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In re Emelia Hirsch, Irrevocable Trust

Supreme Court of North Dakota

December 13, 2017

In the Matter of the Emelia Hirsch, June 9, 1994, Irrevocable Trust
v.
Emelia A. Hirsch, aka Emelia Hirsch, aka Emilia Hirsch, Petitioner and Carolyn Twite and Duane Hirsch, Petitioners and Appellees Timothy Betz, Respondent and Appellant

         Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Gail Hagerty, Judge.

          Timothy Betz, self-represented, Fayetteville, North Carolina, respondent and appellant; on brief.

          Sheldon A. Smith, David J. Smith, and Tyler J. Malm, Bismarck, North Dakota, for appellees; on brief.

          Tufte, Justice.

         [¶ 1] Timothy Betz appeals from a district court order under N.D. Sup. Ct. Admin. R. 58, prohibiting him from filing any new litigation or documents in existing litigation without first obtaining leave of court. Because we conclude the court did not abuse its discretion in entering the order, we affirm.

         I

         [¶ 2] In 1994, the Emelia Hirsch June 9, 1994, Irrevocable Trust was created. Trust beneficiaries were Emelia Hirsch's three children and ten grandchildren, including Betz. In 2003, Emelia Hirsch requested the district court to dissolve the trust. In 2008, after protracted litigation, the district court entered an order reforming the trust from an irrevocable trust to a revocable trust, which this Court affirmed on appeal. Matter of Emelia Hirsch Trust, 2009 ND 135, 770 N.W.2d 225. Betz has since continued litigation relating to the trust. See Matter of Emelia Hirsch Trust, 2016 ND 217, 888 N.W.2d 205; Matter of Emelia Hirsch Trust, 2014 ND 135, 848 N.W.2d 719; Matter of Emelia Hirsch Trust, 2013 ND 63, 832 N.W.2d 334.

         [¶ 3] In February 2017, Betz moved the district court to reopen the case and moved to immediately vacate the 2008 order. On February 23, 2017, the district court filed a notice stating the case had been resolved, it would not be reopened, and no further order would be entered. Although Betz filed an objection to the court's notice and again requested the case be reopened, no appeal was taken from the court's February 2017 denial. In March 2017, Carolyn Twite and Duane Hirsch ("the co-trustees") moved the court seeking a pre-filing order against Betz under N.D. Sup. Ct. Admin. R. 58, which addresses vexatious litigation. Betz opposed the motion. In April 2017, after a hearing, the presiding judge issued a notice of proposed findings and order. Betz filed a response in opposition to the proposed findings and order.

         [¶ 4] On April 24, 2017, the district court presiding judge entered an order under N.D. Sup. Ct. Admin. R. 58, finding that Betz is a vexatious litigant. The order prohibits him from filing any new litigation or any new documents in existing litigation in the state courts as a self-represented party without first obtaining leave of court where the litigation is proposed to be filed. The order also provides that Betz may file an application seeking leave to file documents. On May 25, 2017, Betz appealed from the April 2017 pre-filing order.

         II

         [¶ 5] This Court adopted N.D. Sup. Ct. Admin. R. 58, effective March 1, 2017, to address "vexatious litigation, which impedes the proper functioning of the courts, while protecting reasonable access to the courts." Everett v. State, 2017 ND 93, ¶ 3 n.1, 892 N.W.2d 898 (quoting N.D. Sup. Ct. Admin. R. 58(1)). [1] Rule 58(2)(b), N.D. Sup. Ct. Admin. R., defines "vexatious litigant" as "a person who habitually, persistently, and without reasonable grounds engages in conduct" that:

(1) serves primarily to harass or maliciously injure another party in litigation;
(2) is not warranted under existing law and cannot be supported by a good faith argument for an extension, ...

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