Filed 11/20/19 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2019 ND 268

James Broten, Plaintiff and Appellant

v.

Ralph Carter; Carter, McDonagh & Sandberg, 

PLLP; and Carter Law Firm, Defendants and Appellees

No. 20190098

Appeal from the District Court of Grand Forks County, Northeast Central

Judicial District, the Honorable Steven E. McCullough, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Justice.

Lee M.Grossman (argued) and Nathan D. Severson (on brief), Fargo, ND, for 

plaintiff and appellant.

Ronald H. McLean (argued) and Ian R. McLean (on brief), Fargo, ND, for 

defendants and appellees.

Substitute Opinion Page 10, Paragraph 26 and Page 12, Paragraph 31 filed 11/21/19
1

Broten v. Carter, et al.

No. 20190098

Jensen, Justice.

[¶1] James Broten appeals the dismissal of his attorney malpractice claim. 

Broten argues the district court erred in granting summary judgment after 

finding his claim was barred by the applicable statute of limitations. He also 

challenges the inclusion of expert witness fees within the expenses awarded by 

the district court for experts who were unnecessary for resolution of the statute 

of limitations issue. We affirm.

I

[¶2] Broten was appointed to serve as the personal representative of his 

father’s estate. Broten was subsequently sued by his sisters who claimed 

Broten had breached his fiduciary duties as personal representative by 

transferring land held in the trust to himself. In 2011, attorney Ralph Carter 

was retained by Broten to defend him against his sisters’ claims.

[¶3] During Carter’s representation, Broten showed Carter approximately 

sixty boxes of records Broten believed documented payments to his parents and 

provided a defense to his sisters’ claims. Broten repeatedly inquired with 

Carter about his review of the records. The records were not disclosed to the 

opposing party during discovery but disclosed after Carter was replaced as 

Broten’s counsel in March of 2013.

[¶4] On August 15, 2013, the district court entered findings of fact, 

conclusions of law, and an order finding Broten had breached his fiduciary 

duties as personal representative of his father’s estate. The court reserved its 

findings on damages and ordered an evidentiary hearing to determine the 

amount of damages. On January 21, 2014, following the evidentiary hearing, 

the court issued a memorandum opinion and order for judgment requiring 

Broten to pay damages to his sisters in an amount of $1,300,054.

[¶5] On January 14, 2016, Broten commenced this action for legal 

malpractice claiming Carter failed to review the records Broten had provided 
2

to Carter to support Broten’s defense to the breach of fiduciary duty claim 

asserted by his sisters. Broten alleges Carter’s failure to review and disclose 

the documents prevented all of the records from being introduced as evidence 

and resulted in the liability to his sisters. Carter moved for summary 

judgment, arguing the applicable two year statute of limitations barred 

Broten’s claim. The district court granted summary judgment in favor of

Carter and awarded to Carter the recovery of costs and fees, including the costs 

expended for expert witnesses who were unnecessary for resolution of the 

statute of limitations issue. On February 25, 2019, the district court entered a

judgment dismissing Broten’s claims in their entirety, with prejudice.

[¶6] Broten argues the district court erred in granting summary judgment 

because the statute of limitations had not run on his malpractice claim against 

Carter. He also argues the district court erred in granting expert witness fees 

for experts who were unnecessary for Carter to prevail on the summary 

judgment motion.

II

[¶7] Broten contends the district court erred in granting Carter summary 

judgment after finding the statute of limitations for asserting his malpractice 

claim had expired before he initiated this action. This Court’s standard of 

review for summary judgment is well established:

Summary judgment is a procedural device under N.D.R.Civ.P. 

56(c) for promptly resolving a controversy on the merits without a 

trial if there are no genuine issues of material fact or inferences 

that can reasonably be drawn from undisputed facts, or if the only 

issues to be resolved are questions of law. The party seeking 

summary judgment must demonstrate there are no genuine issues 

of material fact and the case is appropriate for judgment as a 

matter of law. In deciding whether the district court appropriately 

granted summary judgment, we view the evidence in the light 

most favorable to the opposing party, giving that party the benefit 

of all favorable inferences which can reasonably be drawn from the 

record. A party opposing a motion for summary judgment cannot 

simply rely on the pleadings or on unsupported conclusory 
3

allegations. Rather, a party opposing a summary judgment motion 

must present competent admissible evidence by affidavit or other 

comparable means that raises an issue of material fact and must, 

if appropriate, draw the court’s attention to relevant evidence in 

the record raising an issue of material fact. When reasonable 

persons can reach only one conclusion from the evidence, a 

question of fact may become a matter of law for the court to decide. 

