State v. Moore

2002 ND 91

• Court: North Dakota Supreme Court
• Decided: June 4, 2002
• Docket: 20010255
• Status: Published

Opinion

Filed 6/4/02 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2002 ND 93

Kathleen D. Churchill, Plaintiff and Appellee

v.

Scott D. Churchill, Defendant and Appellant

No. 20020015

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Thomas J. Schneider, Judge.

AFFIMED AND REMANDED.

Per Curiam.

Patti J. Jensen, Galstad, Jensen & McCann, PA, 610 2 nd Avenue NE, P.O. Box 386, East Grand Forks, MN 56721-0386, for defendant and appellant.

Sherry Mills Moore, 300 North 4 th Street, P.O. Box 4144, Bismarck, ND 58502-4144, for plaintiff and appellee.

Churchill v. Churchill

[¶1] Scott Churchill appeals from a trial court order that denied his motion for a new trial or amended findings as frivolous and awarded Kathleen Churchill attorney’s fees incurred in responding to the motion.  We conclude the trial court did not abuse its discretion in denying the motion and Scott’s appeal is frivolous and completely without merit.  We summarily affirm under N.D.R.App.P. 35.1(a)(1), (4).  We award  Kathleen double costs and attorney’s fees incurred on appeal.   See N.D.R.App.P. 38 (“If the court determines that an appeal is frivolous, or that any party has been dilatory in prosecuting the appeal, it may award just damages and single or double costs including reasonable attorney’s fees.”); see also Estate of Opatz , 554 N.W.2d 813, 817 (N.D. 1996) (“An appeal is frivolous if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which could be seen as evidence of bad faith.”).  We remand to the trial court to determine the amount of attorney’s fees.   See Jorgenson v. Ratajczak , 1999 ND 65, ¶ 26, 592 N.W.2d 527 (awarding attorney fees for an appeal but remanding the issue to the trial court because the requesting party’s affidavit did not specifically document the fees).

[¶2] Gerald W. VandeWalle, C.J.

Mary Muehlen Maring

William A. Neumann

Dale V. Sandstrom

Carol Ronning Kapsner