Poitra v. State
2013 ND 5
| N.D. | 2013Background
- Southeastern Shelter Corp obtained a 1989 NC judgment against David F. Herzig; the judgment was transcribed and renewed in North Dakota under the Uniform Enforcement of Foreign Judgments Act.
- Alphild Herzig (David’s mother) was joined as a party in 2004; in 2006 the district court imposed discovery sanctions against her, including a $5,000 attorney-fee award and daily sanctions under a July 7, 2006 Checklist Order totaling $1,400 per item not produced.
- Alphild Herzig died on June 5, 2008; after her death the parties sought substitution of the personal representative in both cases.
- The court substituted the personal representative as a defendant; this Court affirmed substitution and remanded to determine the remedial sanction amount to compensate Southeastern under NDCC 27-10-01.4(1)(a).
- On remand, the district court found Alphild complied somewhat with discovery, abated the daily sanctions at death, but held the $5,000 attorney-fee award compensatory and non-abating; Southeastern challenged the court’s failure to decide what portion of the daily sanctions compensated Southeastern.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What portion of daily sanctions compensated Southeastern? | Southeastern contends some daily sanctions were money damages for Southeastern’s benefit. | Herzig's estate argues sanctions were coercive/remedial and mainly not compensatory. | Remand to determine the compensatory portion under §27-10-01.4(1)(a). |
| Did the district court follow the mandate from Herzig I on remand? | Court failed to identify what portion of daily sanctions survived Alphild’s death. | Court acted within remand scope by acknowledging coercive nature and abatement. | No; it did not carry out the mandate and must determine survivable compensatory portion. |
| Are the $5,000 attorney-fee sanctions compensatory and non-abating? | Attorney-fee award is compensatory and does not abate at death. | Attorneys’ fees are not the same as the daily sanctions and may abate differently. | Remains compensatory and non-abating per Herzig I. |
| Whether the daily sanctions were money damages or forfeiture affecting survivability upon death? | Sanctions may constitute money damages to Southeastern. | Sanctions were coercive/remedial and not clearly damages. | District court must determine the nature to decide survivability. |
Key Cases Cited
- Investors Title Ins. Co. v. Herzig, 2010 ND 169 (N.D. 2010) (addressed post-remand remedial vs. compensatory sanctions)
- Herzig I, 2010 ND 138 (N.D. 2010) (mandated determination of compensable portion and survivability of sanctions)
- Herzig II, 2010 ND 169 (N.D. 2010) (continued discussion of sanctions and enforcement)
- Herzig III, 2011 ND 7 (N.D. 2011) (further implications of sanctions and remedial vs. damages)
- Burckhard v. City of Williston, 1999 ND 64 (N.D. 1999) (law-of-the-case and mandate rule principles)