Filed 12/12/19 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2019 ND 295

Open Road Trucking, LLC, as Assignee of

Leland A. Swanson, as Assignee of Western

State Bank, Plaintiff and Appellant 

v.

Leland A. Swanson, Defendant 

and

James B. Lund, Defendant and Appellee

No. 20190091

Appeal from the District Court of Cass County, East Central Judicial District, 

the Honorable Steven L. Marquart, Judge.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Opinion of the Court by VandeWalle, Chief Justice.

Bruce A. Schoenwald (argued) and Randolph E. Stefanson (on brief), 

Moorhead, MN for plaintiff and appellant.

Sarah Aaberg (argued) and Sean T. Foss (on brief), Fargo, ND for defendant 

and appellee.
1

Open Road Trucking v. Swanson, et al.

No. 20190091

VandeWalle, Chief Justice.

[¶1] Open Road Trucking, LLC, appealed from district court orders: (1) 

denying Open Road’s application for a charging order lien against James Lund; 

and (2) directing satisfaction of a judgment against Lund and Leland Swanson.

We conclude Open Road was entitled to take an assignment of the judgment 

for the purpose of enforcing contribution against Lund. We affirm in part, 

reverse in part, and remand.

I

[¶2] In September 2018, Western State Bank sued Swanson and Lund to 

enforce commercial guaranties executed by Swanson and Lund. Swanson and 

Lund consented to entry of judgment, and a $1,334,374.25 judgment was 

entered against Swanson and Lund. The judgment stated Swanson and Lund 

were jointly and severally liable.

[¶3] Swanson paid the judgment in full, and contemporaneously, Western 

State Bank assigned the judgment to Swanson. The next day, Swanson 

assigned his interest in the judgment to Open Road Trucking. The assignment 

from Swanson stated it assigned his contribution interest against Lund for

$670,952.24, one-half of the judgment amount.

[¶4] Open Road applied for a $670,952.24 charging order under N.D.C.C. § 

10-32.1-45 against Lund’s transferrable interests in five limited liability

companies. In response, Lund argued Open Road was not entitled to a charging 

order because Swanson paid the full amount of the judgment debt to Western 

State Bank and therefore, the judgment was satisfied. After a hearing, the 

district court denied Open Road’s application for a charging order. The court 

concluded Open Road was not entitled to a charging order because Swanson 

paid the judgment and there remained no unsatisfied part of the judgment 

under N.D.C.C. § 10-32.1-45(1).
2

[¶5] In January 2019, an execution of judgment was issued against Lund for 

the full amount of the judgment. Open Road also began a separate action 

against Lund for contribution under N.D.C.C. § 9-01-08. Swanson then moved

for an order directing entry of a satisfaction of judgment. The district court

granted the motion, ruling the judgment against Swanson and Lund was 

satisfied as a matter of law. The February 2019 order directing satisfaction of 

judgment also cancelled any outstanding execution of judgment.

II

[¶6] Open Road argues the district court erred in denying its application for 

a charging order against Lund. Open Road claims it could enforce Swanson’s 

right of contribution against Lund under the assignment of the judgment from 

Swanson.

[¶7] This case requires us to review the district court’s legal conclusions 

relating to the judgment and Open Road’s application for a charging order. It 

also involves an examination of various statutes relating to joint and several 

obligations, contribution, and judgments. A district court’s legal conclusions 

are fully reviewable on appeal. Estate of Conley, 2008 ND 148, ¶ 15, 753 

N.W.2d 384. “The interpretation and application of a statute is a question of 

law, which is also fully reviewable on appeal.” Id.

[¶8] Under N.D.C.C. § 9-12-03, “[p]erformance of an obligation by one of 

several persons who are liable jointly under it extinguishes the liability of all 

persons who are liable jointly thereon.” Section 9-01-08, N.D.C.C., allows a 

right to contribution between joint obligors: “A party to a joint obligation or to 

a joint and several obligation who satisfies more than that party’s share of the 

claim against all obligors may require a proportionate contribution from all the 

parties joined with that party.”

