Investors Title Insurance Co. v. Herzig
826 N.W.2d 310
| N.D. | 2013Background
- Southeastern appeals a district court order regarding daily sanctions for Alphild Herzig that abated after her death under 2006 contempt orders.
- The sanctions stemmed from 2006 contempt proceedings, including a $5,000 attorney-fee award (compensatory) and a $1,400 per-item daily sanction under a July 7, 2006 Checklist Order.
- Alphild Herzig died on June 5, 2008; later, the district court substituted her estate's personal representative as defendant.
- This Court previously remanded to determine what portion of the daily sanctions was to compensate Southeastern under NDCC § 27-10-01.4(1)(a) and thus survived death.
- On remand, the district court found partial compliance by Alphild, abated the coercive sanctions at death, and held the $5,000 attorney-fee award was compensatory and did not abate.
- Southeastern contends the district court failed to follow the remand directive and to decide the compensation portion of the sanctions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the sanctions portion survive by being compensation? | Southeastern contends a portion constitutes money damages and survives death. | The estate argues sanctions were coercive/forfeiture, not damages, so should abate. | Remand required to determine the compensation portion. |
| Whether the district court complied with the mandate from Herzig I | District court should identify money-damages portion per mandate. | District court followed coercive-nature finding, not requiring further specifics. | Court did not follow remand; must determine compensation portion. |
| Whether the $5,000 attorney-fee award is compensatory and survives death | The fee was compensatory and non-abating. | Not necessary to decide under remand; focus on daily sanctions. | The fee is compensatory and does not abate. |
| Whether the district court properly treated the daily sanctions as coercive/remedial on remand | Sanctions were remedial and the mandate requires apportioning damages. | Sanctions are coercive; abate upon death is appropriate unless damages proven. | District court failed to follow remand; must apportion damages. |
Key Cases Cited
- Investors Title Ins. Co. v. Herzig, 2010 ND 138 (ND 2010) (mandate to determine compensation portion survives death)
- Investors Title Ins. Co. v. Herzig, 2010 ND 169 (ND 2010) (additional discussion of sanctions and remedies)
- Investors Title Ins. Co. v. Herzig, 2011 ND 7 (ND 2011) (continuing treatment of sanctions and substitution issues)
- State v. Burckhard, 1999 ND 64 (ND 1999) (law-of-the-case and mandate-rule principles)