Emily Cowan, Plaintiff, Appellant, and Cross-Appellee v. Dr. Guy Slann; Williston Foot and Ankle Clinic, a trade name for Accessible Podiatry, P.C.; and Doe and Roe Defendants, Defendants and CHI St. Alexius Health Williston, a trade name for Mercy Medical Center, Defendant, Appellee, and Cross-Appellant
No. 20250367
IN THE SUPREME COURT STATE OF NORTH DAKOTA
2026 ND 131
Appeal from the District Court of Williams County, Northwest Judicial District, the Honorable Kirsten M. Sjue, Judge.
Opinion of the Court by Fair McEvers, Chief Justice.
Nathan D. Severson (argued) and Kylee M. Carlin (appeared), Fargo, ND, for plaintiff, appellant, and cross-appellee.
Tracy V. Kolb (argued), Bismarck, ND, Julia J. Nierengarten (on brief), Minneapolis, MN, and Jessie L. Sogge (on brief) and Steven R. Schwegman (on brief), St. Cloud, MN, for defendant, appellee, and cross-appellant.
Reed Johnson (argued), under the Rule on Limited Practice of Law by Law Students, and Philip J. Axt (appeared), Solicitor General, Bismarck, ND, for amicus curiae State of North Dakota.
[¶1] Emily Cowan appeals and CHI St. Alexius Health Williston, a trade name for Mercy Medical Center, (“CHI”) “conditionally” cross-appeals from an amended judgment entered after a jury returned a verdict for Cowan on her medical malpractice claim against CHI, awarding her economic and noneconomic damages. Applying
[¶2] We conclude Cowan accepted substantial benefits under the amended judgment, thereby waiving her right to appeal, when she accepted and acknowledged receiving full payment of the entire amended judgment and filed a noncompliant satisfaction, without reserving any issue and without expressly preserving her right to appeal. Based on this conclusion, we need not address CHI’s “conditional” cross-appeal. We accordingly dismiss both Cowan’s appeal and CHI’s cross-appeal.
I
[¶3] In August 2020, Cowan commenced this medical malpractice action against the defendants. Cowan’s claims arose out of an August 2018 surgery, alleging defendants were negligent when Dr. Slann performed surgery on Cowan’s uninjured right foot, rather than on her injured left foot. Dr. Slann settled Cowan’s claims against him before trial and was dismissed with prejudice. The case against CHI proceeded to a jury trial.
[¶5] After a hearing, the district court entered an order concluding the noneconomic damages cap in
[¶6] On May 22, 2025, the district court entered judgment. On August 18, 2025, the district court entered an order granting Cowan’s motion for relief from judgment under
[¶7] Rather than appeal, CHI opted to pay the amended judgment and additional post-judgment interest. Cowan accepted CHI’s payments and filed a
The undersigned, [Cowan’s attorney], hereby acknowledges that full payment has been received in satisfaction of the Amended Judgment entered by the Court on August 18, 2025 (Index #447). Specifically:
1. A payment in the amount of $2,299,512.61, representing the judgment amount as reflected in the Amended Judgment (exclusive of post-judgment interest), was received on September 9, 2025.
2. A payment in the amount of $76,230.42, representing post-judgment interest accrued from May 22, 2025, through September 9, 2025, was received on the morning of September 10, 2025.
Accordingly, the undersigned certifies that the Amended Judgment has been fully satisfied.
[¶8] Although Cowan’s attorney signed the filed satisfaction of amended judgment, it is undisputed that the filed satisfaction was not acknowledged in the manner required under
[¶9] On October 15, 2025, Cowan filed her notice of appeal. On October 29, 2025, this Court requested the parties submit responses addressing appealability, specifically mootness, in light of the satisfaction of amended judgment filed in the district court. CHI also filed a notice of “conditional” cross-appeal, conditioned on this Court’s jurisdictional determination.