A district court’s decision on summary judgment is a question of 

law that we review de novo on the record.

Pettinger v. Carroll, 2018 ND 140, ¶ 7, 912 N.W.2d 305 (quoting A.R. Audit 

Servs., Inc. v. Tuttle, 2017 ND 68, ¶ 5, 891 N.W.2d 757 (internal citations 

omitted)).

[¶8] The parties agree an action for legal malpractice is governed by the two 

year statute of limitations provided by N.D.C.C. § 28-01-18(3). Under N.D.C.C. 

§ 28-01-18(3), a client must commence a malpractice suit within two years after

the claim for relief has accrued. Larson v. Norkot Mfg., Inc., 2001 ND 103, ¶ 9, 

627 N.W.2d 386. “A cause of action for legal malpractice does not accrue, and 

the statute of limitations does not commence to run, until the client has 

incurred some damage.” Id. (quoting Wall v. Lewis, 366 N.W.2d 471, 473 (N.D. 

1985)). The action accrues when there is a conjunction of damage and wrongful 

act. Jacobsen v. Haugen, 529 N.W.2d 882, 885 (N.D. 1995).

[¶9] The district court concluded the only reasonable conclusion that can be 

drawn from the undisputed facts is Broten’s action accrued on August 15, 2013, 

the date of the order finding Broten breached his fiduciary duty to his sisters 

and reserving the determination of damages arising from the breach. Broten 

argues there is a material question of fact precluding summary judgment 

because August 15, 2013, is not the only date that can be reasonably considered 

as the date he was placed on notice of his potential malpractice claim against 

Carter. Broten argues the August 15, 2013, order finding he breached his 

fiduciary duty allowed him to prove an offset to potentially all the damages, 

and it was not until the January 21, 2014, order awarding damages for the 

breach of his fiduciary duty he actually became aware he would have an 

obligation to his sisters. Broten contends the uncertainty of whether the offsets 
4

would eliminate any potential obligation to his sisters creates a question of fact 

of whether the statute of limitations was tolled until a damage award became 

a certainty following the January 21, 2014, order.

[¶10] This Court has adopted the application of the discovery rule to 

potentially toll the statute of limitations in legal malpractice actions. Wall v. 

Lewis, 393 N.W.2d 758, 761 (N.D. 1986). The discovery rule delays the start of 

the statute of limitations until the plaintiff “knows, or with reasonable 

diligence should know, of the injury, its cause, and the defendant’s possible 

negligence.” Wall, at 761. “The discovery rule focuses on whether the plaintiff 

has been apprised of facts which would place a reasonable person on notice 

that a potential claim exists, and it prevents the injustice of barring a claim 

before the plaintiff reasonably could be aware of its existence.” Riemers v. 

Omdahl, 2004 ND 188, ¶ 6, 687 N.W.2d 445. We have recognized the discovery 

rule employs an objective standard of knowledge, and it is not necessary that 

a plaintiff be subjectively convinced of the injury and that the injury was 

caused by the defendant’s negligence. Id.

[¶11] In Riemers, this Court considered the extent to which a Plaintiff is 

required to appreciate the injury caused by the attorney’s malpractice. Id. at ¶

7. In Riemers, this Court noted the following:

Under the discovery rule, the statute of limitations does not begin 

to run until the plaintiff has incurred some injury or damage. 

