Investors Title Insurance Co. v. Herzig
2013 ND 133
| N.D. | 2013Background
- Southeastern Shelter obtained a 1989 North Carolina judgment, registered in North Dakota in 1998, for $149,598.13 against David Herzig.
- Alphild Herzig was added as a party in 2004 during efforts to collect the judgment, leading to contempt findings in 2006 and sanctions.
- In June 2006 Southeastern was awarded $5,000 in attorney’s fees; in July 2006 Alphild faced daily sanctions of $1,400 for discovery noncompliance.
- In 2008 Southeastern filed a separate action seeking amounts owed under the 2006 contempt orders; Alphild died in June 2008; the 1998 and 2008 cases were consolidated (Herzig I).
- This Court remanded in Herzig IV to determine what portion of daily sanctions was compensatory under N.D.C.C. § 27-10-01.4(1)(a) and survived Alphild’s death; district court then held only the $5,000 fee survived.
- On remand, the Supreme Court affirmed the district court’s approach but remanded for judgment consistent with its decision, directing entry of judgment in the 2008 case for $5,000 plus interest, with no attorney’s fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the daily sanctions were compensatory, and thus survived Alphild Herzig’s death. | Southeastern contends a portion of daily sanctions was intended to compensate and survive death. | Herzig's estate contends the daily sanctions were coercive and not compensatory. | Yes; the district court correctly determined the surviving compensatory portion. |
| Whether the 2008 case judgment should be entered consistent with the remand order. | Southeastern seeks judgment in the 2008 case based on the remand ruling. | Estate argues to follow the remand limitations and status of the 1998 case findings. | Direct entry of judgment in the 2008 case consistent with the June 2013 Order on Remand. |
| What amount may be recovered in the 1998 case after Alphild’s death and whether fees are recoverable. | Southeastern argues for broader recovery including fees and post-judgment amounts. | Estate argues only the compensatory portion survives and attorney’s fees are not recoverable. | Judgment recovered is $5,000 with interest; no additional attorney’s fees awarded. |
Key Cases Cited
- Carlson v. Workforce Safety & Ins., 2012 ND 203 (ND 2012) (law-of-the-case and mandate considerations for remanded issues)
- Kortum v. Johnson, 2010 ND 153 (ND 2010) (law-of-the-case and mandate principles)
- Burckhard v. State, 1999 ND 64 (ND 1999) (mandate and legal-issue carryover on remand)
- Holkesvig v. Welte, 2012 ND 142 (ND 2012) (public interest in ending litigation; caution about protracted disputes)
- Jensen v. Wrolstad, 526 N.W.2d 113 (ND 1994) (appellate suspension procedure under Rule 2)
- Investors Title Ins. Co. v. Herzig (Herzig IV), 2013 ND 13 (ND 2013) (remand to determine compensatory portion of daily sanctions and survival after death)
- Investors Title Ins. Co. v. Herzig (Herzig I), 2010 ND 138 (ND 2010) (substitution of personal representative; proceedings for judgments on 2006 orders)