IN THE SUPREME COURT

STATE OF NORTH DAKOTA

Steven J. Nelson and Gail Nelson-Hom, )

Plaintiffs/Appellees, )

)

v. ) Supreme Court No. 20170356

)

William L. Nelson, )

Defendant/Appellant, )

Appeal from the Judgment dated August 4, 2017 and Order entered December 1,

2017 by the District Court, South Central Judicial District, Burleigh County, North

Dakota, the Honorable Thomas J. Schneider, Presiding

Steven J. Nelson and Gail Nelson-Hom v. William L. Nelson

Civil No.: 08-2016-CV-00130

________________________________________________________________________

BRIEF OF APPELLEES STEVEN J. NELSON AND GAIL NELSON-HOM

________________________________________________________________________

MICHEAL A. MULLOY (# 07239)

STEBBINS MULLOY, LLC

120 N. 3rd Street, Suite 230

Bismarck, North Dakota 58501

PH: 701-390-8580

FX: 701-639-2845

E-mail: mmulloy@stebbinsmulloylaw.com

20170356FILED

IN THE OFFICE OF THE CLERK OF SUPREME COURT

APRIL 23, 2018 STATE OF NORTH DAKOTA

TABLE OF CONTENTS

Paragraph No.

TABLE OF AUTHORITIES ...............................................................................................1

STATEMENT OF ISSUES .................................................................................................2

STATEMENT OF THE CASE ............................................................................................3

STATEMENT OF FACTS ................................................................................................10

LAW AND ARGUMENT .................................................................................................16

I. The Trial Court’s Finding, that the Quit Claim Deed was Not a Product of Undue

Influence or Lack of Capacity, was Not Clearly Erroneous ..................................17

II. The Trial Court’s Fashioning of the Partition of the Property, Which Removed

William from the Property and Granted Exclusive Authority to Steven to Sell the

Property, was not Clearly Erroneous .....................................................................35

III. The Trial Court Properly Concluded That William Ousted Steven and Gail from

the Property Thus Entitling Them to Rent from William ......................................47

IV. The Trial Court’s Decision to Award Attorney’s Fees to Steven and Gail Pursuant

to N.D.C.C. §§ 28-26-01(2) and 28-26-31 Was Not an Abuse of Discretion .......58

V. The Trial Court’s Decision to Limit Discovery and Strike Affidavits from the

Record was Not an Abuse of Discretion ................................................................62

VI. William’s Appeal is Frivolous Thus Entitling Steven and Gail to Attorney’s Fees

................................................................................................................................67

CONCLUSION .................................................................................................................71

[1] TABLE OF AUTHORITIES

Paragraph No.

North Dakota Cases

Barrett v. Gilbertson,

2013 ND 35, 827 N.W. 2d 831 ..........................................................................................59

Brash v. Gulleson,

2013 ND 156, 835 N.W.2d 798 ...................................................................................18, 22

City of Harwood v. City of Reiles Acres,

2015 ND 33, 859 N.W.2d 13 .............................................................................................37

Deacon’s Dev., LLP v. Lamb,

2006 ND 172, 719 N.W.2d 379 .........................................................................................59

Eastman v. Nelson,

319 N.W.2d 134 (N.D. 1982) .....................................................................................41, 43

Ellison v. Strandback,

62 N.W.2d 95 (N.D. 1953) ................................................................................................50

Erickson v. Olsen,

2014 ND 66, 844 N.W.2d 585 .........................................................................26, 32, 33, 34

Estate of Nelson,

553 N.W.2d 771 (N.D.1996) .......................................................................................28, 30

Estate of Robinson,

2000 ND 90, 609 N.W.2d 745 ...........................................................................................18

Estate of Wagner,

551 N.W.2d 292 (N.D.1996) .............................................................................................18

Estate of Wenzel–Mosset by Gaukler v. Nickels,

1998 ND 16, 575 N.W.2d 425 .....................................................................................18, 28

Forester v. West Dakota Veterinary Clinic, Inc.,

2004 ND 207, 689 N.W.2d 366 .........................................................................................65

Hagen v. Hagen,

137 N.W.2d 234 (N.D. 1965) ............................................................................................50

Hendricks v. Porter,

110 N.W.2d 421 (N.D. 1961) ......................................................................................21, 24

Higgins v. Trauger,

2003 ND 3, 656 N.W.2d 9 .................................................................................................38

