      Substitute Opinion Page 10, Paragraph 26 and Page 12, Paragraph 31 filed 11/21/19


                  Filed 11/20/19 by Clerk of Supreme Court

                     IN THE SUPREME COURT
                     STATE OF NORTH DAKOTA

                                      2019 ND 268

James Broten,                                                     Plaintiff and Appellant
     v.
Ralph Carter; Carter, McDonagh & Sandberg,
PLLP; and Carter Law Firm,                                    Defendants and Appellees


                                      No. 20190098

Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable Steven E. McCullough, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Justice.

Lee M.Grossman (argued) and Nathan D. Severson (on brief), Fargo, ND, for
plaintiff and appellant.

Ronald H. McLean (argued) and Ian R. McLean (on brief), Fargo, ND, for
defendants and appellees.
                           Broten v. Carter, et al.
                               No. 20190098

Jensen, Justice.

[¶1] James Broten appeals the dismissal of his attorney malpractice claim.
Broten argues the district court erred in granting summary judgment after
finding his claim was barred by the applicable statute of limitations. He also
challenges the inclusion of expert witness fees within the expenses awarded by
the district court for experts who were unnecessary for resolution of the statute
of limitations issue. We affirm.

                                        I

[¶2] Broten was appointed to serve as the personal representative of his
father’s estate. Broten was subsequently sued by his sisters who claimed
Broten had breached his fiduciary duties as personal representative by
transferring land held in the trust to himself. In 2011, attorney Ralph Carter
was retained by Broten to defend him against his sisters’ claims.

[¶3] During Carter’s representation, Broten showed Carter approximately
sixty boxes of records Broten believed documented payments to his parents and
provided a defense to his sisters’ claims. Broten repeatedly inquired with
Carter about his review of the records. The records were not disclosed to the
opposing party during discovery but disclosed after Carter was replaced as
Broten’s counsel in March of 2013.

[¶4] On August 15, 2013, the district court entered findings of fact,
conclusions of law, and an order finding Broten had breached his fiduciary
duties as personal representative of his father’s estate. The court reserved its
findings on damages and ordered an evidentiary hearing to determine the
amount of damages. On January 21, 2014, following the evidentiary hearing,
the court issued a memorandum opinion and order for judgment requiring
Broten to pay damages to his sisters in an amount of $1,300,054.

[¶5] On January 14, 2016, Broten commenced this action for legal
malpractice claiming Carter failed to review the records Broten had provided
                                       1
to Carter to support Broten’s defense to the breach of fiduciary duty claim
asserted by his sisters. Broten alleges Carter’s failure to review and disclose
the documents prevented all of the records from being introduced as evidence
and resulted in the liability to his sisters. Carter moved for summary
judgment, arguing the applicable two year statute of limitations barred
Broten’s claim. The district court granted summary judgment in favor of
Carter and awarded to Carter the recovery of costs and fees, including the costs
expended for expert witnesses who were unnecessary for resolution of the
statute of limitations issue. On February 25, 2019, the district court entered a
judgment dismissing Broten’s claims in their entirety, with prejudice.

[¶6] Broten argues the district court erred in granting summary judgment
because the statute of limitations had not run on his malpractice claim against
Carter. He also argues the district court erred in granting expert witness fees
for experts who were unnecessary for Carter to prevail on the summary
judgment motion.

                                       II

[¶7] Broten contends the district court erred in granting Carter summary
judgment after finding the statute of limitations for asserting his malpractice
claim had expired before he initiated this action. This Court’s standard of
review for summary judgment is well established:

      Summary judgment is a procedural device under N.D.R.Civ.P.
      56(c) for promptly resolving a controversy on the merits without a
      trial if there are no genuine issues of material fact or inferences
      that can reasonably be drawn from undisputed facts, or if the only
      issues to be resolved are questions of law. The party seeking
      summary judgment must demonstrate there are no genuine issues
      of material fact and the case is appropriate for judgment as a
      matter of law. In deciding whether the district court appropriately
      granted summary judgment, we view the evidence in the light
      most favorable to the opposing party, giving that party the benefit
      of all favorable inferences which can reasonably be drawn from the
      record. A party opposing a motion for summary judgment cannot
      simply rely on the pleadings or on unsupported conclusory

                                       2
      allegations. Rather, a party opposing a summary judgment motion
      must present competent admissible evidence by affidavit or other
      comparable means that raises an issue of material fact and must,
      if appropriate, draw the court’s attention to relevant evidence in
      the record raising an issue of material fact. When reasonable
      persons can reach only one conclusion from the evidence, a
      question of fact may become a matter of law for the court to decide.
      A district court’s decision on summary judgment is a question of
      law that we review de novo on the record.

