises an issue of material fact and must,
    if appropriate, draw the court’s attention to relevant evidence in
    the record raising an issue of material fact. When reasonable
    persons can reach only one conclusion from the evidence, a
    question of fact may become a matter of law for the court to decide.
    A district court’s decision on summary judgment is a question of
    law that we review de novo on the record.
    Pettinger v. Carroll, 
    2018 ND 140
    , ¶ 7, 
    912 N.W.2d 305
    (quoting A.R. Audit
    Servs., Inc. v. Tuttle, 
    2017 ND 68
    , ¶ 5, 
    891 N.W.2d 757
    (internal citations
    omitted)).
    [¶8] The parties agree an action for legal malpractice is governed by the two
    year statute of limitations provided by N.D.C.C. § 28-01-18(3). Under N.D.C.C.
    § 28-01-18(3), a client must commence a malpractice suit within two years after
    the claim for relief has accrued. Larson v. Norkot Mfg., Inc., 
    2001 ND 103
    , ¶ 9,
    
    627 N.W.2d 386
    . “A cause of action for legal malpractice does not accrue, and
    the statute of limitations does not commence to run, until the client has
    incurred some damage.” 
    Id. (quoting Wall
    v. Lewis, 
    366 N.W.2d 471
    , 473 (N.D.
    1985)). The action accrues when there is a conjunction of damage and wrongful
    act. Jacobsen v. Haugen, 
    529 N.W.2d 882
    , 885 (N.D. 1995).
    [¶9] The district court concluded the only reasonable conclusion that can be
    drawn from the undisputed facts is Broten’s action accrued on August 15, 2013,
    the date of the order finding Broten breached his fiduciary duty to his sisters
    and reserving the determination of damages arising from the breach. Broten
    argues there is a material question of fact precluding summary judgment
    because August 15, 2013, is not the only date that can be reasonably considered
    as the date he was placed on notice of his potential malpractice claim against
    Carter. Broten argues the August 15, 2013, order finding he breached his
    fiduciary duty allowed him to prove an offset to potentially all the damages,
    and it was not until the January 21, 2014, order awarding damages for the
    breach of his fiduciary duty he actually became aware he would have an
    obligation to his sisters. Broten contends the uncertainty of whether the offsets
    3
    would eliminate any potential obligation to his sisters creates a question of fact
    of whether the statute of limitations was tolled until a damage award became
    a certainty following the January 21, 2014, order.
    [¶10] This Court has adopted the application of the discovery rule to
    potentially toll the statute of limitations in legal malpractice actions. Wall v.
    Lewis, 
    393 N.W.2d 758
    , 761 (N.D. 1986). The discovery rule delays the start of
    the statute of limitations until the plaintiff “knows, or with reasonable
    diligence should know, of the injury, its cause, and the defendant’s possible
    negligence.” Wall, at 761. “The discovery rule focuses on whether the plaintiff
    has been apprised of facts which would place a reasonable person on notice
    that a potential claim exists, and it prevents the injustice of barring a claim
    before the plaintiff reasonably could be aware of its existence.” Riemers v.
    Omdahl, 
    2004 ND 188
    , ¶ 6, 
    687 N.W.2d 445
    . We have recognized the discovery
    rule employs an objective standard of knowledge, and it is not necessary that
    a plaintiff be subjectively convinced of the injury and that the injury was
    caused by the defendant’s negligence. 
    Id. [¶11] In
    Riemers, this Court considered the extent to which a Plaintiff is
    required to appreciate the injury caused by the attorney’s malpractice. 
    Id. at ¶
    7. In Riemers, this Court noted the following:
    Under the discovery rule, the statute of limitations does not begin
    to run until the plaintiff has incurred some injury or damage.
    Larson v. Norkot Mfg., Inc., 
    2002 ND 175
    , ¶ 10, 
    653 N.W.2d 33
          (citing Wall v. Lewis, 
    366 N.W.2d 471
    , 473 (N.D. 1985)). It is not
    necessary for the plaintiff to fully appreciate the potential liability,
    or even be convinced of an injury; the objective standard requires
    only that the plaintiff be aware of facts that would place a
    reasonable person on notice that a potential claim exists. Larson
    v. Norkot Mfg., Inc., 
    2001 ND 103
    , ¶ 13, 
    627 N.W.2d 386
    . In 
    Wall, 366 N.W.2d at 473
    (quoting Budd v. Nixen, 
    6 Cal. 3d 195
    , 
    491 P.2d 433
    , 436-37, 
    98 Cal. Rptr. 849
    (Cal. 1971)), we explained:
    “. . . until the client suffers appreciable harm as a
    consequence of his attorney’s negligence, the client cannot
    establish a cause of action for malpractice. Prosser states the
    proposition succinctly, ‘It follows that the statute of
    4
    limitations does not begin to run against a negligence action
    until some damage has occurred.’ (Prosser, Law of Torts (4th
    ed. 1971), § 30 at p. 144.)
