[¶ 1] TAG Investments and James Grettum (“TAG”) appealed from a post-judgment order awarding Matrix Properties Corporation, formerly known as E.W. Wylie Corporation, (“Matrix”) $4,127.60 in costs, $48,642 in attorney fees, and $135,867.19 in damages for delay in conveying real property. We affirm the award of costs and attorney fees, and we modify the time for awarding damages for delay in conveying the land and remand for recalculation of those damages.
I
[¶ 2] This is the fourth reported appeal emanating from an action by Matrix against TAG for specific performance of an October 14, 1996 agreement granting Ma *603 trix an option to purchase real property from TAG. In this appeal, TAG argues there is no procedural or statutory basis, including jurisdiction, for this money judgment, and the judgment is void or voidable. TAG also argues judicial estoppel bars Matrix from asserting inconsistent prejudgment and post-judgment positions, Matrix was only entitled to costs allowed by law, Matrix was not entitled to damages for loss of use of the property, and Matrix was not entitled to attorney fees. Our analysis of the, issues raised by TAG requires a brief outline of the prior proceedings.
[¶ 3] In
Matrix Properties Corp. v. TAG Investments,
[¶ 4] After our decision in Matrix I, Matrix sought an order declaring it was not obligated to make any additional • option payments to TAG in 2000 to retain rights under the option. In a June 26, 2000 order, the trial court granted Matrix’s motion, concluding “pursuant to the terms of the 1996 Option Agreement, [Matrix] is not obligated to make any Option Payments to [TAG] to retain rights under the Option Agreement and that [Matrix’s] valid and timely exercise of the option in July of 1999 created a binding executory contract for the purchase and sale of real property.” TAG simultaneously appealed to this Court and applied for a supervisory writ, claiming the trial court exceeded its jurisdiction, the order amended a final judgment that had been affirmed on appeal, the trial court did not have subject matter or personal jurisdiction to amend the judgment, the order was issued without due process and was in the nature of a declaratory judgment without service of a summons and complaint, and the hearing was conducted without proper notice.
[¶ 5] Meanwhile, on July 5, 2000, Matrix sought an order compelling TAG to provide Matrix with deeds for the property, or declaring the judicial transfer of the property to Matrix. On September 1, 2000, Matrix applied to this Court for a supervisory writ, asking us to clarify that the' trial court retained jurisdiction to enforce the judgment despite TAG’s pending appeal of the June 26, 2000 order. On September 25, we denied Matrix’s application, indicating a trial court has continuing jurisdiction to enforce a judgment when no stay pending appeal has been granted.
[¶ 6] On October 24, 2000, Matrix again moved for an order compelling TAG to provide Matrix with deeds for the property, or declaring the judicial transfer of the property to Matrix. On November 8, *604 2000, the trial court ordered the judicial transfer of the property to Matrix on November 15. According to counsel for Matrix, counsel for TAG notified Matrix that TAG would not appear at the November 15 closing, and that TAG questioned the trial court’s jurisdiction and raised a due process issue. TAG did not appear at the November 15 closing. On November 16, TAG asked this Court to vacate the November 8 order. We denied TAG’s request on November 22, and on November 24, Matrix moved for an order judicially transferring the property. On December 6, 2000, TAG sought to remove the proceeding to the federal district court for North Dakota, and the federal district court remanded the case to state court on December 21.
[¶ 7] In the interim, on December 12, 2000, in
Matrix Properties Corp. v. TAG Investments,
[¶ 8] Meanwhile, in a March 26, 2001 motion, Matrix sought costs, attorney fees and damages incurred because of TAG’s refusal to convey the property. The trial court continued Matrix’s motion until after our decision in Matrix III. Matrix thereafter filed an amended motion, seeking litigation costs and attorney fees incurred after this Court’s decision in Matrix I, and damages caused by TAG’s refusal to convey the property from August 15,1999, the date of the earliest possible closing under the option agreement, to January 5, 2001, the date the trial court ordered the transfer of the property to Matrix. The trial court awarded Matrix $4,127.60 in costs, $48,642 in attorney fees, and $135,867.19 in damages for loss of use of the property. TAG appealed.