Pettinger v. Carroll, 2018 ND 140, ¶ 7, 912 N.W.2d 305 (quoting A.R. Audit
Servs., Inc. v. Tuttle, 2017 ND 68, ¶ 5, 891 N.W.2d 757 (internal citations
omitted)).

[¶8] The parties agree an action for legal malpractice is governed by the two
year statute of limitations provided by N.D.C.C. § 28-01-18(3). Under N.D.C.C.
§ 28-01-18(3), a client must commence a malpractice suit within two years after
the claim for relief has accrued. Larson v. Norkot Mfg., Inc., 2001 ND 103, ¶ 9,
627 N.W.2d 386. “A cause of action for legal malpractice does not accrue, and
the statute of limitations does not commence to run, until the client has
incurred some damage.” Id. (quoting Wall v. Lewis, 366 N.W.2d 471, 473 (N.D.
1985)). The action accrues when there is a conjunction of damage and wrongful
act. Jacobsen v. Haugen, 529 N.W.2d 882, 885 (N.D. 1995).

[¶9] The district court concluded the only reasonable conclusion that can be
drawn from the undisputed facts is Broten’s action accrued on August 15, 2013,
the date of the order finding Broten breached his fiduciary duty to his sisters
and reserving the determination of damages arising from the breach. Broten
argues there is a material question of fact precluding summary judgment
because August 15, 2013, is not the only date that can be reasonably considered
as the date he was placed on notice of his potential malpractice claim against
Carter. Broten argues the August 15, 2013, order finding he breached his
fiduciary duty allowed him to prove an offset to potentially all the damages,
and it was not until the January 21, 2014, order awarding damages for the
breach of his fiduciary duty he actually became aware he would have an
obligation to his sisters. Broten contends the uncertainty of whether the offsets

                                       3
would eliminate any potential obligation to his sisters creates a question of fact
of whether the statute of limitations was tolled until a damage award became
a certainty following the January 21, 2014, order.

[¶10] This Court has adopted the application of the discovery rule to
potentially toll the statute of limitations in legal malpractice actions. Wall v.
Lewis, 393 N.W.2d 758, 761 (N.D. 1986). The discovery rule delays the start of
the statute of limitations until the plaintiff “knows, or with reasonable
diligence should know, of the injury, its cause, and the defendant’s possible
negligence.” Wall, at 761. “The discovery rule focuses on whether the plaintiff
has been apprised of facts which would place a reasonable person on notice
that a potential claim exists, and it prevents the injustice of barring a claim
before the plaintiff reasonably could be aware of its existence.” Riemers v.
Omdahl, 2004 ND 188, ¶ 6, 687 N.W.2d 445. We have recognized the discovery
rule employs an objective standard of knowledge, and it is not necessary that
a plaintiff be subjectively convinced of the injury and that the injury was
caused by the defendant’s negligence. Id.

[¶11] In Riemers, this Court considered the extent to which a Plaintiff is
required to appreciate the injury caused by the attorney’s malpractice. Id. at ¶
7. In Riemers, this Court noted the following:

      Under the discovery rule, the statute of limitations does not begin
      to run until the plaintiff has incurred some injury or damage.
      Larson v. Norkot Mfg., Inc., 2002 ND 175, ¶ 10, 653 N.W.2d 33
      (citing Wall v. Lewis, 366 N.W.2d 471, 473 (N.D. 1985)). It is not
      necessary for the plaintiff to fully appreciate the potential liability,
      or even be convinced of an injury; the objective standard requires
      only that the plaintiff be aware of facts that would place a
      reasonable person on notice that a potential claim exists. Larson
      v. Norkot Mfg., Inc., 2001 ND 103, ¶ 13, 627 N.W.2d 386. In Wall,
      366 N.W.2d at 473 (quoting Budd v. Nixen, 6 Cal. 3d 195, 491 P.2d
      433, 436-37, 98 Cal. Rptr. 849 (Cal. 1971)), we explained:
             “. . . until the client suffers appreciable harm as a
             consequence of his attorney’s negligence, the client cannot
             establish a cause of action for malpractice. Prosser states the
             proposition succinctly, ‘It follows that the statute of