    The cause of action arises, however, before the client
    sustains all, or even the greater part, of the damages
    occasioned by his attorney’s negligence. . . . Any appreciable
    and actual harm flowing from the attorney’s negligent
    conduct establishes a cause of action upon which the client
    may sue.
    Indeed, once having discovered his attorney’s
    negligence and having suffered some damage, the client
    must institute his action within the time prescribed in the
    statute of limitations or he will be barred from thereafter
    complaining of his attorney’s conduct.”
    
    Id. [¶12] Ordinarily,
    when the discovery rule is applied, knowledge of when the
    plaintiff should have discovered there was a potential malpractice claim is a
    question of fact precluding summary judgment. 
    Id. at ¶
    8. “However, issues of
    fact may become issues of law if reasonable persons could reach only one
    conclusion from the facts.” 
    Id. at ¶
    8 (citing Twogood v. Wentz, 
    2001 ND 167
    , ¶
    10, 
    634 N.W.2d 514
    ). “A plaintiff’s knowledge of a potential claim is an issue of
    law if the evidence is such that reasonable minds could draw but one conclusion
    from the evidence.” 
    Id. (citing Wall,
    393 N.W.2d at 761).
    [¶13] The August 15, 2013, order provided, in part, “James Broten is liable for
    breach of his fiduciary obligations as executor and personal representative of
    Olaf Broten’s will and estate.” The order also included the conclusion of law
    that the deed transferring land from the trust to James Broten while he was
    the personal representative of his father’s estate was void. The district court
    also concluded the following facts existed prior to August 15, 2013: Broten had
    a belief the records he provided to Carter would provide a defense to the claim
    he had breached his fiduciary duty; Broten had communicated his belief
    regarding the records to Carter; and, Carter had not investigated or properly
    disclosed the records to the opposing party. The district court further
    concluded, as a result of the August 15, 2013, order, Broten knew the court had
    5
    ruled against him on the merits of an issue to which the records allegedly
    applied.
    [¶14] It is not necessary for Broten to fully appreciate the potential liability,
    or even be convinced of an injury as the result of Carter’s handling of the
    records; the objective standard requires only that Broten be aware of facts that
    would place a reasonable person on notice that a potential claim against Carter
    existed. Larson v. Norkot Mfg., Inc., 
    2001 ND 103
    , ¶ 13, 
    627 N.W.2d 386
    .
    Following the issuance of the August 15, 2013, order, reasonable minds could
    draw but one conclusion from the evidence: Broten was on notice a potential
    claim against Carter existed. While Broten may have believed he would be able
    to offset all of the potential damage award, the voiding of the prior deed and
    facts surrounding Carter’s alleged mishandling of the records would have
    placed a reasonable person on notice that a potential claim against Carter
    existed. The district court did not err in granting summary judgment in favor
    of Carter after finding the statute of limitations had expired prior to his
    initiation of a malpractice claim against Carter.
    III
    [¶15] Broten’s complaint included a claim for treble damages under N.D.C.C.
    § 27-13-08 alleging Carter willfully delayed the litigation between Broten and
    his sisters. It is unnecessary for this Court to determine if a claim under
    N.D.C.C. § 27-13-08 is a separate claim from Broten’s legal malpractice claim
    and/or has a separate statute of limitations from his legal malpractice claim.
    The motion for summary judgment sought dismissal of the complaint in its
    entirety. Broten did not argue in the district court his claim under N.D.C.C. §
    27-13-08 is a separate claim from his legal malpractice or has a different
    statute of limitations. The judgment entered in the district court provides
    finality on all of the claims through a dismissal of Broten’s claims “in their
    entirety, with prejudice.” The district court entered a final judgment resolving
    all claims and Broten has not appealed the dismissal of his claim under
    N.D.C.C. § 27-13-08.
    6
    IV
    [¶16] Broten also challenges the district court’s award of costs and expenses.
