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Kautzman v. Doll

Supreme Court of North Dakota

January 22, 2018

Bruce Allen Kautzman, J.B.K., and B.M.K., Petitioners
v.
Brenda Lou Doll, Respondent and Appellant

         Appeal from the District Court of Morton County, South Central Judicial District, the Honorable David E. Reich, Judge.

          Bruce Allen Kautzman, J.B.K., and B.M.K., petitioners; no appearance.

          Amanda R. Harris, Mandan, N.D., for respondent and appellant.

          OPINION

          McEvers, Justice.

         [¶ 1] Brenda Doll appeals from a district court order denying her motion for reconsideration of a disorderly conduct restraining order. We conclude the district court did not abuse its discretion by denying Doll's motion for reconsideration. We affirm.

         I

         [¶ 2] On November 7, 2016, Bruce Kautzman filed a petition for a disorderly conduct restraining order against Doll. The district court granted a temporary disorderly conduct restraining order and set a hearing for November 17, 2016. The parties stipulated to rescheduling the hearing.

         [¶ 3] The district court held a hearing on December 16, 2016 and granted the disorderly conduct restraining order. On March 7, 2017, Doll filed a motion for reconsideration. On April 25, 2017, the court filed an order denying the motion for reconsideration. On June 23, 2017, Doll filed her notice of appeal.

         II

         [¶ 4] Doll argues the district court abused its discretion by issuing a temporary restraining order, misapplying the law in issuing a permanent restraining order, and not giving her motion for reconsideration due consideration. Doll also argues the court erred in denying her a full and fair hearing.

         [¶ 5] Doll appeals only from the district court order denying her motion to reconsider. She did not appeal from the November 8, 2016 temporary restraining order, nor the December 16, 2016 disorderly conduct restraining order. "An appeal from a [district] court's refusal to vacate an order under Rule 60(b), N.D.R.Civ.P., does not permit the appellant to attack the underlying order from which an appeal could have been, but was not, brought." Anderson v. Baker, 2015 ND 269, ¶ 8, 871 N.W.2d 830 (quoting Sturdevant v. SAE Warehouse, Inc., 310 N.W.2d 749, 752 (N.D. 1981)). Because the November 8, 2016 temporary disorderly conduct restraining order and the December 16, 2016 disorderly conduct restraining order were not appealed, Doll cannot challenge whether the orders were appropriate. Doll's attempt to raise issues decided by the 2016 orders is also improper because the time for appeal from those orders was not tolled by her motion for reconsideration and, consequently, an appeal from the November 8, 2016 and December 16, 2016 orders is untimely.

         [¶ 6] "Before we consider the merits of an appeal, we must have jurisdiction." Choice Fin. Grp. v. Schellpfeffer, 2005 ND 90, ¶ 6, 696 N.W.2d 504. This Court's jurisdiction is provided by the filing of a timely notice of appeal. Under N.D.R.App.P. 4(a)(1), a notice of appeal must be filed "within 60 days from service of notice of entry of the judgment or order being appealed." Doll's time for a direct appeal from the disorderly conduct restraining order lapsed before she filed her motion for reconsideration.

         [¶ 7] Rule 4(a)(3)(A), N.D.R.App.P., states:

If a party timely files with the clerk of district court any of the following motions under the North Dakota Rules of Civil Procedure, however titled, the full time to file an appeal runs for all parties from service of notice of the entry ...

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