                                         4
            limitations does not begin to run against a negligence action
            until some damage has occurred.’ (Prosser, Law of Torts (4th
            ed. 1971), § 30 at p. 144.)
                   The cause of action arises, however, before the client
            sustains all, or even the greater part, of the damages
            occasioned by his attorney’s negligence. . . . Any appreciable
            and actual harm flowing from the attorney’s negligent
            conduct establishes a cause of action upon which the client
            may sue.
                   Indeed, once having discovered his attorney’s
            negligence and having suffered some damage, the client
            must institute his action within the time prescribed in the
            statute of limitations or he will be barred from thereafter
            complaining of his attorney’s conduct.”

Id.

[¶12] Ordinarily, when the discovery rule is applied, knowledge of when the
plaintiff should have discovered there was a potential malpractice claim is a
question of fact precluding summary judgment. Id. at ¶ 8. “However, issues of
fact may become issues of law if reasonable persons could reach only one
conclusion from the facts.” Id. at ¶ 8 (citing Twogood v. Wentz, 2001 ND 167, ¶
10, 634 N.W.2d 514). “A plaintiff’s knowledge of a potential claim is an issue of
law if the evidence is such that reasonable minds could draw but one conclusion
from the evidence.” Id. (citing Wall, 393 N.W.2d at 761).

[¶13] The August 15, 2013, order provided, in part, “James Broten is liable for
breach of his fiduciary obligations as executor and personal representative of
Olaf Broten’s will and estate.” The order also included the conclusion of law
that the deed transferring land from the trust to James Broten while he was
the personal representative of his father’s estate was void. The district court
also concluded the following facts existed prior to August 15, 2013: Broten had
a belief the records he provided to Carter would provide a defense to the claim
he had breached his fiduciary duty; Broten had communicated his belief
regarding the records to Carter; and, Carter had not investigated or properly
disclosed the records to the opposing party. The district court further
concluded, as a result of the August 15, 2013, order, Broten knew the court had

                                       5
ruled against him on the merits of an issue to which the records allegedly
applied.

[¶14] It is not necessary for Broten to fully appreciate the potential liability,
or even be convinced of an injury as the result of Carter’s handling of the
records; the objective standard requires only that Broten be aware of facts that
would place a reasonable person on notice that a potential claim against Carter
existed. Larson v. Norkot Mfg., Inc., 2001 ND 103, ¶ 13, 627 N.W.2d 386.
Following the issuance of the August 15, 2013, order, reasonable minds could
draw but one conclusion from the evidence: Broten was on notice a potential
claim against Carter existed. While Broten may have believed he would be able
to offset all of the potential damage award, the voiding of the prior deed and
facts surrounding Carter’s alleged mishandling of the records would have
placed a reasonable person on notice that a potential claim against Carter
existed. The district court did not err in granting summary judgment in favor
of Carter after finding the statute of limitations had expired prior to his
initiation of a malpractice claim against Carter.

                                       III

[¶15] Broten’s complaint included a claim for treble damages under N.D.C.C.
§ 27-13-08 alleging Carter willfully delayed the litigation between Broten and
his sisters. It is unnecessary for this Court to determine if a claim under
N.D.C.C. § 27-13-08 is a separate claim from Broten’s legal malpractice claim
and/or has a separate statute of limitations from his legal malpractice claim.
The motion for summary judgment sought dismissal of the complaint in its
entirety. Broten did not argue in the district court his claim under N.D.C.C. §
27-13-08 is a separate claim from his legal malpractice or has a different
statute of limitations. The judgment entered in the district court provides
finality on all of the claims through a dismissal of Broten’s claims “in their
entirety, with prejudice.” The district court entered a final judgment resolving
all claims and Broten has not appealed the dismissal of his claim under
N.D.C.C. § 27-13-08.




                                       6
                                       IV

[¶16] Broten also challenges the district court’s award of costs and expenses.
The costs and expenses challenged by Broten relate to two experts hired on
behalf of Carter to defend against the merits of the malpractice claim. The
experts were unnecessary for the resolution of the motion for summary
judgment or for determination of whether the statute of limitations expired
before Broten initiated his claim.