    The costs and expenses challenged by Broten relate to two experts hired on
    behalf of Carter to defend against the merits of the malpractice claim. The
    experts were unnecessary for the resolution of the motion for summary
    judgment or for determination of whether the statute of limitations expired
    before Broten initiated his claim.
    [¶17] The district court’s scheduling order established the following deadlines:
    discovery was to be completed by February 1, 2018; Broten was required to
    disclose expert witnesses no later than March 30, 2018; Carter was required to
    disclose all expert witnesses no later than April 30, 2018; and the final day to
    move for summary judgment was May 31, 2018. By March 30, 2018, Broten
    had retained and disclosed an expert witness whose opinion was Carter
    committed malpractice. Carter hired and disclosed his expert witnesses by the
    April 30, 2018, deadline. On May 31, 2018, Carter moved for summary
    judgment. Carter argues he was compelled to hire expert witnesses to rebut
    anticipated testimony of Broten’s expert, and until the summary judgment
    motion had been resolved, it was reasonable to continue to prepare for a
    potential trial on the merits.
    [¶18] Under N.D.C.C. § 28-26-06(5), the district court has discretion to award
    expert witness fees that are reasonable plus actual expenses. N.D.C.C. § 28-
    26-06(5). “The allowance of disbursements under the statutes lies within the
    discretion of the [district] court, which is in a better position to determine the
    reasonableness and necessity of the disbursements sought by the prevailing
    party, and the [district] court’s decision will be overturned only if an abuse of
    discretion is shown.” Richter v. Jones, 
    378 N.W.2d 209
    , 213 (N.D. 1985). A
    district court abuses its discretion when it acts in an arbitrary, unreasonable,
    or unconscionable manner, when its decision is not the product of a rational
    mental process leading to a reasoned determination, or when it misapplies or
    misinterprets the law. Haider v. Moen, 
    2018 ND 174
    , ¶ 6, 
    914 N.W.2d 520
    .
    7
    [¶19] The district court awarded costs for Carter’s two experts after finding
    one of the experts had reviewed numerous documents, attended meetings,
    prepared an expert report, and provided a deposition. The district court
    concluded the second expert had reviewed the pleadings in both this case and
    the underlying matter, reviewed the records that Broten claimed supported his
    defense in the underlying matter, reviewed expert reports, attended meetings,
    and prepared an expert report. The district court concluded that although the
    experts were not used within the motion for summary judgment, because the
    experts would have been necessary for trial, the fees were reasonable.
    [¶20] This Court has upheld a district court’s award of a fee for a non-testifying
    witness, finding no abuse of discretion. See, e.g., Pratt v. Heartview
    Foundation, 
    512 N.W.2d 675
    , 679 (N.D. 1994); Wastvedt v. Vaaler, 
    430 N.W.2d 561
    , 568-69 (N.D. 1988); Keller v. Vermeer Mfg. Co., 
    360 N.W.2d 502
    , 507-08
    (N.D. 1984). In Pratt, we recognized that N.D.C.C. § 28-26-06(5) does not
    require “an expert witness actually testify before the [district] court may
    include her fee in a party's costs and disbursements . . . such a construction
    would be contrary to the judicial policy of encouraging settlements and speedy
    resolution of 
    disputes.” 512 N.W.2d at 679
    .
    [¶21] This Court has also upheld a district court’s denial of a recovery of
    expenses for a non-testifying witness, finding no abuse of discretion. “It is
    likewise not an abuse of discretion for the district court to decline such an
    award.” N.D. DOT v. Schmitz, 
    2018 ND 113
    , ¶ 12, 
    910 N.W.2d 874
    (citing
    United Dev. Corp. v. State Highway Dep’t, 
    133 N.W.2d 439
    , 444 (N.D. 1965)
    (“The [district] court may exercise its discretion as to the number of witnesses
    for which a prevailing party may tax costs.”)). A district court has “sole
    discretion” over “[t]he number of expert witnesses who are allowed fees or
    expenses.” N.D.C.C. § 28-26-06(5).
    [¶22] Here, Carter followed the district court’s scheduling order which
    required the completion of fact discovery and the disclosure of expert witnesses
    prior to the summary judgment motion deadline. The district court made
    specific findings regarding the work performed by the experts, concluded the
    experts would have been necessary for a trial on the merits, and concluded the
    8
    fees were reasonable. Under the facts of this case, the district court did not act
    in an arbitrary, unreasonable, or unconscionable manner; its decision was the
    product of a rational mental process leading to a reasoned determination; and
    it did not misapply or misinterpret the law. We conclude the district court did
    not abuse its discretion in awarding the recovery of expenses associated with
    the experts who did not testify.