[¶10] On November 12, 2025, Cowan and CHI filed their responses with this Court regarding appealability. CHI also supplemented the record with email communications between attorneys for Cowan and CHI regarding the payments and the noncompliant satisfaction of the amended judgment, also including two
II
[¶11] At the outset, we must first decide whether we have jurisdiction of the appeal before considering the appeal’s merits, and “we will dismiss an attempted appeal that fails for lack of jurisdiction.” Stegman, 2002 ND 113, ¶ 6. CHI argues this Court should conclude that, although the satisfaction of amended judgment Cowan filed contained a defect, Cowan voluntarily waived her right to appeal when she accepted full payment of the amended judgment and filed the satisfaction. Cowan contends this Court has jurisdiction.
A
[¶12] We have explained that a party who voluntarily pays or satisfies a judgment generally waives the right to appeal from that judgment. See In re Rose Henderson Peterson Min. Tr., 2022 ND 92, ¶ 8, 974 N.W.2d 372; Schwab v. Zajac, 2012 ND 239, ¶ 8, 823 N.W.2d 737; Ramsey Fin. Corp. v. Haugland, 2006 ND 167, ¶ 9, 719 N.W.2d 346; Mr. G’s Turtle Mountain Lodge, Inc. v. Roland Twp., 2002 ND 140, ¶ 9, 651 N.W.2d 625; Lyon v. Ford Motor Co., 2000 ND 12, ¶ 7, 604 N.W.2d 453. “A satisfaction of judgment on the record extinguishes the claim, and the controversy is deemed ended, leaving an appellate court with nothing to review.” Stegman, 2002 ND 113, ¶ 7; see also Lyon, ¶ 10. “An appellate court is without jurisdiction if there is no actual and justiciable controversy.” Stegman, ¶ 7. “[A]n attempted appeal from a judgment that has been satisfied of record fails for lack of jurisdiction.” Id. “[V]oluntary acquiescence in a judgment also constitutes a waiver of the right to appeal, and formal execution of a satisfaction of judgment is not a prerequisite for this principle to apply.” Ramsey Fin. Corp., ¶ 9 (citation omitted); see also Schwab, ¶ 8.
[¶13] We have held payment of, or acquiescence in, a judgment under coercion or duress is not a waiver of the right to appeal. Schwab, 2012 ND 239, ¶ 8; Lyon, 2000 ND 12, ¶ 14. We have further held that “[s]atisfaction of an independent
[¶14] As a variation on this principle, this Court has also explained that, as a general rule, a party who voluntarily accepts substantial benefits under a judgment waives the right to appeal from the judgment. Bangen v. Bartelson, 553 N.W.2d 754, 757-58 (N.D. 1996); Sulsky v. Horob, 357 N.W.2d 243, 245-46 (N.D. 1984); see also Stegman, 2002 ND 113, ¶ 10 n.3; Lyon, 2000 ND 12, ¶ 7 n.1. However, “[n]ot every acceptance of a benefit from a judgment precludes the right to appeal.” Rose Henderson Peterson, 2022 ND 92, ¶ 9. “There is no waiver when ‘the parts of the order or judgment are separate and independent and the receipt of a benefit from one part is not inconsistent with an appeal from another. . . . [A]ppellate review survives the acceptance of a benefit which is not placed in jeopardy by the review sought.’” Id. (quoting Bangen, at 757); see also Brunswick Corp. v. Haerter, 182 N.W.2d 852, 859 (N.D. 1971). “In a similar vein, this [C]ourt has declined to dismiss an appeal where the appellant’s right to the benefit was not disputed by the appellee’s filing of a cross-appeal to contest the benefit.” Bangen, at 757. We have further summarized the exceptions to this general rule:
“An acceptance of substantial benefits under a judgment does not waive the right to appeal from that judgment if (1) the benefits were fixed by consent, are undisputed, or could not be changed or reversed by the appeal [see Brunswick Corporation v. Haerter, 182 N.W.2d 852, 859 (N.D. 1971); Boyle v. Boyle, 19 N.D. 522, 126 N.W. 229, 230 (1910); Tyler v. Shea, [61 N.W. 468, 469 (N.D. 1894)]]; (2) the acceptance of the benefit was conditional, involuntary, or
unconscious [see Nastrom v. Nastrom, 276 N.W.2d 130, 131 (N.D. 1979); Grant v. Grant, 226 N.W.2d 358, 361 (N.D. 1975)].”
