from the District Court of McHenry County, Northeast Judicial
District, the Honorable Anthony S. Benson, Judge.
R. Hanson (argued) and Peter A. Hvidston (on brief), Fargo,
ND, for plaintiff and appellee.
Bradley C. Johnson (argued) and Karol M. Johnson (appeared),
Chanhassen, MN, defendants and appellants.
1] Bradley and Karol Johnson appeal from a judgment granting
the Barna, Guzy, & Steffen, Ltd., law firm
("BGS") foreclosure of a real estate mortgage for
payment of a $258, 769.97 debt and from an order denying
their N.D.R.Civ.P. 60(b) motion for relief from judgment.
Because the Johnsons have not established that the district
court erred in any of its rulings, we affirm the judgment, as
modified, and the order denying the motion for relief from
2] In 2013 the Johnsons retained BGS to represent them in a
lawsuit in connection with the probate of the estate of
Bradley Johnson's father in Minnesota. The Johnsons
reside in, and BGS is located in, the Minneapolis, Minnesota
area. BGS extended credit to the Johnsons for costs, fees,
and expenses that would be incurred in representing them in
the lawsuit through a revolving line of credit agreement and
a revolving promissory note. To secure payment, the Johnsons
executed a mortgage on land they owned in McHenry and
Sheridan counties in North Dakota. The mortgage required the
Johnsons to pay all of the principal and interest on the
indebtedness when due to BGS. In early 2014 the parties
amended the revolving line of credit agreement and the
revolving promissory note and executed a mortgage
modification agreement to reflect an increase in the amount
of credit extended to $200, 000.
3] The Johnsons failed to make the payments to BGS as
required under the loan agreements. In 2015 BGS brought this
action against the Johnsons and others in North Dakota to
foreclose the mortgage. The Johnsons counterclaimed against
BGS, alleging its attorneys committed legal malpractice and
other torts during the Minnesota legal proceedings. The
district court ultimately dismissed the Johnsons'
counterclaim without prejudice for lack of subject matter
jurisdiction under N.D.R.Civ.P. 12(h)(3). The court granted
summary judgment for foreclosure on the North Dakota property
in favor of BGS, concluding the Johnsons were indebted to BGS
in the amount of $258, 769.97 under the loan agreements with
interest continuing to accrue. The Johnsons then filed a
motion for recusal and a motion for relief from the judgment
under N.D.R.Civ.P. 60(b). The court denied both motions.
4] The Johnsons argue the district court erred in granting
summary judgment of foreclosure in favor of BGS and in
denying their motion for relief from judgment under
5] This Court's standard of review for summary judgments
is well established:
Summary judgment is a procedural device under N.D.R.Civ.P.
56(c) for promptly resolving a controversy on the merits
without a trial if there are no genuine issues of material
fact or inferences that can reasonably be drawn from
undisputed facts, or if the only issues to be resolved are
questions of law. The party seeking summary judgment must
demonstrate there are no genuine issues of material fact and
the case is appropriate for judgment as a matter of law. In
deciding whether the district court appropriately granted
summary judgment, we view the evidence in the light most
favorable to the opposing party, giving that party the
benefit of all favorable inferences which can reasonably be
drawn from the record. A party opposing a motion for summary
judgment cannot simply rely on the pleadings or on
unsupported conclusory allegations. Rather, a party opposing
a summary judgment motion must present competent admissible
evidence by affidavit or other comparable means that raises
an issue of material fact and must, if appropriate, draw the
court's attention to relevant evidence in the record
raising an issue of material fact. When reasonable persons
can reach only one conclusion from the evidence, a question
of fact may become a matter of law for the court to decide. A
district court's decision on summary judgment is a
question of law that we review de novo on the record.
Pettinger v. Carroll, 2018 ND 140, ¶ 7, 912
N.W.2d 305 (quoting A.R. Audit Servs., Inc. v.
Tuttle, 2017 ND 68, ¶ 5, 891 N.W.2d 757).
6] In Flaten v. Couture, 2018 ND 136, ¶¶