    V
    [¶23] The district court did not err in granting summary judgment in favor of
    Carter after finding the statute of limitations had expired prior to his initiation
    of a malpractice claim against Carter. The district court did not abuse its
    discretion in awarding the recovery of expenses associated with the experts
    who did not testify. We affirm.
    [¶24] Jon J. Jensen
    Jerod E. Tufte
    Carol Ronning Kapsner, S.J.
    Gerald W. VandeWalle, C.J.
    [¶25] The Honorable Carol R. Kapsner, Surrogate Judge, sitting in place of
    McEvers, J., disqualified.
    9
    Crothers, Justice, dissenting.
    [¶26] I respectfully dissent because nothing in this record supports a
    conclusion Broten’s claim under N.D.C.C. § 27-13-08 has been adjudicated.
    Without adjudication of all claims, this Court lacks appellate jurisdiction
    absent certification under N.D.R.Civ.P. 54(b).
    [¶27] Neither party raised the issue of appealability; however, this Court
    considers the matter sua sponte. Ceartin v. Ochs, 
    479 N.W.2d 863
    , 864 (N.D.
    1992). We use a two-step analysis to determine whether this Court has
    jurisdiction over appeals from orders in cases with unadjudicated claims. 
    Id. First, the
    order must satisfy one of the bases for appeal in N.D.C.C. § 28-27-
    02. 
    Id. Second, the
    case must comply with N.D.R.Civ.P. 54(b). 
    Id. [¶28] Section
    28-27-02, N.D.C.C., addresses what orders are reviewable, and
    provides:
    The following orders when made by the court may be carried to the
    supreme court:
    1. An order affecting a substantial right made in any action, when
    such order in effect determines the action and prevents a judgment
    from which an appeal might be taken;
    2. A final order affecting a substantial right made in special
    proceedings or upon a summary application in an action after
    judgment;
    3. An order which grants, refuses, continues, or modifies a
    provisional remedy, or grants, refuses, modifies, or dissolves an
    injunction or refuses to modify or dissolve an injunction, whether
    such injunction was issued in an action or special proceeding or
    pursuant to the provisions of section 35-22-04, or which sets aside
    or dismisses a writ of attachment for irregularity;
    4. An order which grants or refuses a new trial or which sustains
    a demurrer;
    5. An order which involves the merits of an action or some part
    thereof;
    6. An order for judgment on application therefor on account of the
    frivolousness of a demurrer, answer, or reply; or
    7. An order made by the district court or judge thereof without
    notice is not appealable, but an order made by the district court
    10
    after a hearing is had upon notice which vacates or refuses to set
    aside an order previously made without notice may be appealed to
    the supreme court when by the provisions of this chapter an appeal
    might have been taken from such order so made without notice,
    had the same been made upon notice.
    Dismissal of Broten’s legal malpractice claim is “An order which involves the
    merits of an action or some part thereof.” N.D.C.C. § 28-27-02(5). But, as noted,
    the appellant must satisfy both the statutory requirement and Civil Rule 54(b)
    prior to an effective appeal.
    [¶29] Rule 54(b) provides:
    If an action presents more than one claim for relief, whether as a
    claim, counterclaim, crossclaim, or third-party claim, or if multiple
    parties are involved, the court may direct entry of a final judgment
    as to one or more, but fewer than all, claims or parties only if the
    court expressly determines that there is no just reason for delay.
    Otherwise, any order or other decision, however designated, that
    adjudicates fewer than all the claims or the rights and liabilities of
    fewer than all the parties does not end the action as to any of the
    claims or parties and may be revised at any time before the entry
    of a judgment adjudicating all the claims and all the parties’ rights
    and liabilities.
