Conrad v. Wilkinson
901 N.W.2d 348
N.D.2017Background
- In 2010 Wilkinson sued Ervin Lee in tribal court (Three Affiliated Tribes) alleging breach of a settlement agreement and fiduciary duty and seeking money damages and divestiture of interests.
- On December 17, 2010 Wilkinson recorded a notice of lis pendens in Ward County, describing Minot real property owned (in part) by Kari Conrad.
- Conrad (owner of the Minot property) applied in Ward County district court in 2016 to cancel the lis pendens, arguing Wilkinson’s tribal action sought only money and did not affect title.
- The district court dismissed Conrad’s petition without prejudice, concluding only the court where the action was commenced (the tribal court) could cancel under N.D.C.C. § 28-05-08 and that a lis pendens from tribal court was not prohibited.
- Conrad appealed. The Supreme Court considered whether Wilkinson’s underlying tribal action "affect[ed] the title to real property" under N.D.C.C. § 28-05-07 and whether the recorded lis pendens was subject to cancellation.
Issues
| Issue | Plaintiff's Argument (Conrad) | Defendant's Argument (Wilkinson) | Held |
|---|---|---|---|
| Whether the tribal-court action authorizes a lis pendens on the Minot property under N.D.C.C. § 28-05-07 | Wilkinson’s tribal suit does not affect title; lis pendens statute requires an action affecting title (and 60-day filing/practice requirements) | Lis pendens complied with filing requirements; court should defer to tribal adjudication (comity) | Held: the tribal action seeks money only and does not affect title; lis pendens was not authorized and was improperly recorded |
| Whether the district court’s dismissal without prejudice was appealable | Dismissal effectively foreclosed state-court relief; appealable | Dismissal without prejudice is ordinarily not appealable; court should await tribal resolution | Held: dismissal effectively terminated Conrad’s chosen state forum and was appealable |
| Whether cancellation must be ordered by the court in which the action was commenced (so Conrad must proceed in tribal court) | N.D.C.C. § 28-05-08 applies to courts where the action was commenced only if lis pendens was lawful; where lis pendens is invalid, other remedies apply | District court was correct to defer to the tribal forum | Held: because lis pendens was invalid (not affecting title), Conrad may instead obtain cancellation under N.D.C.C. § 32-04-24 via state court order directing recorder to cancel |
Key Cases Cited
- Investors Title Ins. Co. v. Herzig, 788 N.W.2d 312 (N.D. 2010) (a lis pendens cannot be predicated on an action seeking solely a money judgment)
- Jordan v. Donovan, 172 N.W. 838 (N.D. 1919) (action for money only does not authorize filing notice of lis pendens)
- The Formula, Inc. v. Superior Court, 86 Cal.Rptr.3d 341 (Cal. Ct. App. 2008) (statutory lis pendens construed not to reach out-of-state litigation; improperly recorded lis pendens subject to cancellation)
- Boca Petroco, Inc. v. Petroleum Realty II, LLC, 678 S.E.2d 330 (Ga. 2009) (discusses split of authority on extraterritorial application of lis pendens statutes)
- Ward v. Superior Court, 63 Cal.Rptr.2d 731 (Cal. Ct. App. 1997) (court ordered cancellation of a recorded instrument that had no authority to be recorded)
Decision: Reversed and remanded with directions that the district court order the Ward County recorder to cancel the lis pendens under N.D.C.C. § 32-04-24.