In re Hirsch,

2014 ND 135, 848 N.W.2d 719 .........................................................................................68

Johnson v. Johnson,

85 N.W.2d 211 (N.D. 1957) ......................................................................20, 21, 23, 24, 26

Kronebusch v. Lettenmaier,

311 N.W.2d 32 (N.D. 1981) ..............................................................................................21

Lynch v. New Pub. Sch. Dist.,

2012 ND 88, 816 N.W.2d 53 .............................................................................................63

Meyer v. Russell,

55 N.D. 546, 214 N.W. 857 (1927) ..................................................................................28

Mougey Farms v. Kaspari,

1998 ND 118, 579 N.W.2d 583 ...................................................................................38, 46

Murphy v. Murphy,

1999 ND 118, 595 N.W.2d 571 .........................................................................................37

Parceluk v. Knudtson,

139 N.W.2d 864 (N.D. 1966) ......................................................................................49, 57

Peter-Riemers v. Riemers,

2002 ND 49, 641 N.W.2d 83 .............................................................................................43

Peterson v. Zerr,

477 N.W.2d 230 (N.D. 1991) ............................................................................................59

RRMC Constr., Inc. v. Barth,

2010 ND 60, 780 N.W.2d 656 ...............................................................................18, 29, 46

Sagebrush Resources, LLC v. Peterson,

2014 ND 3, 841 N.W.2d 705 .............................................................................................59

Schmidt v. Wittinger,

2004 ND 189, 687 N.W.2d 479 .........................................................................................37

Simons v. Tancre,

321 N.W.2d 495 (N.D. 1982) ............................................................................................50

Simpson v. Chicago Pneumatic Tool Co.,

2003 ND 31, 657 N.W.2d 261 ...........................................................................................63

Slorby v. Johnson,

530 N.W.2d 307 (N.D.1995) ............................................................................................28

Soentgen v. Quain & Ramstad Clinic, P.C.,

467 N.W.2d 73 (N.D. 1991) ..............................................................................................59

State v. Zimmerman,

524 N.W.2d 111 (N.D. 1994) ...........................................................................................42

Stevahn v. Meidinger,

79 N.D. 323, 57 N.W.2d 1 (1952) .....................................................................................49

Stoll v. Gottbreht,

45 N.D. 158, 176 N.W. 932 (1920) ...................................................................................50

Strand v. Cass County,

2008 ND 149, 753 N.W.2d 872 ...................................................................................59, 61

Sulsky v. Harob,

357 N.W.2d 243 (N.D. 1984) ............................................................................................21

United Bank of Bismarck v. Young,

401 N.W.2d 517 (N.D. 1987) ............................................................................................69

Westchem Agric Chems., Inc. v. Engel,

300 N.W.2d 856 (N.D. 1980) ............................................................................................59

North Dakota Century Code

N.D.C.C. § 28-26-01(2) .......................................................................................2, 8, 58, 59

N.D.C.C. § 28-26-31 ............................................................................................2, 8, 58, 59

N.D.C.C. § 30.1-04-03 .......................................................................................................70

N.D.C.C. § 32-16-01 ..........................................................................................................37

N.D.C.C. § 32-16-12 ................................................................................................4, 15, 37

N.D.C.C. § 32-16-13 ............................................................................................................4

N.D.C.C. § 47-32-01(6) ..............................................................................................43, 44

North Dakota Rules

N.D.R.App.P. 38 ..........................................................................................................68, 70

N.D.R.Ev. 103(a)(2)...........................................................................................................65

N.D.R.Ev. 408 ....................................................................................................................66

N.D.R.Ev. 802 ....................................................................................................................66

Other Authorities

Condra v. Grogan Mfg. Co.,

233 S.W.2d 565..................................................................................................................50

Hamby v. Folsam,

42 So. 548 (Ala. 1906) .......................................................................................................48

Manahan v. Manahan,

52 S.W.2d 825 (Mo. 1932) ...............................................................................................26

Parker v. Shecut,

562 S.E.2d 620 (S.C. 2002) .........................................................................................53, 54

Roumillot v. Gardner,

38 S.E. 362 (Ga. 1901).......................................................................................................48

Stelly v. C.I.R.,

761 F.2d 1113 (5th Cir. 1985) ...........................................................................................68

Undue Influence,

16 Am.Jur., Section 38 .......................................................................................................26

[2] STATEMENT OF ISSUES

I. Whether the Trial Court’s Finding, that the Quit Claim Deed was Not a

Product of Undue Influence or Lack of Capacity, was Clearly Erroneous.