    [¶30] Without certification under Rule 54(b), “A party seeking to appeal must
    wait until the end of the case, when all claims have been resolved and final
    judgment has been entered, before filing an appeal.” N.D.R.Civ.P. 54(b),
    explanatory note. Certification under Rule 54(b) is reserved for the “infrequent
    harsh case” where failure to allow immediate appeal creates a demonstrated
    prejudice or hardship. Greer v. Global Industries, Inc., 
    2018 ND 206
    , ¶ 12, 
    917 N.W.2d 1
    . Rule 54(b) certifications should not be entered routinely as a
    courtesy or accommodation to counsel. Peterson v. Zerr, 
    443 N.W.2d 293
    , 297
    (N.D. 1989). “More is required to justify a Rule 54(b) certification than a mere
    recitation of generic circumstances applicable to every attempted appeal from
    an otherwise interlocutory judgment.” Club Broadway, Inc. v. Broadway Park,
    
    443 N.W.2d 919
    , 921 (N.D. 1989). Rule 54(b) certification requires a showing
    11
    of out-of-the-ordinary circumstances or a cognizable, unusual hardship to the
    litigants if the appeal is deferred. Peterson, at 299.1
    [¶31] Here, Broten sued Carter and his law firm for “COUNT I1:
    MALPRACTICE,” “COUNT II: VIOLATION OF NDCC § 27-13-08,” and
    “COUNT III: PARTNERSHIP LIABILITY & RESPONDEAT SUPERIOR.”
    Count III is derivative of Count I, but Counts I and II may or may not stand
    alone, as acknowledged by the district court.
    [¶32] Carter moved for summary judgment seeking an order “dismissing the
    Complaint in its entirety with prejudice.” However, Carter’s briefing was not
    so sweeping. His brief in support of summary judgment stated:
    Plaintiff’s Complaint should be dismissed in its entirety as
    Plaintiff’s claims are barred by the statute of limitations;
    Plaintiff’s damages are the direct result of Plaintiff’s own conduct;
    and because there are no genuine issue[s] of material fact which
    precludes [SIC] summary judgment in favor of Defendants.
    Carter’s 24-page brief to the district court contains 16 pages of facts. The
    remaining pages of his legal arguments contain captions “Summary Judgment
    Standard,” “The Statute of Limitations Bars James’s Legal Malpractice Action
    Against the Defendants,” and “Summary Judgment is Appropriate as Matter
    of Law as James Cannot Establish a Genuine Issue of Material Fact
    Concerning his Claim for Malpractice.” The brief does not mention Count II,
    N.D.C.C. § 27-13-05, or treble damages.
    [¶33] Broten’s brief resisting Carter’s summary judgment motion is 20 pages
    long and contains nearly 8 pages of facts. In the remaining pages, Broten’s
    legal arguments are captioned “Summary Judgment Standard,” “Broten’s
    claim against Carter is within the statute of limitations,” “Carter’s conflict with
    the underlying case brought by Broten’s sisters,” and “Broten has presented
    1 I do not believe this is the “infrequent harsh case” which would have permitted district court
    certification under Rule 54(b). Rather, this case would not be appealable until all issues are resolved
    in the district court.
    12
    facts to show he would have succeeded on the case-within-a-case analysis.”
    Like his litigation opponent, Broten’s brief does not mention Count II, N.D.C.C.
    § 27-13-05, or treble damages.
    [¶34] The lack of adjudication is unexplained, but the issue was addressed at
    the summary judgment hearing. The judge inquired about Count II with
    counsel for the moving party as follows:
    THE COURT: Last question for you and I think I know the answer,
    but in addition to a regular legal malpractice claim, they’re also
    seeking treble damages for delay under 27-13-08, and that
    statutory language says—I’ll leave out the stuff that doesn’t apply
    to this case—every attorney who willfully delays the attorney’s
    client’s suit with a view towards the attorney’s own gain, forfeits
    to the party injured treble damages to be recovered in a civil action.
    The question I have is simply, is it your position that any award
    under that statute would be encompassed within the two-year
    statute of limitations for legal malpractice or is there a separate—
    MR. McLEAN: No. It’s—absolutely. And they don’t even have any
    evidence they ever paid any attorney’s fees.
    THE COURT: So—yeah. I just want to get parties’ positions.
    [¶35] The court also inquired of plaintiff’s counsel as follows:
    THE COURT: Okay. Then I think I’ve got the dispute between the
    two of you.
    On that 27-13-08 treble damages, is your position that it has
    the same statute of limitations as the underlying legal malpractice
    claim or do you think there’s a separate, different statute of
    limitations that applies to that?
    MR. GROSSMAN: They’ve tracked together and it’s our position,
    and I don’t know that it’s a two-year or three-year statute of
    limitations on that, I apologize, but it would be the same general
    statute of limitations that would begin to run in January of 2014
    when that order came out.
