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Investors Title Insurance Co. v. Herzig

Supreme Court of North Dakota

July 18, 2013

Investors Title Insurance Company, Plaintiff
v.
David F. Herzig, Southeastern Shelter Corporation, Alphild Herzig, Defendants on appeal Southeastern Shelter corporation, Plaintiff and Appellant
v.
Sheldon Smith, Personal Representative of the Estate of Alphild Herzig, substituted for Alphild Herzig, Deceased, Defendant and Appellee

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

Robert S. Rau, for plaintiff and appellant.

Daniel H. Oster, for defendant and appellee.

OPINION

Maring, Justice.

[¶ 1] Southeastern Shelter Corporation appeals from a district court order entered after remand, holding daily monetary sanctions imposed on Alphild Herzig under 2006 contempt orders abated upon her death. On remand, the court held that only the $5, 000 awarded for attorney's fees in its June 2006 order was to compensate Southeastern and survived Alphild Herzig's death and, further, that none of the daily sanctions imposed in its July 2006 order were to compensate Southeastern and therefore did not survive Alphild Herzig's death. Because we conclude the district court answered the specific question this Court remanded, we affirm the order in the 1998 and 2008 underlying cases and, further, direct the 2008 case be remanded for entry of judgment.

I

[¶ 2] In 1998, Southeastern filed a 1989 North Carolina judgment in North Dakota in which Southeastern was awarded $149, 598.13 against David Herzig, Alphild Herzig's son ("1998 case"). Southeastern's attempts to collect on the judgment have resulted in substantial litigation in North Dakota. See Investors Title Ins. Co. v. Herzig, 2013 ND 13, 826 N.W.2d 310 (" Herzig IV "); Investors Title Ins. Co. v. Herzig, 2011 ND 7, 793 N.W.2d 371 (" Herzig III "); Investors Title Ins. Co. v. Herzig, 2010 ND 169, 788 N.W.2d 312 (" Herzig II "); Investors Title Ins. Co. v. Herzig, 2010 ND 138, 785 N.W.2d 863 (" Herzig I ").

[¶ 3] In 2004, Alphild Herzig was added as a party as a result of proceedings to collect the judgment. In 2006, the district court found Alphild Herzig in contempt of court for her failure to comply with discovery orders. The court awarded Southeastern $5, 000 in attorney's fees in a June 2006 order, and imposed sanctions of $1, 400 a day for her failure to produce discovery items in a July 2006 "checklist" order. In January 2008, Southeastern commenced a separate action ("2008 case") against Alphild Herzig, seeking the sum of $735, 400 for amounts allegedly then owed under the 2006 contempt orders, the sum of $1, 400 per day for each day the 2006 sanctions remained unpaid, and a request for interest, attorney's fees, and costs. Alphild Herzig died in June 2008. The 1998 case and the 2008 case were consolidated on appeal in Herzig I and have remained consolidated in the subsequent proceedings.

[¶ 4] On January 23, 2013, in Herzig IV, 2013 ND 13, ¶ 14, 826 N.W.2d 310, this Court again remanded the cases for the district court to determine what portion of the daily monetary sanctions were to compensate Southeastern under N.D.C.C. § 27-10-01.4(1)(a) and survived Alphild Herzig's death. On January 28, 2013, the district court entered its "2013 Order on Remand, " holding that while the $5, 000 for attorney's fees awarded in its June 2006 order was to compensate Southeastern and survived Alphild Herzig's death, all of the daily sanctions imposed in its July 2006 "checklist" order were to coerce Alphild Herzig into complying with its discovery order and none were intended to compensate Southeastern. The court therefore held the daily sanctions imposed in its July 2006 order did not survive Alphild Herzig's death.

[¶ 5] However, this Court's mandate of the January 23, 2013, opinion and judgment was issued on February 14, 2013, under N.D.R.App.P. 41. Southeastern filed a notice of appeal in the district court on February 12, 2013, and filed an amended notice of appeal on February 20, 2013, both appealing from the 2013 Order on Remand dated January 28, 2013. Because the district court had entered its 2013 Order on Remand before expiration of the time to file a petition for rehearing and before the issuance of this Court's mandate returning jurisdiction to the district court, after oral argument on June 4, 2013, we ordered this matter remanded to the district court for 14 days for the limited purpose of entry of an order on remand consistent with our opinion in Herzig IV, 2013 ND 13, 826 N.W.2d 310.

[¶ 6] On June 10, 2013, the district court entered its "June, 2013 Order on Remand, " dated June 6, 2013, again stating that, while the June 2006 order awarding $5, 000 in attorney's fees to Southeastern survived her death, "all of the daily sanctions imposed in its July 7, 2006 Checklist Order were to coerce Alphild [Herzig] into complying with the Court's discovery order and none were intended to compensate Southeastern under N.D.C.C. § 27-10-01.4(1)(a); therefore, the daily sanctions imposed in the Court's July 7, 2006 Checklist Order did not survive Alphild Herzig's death." Because the district court's order on limited remand was entered with jurisdiction, we turn to the merits of the appeal.

II

[¶ 7] On appeal, Southeastern argues the district court erred in its conclusion of law regarding damages and a new judge should be assigned on the case, or, in the alternative, this Court should decide the issue based upon the record before it. The personal representative for Alphild Herzig's estate argues that the court followed this Court's mandate and properly determined what portion of the sanctions were to compensate Southeastern.

[¶ 8] This Court has explained that "'[t]he law of the case doctrine applies when an appellate court has decided a legal question and remanded to the district court for further proceedings, ' and '[a] party cannot on a second appeal relitigate issues which were resolved by the Court in the first appeal or which would have been resolved had they been properly presented in the first appeal.'" Carlson v. Workforce Safety & Ins., 2012 ND 203, ¶ 16, 821 N.W.2d 760 (quoting Kortum v. Johnson, 2010 ND 153, ¶ 9, 786 N.W.2d 702 (quotations omitted)). Further, "'[t]he mandate rule, a more specific application of law of the case, requires the trial court to follow pronouncements of an appellate court on legal issues and subsequent proceedings of the case and to carry the [appellate court's] mandate into effect according to its terms.... and we retain the authority to decide ...


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