from the District Court of Grand Forks County, Northeast
Central Judicial District, the Honorable Thomas E. Merrick,
Brakke, Fargo, ND, for plaintiff and appellee.
A. Johnston, Grand Forks, ND, for appellant.
W. VandeWalle, C.J., Dale V. Sandstrom, Daniel J. Crothers,
Lisa Fair McEvers., John T. Paulson, S.J. Opinion of the
Court by VandeWalle, Chief Justice. The Honorable John T.
Paulson, S.J., sitting in place of Kapsner, J., disqualified.
[¶1] Johnston Law Office, P.C., appealed
from an order compelling discovery and an order finding it in
contempt of court. We affirm.
[¶2] Our recent decision in PHI Fin.
Servs. v. Johnston Law Office, P.C., 2016 ND 20, 2-6,
874 N.W.2d 910, sets forth the factual background of the
dispute giving rise to this appeal. We repeat such facts only
insofar as necessary for this appeal. PHI Financial Services,
Inc., (" PHI" ) sued Johnston Law Office, P.C.,
(" Johnston" ) for alleged fraudulent transfers
relating to a federal crop payment made to Johnston's
client. After trial, the district court entered judgment
against Johnston in the amount of $167,203.24. On appeal,
this Court affirmed and reversed in part and remanded for
further proceedings. Id. at ¶ 1.
[¶3] While that appeal was pending, PHI
began post-judgment discovery in aid of execution. PHI served
Johnston with various interrogatories pertaining to
Johnston's financial assets. Johnston returned the
interrogatories on April 4, 2015, answering the first two
interrogatories in their entirety, answering a portion of the
third interrogatory, and objecting to the remainder of the
third interrogatory and all other remaining interrogatories.
Johnston claimed the unanswered interrogatories violated
[¶4] According to the affidavit of PHI's
counsel, Jon Brakke, he sent a letter to Johnston on May 8,
2015, informing Johnston its April 4, 2015 answers were
incomplete. Johnston replied on May 19, 2015, again informing
PHI it believed the unanswered interrogatories violated
N.D.R.Civ.P. 33(a)(3). According to Brakke's affidavit,
he called Johnston on May 19, 2015, but he received no
answer. Brakke left a voicemail, to which Johnston did not
respond. Brakke's affidavit attests no further
communication occurred on or prior to May 28, 2015. On May
29, 2015, PHI moved for an order compelling Johnston to
answer the remaining interrogatories. In its motion, PHI
certified its May 8 letter and May 19 attempt to contact
Johnston via telephone was a good faith attempt to confer to
resolve the discovery dispute without judicial intervention,
as required by N.D.R.Civ.P. 37(a)(1).
[¶5] The district court granted PHI's
motion. The court concluded N.D.R.Civ.P. 33(a)(3) did not bar
PHI's interrogatories because, after including all
discrete subparts, PHI served thirty-seven interrogatories.
The court also concluded PHI's pre-judgment
interrogatories should not be considered in determining
whether PHI's post-judgment interrogatories exceeded the
limits under N.D.R.Civ.P. 33(a)(3). Further, the court
concluded PHI's efforts to contact Johnston regarding the
discovery dispute, and Johnston's resulting inaction,
constituted a good faith attempt to confer to resolve the
discovery dispute before seeking judicial intervention. The
court entered its order to compel. PHI served notice of entry
of the order on July 2, 2015. After Johnston did not comply
with the order to compel, PHI moved to hold Johnston in
contempt of court. The district court granted the motion,
concluding Johnston had actual notice or knowledge of the
order to compel and it had a willful and inexcusable intent
to violate the order. PHI served notice of entry of this
order on September 25, 2015. Johnston appealed both orders on
October 5, 2015.
[¶6] PHI argues Johnston's appeal was
untimely as it relates to the order to compel because
Johnston's appeal on October 5, 2015 was more than sixty
days after PHI served notice of entry of the order to compel
on July 2, 2015. Johnston argues the order to compel was an
interlocutory order and the time to appeal the order ran from
the date of service of the appealable order--here, the order
of contempt. Because its appeal on October 5, 2015 was within
sixty days of PHI serving notice of entry of the order of
contempt on September 25, 2015, Johnston argues its appeal of
the order to compel was timely.
[¶7] Regarding post-judgment discovery, we
have said: " [o]rders denying discovery in aid of
execution . . . are appealable, but orders granting discovery
are not appealable if review is available by way of
disobedience and contempt." Inv. Title Ins. Co. v.
Herzig, 2010 ND 138, ¶ 30, 785 N.W.2d 863 (quoting
15B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,
Federal Practice & Procedure § 3916 (2d ed. 1992)).
Because a post-judgment order granting discovery may be
reviewed by way of an order of contempt, an order granting
post-judgment discovery is a nonappealable interlocutory
order. Id.; see also Dietz v. Kautzman,
2004 ND 164, ¶ 10, 686 N.W.2d 110 (characterizing orders
compelling discovery as interlocutory). Where a party seeks
to appeal an interlocutory order, the order is reviewable on
an appeal from a final order or judgment, resulting in the
time to appeal the interlocutory order running from service
of notice of the appealable order or judgment, not from
service of notice of the interlocutory order. See Sec.
State Bank v. Orvik, 2001 ND 197, ¶ 6, 636
N.W.2d 664 (concluding an appeal from a nonappealable partial
summary judgment was timely when the appeal from the final
appealable judgment was timely).
[¶8] Here, the order to compel was a
nonappealable interlocutory order that was reviewable on an
appeal from the order holding Johnston in contempt of court.
See N.D.C.C. § 27-10-01.3(3) (stating " [a]n order
or judgment finding a person guilty of contempt is a final
order or judgment for purposes of appeal." ). Under
N.D.R.App.P. 4(a)(1), a party has sixty days " from
service of notice of entry of the judgment or order being
appealed" to appeal. Johnston appealed the order of
contempt on October 5, 2015, notice of entry of which PHI
served on September 25, 2015. Johnston's appeal from the
order of ...