II. Whether the Trial Court’s Fashioning of the Partition of the Property, which

Removed William from the Property and Granted Exclusive Authority to

Steven to Sell the Property, was Clearly Erroneous.

III. Whether the Trial Court Properly Concluded that William Ousted Steven and

Gail from the Property Thus Entitling Steven and Gail to Rents from William.

IV. Whether the Trial Court’s Decision to Award Attorney’s Fees to Steven and

Gail Pursuant to N.D.C.C. §§ 28-26-01(2) and 28-26-31 was an Abuse of

Discretion.

V. Whether the Trial Court’s Decision to Limit Discovery and Strike Affidavits

from the Record was an Abuse of Discretion.

VI. Whether William’s Appeal is Frivolous Thus Entitling Steven and Gail to

Attorney’s Fees.

[3] STATEMENT OF THE CASE

[4] This action involves Steven and Gail’s request for a partition of real property

that they jointly own with their brother, William, pursuant to Ch. 32-16, N.D.C.C. App.

12-17. Steven, Gail, and William, as tenants in common, each own a one-third interest in

a condominium located at 3113 Winnipeg Drive, Bismarck, North Dakota, legally

described as:

Lot Seven, except the North two feet in Block Four, North Hills

First Addition to the City of Bismarck, North Dakota.

(“Property”). This action was commenced by service of the Summons and Complaint upon

William on January 12, 2016. App. 18. In their Complaint, Steven and Gail requested that

because the Property could not be partitioned in-kind pursuant to N.D.C.C. § 32-16-13,

that the Property be sold pursuant to N.D.C.C. § 32-16-12. App. 12-17.

[5] On February 2, 2016, William interposed his Answer to Partition and

Counterclaim. App. 24-26. In his Counterclaim, William alleged that “due to the actions

of [Steven and Gail] [William has] not quietly enjoyed the Property and is entitled to

damages for the same.” App. 24-26. In his Answer to Partition and Counterclaim, William

further asserted that the April 15, 2011 Quit Claim Deed, which transferred the Property to

Steven, Gail and William, “was executed under conditions that constitute undo (sic)

influence and/or involuntarily executed due to lack of capacity, or a combination thereof.”

Id. Steven and Gail interposed their answer to the Counterclaim on February 8, 2016 and

denied the allegations set forth by William. App. 28-30.

[6] On May 1, 2017, Steven and Gail moved the trial court for partial summary

judgment. App. 292-391. In their motion, they requested: that the trial court find that the

Quit Claim Deed was valid and not the subject of undue influence or lack of capacity; that

the court order a sale of the Property, as an in-kind partition could not be accomplished;

and that they had the right to pursue their claim for rents because they were ousted from

the Property by William. Id. At the conclusion of the summary judgment hearing, the trial

court found that the Quit Claim Deed was valid, ordered that William vacate the Property

before July 31, 2017 at 5:00 p.m., that the Property be sold by a licensed real estate agent,

and that Steven and Gail had the right to pursue their request for rents based upon the

allegation that they were ousted from the Property by William. App. 917-918.

[7] On June 29, 2017, trial was held regarding the remaining issues that were not

disposed of by the partial summary judgment order. After hearing evidence, the trial court

requested that the parties submit post-trial briefs; proposed findings of fact, conclusions of

law, and order for judgment; and a proposed judgment. On August 2, 2017, the trial court

issued its Memorandum Opinion and Order, which made findings and adopted Steven and

Gail’s proposed findings of fact, conclusions of law, and order for judgment, and proposed

judgment. App. 929-930. Judgment was entered by the Burleigh County Clerk of Court

on August 4, 2017. App. 945-951.

[8] On September 9, 2017, Steven and Gail made their Motion for Attorney’s Fees

and Costs. App. 961-989. In their motion, Steven and Gail requested that they be awarded

their costs, as they were the prevailing party, and further requested that they be awarded

attorney’s fees in accordance with N.D.C.C. §§ 28-26-01(2) and 28-26-31. On October

27, 2017, William filed his Motion for Attorney’s Fees. App. 1443-1446. On November

30, 2017, the trial court issued its Order regarding the motions for attorney’s fees. App.

