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Investors Title Insurance Company v. David F. Herzig

January 12, 2011

INVESTORS TITLE INSURANCE COMPANY,
PLAINTIFF
v.
DAVID F. HERZIG, SOUTHEASTERN SHELTER CORPORATION, AND
SHELDON SMITH, PERSONAL REPRESENTATIVE OF THE ESTATE OF ALPHILD HERZIG, SUBSTITUTED FOR ALPHILD HERZIG, DECEASED,
DEFENDANTS
SOUTHEASTERN SHELTER CORPORATION,
PLAINTIFF AND APPELLANT
v.
DAVID F. HERZIG; AND SHELDON SMITH, IN HIS CAPACITY AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ALPHILD HERZIG,
SUBSTITUTED FOR ALPHILD HERZIG, DECEASED,
DEFENDANTS AND APPELLEES



Appeal from the District Court of Ward County, Northwest Judicial District, the Honorable David W. Nelson, Judge.

The opinion of the court was delivered by: Maring, Justice.

N.D. Supreme CourtInvestors Title Insurance Co. v. Herzig, 2011 ND 7

This opinion is subject to petition for rehearing. [Go to Documents]

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On Appeal

AFFIRMED.

Opinion of the Court by Maring, Justice.

Investors Title Insurance Co. v. Herzig

No. 20100108

[¶1] Southeastern Shelter Corporation ("Southeastern") appeals from an order declaring that a 1989 North Carolina judgment against David F. Herzig which Southeastern had attempted to collect from Herzig is no longer enforceable. We conclude that the district court had jurisdiction to rule on Herzig's motion and that the court did not err in concluding the judgment is unenforceable. We affirm.

I

[¶2] In 1989, Southeastern recovered a judgment against Herzig for $149,598.13 in a North Carolina court. The North Carolina judgment was transcribed and filed in North Dakota under the Uniform Enforcement of Foreign Judgments Act, N.D.C.C. ch. 28-20.1, in August 1998. The judgment was renewed in North Carolina on January 11, 2000, and was again transcribed and filed in North Dakota for enforcement purposes. Southeastern's efforts since 1998 to enforce the North Carolina judgment in North Dakota have resulted in a "long-running, tortured and unduly complicated saga" of litigation. Investors Title Ins. Co. v. Herzig, 2010 ND 138, ¶ 3, 785 N.W.2d 863 ("Herzig I"); see also Investors Title Ins. Co. v. Herzig, 2010 ND 169, 788 N.W.2d 312 ("Herzig II").

[¶3] Herzig I involved a consolidated appeal by the personal representative of Alphild Herzig's estate and a cross-appeal by Southeastern stemming from Southeastern's motion for a debtor's examination in aid of execution under N.D.C.C. ch. 28-25, and Southeastern's efforts to collect money allegedly owed under 2006 contempt orders. 2010 ND 138, ¶¶ 1, 5, 17, 785 N.W.2d 863. Alphild Herzig, David Herzig's mother, had been named as a party in the proceedings and contempt orders had been entered against her for allegedly failing to produce documents in response to requests for production of documents. Id. at ¶ 37. Among other things, we affirmed orders substituting the personal representative of Alphild Herzig's estate for Alphild Herzig after her death and remanded to the district court "to determine the amount of remedial sanction necessary to compensate Southeastern under the court's 2006 contempt orders." Id. at ¶ 79. Herzig II involved Southeastern's appeal from an order entered in other post-judgment proceedings to enforce the 1989 North Carolina judgment. 2010 ND 169, ¶¶ 1, 2, 788 N.W.2d 312. We affirmed the district court's order denying Southeastern's motion to "'Attach Res and Property in Trust for Benefit of Judgment Creditor,'" granting the application of the personal representative of Alphild Herzig's estate to cancel a lis pendens filed by Southeastern, and refusing to grant "Southeastern's motions for an order to prohibit the sale and transfer of property and to compel the production of documents by subpoena." Id. at ¶¶ 1, 46.

[ΒΆ4] On January 13, 2010, while the appeals in Herzig I and Herzig II were still pending in this Court, Herzig filed a motion in district court to "Purge Judgment." Herzig argued the North Carolina judgment expired on January 11, 2010, and requested the court to declare the North Carolina judgment "unenforceable and no longer valid due to the passage of time." The personal representative of Alphild Herzig's estate joined in the motion. Southeastern responded and asserted the district court had been divested of jurisdiction to rule on the motion because Herzig I and Herzig II were pending on appeal in this Court. On the merits, Southeastern argued that the actions of Herzig and the personal representative effectively "toll[ed] the statu[te] bar date from running." On March 11, 2010, the district court granted Herzig and the personal representative's motion. The ...


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