DCI Credit Services, Inc., Plaintiff and Appellant v. Nicholas Plemper, Defendant and Appellee
No. 20210183
IN THE SUPREME COURT STATE OF NORTH DAKOTA
NOVEMBER 26, 2021
2021 ND 215
Appeal from the District Court of McKenzie County, Northwest Judicial District, the Honorable Daniel S. El-Dweek, Judge.
AFFIRMED IN PART AND REVERSED IN PART.
Opinion of the Court by VandeWalle, Justice.
Elise A. Fischer (argued) and Theresa L. Kellington (on brief), Bismarck, ND, for plaintiff and appellant.
Ariston E. Johnson, Watford City, ND, for defendant and appellee.
DCI Credit Services v. Plemper
No. 20210183
[¶1] DCI Credit Services, Inc. (“DCI“) appealed from a district court‘s order denying its request to vacate the order granting summary judgment under
I
[¶2] DCI commenced this action in May 2020. DCI alleged Plemper owed $4,321.00 to Bakken Property Management for goods and/or services and that the claim had been assigned to DCI for good consideration. In September 2020, the district court granted DCI‘s motion for default judgment. The court entered its findings of fact, conclusions of law and order for judgment and judgment by default in the amount of $4,397.50.
[¶3] In October 2020, the district court granted Plemper‘s motion for relief from judgment. DCI did not file a response to Plemper‘s motion. In November 2020, Plemper moved for summary judgment. Plemper also requested the court find DCI‘s claim frivolous under
[¶4] Daniel Oster, attorney for DCI, was seriously ill for about six months before he passed away on January 11, 2021. In February 2021, DCI filed a motion to vacate the order granting Plemper‘s motion for summary judgment. In its brief in support of its motion, DCI requested relief under
II
[¶5] DCI argues the district court erred in denying its request for relief because Oster kept his illness a secret which provides good reason under
[¶6] Rule 60(b),
[¶7] In general, the standard of review for motions under
An abuse of discretion by the trial court is never assumed and must be affirmatively established. An abuse of discretion is defined as an unreasonable, arbitrary, or unconscionable attitude on the part of the trial court. A movant for relief under Rule 60(b) has a burden of establishing sufficient grounds for disturbing the finality of the judgment. The moving party must also show more than that the lower court made a “poor” decision, but that it positively abused the discretion it has in administering the rule. We will not overturn that court‘s decision merely because it is not the one we may have made if we were deciding the motion.
US Bank Nat. Ass‘n v. Arnold, 2001 ND 130, ¶ 23, 631 N.W.2d 150 (quoting First Nat‘l Bank of Crosby v. Bjorgen, 389 N.W.2d 789, 794-95 (N.D. 1986)).
[¶8] DCI‘s brief in support of its motion did not specify which subsection of
[¶9] Additionally, the district court reasoned that “[e]ven analyzing this case under ground 6, ‘any other reason that justifies relief,’ the Plaintiff‘s motion would still fail.” The court pointed to an email where DCI conceded that the matter should be dismissed. The court noted that “[t]o vacate the summary judgment at this point would drive up the costs of litigating this matter to both parties and would be futile.”
[¶10] The district court‘s decision was the product of a rational mental process and was not arbitrary, unconscionable, or unreasonable. The court did not abuse its discretion in denying DCI‘s motion to vacate the order under
III
[¶11] DCI argues the district court abused its discretion in awarding costs and attorney‘s fees. We agree.
[¶12] “Generally, this Court applies the ‘American Rule,’ which requires parties to bear their own attorney‘s fees unless the fees are expressly authorized by statute.” Lizakowski v. Lizakowski, 2017 ND 91, ¶ 25, 893 N.W.2d 508 (quoting Walstad v. Walstad, 2013 ND 176, ¶ 30, 837 N.W.2d 911).
In civil actions the court shall, upon a finding that a claim for relief was frivolous, award reasonable actual and statutory costs, including reasonable attorney‘s fees to the prevailing party. Such costs must be awarded regardless of the good faith of the attorney or party making the claim for relief if there is such a complete absence of actual facts or law that a reasonable person could not have thought a court would render judgment in that person‘s favor, providing the prevailing party has in responsive pleading alleged the frivolous nature of the claim. This subsection does not require the award of costs or fees against an attorney or party advancing a claim unwarranted under existing law, if it is supported by a good-faith argument for an extension, modification, or reversal of the existing law.
[¶14] Under
[¶15] In this case, the district court awarded attorney‘s fees to Plemper, stating:
Attorney‘s fees were awarded in the order granting summary judgment pursuant to
N.D.C.C. [§] 28-26-01(2) . Because the Defendant has had to respond to this motion to vacate an order the Court has already found frivolous, reasonable attorney‘s fees should be taxed in favor of the Defendant and against the Plaintiff for defending the instant motion.
[¶16] “A court must award attorney‘s fees under section 28-26-01(2),
IV
[¶17] Plemper argues this appeal is frivolous and requests double costs, including reasonable attorney‘s fees under
[¶18] We affirm in part the district court‘s order denying DCI‘s motion to vacate the order granting summary judgment under
[¶19] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte