960 N.W.2d 811
N.D.2021Background:
- S.M.H., an 84‑year‑old incapacitated person, had Lutheran Social Services (LSS) appointed permanent guardian and conservator in April 2019.
- LSS petitioned to sell S.M.H.’s interest in real property to pay care costs; court conditionally approved sale with family notice and right of first purchase at appraised value.
- K.S., a child of S.M.H., filed an affidavit attaching a purported "Warranty Deed" conveying 90% of S.M.H.’s property to K.S. and granting a right of first refusal; the document lacked S.M.H.’s signature and proper witnessing.
- LSS moved to approve the sale, to strike K.S.’s affidavit as an unauthorized filing, and sought attorney’s fees; K.S. opposed but did not request an evidentiary hearing and later submitted a power‑of‑attorney exhibit in objections.
- The district court approved the sale, found the "Warranty Deed" invalid under N.D.C.C. §§ 47‑10‑01 and 47‑10‑05 (no signature/witness), struck the affidavit, and awarded LSS attorney’s fees; K.S. appealed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appealability / jurisdiction (need for Rule 54(b)) | Order not final; Rule 54(b) certification required for interlocutory relief | Sale‑approval order is a final, appealable order under N.D.C.C. § 28‑27‑02 and no other claims remained | Court has jurisdiction; order was final and Rule 54(b) certification was not required |
| Whether evidentiary hearing was required before ruling on deed validity | K.S. argued issues weren’t properly before court and an evidentiary hearing was required | LSS argued deed issue was raised in its motion and K.S. never timely requested a hearing | No error; validity was placed at issue and K.S. failed to request an evidentiary hearing, so court could decide on briefs |
| Validity of the "Warranty Deed" and right of first refusal | K.S. contended she was S.M.H.’s POA so signature unnecessary or that deed was an unwitnessed contract | LSS argued deed lacked grantor signature and required witnessing under statutes, so it conveyed nothing | Deed invalid: lacked S.M.H.’s signature/authorized agent signature so failed to satisfy N.D.C.C. § 47‑10‑01 (no need to reach witnessing) |
| Striking affidavit and awarding attorney’s fees | K.S. maintained affidavit was proper and not frivolous | LSS argued affidavit was unauthorized, immaterial, scandalous and frivolous, causing unnecessary fees | Court did not abuse discretion: struck affidavit as redundant/impertinent and awarded fees finding the affidavit frivolous and not filed in good faith |
Key Cases Cited
- Wilkinson v. Board of Univ., 2020 ND 179, 947 N.W.2d 910 (the right to appeal is statutory)
- Matter of Estate of Stensland, 1998 ND 37, 574 N.W.2d 203 (two‑step test for appealability and Rule 54(b) compliance)
- Farm Credit Bank of St. Paul v. Rub, 478 N.W.2d 279 (order approving sale of real property is appealable)
- In re Guardianship of R.G., 2016 ND 96, 879 N.W.2d 416 (54(b) unnecessary where order settles existing claims)
- Discover Bank v. Bolinske, 2020 ND 228, 950 N.W.2d 417 (courts may decide routine motions on briefs unless a hearing is timely requested)
- Tornabeni v. Creech, 2018 ND 204, 916 N.W.2d 772 (clearly erroneous standard for findings of fact)
- Orwig v. Orwig, 2021 ND 33, 955 N.W.2d 34 (definition/standard for frivolous claim under fee statutes)
- Johnson v. Menard, Inc., 2021 ND 19, 955 N.W.2d 27 (abuse of discretion review for attorney’s fees)