1472-1477. The trial court granted Steven and Gail’s request for attorney’s fees and denied

William’s request. Id.

[9] On October 5, 2017, William filed his Notice of Appeal. App. 1003-1005. On

December 19, 2017, William filed his Amended Notice of Appeal. App. 1487-1492.

[10] STATEMENT OF FACTS

[11] As part of her estate plan, Elsie Haykel, the mother of the parties, transferred

via a quit claim deed, a remainder interest in the Property to Steven, Gail, and William on

April 15, 2011. App. 16-17. Ms. Haykel reserved a life estate in the Property that allowed

her to live at the Property during her lifetime. Id.

[12] On October 7, 2014 Ms. Haykel passed away. App. 68-70. Ms. Haykel was

survived by her children. App. 71-73. On November 6, 2014, Ms. Haykel’s Certification

of Death was recorded against the Property, extinguishing her life estate and transferring

the Property to Steven, Gail, and William in fee simple, as tenants in common. App. 68-

70. The remaining probate assets of Ms. Haykel’s estate were to be divided equally

between Steven, Gail, and William in accordance with her April 15, 2011 Last Will and

Testament. App. 381-383. Beginning around January 1, 2015, William began exclusively

living at the Property and considered the Property his legal residence. App. 317-339.

[13] In or around January, 2015, Steven, Gail, and William entered into discussions

regarding the disposition and sale of the Property. Thereafter, on February 22, 2015,

William made a written action plan regarding the sale of the Property. App. 384. It was

William’s proposal that the Property be listed for sale in or around June 2015. Id; see also

App. 317-339. Steven confirmed William’s desire to sell the Property during his February

22, 2017 deposition. App. 340-347. However, on May 4, 2015, William sent a memo to

Steven and Gail stating that the Property would not be sold until April 1, 2017,

approximately 22 months after the original proposed sale. App. 348-350. Prior to the trial

court’s oral partial summary judgment order, it was the position of Steven and Gail that

William was unreasonably delaying the matter so he could continue to reside at the

Property without having any financial obligations thereto.

[14] In May, 2015, while the parties were discussing settlement regarding the

disposition of the Property, either by sale or by William buying Steven and Gail’s interest

in the Property, Steven requested that William start paying rent and Gail agreed with the

request. App. 340-347. Despite the request for rent, William paid no rent to Steven and

Gail. William acknowledged that Steven asked him in May, 2015 to start paying rent to

Steven and Gail. App. 317-339.

[15] After settlement negotiations between the parties failed, despite Steven and

Gail’s good faith efforts, on January 12, 2016, Steven and Gail commenced this action for

the partition of the Property. App. 11-18. Steven and Gail alleged that because the

Property could not be partitioned in-kind, that the trial court order a sale of the Property in

accordance with N.D.C.C. § 32-16-12. App. 12-17. On February 2, 2016, William

interposed his Answer to Partition and Counterclaim. App. 24-27.

[16] LAW AND ARGUMENT

[17] I. The Trial Court’s Finding, that the Quit Claim Deed was Not a Product of

Undue Influence or Lack of Capacity, was Not Clearly Erroneous.

[18] At issue is whether the trial court’s finding, that the Quit Claim Deed was not

the product of undue influence or lack of capacity, was clearly erroneous. The

determination of mental capacity and whether undue influence occurred is a question of

fact subject to the clearly erroneous standard of review. Estate of Robinson, 2000 ND 90,

¶11, 609 N.W.2d 745; Estate of Wenzel–Mosset by Gaukler v. Nickels, 1998 ND 16, ¶14,

575 N.W.2d 425; Estate of Wagner, 551 N.W.2d 292, 295 (N.D.1996). “In applying the

‘clearly erroneous’ standard, [the Court does] not substitute [its] judgment for that of the

trial court.” Brash v. Gulleson, 2013 ND 156, ¶14, 835 N.W.2d 798 (citation omitted). “It

is not sufficient that [the Court] merely may have viewed the facts differently if [it] had

been the trier of fact.” Id. (citation omitted). “A trial court's choice between two

permissible views of the weight of the evidence is not clearly erroneous, and simply

because [the Court] may have viewed the evidence differently does not entitle [it] to reverse

the trial court.” RRMC Constr., Inc. v. Barth, 2010 ND 60, ¶7, 780 N.W.2d 656 (citation

omitted). A finding of fact rises to the level of clearly erroneous only “if it is induced by

an erroneous view of the law, if no evidence supports it, or if, on the entire record, [the]

Court is left with a definite and firm conviction a mistake has been made.” Estate of

Robinson, 2000 ND 90, ¶11, 609 N.W.2d 745 (citing Estate of Nelson, 553 N.W.2d 771,

773 (N.D.1996)).