Larson v. Norkot Mfg., Inc., 2002 ND 175, ¶ 10, 653 N.W.2d 33 

(citing Wall v. Lewis, 366 N.W.2d 471, 473 (N.D. 1985)). It is not 

necessary for the plaintiff to fully appreciate the potential liability, 

or even be convinced of an injury; the objective standard requires 

only that the plaintiff be aware of facts that would place a 

reasonable person on notice that a potential claim exists. Larson 

v. Norkot Mfg., Inc., 2001 ND 103, ¶ 13, 627 N.W.2d 386. In Wall,

366 N.W.2d at 473 (quoting Budd v. Nixen, 6 Cal. 3d 195, 491 P.2d

433, 436-37, 98 Cal. Rptr. 849 (Cal. 1971)), we explained:

“. . . until the client suffers appreciable harm as a 

consequence of his attorney’s negligence, the client cannot 

establish a cause of action for malpractice. Prosser states the 

proposition succinctly, ‘It follows that the statute of 
5

limitations does not begin to run against a negligence action 

until some damage has occurred.’ (Prosser, Law of Torts (4th 

ed. 1971), § 30 at p. 144.)

The cause of action arises, however, before the client 

sustains all, or even the greater part, of the damages 

occasioned by his attorney’s negligence. . . . Any appreciable 

and actual harm flowing from the attorney’s negligent 

conduct establishes a cause of action upon which the client 

may sue.

Indeed, once having discovered his attorney’s 

negligence and having suffered some damage, the client 

must institute his action within the time prescribed in the 

statute of limitations or he will be barred from thereafter 

complaining of his attorney’s conduct.”

Id.

[¶12] Ordinarily, when the discovery rule is applied, knowledge of when the 

plaintiff should have discovered there was a potential malpractice claim is a 

question of fact precluding summary judgment. Id. at ¶ 8. “However, issues of 

fact may become issues of law if reasonable persons could reach only one 

conclusion from the facts.” Id. at ¶ 8 (citing Twogood v. Wentz, 2001 ND 167, ¶ 

10, 634 N.W.2d 514). “A plaintiff’s knowledge of a potential claim is an issue of 

law if the evidence is such that reasonable minds could draw but one conclusion 

from the evidence.” Id. (citing Wall, 393 N.W.2d at 761).

[¶13] The August 15, 2013, order provided, in part, “James Broten is liable for 

breach of his fiduciary obligations as executor and personal representative of 

Olaf Broten’s will and estate.” The order also included the conclusion of law 

that the deed transferring land from the trust to James Broten while he was 

the personal representative of his father’s estate was void. The district court

also concluded the following facts existed prior to August 15, 2013: Broten had 

a belief the records he provided to Carter would provide a defense to the claim 

he had breached his fiduciary duty; Broten had communicated his belief 

regarding the records to Carter; and, Carter had not investigated or properly 

disclosed the records to the opposing party. The district court further 

concluded, as a result of the August 15, 2013, order, Broten knew the court had 
6

ruled against him on the merits of an issue to which the records allegedly 

applied.

[¶14] It is not necessary for Broten to fully appreciate the potential liability, 

or even be convinced of an injury as the result of Carter’s handling of the 

records; the objective standard requires only that Broten be aware of facts that 

would place a reasonable person on notice that a potential claim against Carter 

existed. Larson v. Norkot Mfg., Inc., 2001 ND 103, ¶ 13, 627 N.W.2d 386. 

Following the issuance of the August 15, 2013, order, reasonable minds could 

draw but one conclusion from the evidence: Broten was on notice a potential 

claim against Carter existed. While Broten may have believed he would be able 

to offset all of the potential damage award, the voiding of the prior deed and 

facts surrounding Carter’s alleged mishandling of the records would have

placed a reasonable person on notice that a potential claim against Carter 

existed. The district court did not err in granting summary judgment in favor 

of Carter after finding the statute of limitations had expired prior to his 

initiation of a malpractice claim against Carter.

III

[¶15] Broten’s complaint included a claim for treble damages under N.D.C.C. 

§ 27-13-08 alleging Carter willfully delayed the litigation between Broten and

his sisters. It is unnecessary for this Court to determine if a claim under 

N.D.C.C. § 27-13-08 is a separate claim from Broten’s legal malpractice claim

and/or has a separate statute of limitations from his legal malpractice claim. 

The motion for summary judgment sought dismissal of the complaint in its 

entirety. Broten did not argue in the district court his claim under N.D.C.C. § 

27-13-08 is a separate claim from his legal malpractice or has a different

statute of limitations. The judgment entered in the district court provides 

finality on all of the claims through a dismissal of Broten’s claims “in their 

entirety, with prejudice.” The district court entered a final judgment resolving 

all claims and Broten has not appealed the dismissal of his claim under 

N.D.C.C. § 27-13-08.
7

IV

[¶16] Broten also challenges the district court’s award of costs and expenses. 