[¶9] Here, Swanson and Lund executed a consent to entry of judgment. The 

consent to entry of judgment and the subsequent judgment stated Swanson 

and Lund were jointly and severally liable. Under N.D.C.C. § 9-12-03, 

Swanson’s payment of the judgment debt to Western State Bank extinguished 
3

both Swanson’s and Lund’s liability to the bank. Swanson’s payment also 

created a right to contribution from Lund under N.D.C.C. § 9-01-08.

[¶10] We have stated, “In the absence of proof of a contrary agreement, a comaker who is required to pay the entire obligation may seek contribution or 

reimbursement from the other co-maker for one half of the amount paid.” 

Estate of Egeland, 2007 ND 184, ¶ 9, 741 N.W.2d 724. The presumption of 

equal liability may be rebutted, and a defendant has the burden to raise an 

affirmative defense. Collection Ctr., Inc. v. Bydal, 2011 ND 63, ¶ 13, 795 

N.W.2d 667. Here, the parties agreed to be jointly and severally liable under 

the judgment, and nothing in the record shows Lund’s proportionate share of 

the judgment was less than one-half of the amount.

[¶11] Judgments are governed by N.D.C.C. ch. 28-20. “Generally, a judgment 

is assignable.” Bank of Steele v. Lang, 423 N.W.2d 504, 505 (N.D. 1988) (citing 

N.D.C.C. § 28-20-20). After an assignment, the assignee stands in the shoes of 

the assignor and acquires no greater rights than held by the assignor. Bydal, 

2011 ND 63, ¶ 15, 795 N.W.2d 667.

[¶12] Lund argues the judgment was satisfied after Swanson’s payment of the 

judgment, and there remains no unsatisfied amount of the judgment under the 

charging order statute. Lund asserts Open Road can enforce contribution from 

Lund through a separate action for contribution under N.D.C.C. § 9-01-08. 

Open Road claims Swanson’s payment did not satisfy the judgment. Open Road 

argues it can use the assigned judgment to enforce contribution from Lund. 

Open Road asserts a charging order can be used to compel contribution.

[¶13] A creditor may file a satisfaction of judgment under N.D.C.C. § 28-20-24:

Any judgment rendered or docketed in any district court of 

this state may be canceled and discharged by the clerk thereof, 

upon the filing with the clerk of an acknowledgment of the 

satisfaction thereof signed by the party in whose favor the 

judgment was obtained, or by that party’s attorney of record, 

executor or administrator, or assignee, and duly acknowledged in 

the manner required to admit a deed of real property to record.
4

Nothing in the statute or N.D.C.C. ch. 28-20 states a judgment is satisfied upon 

full payment of the judgment.

[¶14] Swanson’s assignment of the judgment to Open Road stated he conveyed 

his contribution interest against Lund for one-half of the judgment amount. To 

enforce the assigned right to contribution, Open Road applied for a $670,952.24 

charging order against Lund’s transferrable interests in five limited liability 

companies. Lund resisted, claiming no judgment debt remained because 

Swanson paid the full amount of the judgment.

[¶15] Charging orders are governed by N.D.C.C. § 10-32.1-45, providing:

1. On application by a judgment creditor of a member or transferee 

and following notice to the limited liability company of the 

application, a court may enter a charging order against the 

transferable interest of the judgment debtor for the unsatisfied 

amount of the judgment.

2. A charging order constitutes a lien on the transferable interest 

of a judgment debtor and requires the limited liability company to 

pay over to the person to which the charging order was issued any 

distribution that would otherwise be paid to the judgment debtor.

3. The member or transferee whose transferable interest is subject 

to a charging order may extinguish the charging order by 

satisfying the judgment and filing a certified copy of the 

satisfaction with the court that issued the charging order.

4. At any time before extinguishment under subsection 3, a limited 

liability company or one or more members whose transferable 

interests are not subject to the charging order may pay to the 

judgment creditor the full amount due under the judgment and 

thereby succeed to the rights of the judgment creditor, including 

the charging order.

5. This chapter does not deprive any member or transferee of the 

benefit of any exemption laws applicable to the transferable 

interest of the member or transferee.