II
[¶ 9] TAG argues there is no procedural or statutory basis, including jurisdiction, for this money judgment, and it is void or voidable. TAG argues Matrix’s motion
was an unprecedented post-judgment motion for damages in a specific performance action in which a final judgment had been entered almost two years earlier. Neither Matrix, nor the lower court, identified the legal basis for the unprecedented award of “costs,” “damages,” and “attorney fees” two years after a final judgment had been entered. The post-judgment motion procedure sanctioned by the lower court utterly denied TAG and Grettum their right to proper pleadings notifying them of the issues of the lawsuit, discovery, trial of issues of fact and a judicial decision based upon properly introduced evidence considered in light of the law. In other words, TAG and Grettum were denied due process of law.
*605
[¶ 10] In an action for specific performance, a purchaser may recover damages from a seller for delay in conveying real property and the costs, if any, of recovering possession of the land.
See
N.D.C.C. § 32-03-21;
Bumann v. Maurer,
[¶ 11] In
Cokins v. Frandsen,
[¶ 12] Here, in ordering the January 5, 2001 judicial transfer of the property, the trial court cited N.D.R.Civ.P. 70, which provides:
If a judgment directs a party to execute a conveyance of land or to deliver deeds or other documents or to perform any other specific act and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court and the act when so done has like effect as if done by the party. On application of the party entitled to performance, the clerk shall issue a writ of attachment or sequestration against the property of the disobedient party to compel obedience to the judgment. The court may also in proper cases adjudge the party in contempt. If real or personal property is within the state, the court in lieu of directing a conveyance thereof may enter a judgment divesting the title of any party and vesting it in others and such judgment has the effect of a conveyance executed in due form of law. When any order or judgment is for the delivery of possession, the party in whose favor it is entered is entitled to a writ of execution or assistance upon application to the clerk.
[¶ 13] Rule 70, N.D.R.Civ.P., is nearly identical to corresponding F.R.Civ.P. 70, and we have often said when a state rule is adopted from a federal rule, we will consider the federal court’s interpretation of its rule as persuasive authority for construing our rule.
See Mid-Dakota Clinic,
*606
P.C. v. Kolsrud,
[¶ 14] Relief under F.R.Civ.P. 70 is available only after a judgment is entered.
De Beers Consol. Mines, Ltd. v. United States,
[¶ 15] In
Spain,
[¶ 16] In
Westlake North Prop. Owners v. Thousand Oaks,
[¶ 17] In
Cooter & Gell,
It is well established that a federal court may consider collateral issues after an action is no longer pending. For example, district courts may award costs after an action is dismissed for want of jurisdiction. See 28 U.S.C. § 1919. This Court has indicated that motions for costs or attorney’s fees are “independent proceeding^] supplemental to the original proceeding and not a request for a modification of the original decree.” Thus, even “years after the entry of a judgment on the merits” a federal court could consider an award of counsel fees. A criminal contempt *607 charge is likewise “ ‘a separate and independent proceeding at law1 ” that is not part of the original action. A court may-make an adjudication of contempt and impose a contempt sanction even after the action in which the contempt arose has been terminated. Like the imposition of costs, attorney’s fees, and contempt sanctions, the imposition of a Rule 11 sanction is not a judgment on the merits of an action. Rather, it requires the determination of a collateral issue: whether the attorney has abused the judicial process, and, if so, what sanction would be appropriate. Such a determination may be made after the principal suit has been terminated.
[¶ 18] Similarly, in
American State Bank v. Stoltz,
[¶ 19] In
Mitchell,
“All the instances in which equity thus awards damages, either in place of or in addition to some other special remedy, are particular applications of the one general principle, that complete justice should be done between litigant parties whenever jurisdiction has been acquired over them to grant any relief. This doctrine is well established, and is indeed, too familiar to require the citation of authority that whenever a court of equity has once acquired jurisdiction of a cause it will retain such cause in order to do full and complete justice between the parties with respect to the subject matter. To this end, when jurisdiction has been obtained on other grounds and for the purpose of administering an equitable remedy, damages may be assessed and adjudged in lieu of or as ancillary to the equitable relief so that the plaintiff may not be put to the trouble, expense, and delay of a second suit brought in another tribunal.”