The costs and expenses challenged by Broten relate to two experts hired on 

behalf of Carter to defend against the merits of the malpractice claim. The 

experts were unnecessary for the resolution of the motion for summary 

judgment or for determination of whether the statute of limitations expired 

before Broten initiated his claim.

[¶17] The district court’s scheduling order established the following deadlines: 

discovery was to be completed by February 1, 2018; Broten was required to 

disclose expert witnesses no later than March 30, 2018; Carter was required to 

disclose all expert witnesses no later than April 30, 2018; and the final day to 

move for summary judgment was May 31, 2018. By March 30, 2018, Broten 

had retained and disclosed an expert witness whose opinion was Carter 

committed malpractice. Carter hired and disclosed his expert witnesses by the 

April 30, 2018, deadline. On May 31, 2018, Carter moved for summary 

judgment. Carter argues he was compelled to hire expert witnesses to rebut 

anticipated testimony of Broten’s expert, and until the summary judgment 

motion had been resolved, it was reasonable to continue to prepare for a 

potential trial on the merits.

[¶18] Under N.D.C.C. § 28-26-06(5), the district court has discretion to award 

expert witness fees that are reasonable plus actual expenses. N.D.C.C. § 28-

26-06(5). “The allowance of disbursements under the statutes lies within the

discretion of the [district] court, which is in a better position to determine the 

reasonableness and necessity of the disbursements sought by the prevailing 

party, and the [district] court’s decision will be overturned only if an abuse of 

discretion is shown.” Richter v. Jones, 378 N.W.2d 209, 213 (N.D. 1985). A 

district court abuses its discretion when it acts in an arbitrary, unreasonable, 

or unconscionable manner, when its decision is not the product of a rational 

mental process leading to a reasoned determination, or when it misapplies or 

misinterprets the law. Haider v. Moen, 2018 ND 174, ¶ 6, 914 N.W.2d 520.
8

[¶19] The district court awarded costs for Carter’s two experts after finding 

one of the experts had reviewed numerous documents, attended meetings, 

prepared an expert report, and provided a deposition. The district court 

concluded the second expert had reviewed the pleadings in both this case and 

the underlying matter, reviewed the records that Broten claimed supported his 

defense in the underlying matter, reviewed expert reports, attended meetings, 

and prepared an expert report. The district court concluded that although the 

experts were not used within the motion for summary judgment, because the 

experts would have been necessary for trial, the fees were reasonable.

[¶20] This Court has upheld a district court’s award of a fee for a non-testifying 

witness, finding no abuse of discretion. See, e.g., Pratt v. Heartview 

Foundation, 512 N.W.2d 675, 679 (N.D. 1994); Wastvedt v. Vaaler, 430 N.W.2d 

561, 568-69 (N.D. 1988); Keller v. Vermeer Mfg. Co., 360 N.W.2d 502, 507-08 

(N.D. 1984). In Pratt, we recognized that N.D.C.C. § 28-26-06(5) does not 

require “an expert witness actually testify before the [district] court may 

include her fee in a party's costs and disbursements . . . such a construction 

would be contrary to the judicial policy of encouraging settlements and speedy 

resolution of disputes.” 512 N.W.2d at 679. 

[¶21] This Court has also upheld a district court’s denial of a recovery of 

expenses for a non-testifying witness, finding no abuse of discretion. “It is 

likewise not an abuse of discretion for the district court to decline such an 

award.” N.D. DOT v. Schmitz, 2018 ND 113, ¶ 12, 910 N.W.2d 874 (citing 

United Dev. Corp. v. State Highway Dep’t, 133 N.W.2d 439, 444 (N.D. 1965) 

(“The [district] court may exercise its discretion as to the number of witnesses 

for which a prevailing party may tax costs.”)). A district court has “sole 

discretion” over “[t]he number of expert witnesses who are allowed fees or 

expenses.” N.D.C.C. § 28-26-06(5).