[¶17] The district court’s scheduling order established the following deadlines:
discovery was to be completed by February 1, 2018; Broten was required to
disclose expert witnesses no later than March 30, 2018; Carter was required to
disclose all expert witnesses no later than April 30, 2018; and the final day to
move for summary judgment was May 31, 2018. By March 30, 2018, Broten
had retained and disclosed an expert witness whose opinion was Carter
committed malpractice. Carter hired and disclosed his expert witnesses by the
April 30, 2018, deadline. On May 31, 2018, Carter moved for summary
judgment. Carter argues he was compelled to hire expert witnesses to rebut
anticipated testimony of Broten’s expert, and until the summary judgment
motion had been resolved, it was reasonable to continue to prepare for a
potential trial on the merits.

[¶18] Under N.D.C.C. § 28-26-06(5), the district court has discretion to award
expert witness fees that are reasonable plus actual expenses. N.D.C.C. § 28-
26-06(5). “The allowance of disbursements under the statutes lies within the
discretion of the [district] court, which is in a better position to determine the
reasonableness and necessity of the disbursements sought by the prevailing
party, and the [district] court’s decision will be overturned only if an abuse of
discretion is shown.” Richter v. Jones, 378 N.W.2d 209, 213 (N.D. 1985). A
district court abuses its discretion when it acts in an arbitrary, unreasonable,
or unconscionable manner, when its decision is not the product of a rational
mental process leading to a reasoned determination, or when it misapplies or
misinterprets the law. Haider v. Moen, 2018 ND 174, ¶ 6, 914 N.W.2d 520.




                                        7
[¶19] The district court awarded costs for Carter’s two experts after finding
one of the experts had reviewed numerous documents, attended meetings,
prepared an expert report, and provided a deposition. The district court
concluded the second expert had reviewed the pleadings in both this case and
the underlying matter, reviewed the records that Broten claimed supported his
defense in the underlying matter, reviewed expert reports, attended meetings,
and prepared an expert report. The district court concluded that although the
experts were not used within the motion for summary judgment, because the
experts would have been necessary for trial, the fees were reasonable.

[¶20] This Court has upheld a district court’s award of a fee for a non-testifying
witness, finding no abuse of discretion. See, e.g., Pratt v. Heartview
Foundation, 512 N.W.2d 675, 679 (N.D. 1994); Wastvedt v. Vaaler, 430 N.W.2d
561, 568-69 (N.D. 1988); Keller v. Vermeer Mfg. Co., 360 N.W.2d 502, 507-08
(N.D. 1984). In Pratt, we recognized that N.D.C.C. § 28-26-06(5) does not
require “an expert witness actually testify before the [district] court may
include her fee in a party's costs and disbursements . . . such a construction
would be contrary to the judicial policy of encouraging settlements and speedy
resolution of disputes.” 512 N.W.2d at 679.

[¶21] This Court has also upheld a district court’s denial of a recovery of
expenses for a non-testifying witness, finding no abuse of discretion. “It is
likewise not an abuse of discretion for the district court to decline such an
award.” N.D. DOT v. Schmitz, 2018 ND 113, ¶ 12, 910 N.W.2d 874 (citing
United Dev. Corp. v. State Highway Dep’t, 133 N.W.2d 439, 444 (N.D. 1965)
(“The [district] court may exercise its discretion as to the number of witnesses
for which a prevailing party may tax costs.”)). A district court has “sole
discretion” over “[t]he number of expert witnesses who are allowed fees or
expenses.” N.D.C.C. § 28-26-06(5).

[¶22] Here, Carter followed the district court’s scheduling order which
required the completion of fact discovery and the disclosure of expert witnesses
prior to the summary judgment motion deadline. The district court made
specific findings regarding the work performed by the experts, concluded the
experts would have been necessary for a trial on the merits, and concluded the
                                        8
fees were reasonable. Under the facts of this case, the district court did not act
in an arbitrary, unreasonable, or unconscionable manner; its decision was the
product of a rational mental process leading to a reasoned determination; and
it did not misapply or misinterpret the law. We conclude the district court did
not abuse its discretion in awarding the recovery of expenses associated with
the experts who did not testify.

