930 N.W.2d 90
N.D.2019Background
- In March 2015 attorney Sara Sorenson recorded an affidavit in Grand Forks County related to a probate matter; Johnston Land Company later alleged it was a nonconsensual common-law lien under N.D.C.C. ch. 35-35.
- In September 2017 Sorenson filed a notice of lis pendens in a separate action and, after this Court’s first appeal, recorded a second affidavit stating the lis pendens superseded the first affidavit.
- Johnston sued seeking (among other relief) a declaratory judgment striking the 2015 affidavit, actual damages (or $1,000 minimum), attorney fees and costs, and other relief; this Court in Sorenson I held the 2015 affidavit was not a nonconsensual common-law lien but remanded for the district court to decide items c–g of Johnston’s petition.
- On remand Sorenson and Ohnstad Twichell moved for summary judgment on items c–g and, for the first time, sought attorney fees under N.D.C.C. § 35-35-05(5) for a prevailing party when a lien is not a nonconsensual common-law lien.
- The district court granted summary judgment dismissing items c–g as moot or unsupported and awarded the defendants $27,386.23 in costs and attorney fees under § 35-35-05(5).
- The Supreme Court affirmed dismissal of Johnston’s remaining claims but reversed the award of fees and costs as violating the mandate rule because the fee request was not made within the scope of the prior appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether items c–g (strike affidavit, damages, fees, other relief) survive remand | Johnston: Remand preserved those claims; the 2nd affidavit is self-serving and does not moot relief | Sorenson: Either prior ruling or the new lis pendens/2nd affidavit renders claims moot; Johnston produced no evidence or legal theory for relief | Affirmed: Summary judgment proper — claims moot or unsupported; no genuine issues of material fact |
| Whether the district court could award attorney fees under N.D.C.C. § 35-35-05(5) after remand | Johnston: Fee award barred by law-of-the-case/mandate rule because prior appeal resolved lien issue and remand limited to items c–g | Sorenson: Prevailing on lien issue entitles them to fees; they requested fees after remand | Reversed: Fee award vacated — request came too late and exceeded the appellate mandate |
Key Cases Cited
- Johnston Land Co., LLC v. Sorenson, 915 N.W.2d 664 (N.D. 2018) (prior appeal: 2015 affidavit not a nonconsensual common-law lien and remand to decide items c–g)
- Becker v. Burleigh County, 924 N.W.2d 393 (N.D. 2019) (summary judgment standard and burdens on opposing party)
- Dahms v. Nodak Mutual Insurance Co., 920 N.W.2d 293 (N.D. 2018) (summary judgment principles)
- Gosbee v. Bendish, 512 N.W.2d 450 (N.D. 1994) (declaratory actions may become moot by events preventing effective relief)
- Viscito v. Christianson, 881 N.W.2d 633 (N.D. 2016) (law-of-the-case and mandate-rule principles)
- Carlson v. Workforce Safety & Insurance, 821 N.W.2d 760 (N.D. 2012) (mandate rule: trial court must follow appellate pronouncements)