6. This section provides the exclusive remedy by which a person 

seeking to enforce a judgment against a member or transferee 

may, in the capacity of judgment creditor, satisfy the judgment 

from the transferable interest of the judgment debtor.

a. No other remedy, including foreclosure of the transferable 

interest or a court order for directions, accounts, and 
5

inquiries that the debtor member might have made, is 

available to the judgment creditor that is attempting to 

satisfy the judgment out of the judgment debtor’s interest in 

the limited liability company.

b. No creditor of a member or transferee has any right to 

obtain possession of or otherwise exercise legal or equitable 

remedies with respect to a property of the company.

7. This section applies to single member limited liability companies 

and limited liability companies with more than one member.

[¶16] The district court concluded that because Swanson paid the judgment in 

full, there was no “unsatisfied amount of the judgment” under N.D.C.C. § 10-

32.1-45(1). The court denied Open Road’s application for a charging order.

[¶17] This Court has not addressed the effect of an assignment of a judgment 

from a judgment creditor to a judgment debtor. We have not considered 

whether a judgment debtor who pays a judgment debt is limited to a 

contribution action against co-debtors for their proportionate share of the 

judgment debt. Or whether, in lieu of bringing a separate action for 

contribution, a judgment debtor may take an assignment of the judgment in 

the original action for the purpose of enforcing contribution against judgment 

co-debtors.

[¶18] California and Nebraska allow a judgment debtor who has paid more 

than his or her proportion of a judgment to take an assignment of the judgment 

to compel contribution. In Duke v. Superior Court, 226 Cal. Rptr. 3d 807, 815-

16 (Cal. Ct. App. 2017) (citations omitted), the court explained:

A judgment debtor who has paid more than his or her 

proportion of a judgment has three options for enforcing the right 

to contribution: statutory contribution, assignment, or an action on 

implied contract for contribution.

. . . .

In addition to bringing a [statutory] noticed motion to compel 

contribution or repayment, a joint judgment debtor may take an 

assignment of the judgment. However, by taking assignment of the 
6

judgment, the judgment debtor is entitled to use the assignment 

only for purposes of enforcing contribution.

[¶19] In Duke, the court discussed earlier cases explaining the principle of 

allowing a judgment debtor to take an assignment of the judgment to enforce 

contribution. 226 Cal. Rptr. 3d at 816-17 (citing Williams v. Riehl, 59 P. 762 

(Cal. 1899); Nat’l Bank v. Los Angeles Iron & Steel Co., 84 P. 468 (Cal. Dist. Ct. 

App. 1906); Tucker v. Nicholson, 84 P.2d 1045 (Cal. 1938)).

[¶20] In Williams, 59 P. at 763, three judgment debtors paid a judgment and 

took an assignment of the judgment. The debtors sought execution of the 

judgment against another co-debtor who had paid nothing. Id. The California 

Supreme Court explained its rationale for allowing a judgment debtor to take 

an assignment of a judgment and enforce the judgment by execution against a 

judgment co-debtor:

Equality is equity. The moment one co-surety or joint judgment 

debtor pays the debt of his principal, he has a right to recover from 

his cosurety or joint judgment debtor his proportionate share. The 

law gives him this right, and also imposes upon his co-surety the 

duty of paying his proportionate share. The obligation is as binding 

upon the co-surety as if created by promissory note or contract. It 

would be no defense for a defendant, when sued upon a promissory 

note or other written contract, to set up that the plaintiff held 

collateral securities or property for the purpose of indemnifying 

himself. Why should it be a defense in this kind of an action? Why 

should the plaintiff, in an action for contribution, after having paid 

out his money, be compelled to wait until he can realize upon some 

collateral indemnity, which may require years, while his co-surety, 

who was as much bound in law and morals as himself by the bond, 

has paid nothing? This would not make the burdens of the cosureties equal.

Id. at 764. The court concluded, “The respondents, by paying the plaintiff, and 

taking an assignment of the judgment, only became entitled to use it for the 

purpose of enforcing contribution from their co-sureties or payment from their 

principal.” Id. at 764-65. “They were only subrogated to the rights of the 

plaintiff for the purpose of using the judgment in order to protect themselves 
7

and their co-sureties, and for the purpose of compelling contribution.” Id. at 

765.