    THE COURT: Well, you know, obviously, if there’s a three-year
    statute of limitations, it’s a different kettle of fish because you filed
    in 2016, so we have to go back to 2013. So I’ll look at that. I was
    just wondering what your position was because neither party had
    13
    addressed it. I assume they didn’t address it because they simply
    assumed it was the same statute of limitations that this language
    awarding treble damages in this situation because of the reference
    back to “recovered in a civil action” means you have to go back to
    the civil action to determine the statute of limitations, and this is
    just a damage issue. But I just wanted your positions on that, so.
    (Emphasis added).
    [¶36] The judge was correct that neither party addressed the treble damage
    claim. But, notwithstanding the court’s inquiry with both counsel, the district
    court did not rule whether a two or three year statute of limitations applied to
    Count II. Nor did the judge determine whether the claim under N.D.C.C. § 27-
    13-08 is an independent claim for relief or only a measure of damages available
    in a legal malpractice claim. Rather, the district court granted that part of
    Carter’s motion for summary judgment based on the statute of limitations, and
    denied that part of Carter’s motion based on the case-within-a-case analysis.
    [¶37] The district court’s order only addressed the issues presented in the
    briefing, and did not cite or mention Count II, N.D.C.C. § 27-13-05, or treble
    damages. In the end, the district court held “Based on the foregoing, IT IS
    HEREBY ORDERED that the Defendant’s Motion for Summary Judgment is
    GRANTED as the Plaintiff’s claim is barred by the relevant statute of
    limitations.”
    [¶38] The majority opinion at paragraph 15 addresses this issue as follows:
    Broten’s complaint included a claim for treble damages under
    N.D.C.C. § 27-13-08 alleging Carter willfully delayed the litigation
    between Broten and his sisters. It is unnecessary for this Court to
    determine if a claim under N.D.C.C. § 27-13-08 is a separate claim
    from Broten’s legal malpractice claim and/or has a separate
    statute of limitations from his legal malpractice claim. The motion
    for summary judgment sought dismissal of the complaint in its
    entirety. Broten did not argue in the district court his claim under
    N.D.C.C. § 27-13-08 is a separate claim from his legal malpractice
    or has a different statute of limitations. The judgment entered in
    the district court provides finality on all of the claims through a
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    dismissal of Broten’s claims “in their entirety, with prejudice.” The
    district court entered a final judgment resolving all claims and
    Broten has not appealed the dismissal of his claim under N.D.C.C.
    § 27-13-08.
    [¶39] The bulk of the majority’s holding is centered on the district court’s
    dismissal of the Complaint without mentioning Count II of the Complaint,
    N.D.C.C. § 27-13-08, or treble damages. Regarding the majority’s second
    sentence, I agree we should not independently “determine if a claim under
    N.D.C.C. § 27-13-08 is a separate claim from Broten’s legal malpractice claim
    and/or has a separate statute of limitations from his legal malpractice claim.”
    That work must be done by the district court upon a motion by one or both of
    the parties. No motion brought that issue to the district court. The district
    court did not address the issue. Nor should we.
    [¶40] The majority next holds, “The judgment entered in the district court
    provides finality on all of the claims through a dismissal of Broten’s claims ‘in
    their entirety, with prejudice.’” I agree the judgment contains those words. But
    the briefing and the order contain no such expansive language, nor do they
    even mention N.D.C.C. § 27-13-08, treble damages or Count II of the
    Complaint. As a result, the breadth of the judgment is not tethered to any other
    paper, argument, or ruling in the summary judgment process.
    [¶41] The majority also holds, “The district court entered a final judgment
    resolving all claims and Broten has not appealed the dismissal of his claim
    under N.D.C.C. § 27-13-08.” As explained above, I do not agree the district
    court resolved all claims. It has omitted adjudication of Complaint “Count II:
    Violation of NDCC § 27-13-08.” Regarding the majority’s statement, “Broten
    has not appealed the dismissal of his claim under N.D.C.C. § 27-13-08.” I agree.
    The treble damage claim has not been appealed because it has not been
    adjudicated. This lack of adjudication leaves the issue pending, and is precisely
    why this Court does not have jurisdiction over this appeal.
    [¶42] I would dismiss the appeal for lack of jurisdiction. So this case is not
    caught in legal limbo, upon dismissal of the appeal I also would exercise this
    15
    Court’s supervisory jurisdiction and vacate the district court’s judgment so the
    statutory claim can be adjudicated.
    [¶43] Daniel J. Crothers
    16