Our statements in Mitchell about ancillary relief and the trouble, expense, and delay of a second action are equally applicable under our current rules of civil procedure, which govern the procedure in all suits of a civil nature, whether cognizable as cases at law or in equity, and which are construed to secure the just, speedy, and inexpensive determination of every action. See N.D.R.Civ.P. 1. The statements in Mitchell are also consistent with N.D.C.C. § 27-05-06(3), which confers jurisdiction on district courts for “[a]ll the powers, according to the usages of courts of law and equity, necessary to the full and complete jurisdiction of the causes and parties and the full and complete administration of justice, and to carrying into effect their judgments, orders, and other determinations.”
[¶ 20] Here, shortly after Matrix exercised the option to purchase the land in early July 1999, it initiated an action for specific performance of the option agreement. In November 1999, the trial court granted Matrix summary judgment for specific performance of the option agreement without any claim for, or award of, damages for delay in conveying the land. On June 7, 2000, this Court issued its mandate affirming the summary judgment for specific performance. Matrix then moved for an order compelling TAG to transfer the property and subsequently indicated it would seek costs, attorney fees,
*608
and damages for TAG’s delay in conveying the property. After procedural posturing and further delay by TAG, the trial court ultimately ordered the transfer of the land to Matrix on January 5, 2001, and Matrix then moved for- costs, attorney fees, and damages incurred as a result of TAG’s delay in conveying the land. Under these circumstances, we conclude Matrix’s ancillary motion for costs, attorney fees, and damages was an appropriate vehicle, as part of enforcement of the judgment under N.D.R.Civ.P. 70, for the trial court to consider awarding costs, attorney fees, and damages incurred by a delay in conveying the land. However, because Matrix could have but did not make a claim for damages for delay in conveyance in the judgment that this Court affirmed in
Matrix I,
we conclude Matrix may be entitled to damages only for a delay in conveying the land after our June 7, 2000 mandate in
Matrix I. See Wolf,
[¶ 21] We also reject TAG’s arguments that N.D.C.C. § 27-05-27 places exclusive authority to modify a judgment in the trial judge that rendered the November 1999 judgment, and that this money judgment, which was issued by a different trial judge, is void, or erroneously issued and voidable.
[¶ 22] Section 27-05-27, N.D.C.C., provides:
Except as provided by subsection 2 of section 29-15-21, any motion for a new trial, settlement of a proposed case, judgment notwithstanding the verdict, or vacation or modification of an order, judgment, or other proceeding, must be presented and heard before the judge before whom the matter was heard, considered, or determined, unless for any reason the judge is unable to act.
[¶23] The language of N.D.C.C. § 27-05-27 applies to “any motion for a new trial, settlement of a proposed case, judgment notwithstanding the verdict, or vacation or modification of an order, judgment, or other proceeding.” This ancillary proceeding emanated from a proceeding for the enforcement of a judgment for specific performance, and the plain language of that statute does not apply to the enforcement of a judgment. We conclude N.D.C.C.. § 27-05-27 does not apply to this ancillary proceeding.
Ill
[¶ 24] TAG argues Matrix was not entitled to damages for loss of use of the property.
A
[¶ 25] TAG argues Matrix was not entitled to any damages, because Matrix never made an unconditional tender of performance and the earliest date it can claim a tender of part of the money due to TAG was January 5, 2001, the date the trial court ordered conveyance of the land.
[¶ 26] TAG misreads a statement in
Matrix II,
B
[¶ 27] TAG argues even if Matrix is entitled to damages, the trial court erred in calculating those damages. TAG states, in calculating damages, the trial court followed Matrix’s “claim that it should have interest on the liquidated purchase price of the real property from August 15, 1999, the time Matrix should have first paid TAG [under the terms of the option agreement], to January 5, 2001,” the date the trial court transferred the land to Matrix. TAG argues if Matrix is entitled to damages, those damages are limited to the rental value of the land, or an accounting and delivery of the fruits of the illegitimate possession, offset by interest on the purchase price of the land due to TAG. Because of our earlier conclusion about the time frame for damages and the procedural posture of this issue, we only need consider whether Matrix was entitled to damages for TAG’S delay in conveying the land after this Court’s June 7, 2000 mandate in Matrix I to the trial court’s judicial conveyance of the land to Matrix on January 5, 2001.