[¶21] In Tucker, 84 P.2d at 1047 (citations omitted), the California Supreme 

Court further held:

The assignment [of the judgment] may be taken in the name of the 

judgment debtor, or, as in the instant case, in the name of a third 

party. Whether the judgment debtor proceeds . . . by taking an 

assignment of the judgment, the payment to the judgment creditor 

does not operate as a satisfaction of the judgment as between the 

debtor paying it and those jointly liable with him. The judgment is 

kept alive in equity to be used by the debtor paying to recover from 

his coobligors the proportions they should pay, and he may have 

execution against them.

[¶22] In Exchange Elevator Co. v. Marshall, 22 N.W.2d 403, 413 (Neb. 1946)

(quoting Nelson v. Webster, 100 N.W. 411, 414 (Neb. 1904)), the court stated:

The same contention [that a judgment debtor could bring a 

separate action for contribution] was disposed of in Nelson v. 

Webster, supra. There it was held that “When the person seeking 

payment has conclusively shown that he was the surety (here a 

joint debtor who had paid his proportionate share of the debt), that 

he paid the full amount of the debt (here a substantial part of the 

balance), and that the judgment against the defendant had been 

assigned to him, there is nothing further necessary to be proved to 

authorize him to compel payment.” It was held that no good could 

result from compelling the paying debtor first to maintain a 

separate suit to establish that which he had already established. 

So here, all that could be done in another action has already been 

done. [The judgment co-debtor] “has had his day in court and 

should pay the debt without further litigation.”

[¶23] Minnesota, North Carolina, Georgia, and Maryland have statutes or 

rules allowing a judgment debtor to use a judgment to enforce contribution 

from co-debtors when the judgment debtor has paid more than his or her share

of the judgment. See Minn. Stat. § 548.19; N.C. Gen. Stat. § 1B-7; Ga. Code 

Ann., § 9-13-78; Md. Rules 2-614.
8

[¶24] We are persuaded by the authorities discussed above. A judgment debtor 

who has paid more than his or her proportionate share of the judgment should 

not have to bring a separate action against co-debtors to compel contribution 

from them. A co-debtor is already obligated to pay under the original judgment; 

the interests of justice are not served by requiring the paying debtor to obtain 

another judgment for contribution against a co-debtor.

[¶25] Accordingly, we hold that, in addition to a separate action for 

contribution under N.D.C.C. § 9-01-08, a judgment debtor, or an assignee of 

the judgment debtor, may take an assignment of the judgment for the purpose 

of enforcing contribution against co-debtors. The payment to the judgment 

creditor does not satisfy the judgment as between the debtor paying it and 

those jointly liable. The judgment may be used by the paying debtor to recover 

proportionate amounts from his or her co-debtors, and the paying debtor may 

enforce the judgment by execution or other lawful means.

[¶26] Applying our holding to this case, we conclude the judgment was not 

satisfied as between Swanson and Lund, and Open Road was entitled to take 

an assignment of the judgment from Swanson to enforce Swanson’s right of 

contribution from Lund for one-half of the judgment amount. The “unsatisfied 

amount of the judgment,” as used in N.D.C.C. § 10-32.1-45(1), means Lund’s 

proportionate share of the judgment amount. In this case, Lund has not 

presented any evidence contesting the amount of his proportional share of the 

unsatisfied amount of the judgment. Additionally, any execution sought 

against Lund shall only be for his proportionate share.

[¶27] We reverse the district court’s order denying Open Road’s application for 

a charging order, and remand for entry of a charging order against Lund’s 

transferrable interests in the limited liability companies. We reverse the part 

of the court’s February 2019 order directing entry of satisfaction of the

judgment. We affirm that part of the order cancelling any execution of 

judgment for the full amount of the judgment.
9

III

[¶28] The parties’ remaining arguments are either unnecessary to our opinion 

or without merit. The orders are affirmed in part, reversed in part, and 

remanded. 

[¶29] Gerald W. VandeWalle, C.J.

 Jon J. Jensen

 Daniel J. Crothers

 Lisa Fair McEvers

 Jerod E. Tufte