Sulsky, at 246 (quoting Piper v. Piper, 234 N.W.2d 621, 622 (N.D. 1975)).
[¶15] In Lyon, this Court explained that “[e]ven though the acceptance-of-benefits rule of waiver is conceptually related to the voluntary-payment-or-satisfaction-of-judgment rule of waiver, we have sharply limited the acceptance-of-benefits rule to promote a strong policy in favor of reaching the merits, particularly in domestic relations appeals.” 2000 ND 12, ¶ 7 n.1 (citing Wetzel v. Wetzel, 1999 ND 29, ¶ 5, 589 N.W.2d 889; Bangen, 553 N.W.2d at 757; Sulsky, 357 N.W.2d at 245). We said “[t]he limited application of the acceptance-of-benefits rule is justified in divorce cases because it is unreasonable for an appellant to have to choose between economic adversity and the right to appeal.” Id. (citing Spooner v. Spooner, 471 N.W.2d 487, 489-90 (N.D. 1991)). We further wrote, however, that “[b]ecause of the obvious dissimilarity between satisfying a judgment in total and merely accepting some benefit of a multifaceted divorce judgment, and because of the absence of the policy considerations present in divorce cases, we find the acceptance-of-benefits cases unhelpful in resolving the issue in this case.” Id.
[¶16] In Fercho v. Fercho, we acknowledged that this “general rule,” at least in divorce cases, had “effectively been swallowed by its exceptions, leaving few if any circumstances in which the movant could show the appellant accepted the benefits of judgment and waived his right to appeal.” 2022 ND 214, ¶ 10, 982 N.W.2d 540. We agreed these exceptions promoted “our strong policy in favor of reaching” an appeal’s merits in a divorce action and, therefore, concluded “that a party to a divorce action who accepts benefits pursuant to a divorce judgment does not waive the right to appeal from the judgment,” overruling prior cases to the contrary. Id. We further held, however, that our decision in Fercho “has no application to non-divorce cases, or any other rule outside of the divorce context, such as waiver by voluntary payment or satisfaction of judgment.” Id. (citing Lyon, 2000 ND 12, ¶ 7 (collecting cases)).
B
[¶18] CHI argues that Cowan’s conduct before filing her notice of appeal was consistent with a prevailing party who intended to accept full satisfaction of the amended judgment and waive her right to appeal. CHI argues that this Court should not allow Cowan to exploit a procedural loophole she created and has refused to close by executing a proper satisfaction. CHI contends Cowan received the amended judgment’s full amount plus interest, she waived her right to appeal, and this Court should decline jurisdiction.
[¶19] While CHI concedes it voluntarily paid the amended judgment in full with interest intending not to appeal, CHI argues its “conditional” cross-appeal puts Cowan “at risk of receiving a less favorable judgment,” thereby cutting off her right to appeal. CHI contends that if this Court considers the constitutionality of the statutory cap, it should also consider CHI’s issue that the district court erred in allocating 100% of the capped noneconomic damages to CHI, rather than apportioning the cap based on the jury’s fault determinations.