                                        V

[¶23] The district court did not err in granting summary judgment in favor of
Carter after finding the statute of limitations had expired prior to his initiation
of a malpractice claim against Carter. The district court did not abuse its
discretion in awarding the recovery of expenses associated with the experts
who did not testify. We affirm.

[¶24] Jon J. Jensen
      Jerod E. Tufte
      Carol Ronning Kapsner, S.J.
      Gerald W. VandeWalle, C.J.




[¶25] The Honorable Carol R. Kapsner, Surrogate Judge, sitting in place of
McEvers, J., disqualified.


                                        9
Crothers, Justice, dissenting.

[¶26] I respectfully dissent because the face of this record shows Broten’s claim
under N.D.C.C. § 27-13-08 has not been adjudicated. Without adjudication of
all claims, this Court lacks appellate jurisdiction absent certification under
N.D.R.Civ.P. 54(b).

[¶27] Neither party raised the issue of appealability; however, this Court
considers the matter sua sponte. Ceartin v. Ochs, 479 N.W.2d 863, 864 (N.D.
1992). We use a two-step analysis to determine whether this Court has
jurisdiction over appeals from orders in cases with unadjudicated claims. Id.
First, the order must satisfy one of the bases for appeal in N.D.C.C. § 28-27-
02. Id. Second, the case must comply with N.D.R.Civ.P. 54(b). Id.

[¶28] Section 28-27-02, N.D.C.C., addresses what orders are reviewable, and
provides:

      The following orders when made by the court may be carried to the
      supreme court:
      1. An order affecting a substantial right made in any action, when
      such order in effect determines the action and prevents a judgment
      from which an appeal might be taken;
      2. A final order affecting a substantial right made in special
      proceedings or upon a summary application in an action after
      judgment;
      3. An order which grants, refuses, continues, or modifies a
      provisional remedy, or grants, refuses, modifies, or dissolves an
      injunction or refuses to modify or dissolve an injunction, whether
      such injunction was issued in an action or special proceeding or
      pursuant to the provisions of section 35-22-04, or which sets aside
      or dismisses a writ of attachment for irregularity;
      4. An order which grants or refuses a new trial or which sustains
      a demurrer;
      5. An order which involves the merits of an action or some part
      thereof;
      6. An order for judgment on application therefor on account of the
      frivolousness of a demurrer, answer, or reply; or
      7. An order made by the district court or judge thereof without
      notice is not appealable, but an order made by the district court
                                       10



                                                             Filed by Clerk of the Supreme Court 11/21/19
      after a hearing is had upon notice which vacates or refuses to set
      aside an order previously made without notice may be appealed to
      the supreme court when by the provisions of this chapter an appeal
      might have been taken from such order so made without notice,
      had the same been made upon notice.

Dismissal of Broten’s legal malpractice claim is “An order which involves the
merits of an action or some part thereof.” N.D.C.C. § 28-27-02(5). But, as noted,
the appellant must satisfy both the statutory requirement and Civil Rule 54(b)
prior to an effective appeal.

[¶29] Rule 54(b) provides:

      If an action presents more than one claim for relief, whether as a
      claim, counterclaim, crossclaim, or third-party claim, or if multiple
      parties are involved, the court may direct entry of a final judgment
      as to one or more, but fewer than all, claims or parties only if the
      court expressly determines that there is no just reason for delay.
      Otherwise, any order or other decision, however designated, that
      adjudicates fewer than all the claims or the rights and liabilities of
      fewer than all the parties does not end the action as to any of the
      claims or parties and may be revised at any time before the entry
      of a judgment adjudicating all the claims and all the parties’ rights
      and liabilities.

