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Conrad v. Wilkinson

Supreme Court of North Dakota

August 29, 2017

Kari L. Conrad, Plaintiff and Appellant
Wilbur D. Wilkinson, Defendant and Appellee

         Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Kirsten M. Sjue, Judge.

          Irvin B. Nodland, Bismarck, ND, for plaintiff and appellant.

          Reed 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 (citations omitted).

         [¶ 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, ΒΆ ...

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