from the District Court of Richland County, Southeast
Judicial District, the Honorable Bradley A. Cruff, Judge.
Jonathan L. Green, Wahpeton, ND, for plaintiff and appellee.
L. Chisholm, Wahpeton, ND, for defendants and appellants.
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.
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.
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 ...