[¶30] Without certification under Rule 54(b), “A party seeking to appeal must
wait until the end of the case, when all claims have been resolved and final
judgment has been entered, before filing an appeal.” N.D.R.Civ.P. 54(b),
explanatory note. Certification under Rule 54(b) is reserved for the “infrequent
harsh case” where failure to allow immediate appeal creates a demonstrated
prejudice or hardship. Greer v. Global Industries, Inc., 2018 ND 206, ¶ 12, 917
N.W.2d 1. Rule 54(b) certifications should not be entered routinely as a
courtesy or accommodation to counsel. Peterson v. Zerr, 443 N.W.2d 293, 297
(N.D. 1989). “More is required to justify a Rule 54(b) certification than a mere
recitation of generic circumstances applicable to every attempted appeal from
an otherwise interlocutory judgment.” Club Broadway, Inc. v. Broadway Park,
443 N.W.2d 919, 921 (N.D. 1989). Rule 54(b) certification requires a showing


                                       11
of out-of-the-ordinary circumstances or a cognizable, unusual hardship to the
litigants if the appeal is deferred. Peterson, at 299.1

[¶31] Here, Broten sued Carter and his law firm for “COUNT I:
MALPRACTICE,” “COUNT II: VIOLATION OF NDCC § 27-13-08,” and
“COUNT III: PARTNERSHIP LIABILITY & RESPONDEAT SUPERIOR.”
Count III is derivative of Count I, but Counts I and II may or may not stand
alone, as acknowledged by the district court.

[¶32] Carter moved for summary judgment seeking an order “dismissing the
Complaint in its entirety with prejudice.” However, Carter’s briefing was not
so sweeping. His brief in support of summary judgment stated:

       Plaintiff’s Complaint should be dismissed in its entirety as
       Plaintiff’s claims are barred by the statute of limitations;
       Plaintiff’s damages are the direct result of Plaintiff’s own conduct;
       and because there are no genuine issue[s] of material fact which
       precludes [SIC] summary judgment in favor of Defendants.

Carter’s 24-page brief to the district court contains 16 pages of facts. The
remaining pages of his legal arguments contain captions “Summary Judgment
Standard,” “The Statute of Limitations Bars James’s Legal Malpractice Action
Against the Defendants,” and “Summary Judgment is Appropriate as Matter
of Law as James Cannot Establish a Genuine Issue of Material Fact
Concerning his Claim for Malpractice.” The brief does not mention Count II,
N.D.C.C. § 27-13-05, or treble damages.

[¶33] Broten’s brief resisting Carter’s summary judgment motion is 20 pages
long and contains nearly 8 pages of facts. In the remaining pages, Broten’s
legal arguments are captioned “Summary Judgment Standard,” “Broten’s
claim against Carter is within the statute of limitations,” “Carter’s conflict with
the underlying case brought by Broten’s sisters,” and “Broten has presented



1 I do not believe this is the “infrequent harsh case” which would have permitted district court
certification under Rule 54(b). Rather, this case would not be appealable until all issues are resolved
in the district court.

                                                 12



                                                                              Filed by Clerk of the Supreme Court 11/21/19
facts to show he would have succeeded on the case-within-a-case analysis.”
Like his litigation opponent, Broten’s brief does not mention Count II, N.D.C.C.
§ 27-13-05, or treble damages.

[¶34] The lack of adjudication is unexplained, but the issue was addressed at
the summary judgment hearing. The judge inquired about Count II with
counsel for the moving party as follows:

      THE COURT: Last question for you and I think I know the answer,
      but in addition to a regular legal malpractice claim, they’re also
      seeking treble damages for delay under 27-13-08, and that
      statutory language says—I’ll leave out the stuff that doesn’t apply
      to this case—every attorney who willfully delays the attorney’s
      client’s suit with a view towards the attorney’s own gain, forfeits
      to the party injured treble damages to be recovered in a civil action.
      The question I have is simply, is it your position that any award
      under that statute would be encompassed within the two-year
      statute of limitations for legal malpractice or is there a separate—
      MR. McLEAN: No. It’s—absolutely. And they don’t even have any
      evidence they ever paid any attorney’s fees.
      THE COURT: So—yeah. I just want to get parties’ positions.

[¶35] The court also inquired of plaintiff’s counsel as follows:

      THE COURT: Okay. Then I think I’ve got the dispute between the
      two of you.
            On that 27-13-08 treble damages, is your position that it has
      the same statute of limitations as the underlying legal malpractice
      claim or do you think there’s a separate, different statute of
      limitations that applies to that?
      MR. GROSSMAN: They’ve tracked together and it’s our position,
      and I don’t know that it’s a two-year or three-year statute of
      limitations on that, I apologize, but it would be the same general
      statute of limitations that would begin to run in January of 2014
      when that order came out.
      THE COURT: Well, you know, obviously, if there’s a three-year
      statute of limitations, it’s a different kettle of fish because you filed
      in 2016, so we have to go back to 2013. So I’ll look at that. I was
      just wondering what your position was because neither party had

                                         13
      addressed it. I assume they didn’t address it because they simply
      assumed it was the same statute of limitations that this language
      awarding treble damages in this situation because of the reference
      back to “recovered in a civil action” means you have to go back to
      the civil action to determine the statute of limitations, and this is
      just a damage issue. But I just wanted your positions on that, so.

