Kari L. Conrad, Plaintiff and Appellant
Wilbur D. Wilkinson, Defendant and Appellee
from the District Court of Ward County, North Central
Judicial District, the Honorable Kirsten M. Sjue, Judge.
B. Nodland, Bismarck, ND, for plaintiff and appellant.
A. Soderstrom, Minot, ND, for defendant and appellee.
Kapsner, Surrogate Judge.
1] Kari Conrad appeals from an order dismissing without
prejudice her application for an order requiring the Ward
County recorder to remove a lis pendens filed by Wilbur
Wilkinson against a tract of land in Minot and from an order
denying her motion for reconsideration. We conclude Wilkinson
was not authorized to file the lis pendens in an action that
did not raise a claim affecting the title to real property
and Conrad was entitled to have the Ward County recorder
cancel the lis pendens under N.D.C.C. § 32-04-24. We
reverse and remand with instructions for the district court
to direct the Ward County recorder to cancel the lis pendens.
2] In December 2010, Wilkinson sued Conrad's husband,
Ervin Lee, in tribal court for the Three Affiliated Tribes of
the Fort Berthold Reservation. Wilkinson's lawsuit
alleged Lee was Wilkinson's attorney for a settlement
agreement involving multiple claims and Lee breached the
agreement and fiduciary duties. Wilkinson alleged Lee's
actions entitled Wilkinson to the return of $140, 000 and
attorney fees and required Lee to divest himself of all
interests in the settlement agreement. On December 17, 2010,
Wilkinson filed a notice of lis pendens in the Ward County
recorder's office describing a tract of land located in
Minot. Wilkinson's notice of lis pendens stated he
"believe[d] he [was] entitled to monies that have been
utilized upon the property described."
3] In September 2016, Conrad applied to the district court in
Ward County to cancel the lis pendens against the Minot land.
She claimed she had an ownership interest in a home on the
Minot land and Wilkinson's lis pendens did not meet the
filing requirements of N.D.C.C. § 28-05-07. She asserted
Wilkinson's lawsuit against Lee in tribal court involved
claims for breach of contract and breach of fiduciary duty
and did not deal with or raise any issues affecting the title
to the Minot land. She contended that in August 2010, she and
Lee entered into a contract with Lee's brother to
purchase the land and Lee's brother later transferred
sole title to the land to her. She further claimed the lis
pendens prevented her sale of the land to a third party and
precluded her from using the proceeds of a sale to complete
the purchase of a home in Bismarck.
4] The district court dismissed Conrad's application
without prejudice, concluding it was not the proper forum to
request cancellation of the lis pendens under N.D.C.C. §
28-05-08. The court said the plain language of N.D.C.C.
§ 28-05-08 authorizes a "court in which the action
was commenced" to order cancellation of a lis pendens,
and the court concluded it was not the court in which
Wilkinson's action was commenced. The court also rejected
Conrad's argument that a lis pendens may not be filed
against North Dakota land based on an action pending in
tribal court. The court said N.D.C.C. § 28-05-07 does
not restrict the filing of a lis pendens related only to
actions pending in North Dakota state court, nor does the
statute prohibit the filing of a lis pendens related to a
pending tribal court action. The court explained there was no
compelling reason why a lis pendens from a pending tribal
court action was not permitted. The court denied Conrad's
motion for reconsideration.
5] We initially consider the propriety of Conrad's appeal
from a dismissal without prejudice. The right to appeal is
jurisdictional, and we may consider it on our own motion.
Cmty. Homes of Bismarck, Inc. v. Clooten, 508 N.W.2d
364, 365 (N.D.1993). "'[A] dismissal without
prejudice is ordinarily not appealable.'"
Jaskoviak v. Gruver, 2002 ND 1, ¶ 8, 638 N.W.2d
1 (quoting Rodenburg v. Fargo-Moorhead Young Men's
Christian Ass'n, 2001 ND 139, ¶ 12, 632 N.W.2d
407). "However, a dismissal without prejudice may be
final and appealable if the plaintiff cannot cure the defect
that led to dismissal, or if the dismissal has the practical
effect of terminating the litigation in the plaintiff's
chosen forum." Rodenburg, at ¶ 12
6] Here the district court's dismissal without prejudice
has the effect of terminating Conrad's application for
relief from the lis pendens in her chosen forum in state
court without allowing her to cure the defect that led to the
dismissal. The district court's decision effectively
precludes Conrad from relief in state court and requires her
to seek relief in tribal court. We conclude the order is
final for purposes of her appeal to this Court.
7] Conrad argues the district court should have granted her
request to cancel the lis pendens. She asserts the court
erred in concluding her only relief was in tribal court and
argues N.D.C.C. § 28-05-07 requires a party filing a lis
pendens to file an action in the district court of the county
where the notice of the lis pendens was filed within 60 days
of the filing of the lis pendens, which she contends was not
done in this case. She also asserts a lis pendens may not be
predicated on an action seeking merely to recover a money
judgment, especially where the action does not directly
affect the title to or possession of real property. She
claims Wilkinson's lis pendens is, in effect, a
prejudgment attachment to secure payment of a money judgment
and asks this Court to direct the district court to enter an
order requiring the Ward County recorder to enter a notice
canceling the lis pendens.
8] Wilkinson initially responds this Court should decline to
hear Conrad's appeal as a matter of comity until the
matter has been adjudicated in tribal court. He also argues
the district court did not err because the lis pendens
complies with all filing requirements for a lis pendens.
9] The effect of Wilkinson's argument about comity is to
affirm the district court's interpretation of the lis
pendens statutes without addressing the issue. This case
involves a question of the interpretation of our state
statutes for lis pendens, and state statutory interpretation
is a function for this Court. See Mosser v. Denbury Res.
Inc., 2017 ND 169, ¶ ...