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Avila v. Weaver

Supreme Court of North Dakota

January 15, 2019

Irene Avila, Plaintiff and Appellee
v.
Maria G. Weaver, a.k.a. Maria G. Berlin, and William G. Berlin, Defendants and Appellants

          Appeal from the District Court of Richland County, Southeast Judicial District, the Honorable Bradley A. Cruff, Judge. AFFIRMED.

          Jonathan L. Green, Wahpeton, ND, for plaintiff and appellee.

          Erica L. Chisholm, Wahpeton, ND, for defendants and appellants.

          OPINION

          Jensen, Justice.

         [¶ 1] William Berlin and Maria Berlin (formerly Maria Weaver) ("the Berlins") appeal from an amended judgment awarding attorney fees following resolution of litigation between the parties over a contract for deed. The Berlins argue that the district court's initial denial of an award of attorney fees to either party precludes a subsequent motion for the recovery of attorney fees under N.D.R.Civ.P. 54. We affirm the amended judgment.

         I.

         [¶ 2] Irene Avila and the Berlins were involved in a dispute regarding a contract for deed. The district court ruled in favor of Avila and on September 29, 2017, entered a judgment in the amount of $6, 650, plus costs in the amount of $660.64, against the Berlins. The judgment provided that neither Avila nor the Berlins were awarded a recovery of their attorney fees. The underlying litigation over the contract for deed has not been appealed by either party.

         [¶ 3] Following the entry of the judgment, Avila filed a motion requesting a recovery of $13, 450 of attorney fees and to amend the judgment in order to reflect the correct description of the property. The district court granted Avila's request for attorney fees, but reduced the amount to be recovered to $12, 450. A notice of the order granting the attorney fee award was served upon the Berlins' counsel on November 30, 2017. An amended judgment and a monetary award judgment were entered January 30, 2018. The Berlins' notice of appeal contesting the attorney fee award was filed March 19, 2018.

         II.

         [¶ 4] Avila challenges the timeliness of the Berlins' appeal. Avila contends the timeliness of the appeal should be measured from November 30, 2017, the date the notice of entry of the order awarding attorney fees was served to the Berlins' attorney. Measuring the timeliness of the appeal from the date that notice of the order was served would result in the 60-day window for appeal closing on January 29, 2018, making the Berlins' appeal untimely.

         [¶ 5] The relevant portions of N.D.R.App.P. 4 read as follows:

(a) Appeal in Civil Case.
(1) Time For Filing Notice of Appeal. In a civil case, except as provided in paragraph (a)(4), the notice of appeal required by Rule 3 must be filed with the clerk of the supreme court within 60 days from service of ...

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