[¶20] Cowan, however, asserts CHI’s supplemental record confirms that neither party understood payment of the amended judgment constituted a waiver of her appeal rights. She contends it was never her counsel’s intention “in filing the satisfaction of amended judgment to acknowledge through a formal filing that the entire case was adjudicated and over.” Cowan argues CHI’s conduct proves it understood payment and waiver are separate things, Cowan made her intent to appeal known before CHI paid, and her appeal can only increase the judgment and cannot reduce what she already received. In support of her argument, Cowan relies on Tyler v. Shea, 4 N.D. 377, 61 N.W. 468, 469 (1894), arguing an exception exists to the general rule—”that one cannot accept or secure a benefit under a judgment, and then appeal from it, when the effect of his appeal may be to annul the judgment, unless his right to the benefit is absolute, and cannot
[¶21] Rather than recognizing the validity and propriety of the amended judgment, Cowan contends that she never recognized the validity of the statutory cap on noneconomic damages, she accepted undisputed amounts, and she always disputed the district court’s $1,034,000 reduction of the jury’s noneconomic damages award. She further argues there was no “implied waiver” of her right to appeal based on the parties’ conduct, as documented in CHI’s supplemental exhibits, and CHI cannot manufacture a jurisdictional bar by filing its own “conditional” cross-appeal. She argues the filed satisfaction is not a “satisfaction of record” that would divest this Court of jurisdiction.
[¶22] Here, the satisfaction of amended judgment—that Cowan’s counsel prepared, signed, and filed—clearly states Cowan received “full payment” and “the undersigned certifies that the Amended Judgment has been fully satisfied.” Nevertheless, the rule in Lyon, holding a satisfied judgment extinguishes the claim and ceases to exist, does not apply here because the filed satisfaction does not meet the requirements of
[¶23] We have previously held that whether payment of a judgment was voluntary depends on the facts and circumstances of the case, and the party seeking dismissal bears the burden to show the judgment was voluntarily paid. Schwab, 2012 ND 239, ¶ 8. As discussed, the record contains two acknowledgments of funds, signed by Cowan’s attorney, for CHI’s payments to Cowan. Cowan’s attorney also signed and filed the noncompliant satisfaction of
[¶24] Moreover, the amended judgment does not contain “separate and independent” parts with respect to the economic and noneconomic damages awarded to Cowan. See Rose Henderson Peterson, 2022 ND 92, ¶ 9. The amended judgment generally grants Cowan judgment against CHI “in the amount of $1,963,578.31 in damages” without specifically separating out economic and noneconomic damages, although the judgment does separately state the awards of pre-verdict and post-verdict interest and additional costs and disbursements. While Cowan also appealed from the district court’s order reducing the damage award and argues her appeal would only increase the amount of the judgment, to grant the relief Cowan requests on appeal, this Court would be required to reverse the entire amended judgment on grounds the district court erred by applying the statutory cap on noneconomic damages. In accepting “full payment” of the amended judgment, without indicating it was a partial satisfaction or reserving any part of the amended judgment or order for appeal, Cowan acquiesced in the district court’s application of the statutory cap for noneconomic damages and its calculation of the total award of $2,299,512.61. Unlike the exception to the general rule noted in Tyler v. Shea, here the benefits Cowan accepted could potentially be reduced by the disputed issues of CHI’s cross-appeal. On this record, therefore, we conclude Cowan accepted substantial benefits under the amended judgment, thereby waiving her right to appeal from the judgment. In so concluding, to avoid confusion on what issues may be appealable, we also adopt a bright-line rule that in non-divorce cases, a party’s
[¶25] Based on our analysis above, it is unnecessary to address CHI’s “conditional” cross-appeal.
[¶26] We conclude Cowan accepted substantial benefits under the amended judgment, thereby waiving her right to appeal, when she accepted and acknowledged receiving full payment of the entire amended judgment and filed a noncompliant satisfaction, without reserving any issue and without expressly preserving her right to appeal.
III
[¶27] We dismiss Cowan’s appeal and CHI’s “conditional” cross-appeal.
[¶28] Lisa Fair McEvers, C.J.
Jerod E. Tufte
Jon J. Jensen
Douglas A. Bahr
Mark A. Friese