IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2024 ND 15

Kenneth L. Pinks and Carol A. Pinks, 

husband and wife, Plaintiffs and Appellees

v.

Alexander S. Kelsch, Attorney at Law, and his

professional corporation, Alexander S. Kelsch, 

P.C., and the partners of the fictitious name 

partnership entity doing business as Kelsch Ruff 

Kranda Nagle & Ludwig: Arlen M. Ruff, P.C.; 

Todd D. Kranda, P.C.; Daniel J. Nagle, P.C.; 

and Garrett D. Ludwig, P.C., Defendants and Appellants

No. 20230161

Appeal from the District Court of Burleigh County, South Central Judicial 

District, the Honorable Jay A. Schmitz, Judge.

APPEAL DISMISSED.

Opinion of the Court by McEvers, Justice.

Larry M. Baer, West Des Moines, IA, for plaintiffs and appellees.

Robert B. Stock (argued) and Jack M. Buck (appeared), Fargo, ND, for

defendants and appellants.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

FEBRUARY 8, 2024 

STATE OF NORTH DAKOTA
1

Pinks, et al. v. Kelsch, et al.

No. 20230161

McEvers, Justice.

[¶1] Defendants appeal from orders denying their motion for summary 

judgment and concluding Kenneth Pinks and Carol Pinks (together, “the 

Pinks”) prevailed on the causation element of their legal malpractice action 

against Defendants. The Pinks move to dismiss this appeal for lack of a final 

judgment or order and failure to comply with N.D.R.Civ.P. 54(b). We grant the 

motion and dismiss the appeal.

I

[¶2] The Pinks commenced this legal malpractice action against Alexander 

Kelsch, his professional corporation, and the partners of the fictitious name 

partnership entity doing business as Kelsch Ruff Kranda Nagle & Ludwig. The 

Pinks alleged Defendants were negligent in representing them in a quiet title 

action against the State of North Dakota. The district court bifurcated the legal 

malpractice action to first determine the element of causation. Specifically, 

whether the Pinks would have achieved a more favorable result in the quiet 

title action but for the alleged negligence of Defendants. The parties filed crossmotions for summary judgment on the causation element. The court denied the 

motions, concluding there were genuine issues of material fact.

[¶3] After a bench trial on the causation element, the district court entered 

its “Findings of Fact and Opinion RE: Quiet Title Action.” The court concluded 

that had the evidence of the Pinks’ ownership of the disputed land been 

presented in the quiet title action, the Pinks would have obtained judgment 

declaring their ownership claim was prior and superior to the State’s claim of 

title. The court concluded that by greater weight of the evidence the Pinks 

proved the element of causation and ordered a jury trial be set on the 

remaining issues of the legal malpractice claim. Defendants appealed.
2

II

[¶4] The Pinks move to dismiss this appeal, arguing Defendants appealed 

from interlocutory orders and did not seek N.D.R.Civ.P. 54(b) certification. 

[¶5] “The right to appeal is governed by statute and, absent a statutory basis 

for the appeal, we must dismiss the appeal.” Ted J. Boutrous, L.L.C. v. 

Transform Operating Stores, LLC, 2021 ND 100, ¶ 4, 960 N.W.2d 801. “Only 

judgments and decrees which constitute a final judgment of the rights of the 

parties and certain orders enumerated by statute are appealable.” Id.; see also

N.D.C.C. § 28-27-01. We apply a two-pronged test when determining whether 

an interlocutory order is appealable. “First, the order appealed from must meet 

one of the statutory criteria of appealability set forth in N.D.C.C. § 28-27-02. If 

it does not, our inquiry need go no further and the appeal must be dismissed. 

If it does, then Rule 54(b), N.D.R.Civ.P., must be complied with.” Energy 

Transfer LP v. N.D. Priv. Investigative & Sec. Bd., 2022 ND 84, ¶ 7, 973 N.W.2d 

404 (cleaned up).

[¶6] Defendants contend the order denying their motion for summary 

judgment and the “Findings of Fact and Opinion RE: Quiet Title Action” are 

appealable under N.D.C.C. § 28-27-02(1) and (5). Section 28-27-02, N.D.C.C., 

provides, in relevant part: 

The following orders when made by the court may be carried to the 

supreme court: 

1. An order affecting a substantial right made in any action, when 

such order in effect determines the action and prevents a judgment 

from which an appeal might be taken;

. . .

5. An order which involves the merits of an action or some part 

thereof;

. . . .

“Under Section 28-27-02 an order denying a motion for summary judgment is 

not appealable.” Gillan v. Saffell, 395 N.W.2d 148, 149 (N.D. 1986); see also In 
3

re Est. of Vaage, 2016 ND 32, ¶ 20, 875 N.W.2d 527. Therefore, the order 

denying Defendants’ motion for summary judgment is not appealable.

[¶7] Assuming without deciding the “Findings of Fact and Opinion RE: Quiet 

Title Action” meets one of the criteria of appealability under N.D.C.C. § 28-27-

02, Defendants must comply with N.D.R.Civ.P. 54(b), which provides:

If an action presents more than one claim for relief, whether as a 

claim, counterclaim, crossclaim, or third-party claim, or if multiple 

parties are involved, the court may direct entry of a final judgment 

as to one or more, but fewer than all, claims or parties only if the 

court expressly determines that there is no just reason for delay. 

Otherwise, any order or other decision, however designated, that 

adjudicates fewer than all the claims or the rights and liabilities of 

fewer than all the parties does not end the action as to any of the 

claims or parties and may be revised at any time before the entry 

of a judgment adjudicating all the claims and all the parties’ rights 

and liabilities.