[19] Because William failed to prove the elements of each cause of action for undue

influence and lack of capacity, the trial court’s finding that the Quit Claim Deed was not

the product of undue influence or lack of capacity, was not clearly erroneous.

[20] i. William Failed to Satisfy the Elements of Johnson to Prove His Undue

Influence Claim.

[21] In cases involving nontestamentary transactions, this Court has defined undue

influence as “improper influence [] exercised over the grantor…in such a way and to such

an extent as to destroy his free agency or his voluntary action by substituting for his will

the will for another.” Johnson v. Johnson, 85 N.W.2d 211, 221 (N.D. 1957). In

nontestamentary cases “[a] finding of undue influence…requires that three factors be

established: a person who can be influenced; the fact of improper influence exerted; and

submission to the overmastering effect of such unlawful conduct. Sulsky v. Harob, 357

N.W.2d 243, 248 (N.D. 1984) (citing Kronebusch v. Lettenmaier, 311 N.W.2d 32, 35 (N.D.

1981)). The existence of undue influence is a question of fact. Hendricks v. Porter, 110

N.W.2d 421, 429 (N.D. 1961). Here, William did not establish the Johnson factors and

thus the trial court’s decision was not clearly erroneous.

[22] In his brief, William argues that he “set forth sufficient amount of evidence

that would have precluded a partial summary judgment” and lists seven items which he

believes support his claims of undue influence and lack of capacity. Appellant’s Brief at

¶20. In presenting such an argument to this Court, William desires to re-litigate issues of

fact that were decided by the trial court. This Court’s precedence is very clear that it will

not substitute its judgment for that of the trial court. Brash, 2013 ND 156, ¶14, 835 N.W.2d

798. For this reason alone, this Court should affirm the trial court’s decision.

[23] Even if the Court were to re-litigate facts, William failed to satisfy the

requirements of Johnson. As to the first factor, William made no showing that when the

Quit Claim Deed was executed, Ms. Haykel was a person able to be influenced. William

argues undue influence is shown, in part, because Ms. Haykel’s estate plan was set up using

a service provided to Steven through his former employment and that Steven also used

Attorney Karen McBride for his own personal estate planning. However, Steven was not

involved with the decision to execute the Quit Claim Deed and Steven did not employ

Attorney McBride’s services for his personal estate planning until after the Quit Claim

Deed was executed. App. 854-860. There was no evidence presented that Ms. Haykel was

a person who could be subjected to undue influence.

[24] As to the second and third factors set forth in Johnson that improper influence

was exerted and that Ms. Haykel submitted to the overmastering effect of such unlawful

conduct by Steven, William again failed to carry his burden at the trial court. While it is

undisputed that Steven attended the meetings when Ms. Haykel met with Attorney

McBride, undue influence is not established by the mere fact that a deed was executed

while Steven attended the meetings with Ms. Haykel. Hendricks, 110 N.W.2d at 430.

There was no evidence presented by William that there was excessive importunity, as

where Ms. Haykel was “so worn out with importunities” that her will gave way and she

executed the Quit Claim Deed, and that influence amounted to fraud. See id at 430-31.

Here, Ms. Haykel consulted with a competent and seasoned estate planning attorney who

specifically set forth Ms. Haykel’s goals with her estate planning in a letter to the parties

to this action. App. 858-860.

[25] Based upon her consultations with Ms. Haykel, Attorney McBride informed

the parties:

Elsie expressed two goals in our discussions: First, that her three children

be equal beneficiaries of her estate; and second, that we do as much as we

possibly could to avoid the necessities of a probate action following her

death.

…

With regard to Elsie’s home (the Property), her husband had just died, so it

was necessary to clear out his interest in that property with the Burleigh

County Recorder’s office. She also wanted, of course, for the home to pass

to the three of you without needing to file a probate action. Therefore, we

did a deed wherein Elsie retained the life estate interest for as long as she

lived, and gave the remainder interest to the three children in equal shares.

