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Viscito v. Christianson

Supreme Court of North Dakota

April 28, 2015

Matthew Viscito, Mary Lynn Berntson, and Florence Properties, LLC, Plaintiffs and Appellants
v.
Kevin Christianson, Pace's Lodging Corporation, Mednational, LLC, Aurora Medical Park No. 2, LLC, Jeff Sjoquist, Defendants and Appellees

Page 778

Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Debbie Gordon Kleven, Judge.

Jordan T. Schuetzle, Grand Forks, ND, for plaintiffs and appellants.

Michael T. Andrews, Fargo, ND, for defendants and appellees.

Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J.

OPINION

Page 779

Lisa Fair McEvers, Justice.

[¶1] Matthew Viscito, Mary Lynn Berntson, and Florence Properties, LLC (collectively " Viscito" ) appeal from a district court judgment of dismissal without prejudice, which awarded Kevin Christianson, Pace's Lodging Corporation, Mednational, LLC, Aurora Medical Park No. 2, LLC, and Jeff Sjoquist (collectively " Christianson" ) attorney's fees and costs. We reverse and remand the district court's judgment awarding attorney's fees and costs.

I

[¶2] Viscito sued Christianson alleging a number of claims pertaining to an agreement the parties entered to build, own, and lease a hospital. Christianson moved to compel arbitration, contending the agreement required that Viscito's claims be resolved through arbitration. On August 1, 2013, the district court granted the motion to compel arbitration and ordered the parties complete arbitration within six months from the date of the order.

[¶3] On January 30, 2014, Viscito moved for an extension of time to complete arbitration. Christianson moved to dismiss with prejudice and requested an award of attorney's fees and costs under N.D.R.Ct. 11.5. On March 24, 2014, the district court held a hearing on the motions. At the conclusion of the hearing, the district court ruled from the bench that the case be dismissed without prejudice and awarded Christianson reasonable attorney's fees and costs. The district court requested Christianson submit an itemized billing statement of its attorney's fees, so the court could determine the reasonableness of the fees. Christianson submitted an affidavit requesting $33,405.14, the full amount of fees and costs it had incurred defending the entire case, along with itemized billing statements documenting the work performed from July 6, 2012, to April 7, 2014, totaling the amount requested. The district court dismissed the case without prejudice and awarded Christianson $33,405.14 in attorney's fees and costs. Viscito appealed, arguing the district court abused its discretion in awarding Christianson all of its costs and attorney's fees incurred throughout the case because the court misinterpreted the rules authorizing sanctions.

II

[¶4] Before we consider the merits of Viscito's appeal, we must first address Christianson's challenges regarding the appealability and timeliness of this case. Christianson argues this case is not appealable because 1) Viscito did not timely file the notice of appeal, 2) Viscito cannot appeal from a dismissal without prejudice or an order solely awarding attorney's fees and costs, 3) Viscito waived its argument on appeal because it did not object to the amount of the attorney's fees and costs below, and 4) Viscito voluntarily satisfied the judgment by paying the attorney's fees and costs.

1.

[¶5] Christianson argues Viscito's appeal is untimely because 63 days elapsed between the entry of the order Viscito appealed from and the date Viscito filed a notice of appeal.

[¶6] Under N.D.R.App.P. 4(a)(1), an appellant must file the notice of appeal

Page 780

within 60 days from service of notice of entry of the judgment or order being appealed. On May 9, 2014, the district court entered an order for judgment of dismissal. The district court entered judgment on May 13, 2014, and Christianson served notice of entry of order for judgment of dismissal and judgment the same day. On July 11, 2014, Viscito filed a notice of appeal, stating it was appealing from the final order entered on May 9, 2014.

[¶7] The time for civil appeals runs from the date of service of notice of entry of the judgment or order, not the date the court entered the judgment or order. See N.D.R.App.P. 4, Explanatory Note (" The time for civil appeals runs from 'service of notice of entry' of the order or judgment." (Emphasis added)). As such, we conclude Viscito's notice of appeal was timely, under N.D.R.App.P. 4(a)(1), because it was filed within 60 days of the service of notice of entry of the order for judgment and judgment.

2.

[¶8] Christianson argues both a dismissal without prejudice and a challenge based solely on an award of attorney's fees and costs are not appealable.

[¶9] " Ordinarily, an order dismissing a complaint without prejudice is not appealable because either side may commence another action after the dismissal. However, a dismissal without prejudice may be final and appealable if it has the practical effect of terminating the litigation in the plaintiff's chosen forum." Winer v. Penny Enters., Inc.,2004 ND 21, ¶ 6, 674 N.W.2d 9 (citation omitted). Although this Court has concluded a party cannot generally appeal a dismissal without prejudice, Viscito is not appealing the ...


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