[¶22] Here, Carter followed the district court’s scheduling order which 

required the completion of fact discovery and the disclosure of expert witnesses 

prior to the summary judgment motion deadline. The district court made 

specific findings regarding the work performed by the experts, concluded the 

experts would have been necessary for a trial on the merits, and concluded the 
9

fees were reasonable. Under the facts of this case, the district court did not act 

in an arbitrary, unreasonable, or unconscionable manner; its decision was the 

product of a rational mental process leading to a reasoned determination; and 

it did not misapply or misinterpret the law. We conclude the district court did 

not abuse its discretion in awarding the recovery of expenses associated with 

the experts who did not testify.

V 

[¶23] The district court did not err in granting summary judgment in favor of 

Carter after finding the statute of limitations had expired prior to his initiation 

of a malpractice claim against Carter. The district court did not abuse its 

discretion in awarding the recovery of expenses associated with the experts 

who did not testify. We affirm. 

[¶24] Jon J. Jensen

 Jerod E. Tufte

 Carol Ronning Kapsner, S.J.

 Gerald W. VandeWalle, C.J. 

[¶25] The Honorable Carol R. Kapsner, Surrogate Judge, sitting in place of 

McEvers, J., disqualified. 
10

Crothers, Justice, dissenting.

[¶26] I respectfully dissent because the face of this record shows Broten’s claim 

under N.D.C.C. § 27-13-08 has not been adjudicated. Without adjudication of 

all claims, this Court lacks appellate jurisdiction absent certification under 

N.D.R.Civ.P. 54(b).

[¶27] Neither party raised the issue of appealability; however, this Court 

considers the matter sua sponte. Ceartin v. Ochs, 479 N.W.2d 863, 864 (N.D. 

1992). We use a two-step analysis to determine whether this Court has 

jurisdiction over appeals from orders in cases with unadjudicated claims. Id.

First, the order must satisfy one of the bases for appeal in N.D.C.C. § 28-27-

02. Id. Second, the case must comply with N.D.R.Civ.P. 54(b). Id.

[¶28] Section 28-27-02, N.D.C.C., addresses what orders are reviewable, and 

provides:

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;

2. A final order affecting a substantial right made in special

proceedings or upon a summary application in an action after

judgment;

3. An order which grants, refuses, continues, or modifies a

provisional remedy, or grants, refuses, modifies, or dissolves an

injunction or refuses to modify or dissolve an injunction, whether

such injunction was issued in an action or special proceeding or

pursuant to the provisions of section 35-22-04, or which sets aside

or dismisses a writ of attachment for irregularity;

4. An order which grants or refuses a new trial or which sustains

a demurrer;

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

thereof;

6. An order for judgment on application therefor on account of the

frivolousness of a demurrer, answer, or reply; or

7. An order made by the district court or judge thereof without

notice is not appealable, but an order made by the district court

Filed by Clerk of the Supreme Court 11/21/19
11

after a hearing is had upon notice which vacates or refuses to set 

aside an order previously made without notice may be appealed to 

the supreme court when by the provisions of this chapter an appeal 

might have been taken from such order so made without notice, 

had the same been made upon notice.

Dismissal of Broten’s legal malpractice claim is “An order which involves the 

merits of an action or some part thereof.” N.D.C.C. § 28-27-02(5). But, as noted, 

the appellant must satisfy both the statutory requirement and Civil Rule 54(b) 

prior to an effective appeal.

[¶29] Rule 54(b) 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.

[¶30] Without certification under Rule 54(b), “A party seeking to appeal must 

wait until the end of the case, when all claims have been resolved and final 

judgment has been entered, before filing an appeal.” N.D.R.Civ.P. 54(b), 

explanatory note. Certification under Rule 54(b) is reserved for the “infrequent 

harsh case” where failure to allow immediate appeal creates a demonstrated 

prejudice or hardship. Greer v. Global Industries, Inc., 2018 ND 206, ¶ 12, 917 

N.W.2d 1. Rule 54(b) certifications should not be entered routinely as a 

courtesy or accommodation to counsel. Peterson v. Zerr, 443 N.W.2d 293, 297 

(N.D. 1989). “More is required to justify a Rule 54(b) certification than a mere 

recitation of generic circumstances applicable to every attempted appeal from 

an otherwise interlocutory judgment.” Club Broadway, Inc. v. Broadway Park, 

443 N.W.2d 919, 921 (N.D. 1989). Rule 54(b) certification requires a showing 
12

of out-of-the-ordinary circumstances or a cognizable, unusual hardship to the 

litigants if the appeal is deferred. Peterson, at 299.1

[¶31] Here, Broten sued Carter and his law firm for “COUNT I: 

MALPRACTICE,” “COUNT II: VIOLATION OF NDCC § 27-13-08,” and

“COUNT III: PARTNERSHIP LIABILITY & RESPONDEAT SUPERIOR.” 