[¶ 28] Section 32-03-21, N.D.C.C., provides:
The detriment caused by the wrongful occupation of real property in cases not embraced in sections 32-03-22, 32-03-27, 32-03-28, and 32-03-29 is deemed to be the value of the use of the property for the time of such occupation, not exceeding six years next preceding the commencement of the action or proceeding to enforce the right to damages and the costs, if any, of recovering the possession.
[¶ 29] Under N.D.C.C. § 32-03-21, a seller who wrongfully occupies real property and wrongfully delays the conveyance of that property is liable for the value of the use of the property for the time of such occupation.
Bumann,
[¶ 30] We have recognized the object of a court of equity is to place parties who are not at fault as nearly as possible in the same position they would have been in if there had been no default by the other party.
Orfield,
[¶ 31] Here, we reject TAG’s claim it was entitled to an offset for interest on the purchase price of the land during the time TAG delayed conveying the land to Matrix. This record unequivocally demonstrates a pattern of dilatory and vexatious conduct by TAG in delaying the conveyance of the land to Matrix. Moreover, under the option agreement, Matrix was entitled to possession of the land on August 15, 1999. Although we have concluded Matrix could have but did not make a claim for damages from that date in the judgment that was affirmed in Matñx I, TAG agrees the trial court awarded Matrix interest on the purchase price of the land from August 15, 1999 to January 5, 2001, which was a valuation suggested by TAG when, in seeking to avoid closing on January 5, 2001, TAG claimed it should receive interest on the purchase price during the same time period. Matrix did not receive the fruits of TAG’s unlawful possession, or the rental value of the land during the time when TAG delayed conveying it. TAG retained the benefits from the land during the delay in conveying it, and TAG does not dispute Matrix’s claim that the property is prime development land. Under those circumstances, we conclude Matrix was entitled to the measure of damages awarded by the trial court for the delay in conveying the land from this Court’s June 7, 2000 mandate in Matrix I to January 5, 2001, the date the trial court ordered the conveyance of the land to Matrix. Accordingly, we remand this issue to the trial court to compute Matrix’s damages during that time period.
IV
[¶ 32] TAG argues Matrix was not entitled to costs and attorney fees.
[¶ 33] If there is a delay in conveying land, N.D.C.C. § 32-03-21, authorizes the award of the “costs, if any, of recovering the possession.”
See Bumann,
[¶ 34] In
Matrix II
and
Matrix III, we
summarily affirmed two prior appeals by TAG in part under N.D.RApp.P. 35.1(a)(1), which authorizes affirmance of appeals that are frivolous and completely without merit. This record demonstrates that TAG has engaged in a protracted and dilatory pattern of conduct after this Court’s decision in
Matrix
/, repeatedly pressing spurious claims that previously had been rejected by the trial court and this Court.
See Dion,
[¶ 35] A trial court has considerable discretion in awarding costs and attorney fees, and its decision will not be overturned on appeal absent an abuse of discretion.
Dion,
V
[¶ 36] TAG argues judicial estop-pel bars Matrix from asserting inconsistent prejudgment and post-judgment positions.
[¶ 37] TAG did not raise this argument in its August 21, 2001 brief in response to Matrix’s motion for costs, attorney fees, and damages, and TAG is precluded from raising the issue for the first time on appeal.
See Robert v. Aircraft Inv. Co. Inc.,
VI
[¶ 38] As Justice Vogel wrote for this Court in
City of Wahpeton v. Drake-Henne, Inc.,
VII
[¶ 39] We affirm the trial court’s award of costs and attorney fees, and we modify the time period for the award of damages and remand for recalculation in accordance with this opinion.