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Johnston Land Company, LLC v. Sorenson

Supreme Court of North Dakota

June 27, 2019

Johnston Land Company, LLC, Petitioner and Appellant
v.
Sara K. Sorenson, Individually and Ohnstad Twichell, P.C., a North Dakota Professional Corporation, Respondents and Appellees

          Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Stacy J. Louser, Judge.

          DeWayne A. Johnston (argued) and David C. Thompson (appeared), Grand Forks, ND, for petitioner and appellant.

          Stephen R. Hanson II (argued) and Robert G. Hoy (on brief), West Fargo, ND, for respondents and appellees.

          OPINION

          VANDEWALLE, CHIEF JUSTICE.

         [¶1] Johnston Land Company, LLC appealed from a judgment dismissing its claims against attorney Sara Sorenson and the Ohnstad Twichell, P.C., law firm and ordering Johnston to pay their costs and attorney fees in the amount of $27, 386.23. We conclude the district court did not err in granting summary judgment dismissing Johnston's claims, but it did err in awarding costs and attorney fees under N.D.C.C. § 35-35-05(5). We affirm in part and reverse in part.

         I

         [¶2] The background facts in this case are detailed in Johnston Land Co., LLC v. Sorenson, 2018 ND 183, 915 N.W.2d 664 ("Sorenson I") and need not be repeated here. To summarize, in March 2015 Sorenson, who represented beneficiaries of an estate, recorded an affidavit in Grand Forks County pertaining to the probate case stating certain property may be subject to future legal proceedings. Id. at ¶ 4. In August 2017, Johnston filed a petition claiming Sorenson's affidavit was a nonconsensual common law lien under N.D.C.C. ch. 35-35 and seeking damages. Sorenson I, at ¶ 5. In September 2017, shortly before the district court rendered its decision denying the petition in Sorenson I, Sorenson filed a notice of lis pendens on the property on behalf of the beneficiaries in another action seeking to levy execution on the property. The district court concluded Sorenson's March 2015 affidavit did not constitute a nonconsensual common law lien, and we affirmed in part. Id. at ¶ 12. However, we reversed in part and remanded:

When Sorenson filed the affidavit in 2015, there was no action affecting title to the property. The affidavit did not name the property owner, Bell Fire LLP. Johnston asked for a declaratory judgment striking the affidavit, an action within the power of the district court under N.D.C.C. ch. 32-23. Johnston requested further relief that may be available under these facts. We remand for the district court to rule on items "c" through "g" in Johnston's petition.

Id. at ¶ 14. Those claims for relief were:

c. A declaratory judgment striking the affidavit of Sara K[.] Sorenson on file in the office of the Grand Forks County Recorder bearing Document Number 751619;
d. For its actual damages;
e. For damages in the amount of $1, 000.00 should its actual damages be less than $1, 000.00;
f. Attorney's fees, costs and disbursements; and
g. Such other and further relief as the Court may deem appropriate and that relief that is just and equitable ...

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