Open Road Trucking, LLC, as Assignee of Leland A. Swanson, as Assignee of Western State Bank, Plaintiff and Appellant
Leland A. Swanson, Defendant and James B. Lund, Defendant and Appellee
from the District Court of Cass County, East Central Judicial
District, the Honorable Steven L. Marquart, Judge.
A. Schoenwald (argued) and Randolph E. Stefanson (on brief),
Moorhead, MN for plaintiff and appellant.
Aaberg (argued) and Sean T. Foss (on brief), Fargo, ND for
defendant and appellee.
VandeWalle, Chief Justice.
Open Road Trucking, LLC, appealed from district court orders:
(1) denying Open Road's application for a charging order
lien against James Lund; and (2) directing satisfaction of a
judgment against Lund and Leland Swanson. We conclude Open
Road was entitled to take an assignment of the judgment for
the purpose of enforcing contribution against Lund. We affirm
in part, reverse in part, and remand.
In September 2018, Western State Bank sued Swanson and Lund
to enforce commercial guaranties executed by Swanson and
Lund. Swanson and Lund consented to entry of judgment, and a
$1, 334, 374.25 judgment was entered against Swanson and
Lund. The judgment stated Swanson and Lund were jointly and
Swanson paid the judgment in full, and contemporaneously,
Western State Bank assigned the judgment to Swanson. The next
day, Swanson assigned his interest in the judgment to Open
Road Trucking. The assignment from Swanson stated it assigned
his contribution interest against Lund for $670, 952.24,
one-half of the judgment amount.
Open Road applied for a $670, 952.24 charging order under
N.D.C.C. § 10-32.1-45 against Lund's transferrable
interests in five limited liability companies. In response,
Lund argued Open Road was not entitled to a charging order
because Swanson paid the full amount of the judgment debt to
Western State Bank and therefore, the judgment was satisfied.
After a hearing, the district court denied Open Road's
application for a charging order. The court concluded Open
Road was not entitled to a charging order because Swanson
paid the judgment and there remained no unsatisfied part of
the judgment under N.D.C.C. § 10-32.1-45(1).
In January 2019, an execution of judgment was issued against
Lund for the full amount of the judgment. Open Road also
began a separate action against Lund for contribution under
N.D.C.C. § 9-01-08. Swanson then moved for an order
directing entry of a satisfaction of judgment. The district
court granted the motion, ruling the judgment against Swanson
and Lund was satisfied as a matter of law. The February 2019
order directing satisfaction of judgment also cancelled any
outstanding execution of judgment.
Open Road argues the district court erred in denying its
application for a charging order against Lund. Open Road
claims it could enforce Swanson's right of contribution
against Lund under the assignment of the judgment from
This case requires us to review the district court's
legal conclusions relating to the judgment and Open
Road's application for a charging order. It also involves
an examination of various statutes relating to joint and
several obligations, contribution, and judgments. A district
court's legal conclusions are fully reviewable on appeal.
Estate of Conley, 2008 ND 148, ¶ 15, 753 N.W.2d
384. "The interpretation and application of a statute is
a question of law, which is also fully reviewable on
Under N.D.C.C. § 9-12-03, "[p]erformance of an
obligation by one of several persons who are liable jointly
under it extinguishes the liability of all persons who are
liable jointly thereon." Section 9-01-08, N.D.C.C.,
allows a right to contribution between joint obligors:
"A party to a joint obligation or to a joint and several
obligation who satisfies more than that party's share of
the claim against all obligors may require a proportionate
contribution from all the parties joined with that
Here, Swanson and Lund executed a consent to entry of
judgment. The consent to entry of judgment and the subsequent
judgment stated Swanson and Lund were jointly and severally
liable. Under N.D.C.C. § 9-12-03, Swanson's payment
of the judgment debt to Western State Bank extinguished both
Swanson's and Lund's liability to the bank.
Swanson's payment also created a right to contribution
from Lund under N.D.C.C. § 9-01-08.
We have stated, "In the absence of proof of a contrary
agreement, a comaker who is required to pay the entire
obligation may seek contribution or reimbursement from the
other co-maker for one half of the amount paid."
Estate of Egeland, 2007 ND 184, ¶ 9, 741 N.W.2d
724. The presumption of equal liability may be rebutted, and
a defendant has the burden to raise an affirmative defense.
Collection Ctr., Inc. v. Bydal, 2011 ND 63, ¶
13, 795 N.W.2d 667. Here, the parties agreed to be jointly
and severally liable ...