Count III is derivative of Count I, but Counts I and II may or may not stand 

alone, as acknowledged by the district court. 

[¶32] Carter moved for summary judgment seeking an order “dismissing the 

Complaint in its entirety with prejudice.” However, Carter’s briefing was not 

so sweeping. His brief in support of summary judgment stated:

Plaintiff’s Complaint should be dismissed in its entirety as 

Plaintiff’s claims are barred by the statute of limitations; 

Plaintiff’s damages are the direct result of Plaintiff’s own conduct; 

and because there are no genuine issue[s] of material fact which 

precludes [SIC] summary judgment in favor of Defendants.

Carter’s 24-page brief to the district court contains 16 pages of facts. The 

remaining pages of his legal arguments contain captions “Summary Judgment 

Standard,” “The Statute of Limitations Bars James’s Legal Malpractice Action 

Against the Defendants,” and “Summary Judgment is Appropriate as Matter 

of Law as James Cannot Establish a Genuine Issue of Material Fact 

Concerning his Claim for Malpractice.” The brief does not mention Count II, 

N.D.C.C. § 27-13-05, or treble damages.

[¶33] Broten’s brief resisting Carter’s summary judgment motion is 20 pages 

long and contains nearly 8 pages of facts. In the remaining pages, Broten’s 

legal arguments are captioned “Summary Judgment Standard,” “Broten’s 

claim against Carter is within the statute of limitations,” “Carter’s conflict with 

the underlying case brought by Broten’s sisters,” and “Broten has presented 

1 I do not believe this is the “infrequent harsh case” which would have permitted district court 

certification under Rule 54(b). Rather, this case would not be appealable until all issues are resolved 

in the district court.

Filed by Clerk of the Supreme Court 11/21/19
13

facts to show he would have succeeded on the case-within-a-case analysis.” 

Like his litigation opponent, Broten’s brief does not mention Count II, N.D.C.C. 

§ 27-13-05, or treble damages.

[¶34] The lack of adjudication is unexplained, but the issue was addressed at 

the summary judgment hearing. The judge inquired about Count II with 

counsel for the moving party as follows:

THE COURT: Last question for you and I think I know the answer, 

but in addition to a regular legal malpractice claim, they’re also 

seeking treble damages for delay under 27-13-08, and that 

statutory language says—I’ll leave out the stuff that doesn’t apply 

to this case—every attorney who willfully delays the attorney’s 

client’s suit with a view towards the attorney’s own gain, forfeits 

to the party injured treble damages to be recovered in a civil action. 

The question I have is simply, is it your position that any award 

under that statute would be encompassed within the two-year 

statute of limitations for legal malpractice or is there a separate—

MR. McLEAN: No. It’s—absolutely. And they don’t even have any 

evidence they ever paid any attorney’s fees.

THE COURT: So—yeah. I just want to get parties’ positions.

[¶35] The court also inquired of plaintiff’s counsel as follows:

THE COURT: Okay. Then I think I’ve got the dispute between the 

two of you.

On that 27-13-08 treble damages, is your position that it has 

the same statute of limitations as the underlying legal malpractice 

claim or do you think there’s a separate, different statute of 

limitations that applies to that?

MR. GROSSMAN: They’ve tracked together and it’s our position, 

and I don’t know that it’s a two-year or three-year statute of 

limitations on that, I apologize, but it would be the same general 

statute of limitations that would begin to run in January of 2014 

when that order came out.

