Appeal from the District Court of Cass County, East Central Judicial District, the Honorable John C. Irby, Judge.
Angela Nails, self-represented, Grandview, MO, plaintiff and appellant; submitted on brief.
Christopher M. Kennelly, Fargo, ND, for defendant and appellee; submitted on brief.
Gerald W. VandeWalle, C.J., Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom.
[¶1] Angela Nails appealed from a district court judgment dismissing her action against U.S. Bank under N.D.R.Civ.P. 12(b). Nails failed to file a responsive brief to U.S. Bank's motion to dismiss as required under N.D.R.Ct. 3.2(c), and the district court treated the failure to file as an admission and dismissed the claim with prejudice. Nails argued the district court abused its discretion in granting U.S. Bank's motion. We summarily affirm under N.D.R.App.P. 35.1(a)(1) and (4).
[¶2] U.S. Bank requests attorney fees and double costs under N.D.R.App.P. 38 for a frivolous appeal. " An appeal is frivolous if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which evidences bad faith." Holbach v. Holbach, 2010 ND 116, ¶ 17, 784 N.W.2d 472 (quoting Healy v. Healy, 397 N.W.2d 71, 76 (N.D. 1986)). Nails's arguments and unsupported assertions on appeal are " so factually and legally devoid of merit that [she] should have been aware of the impossibility of success on appeal." Riemers v. O'Halloran, 2004 ND 79, ¶ 16, 678 N.W.2d 547. We award U.S. Bank double costs and nominal attorney fees of $500 for defending the appeal.
Gerald W. VandeWalle, C.J., Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, ...