(Emphasis added).

[¶36] The judge was correct that neither party addressed the treble damage
claim. But, notwithstanding the court’s inquiry with both counsel, the district
court did not rule whether a two or three year statute of limitations applied to
Count II. Nor did the judge determine whether the claim under N.D.C.C. § 27-
13-08 is an independent claim for relief or only a measure of damages available
in a legal malpractice claim. Rather, the district court granted that part of
Carter’s motion for summary judgment based on the statute of limitations, and
denied that part of Carter’s motion based on the case-within-a-case analysis.

[¶37] The district court’s order only addressed the issues presented in the
briefing, and did not cite or mention Count II, N.D.C.C. § 27-13-05, or treble
damages. In the end, the district court held “Based on the foregoing, IT IS
HEREBY ORDERED that the Defendant’s Motion for Summary Judgment is
GRANTED as the Plaintiff’s claim is barred by the relevant statute of
limitations.”

[¶38] The majority opinion at paragraph 15 addresses this issue as follows:

      Broten’s complaint included a claim for treble damages under
      N.D.C.C. § 27-13-08 alleging Carter willfully delayed the litigation
      between Broten and his sisters. It is unnecessary for this Court to
      determine if a claim under N.D.C.C. § 27-13-08 is a separate claim
      from Broten’s legal malpractice claim and/or has a separate
      statute of limitations from his legal malpractice claim. The motion
      for summary judgment sought dismissal of the complaint in its
      entirety. Broten did not argue in the district court his claim under
      N.D.C.C. § 27-13-08 is a separate claim from his legal malpractice
      or has a different statute of limitations. The judgment entered in
      the district court provides finality on all of the claims through a

                                       14
      dismissal of Broten’s claims “in their entirety, with prejudice.” The
      district court entered a final judgment resolving all claims and
      Broten has not appealed the dismissal of his claim under N.D.C.C.
      § 27-13-08.

[¶39] The bulk of the majority’s holding is centered on the district court’s
dismissal of the Complaint without mentioning Count II of the Complaint,
N.D.C.C. § 27-13-08, or treble damages. Regarding the majority’s second
sentence, I agree we should not independently “determine if a claim under
N.D.C.C. § 27-13-08 is a separate claim from Broten’s legal malpractice claim
and/or has a separate statute of limitations from his legal malpractice claim.”
That work must be done by the district court upon a motion by one or both of
the parties. No motion brought that issue to the district court. The district
court did not address the issue. Nor should we.

[¶40] The majority next holds, “The judgment entered in the district court
provides finality on all of the claims through a dismissal of Broten’s claims ‘in
their entirety, with prejudice.’” I agree the judgment contains those words. But
the briefing and the order contain no such expansive language, nor do they
even mention N.D.C.C. § 27-13-08, treble damages or Count II of the
Complaint. As a result, the breadth of the judgment is not tethered to any other
paper, argument, or ruling in the summary judgment process.

[¶41] The majority also holds, “The district court entered a final judgment
resolving all claims and Broten has not appealed the dismissal of his claim
under N.D.C.C. § 27-13-08.” As explained above, I do not agree the district
court resolved all claims. It has omitted adjudication of Complaint “Count II:
Violation of NDCC § 27-13-08.” Regarding the majority’s statement, “Broten
has not appealed the dismissal of his claim under N.D.C.C. § 27-13-08.” I agree.
The treble damage claim has not been appealed because it has not been
adjudicated. This lack of adjudication leaves the issue pending, and is precisely
why this Court does not have jurisdiction over this appeal.

[¶42] I would dismiss the appeal for lack of jurisdiction. So this case is not
caught in legal limbo, upon dismissal of the appeal I also would exercise this


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Court’s supervisory jurisdiction and vacate the district court’s judgment so the
statutory claim can be adjudicated.

[¶43]Daniel J. Crothers




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