Rule 54(b), N.D.R.Civ.P., preserves our long-standing policy against piecemeal 

appeals. Baker v. Autos Inc., 2017 ND 229, ¶ 7, 902 N.W.2d 508. “[E]ntry of a 

final judgment adjudicating fewer than all of the claims of all of the parties is 

permitted only in the infrequent harsh case involving unusual circumstances 

where failure to allow an immediate appeal would create demonstrated 

prejudice or hardship.” N.D.R.Civ.P. 54(b), Explanatory Note. It is undisputed 

that Defendants did not request entry of a final judgment as to one or more, 

but fewer than all, claims or parties. Instead of seeking certification under Rule 

54(b), Defendants appealed to this Court. 

[¶8] We “will not consider an appeal in a multi-claim or multi-party case 

which disposes of fewer than all claims against all parties unless the [district] 

court has first independently assessed the case and determined that a Rule 

54(b) certification is appropriate.” Ted J. Boutrous, 2021 ND 100, ¶ 6

(alteration in original). In Ted J. Boutrous, we dismissed an appeal where the 

defendants did not seek Rule 54(b) certification and the district court only 

ruled on the eviction claim, but did not rule on damages. Id. We concluded the 
4

court adjudicated fewer than all of the claims and none of the orders or 

judgments appealed from were final. Id.

[¶9] The “Findings of Fact and Opinion RE: Quiet Title Action” addresses 

only the causation element of the legal malpractice claim. Still left to be 

adjudicated are the elements of existence of an attorney-client relationship, a 

duty by the attorney to the client, a breach of that duty by the attorney, and 

damages. Davis v. Enget, 2010 ND 34, ¶ 7, 779 N.W.2d 126. Therefore, 

N.D.R.Civ.P. 54(b) applies and Defendants failed to comply with the rule.

[¶10] Defendants argue they did not need to seek Rule 54(b) certification 

because Rule 54(b) does not supersede N.D.C.C. § 28-27-02, citing Sheets v. 

Letnes, Marshall & Fiedler, Ltd., 311 N.W.2d 175 (N.D. 1981). In Sheets, the 

Court concluded that the district court order granting summary judgment on 

the issue of liability for legal malpractice affected the substantial legal rights 

of the appealing law firm and involved the merits of an action or some part 

thereof, and therefore was appealable. 311 N.W.2d at 179. The Court noted that 

“Rule 54(b) deals with finality and does not supersede statutes which control 

appellate jurisdiction. . . . Nor does Rule 54(b) affect the appealability of 

interlocutory orders which are appealable by statute.” Id. In Sheets, the law 

firm moved the district court for Rule 54(b) certification prior to appeal, which 

was denied. Id. at 178. The Court “express[ed] no comment whether or not a 

statute authorizing an appeal may be superseded by a rule adopted by this 

Court.” Id. at 179.

[¶11] Here, Defendants did not move for Rule 54(b) certification and the 

district court only ruled on the causation element of the legal malpractice 

claim. In Sheets, the law firm moved for Rule 54(b) certification, which was 

denied, and the district court ruled on the issue of liability, which “eliminate[d]

any defenses to liability.” 311 N.W.2d at 179. Therefore, Sheets is different from 

this case. See also Gauer v. Klemetson, 333 N.W.2d 436, 438 (N.D. 1983) 

(distinguishing Sheets and noting that “[i]n Sheets the order for partial 

summary judgment and the subsequent denial of a Rule 54(b) motion did have 

an effect on the merits because it determined liability, prohibited an appeal on 

the issue of liability, and restricted the trial to the issue of damages”).
5

[¶12] Further, in subsequent cases, we have recognized that Sheets is no longer 

controlling precedent. Gissel v. Kenmare Twp., 463 N.W.2d 668, 672 (N.D. 

1990) (“[O]ur decision in Sheets . . . regarding the applicability of Rule 54(b) 

certification to orders that are appealable under § 28-27-02, is no longer 

controlling.”); Thompson v. Goetz, 455 N.W.2d 580, 583 (N.D. 1990) (noting 

Sheets “predates the ‘shift in our appellate procedure regarding the 

applicability of Rule 54(b) certification to orders that are appealable pursuant 

to Section 28-27-02, N.D.C.C.’”) (quoting Peterson v. Zerr, 443 N.W.2d 293, 296 

(N.D. 1989)). To the extent Sheets held Rule 54(b) did not need to be complied 

with prior to appealing an interlocutory order under § 28-27-02, we now clarify 

that Sheets is overruled.

[¶13] Defendants failed to comply with N.D.R.Civ.P. 54(b). Accordingly, we 

grant the Pinks’ motion to dismiss the appeal.

III

[¶14] In addition to dismissal, the Pinks request costs and attorney’s fees 

incurred in resisting this appeal. Under N.D.R.App.P. 38, if we determine that 

an appeal is frivolous, we “may award just damages and single or double costs, 

including reasonable attorney’s fees.” “An appeal is frivolous if it is flagrantly 

groundless, devoid of merit, or demonstrates persistence in the course of 

litigation which evidences bad faith.” Buchholz v. Buchholz, 2022 ND 203, ¶ 43, 

982 N.W.2d 275. We conclude Defendants’ appeal is not flagrantly groundless 

or devoid of merit and does not demonstrate bad faith in pursuing the 

litigation. We deny the Pinks’ request for costs and attorney’s fees.

IV

[¶15] The appeal is dismissed.

[¶16] Jon J. Jensen, C.J.

Lisa Fair McEvers

Jerod E. Tufte

Allan L. Schmalenberger, S.J.

William A. Neumann, S.J.
6

[¶17] The Honorable Allan L. Schmalenberger, S.J., and the Honorable 

William A. Neumann, S.J., sitting in place of Crothers, J., and Bahr, J., 

disqualified.