THE COURT: Well, you know, obviously, if there’s a three-year 

statute of limitations, it’s a different kettle of fish because you filed 

in 2016, so we have to go back to 2013. So I’ll look at that. I was 

just wondering what your position was because neither party had
14

addressed it. I assume they didn’t address it because they simply 

assumed it was the same statute of limitations that this language 

awarding treble damages in this situation because of the reference 

back to “recovered in a civil action” means you have to go back to 

the civil action to determine the statute of limitations, and this is 

just a damage issue. But I just wanted your positions on that, so.

(Emphasis added). 

[¶36] The judge was correct that neither party addressed the treble damage 

claim. But, notwithstanding the court’s inquiry with both counsel, the district 

court did not rule whether a two or three year statute of limitations applied to 

Count II. Nor did the judge determine whether the claim under N.D.C.C. § 27-

13-08 is an independent claim for relief or only a measure of damages available

in a legal malpractice claim. Rather, the district court granted that part of 

Carter’s motion for summary judgment based on the statute of limitations, and 

denied that part of Carter’s motion based on the case-within-a-case analysis.

[¶37] The district court’s order only addressed the issues presented in the 

briefing, and did not cite or mention Count II, N.D.C.C. § 27-13-05, or treble 

damages. In the end, the district court held “Based on the foregoing, IT IS 

HEREBY ORDERED that the Defendant’s Motion for Summary Judgment is 

GRANTED as the Plaintiff’s claim is barred by the relevant statute of 

limitations.” 

[¶38] The majority opinion at paragraph 15 addresses this issue as follows:

Broten’s complaint included a claim for treble damages under 

N.D.C.C. § 27-13-08 alleging Carter willfully delayed the litigation

between Broten and his sisters. It is unnecessary for this Court to

determine if a claim under N.D.C.C. § 27-13-08 is a separate claim

from Broten’s legal malpractice claim and/or has a separate

statute of limitations from his legal malpractice claim. The motion

for summary judgment sought dismissal of the complaint in its

entirety. Broten did not argue in the district court his claim under

N.D.C.C. § 27-13-08 is a separate claim from his legal malpractice

or has a different statute of limitations. The judgment entered in

the district court provides finality on all of the claims through a
15

dismissal of Broten’s claims “in their entirety, with prejudice.” The 

district court entered a final judgment resolving all claims and 

Broten has not appealed the dismissal of his claim under N.D.C.C. 

§ 27-13-08.

[¶39] The bulk of the majority’s holding is centered on the district court’s 

dismissal of the Complaint without mentioning Count II of the Complaint, 

N.D.C.C. § 27-13-08, or treble damages. Regarding the majority’s second

sentence, I agree we should not independently “determine if a claim under 

N.D.C.C. § 27-13-08 is a separate claim from Broten’s legal malpractice claim

and/or has a separate statute of limitations from his legal malpractice claim.” 

That work must be done by the district court upon a motion by one or both of

the parties. No motion brought that issue to the district court. The district 

court did not address the issue. Nor should we.

[¶40] The majority next holds, “The judgment entered in the district court 

provides finality on all of the claims through a dismissal of Broten’s claims ‘in 

their entirety, with prejudice.’” I agree the judgment contains those words. But 

the briefing and the order contain no such expansive language, nor do they 

even mention N.D.C.C. § 27-13-08, treble damages or Count II of the 

Complaint. As a result, the breadth of the judgment is not tethered to any other 

paper, argument, or ruling in the summary judgment process.

[¶41] The majority also holds, “The district court entered a final judgment 

resolving all claims and Broten has not appealed the dismissal of his claim 

under N.D.C.C. § 27-13-08.” As explained above, I do not agree the district 

court resolved all claims. It has omitted adjudication of Complaint “Count II: 

Violation of NDCC § 27-13-08.” Regarding the majority’s statement, “Broten 

has not appealed the dismissal of his claim under N.D.C.C. § 27-13-08.” I agree. 

The treble damage claim has not been appealed because it has not been 

adjudicated. This lack of adjudication leaves the issue pending, and is precisely 

why this Court does not have jurisdiction over this appeal.

[¶42] I would dismiss the appeal for lack of jurisdiction. So this case is not 

caught in legal limbo, upon dismissal of the appeal I also would exercise this 
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Court’s supervisory jurisdiction and vacate the district court’s judgment so the

statutory claim can be adjudicated. 

[¶43]Daniel J. Crothers