from the District Court of Grand Forks County, Northeast
Central Judicial District, the Honorable Stacy J. Louser,
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.
VANDEWALLE, CHIEF JUSTICE.
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.
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
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 ...