Id. It is without question that Ms. Haykel independently and without any undue influence

made the decision to execute the Quit Claim Deed.

[26] Undue influence did not occur in this case. This Court has stated that undue

influence takes many forms. Johnson, 85 N.W.2d at 221. It has been described “in the

nature of a species of constructive fraud” and that “undue influence which will void a deed

is such influence as is obtained by excessive importunity, superiority of will or mind, or by

other means constraining the grantor to do what he would want to do but is unable to

refuse.” Id (citing 16 Am.Jur., Section 38, Undue Influence, page 460)). “Undue influence

to justify setting aside a deed is such overpersuasion, coercion, force by deception as breaks

the grantor’s will power, not merely influence of natural affection.” Johnson, 85 N.W.2d

at 221 (citing Manahan v. Manahan, 52 S.W.2d 825, 827 (Mo. 1932)). The types of undue

influence described above did not occur in this case. In fact, the Quit Claim Deed executed

by Ms. Haykel treated her three children equally. If Steven (or Gail) unduly influenced

Ms. Haykel to execute the Quit Claim Deed, one would presume that they would try to

exclude other children from receiving a share in the Property, as was done in Erickson v.

Olsen, 2014 ND 66, 844 N.W.2d 585. Steven and Gail received no additional benefit than

that of William and thus Ms. Haykel was not unduly influenced; the trial court did not error

in finding as much.

[27] ii. William Failed to Present Any Competent Evidence to Support His

Claim that Ms. Haykel Lacked Capacity to Execute the Quit Claim Deed.

[28] Before a court can set aside a transaction on the ground of mental incapacity,

the party attacking the validity of the transaction must show the grantor, at the time of the

transaction, was so weak mentally as not to be able to comprehend and understand the

nature and effect of the transaction.” Estate of Nelson, 553 N.W.2d 771, 773 (N.D.

1996) (citations omitted). “Old age alone does not render a person incompetent, even if the

mind is weak or impaired or even if capacity to transact general business may be

lacking.” Estate of Wenzel–Mosset, 1998 ND 16, ¶13, 575 N.W.2d 425 (citing Slorby v.

Johnson, 530 N.W.2d 307, 309 (N.D.1995)). Impairment of faculties by disease or old age

will not invalidate a deed if the grantor fully comprehended its meaning and effect and was

able to exercise his or her will in executing it. Meyer v. Russell, 55 N.D. 546, 546, 214

N.W. 857, 869 (1927). Capacity or lack of capacity is a question of fact. Estate of Nelson,

553 N.W.2d at 773.

[29] Similar to William’s undue influence claim, he requests that this Court re-

litigate issues of fact that were fully decided by the trial court. The trial court heard the

evidence presented by both parties, which presented strikingly different opinions regarding

Ms. Haykel’s competency. Upon hearing the evidence, the trial court found that Ms.

Haykel did not lack capacity when she executed the Quit Claim Deed. “A trial court's

choice between two permissible views of the weight of the evidence is not clearly

erroneous, and simply because [the Court] may have viewed the evidence differently does

not entitle [it] to reverse the trial court.” RRMC Constr., Inc., 2010 ND 60, ¶7, 780 N.W.2d

656. Again, for this reason alone, the trial court’s decision should be affirmed.

[30] Even if the Court wanted to re-litigate issues, William did not meet the burden

set forth in Nelson to sustain his claim. At his January 11, 2017 deposition, William was

asked, “What facts do you have that support your allegation that [Ms. Haykel] lacked

capacity when she executed the [Quit Claim Deed]?” App. 317-339. William responded:

A. The question is a summary repetition. I refer back to my responses on

all the other questions you’ve posed to me on undue influence.

Q. [] So the testimony that you gave both here today and in your

interrogatories, those are the factual bases that support your claim of

undue -- or excuse me -- of diminished capacity?

MR. JACKSON: I’m going to object as argumentative. And,

obviously, subject to ongoing discovery.

Q. (MR. MULLOY CONTINUING) You can answer the question.

MR. JACKSON: Yes, you can.

THE WITNESS: Yes, but I will also add that by virtue of her age and

her medical conditions, to the extent to which I was aware of them,

diminished her ability -- diminished her capacity --

Q. (MR. MULLOY CONTINUING) And in two thousand --

A. -- mentally and physically.

Q. Mr. Nelson, in 2011 how old was your mother?

A. Eighty-nine years old.

App. 317-339.

[31] When asked about what medical conditions William was aware of that would

have inhibited Ms. Haykel’s mental capacity to execute the Quit Claim Deed, William

indicated that Ms. Haykel had osteoporosis, macular degeneration, and that two decades

prior, was diagnosed with breast cancer. App. 317-339. Even in making these broad

allegations, William did not carry his burden and presented no competent evidence that at

the time the Quit Claim Deed was executed, Ms. Haykel lacked capacity. In fact, when the

Quit Claim Deed was executed, William was living in California and he admitted that he

did not assist with Ms. Haykel’s medical care and had no knowledge of the same. App.

317-339. Contrary to William’s allegation, after the death of her husband, Ms. Haykel

managed her own finances until nearly the time she passed away. App. 340-347; 351-360.

[32] William cites to Erickson v. Olsen to support his position that the Quit Claim

Deed was a product of undue influence exerted by Steven. In Erickson, Clarence Erickson

had four children from a first marriage. Erickson, 2014 ND 66, ¶2, 844 N.W.2d 585. After

a divorce, Clarence remarried Clara Olsen who had six children from a previous marriage.

Id. In 2008, $42,000 was given to one of Clara’s children; in 2008 another $9,000 was

given to a spouse of one of Clara’s sons; and in 2010, an additional $12,500 was given to

one of Clara’s sons and his wife. Id. at ¶¶5-7. In February, 2010, one of Clara’s sons took

Clarence to an attorney’s office where two warranty deeds were signed transferring all his

real property to two of Clara’s sons for a drastically reduced value. Id. at ¶8. Furthermore,

in September, 2010 Clarence was taken to a law office to sign a new will, which excluded

two of his stepchildren. Id. at ¶10.

[33] After the death of Clarence, his son, Curtis, became aware of the land transfers

and new will. He filed a petition to rescind the transactions and to deem Clarence’s new

will invalid based upon undue influence, duress, misrepresentation and incompetence. Id.

at ¶15. Following trial, the court entered a judgment concluding that undue influence was

exerted over Clarence when he executed his new will and when he transferred real and

personal property to Clara’s children and spouses. Id. The trial court further found that

Clarence lacked testamentary capacity to execute a new will and to sign deeds transferring

property. Id. The trial court’s decision was affirmed on appeal.

[34] In this case, the facts are strikingly different from the facts in Erickson. Most

importantly, William, Steven, and Gail were all treated equally both under Ms. Haykel’s

Last Will and Testament and the Quit Claim Deed. The trial court’s decision regarding its

finding on William’s lack of capacity claim was not clearly erroneous.

[35] II. The Trial Court’s Fashioning of the Partition of the Property, Which

Removed William from the Property and Granted Exclusive Authority to

Steven to Sell the Property, was not Clearly Erroneous.

[36] William argues that the trial court committed reversible error in removing

William from the Property and that it was “unreasonable” when it granted to Steven

exclusive authority to sell the Property. Because the trial court’s decision was not clearly

erroneous, its decision should be affirmed.

[37] “Partition is a matter of right between cotenants” pursuant to N.D.C.C. § 32-

16-01. City of Harwood v. City of Reiles Acres, 2015 ND 33, ¶30, 859 N.W.2d 13.

Although the law favors partition in-kind, N.D.C.C. § 32-16-12 authorizes a partition sale

if partition in-kind cannot be made without great prejudice to the owners. Schmidt v.

Wittinger, 2004 ND 189, ¶¶6-7, 687 N.W.2d 479. Furthermore, partition is an equitable

remedy governed by equitable principles. Murphy v. Murphy, 1999 ND 118, ¶11, 595

N.W.2d 571.

[38] A trial court's findings in a partition action will not be reversed on appeal

unless clearly erroneous. Mougey Farms v. Kaspari, 1998 ND 118, ¶33, 579 N.W.2d 583.

“A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if

there is no evidence to support it, or if, after reviewing all the evidence, [the Court is] left

with a definite and firm conviction a mistake has been made.” Higgins v. Trauger, 2003

ND 3, ¶10, 656 N.W.2d 9.

[39] i. The Trial Court Had the Right to Remove William from the Property

Based Upon its Broad Partition Authority.

[40] William argues that based upon N.D.C.C. Chapter 47-32 “it is inherent that an

owner of property cannot be evicted from his/her own home” and that his “procedural due

process” rights were violated. Appellant’s Brief at ¶16. William’s argument is misguided

and he presents a fundamental misunderstanding of the law.

[41] Trial courts have “wide judicial discretion in partition actions to ‘do equity’

and to make a fair and just division of the property or proceeds between the parties,” and

“great flexibility in fashioning appropriate relief for the parties.” Eastman v. Nelson, 319

N.W.2d 134, 136 (N.D. 1982). In this matter, based upon Steven and Gail being ousted

from the Property (see infra at ¶¶47-57) and William’s disposition to delay the sale of the

Property for his own financial benefit, Steven and Gail, when they made their Motion for

Partial Summary Judgment, requested that as part of partial judgment, William be ordered

to vacate the Property. App. 295-313.

[42] In his Response to Motion for Partial Summary Judgment, William conceded

that because the Property could not be split in-kind, a partition sale was appropriate. App.

524-536. William, however, never once argued that the trial court lacked the authority to

remove him from the Property after the issuance of the Partial Summary Judgment Order.

App. 917-918. Because this issue was not raised during the trial court proceedings,

William cannot raise this issue before this Court. State v. Zimmerman, 524 N.W.2d 111,

116 (N.D. 1994).

[43] Even if this Court considers William’s argument, the trial court had inherent

authority to order his removal. See Eastman, supra. Section 47-32-01(6), N.D.C.C.,

provides that an eviction action is maintainable when “[a] party continues wrongfully in

possession after a judgment in partition or after the sale under an order or decree of a trial

court.” (emphasis added). Inherent within N.D.C.C. § 47-32-01(6) is the trial court’s

authority to remove an owner from real estate if they holdover after a judgment or judgment

in a partition is entered. See Peter-Riemers v. Riemers, 2002 ND 49, 641 N.W.2d 83

(holding that an eviction action could be maintained after a judgment was entered awarding

the real property to wife in a divorce action).

[44] Here, the trial court issued an oral partial summary judgment order on June 27,

2017 that ordered that the Property be sold and William vacate the same. Tr. of June 27,

2017 hearing at pg. 29, ln. 6-25; pg. 30, ln. 1-18. William was allowed to reside in the

Property for an additional month until July 31, 2017. Id. If William would have held over

after July 31, 2017, an eviction action could have been maintained in accordance with

N.D.C.C. § 47-32-01(6). The effect of a partial summary judgment order as it relates to

the request for a partition sale, acted as a final judgment. William’s argument that he was

“forced out of the subject real property prior to final Judgment being entered in the partition

action,” is meritless. See Appellant’s Brief at ¶16. The trial court had the authority to

remove William from the Property and its decision was not clearly erroneous.

[45] ii. The Trial Court Had the Authority to Grant to Steven the Authority

to Sell the Property.

[46] William next argues that it was unreasonable to grant Steven the exclusive

authority to sell the Property and that the trial court ignored his request to sell the Property

via auction. Appellant’s Brief at ¶¶36-37. William cites to no authority to support his

position and again wants to re-litigate this matter before the Court. This Court reviews

decisions relating to partition actions under the clearly erroneous standard. Mougey

Farms, 1998 ND 118, ¶33, 579 N.W.2d 583. Simply because the trial court adopted the

more reasoned proposal of having Steven sell the Property, does not mean that the trial

court was clearly erroneous in that decision. RRMC Constr., Inc., 2010 ND 60, ¶7, 780

N.W.2d 656. The trial court’s decision in this regard should therefore be affirmed.

[47] III. The Trial Court Properly Concluded That William Ousted Steven and

Gail from the Property Thus Entitling Them to Rent from William.

[48] At issue is whether the trial court’s finding, that William ousted Steven and

Gail from the Property thus entitling them to rents, was clearly erroneous. While this Court

may not have yet decided the standard of review for cases involving ouster, other

jurisdictions have found that ouster is a question of fact subject to the clearly erroneous

standard of review. See Hamby v. Folsam, 42 So. 548, 549 (Ala. 1906); Roumillot v.

Gardner, 38 S.E. 362, 362 (Ga. 1901); see ¶38 (setting forth clearly erroneous standard).

The trial court was not clearly erroneous when it found that William ousted Steven and

Gail from the Property.

[49] Generally, each tenant in common to a piece of real property is equally entitled

to the use, benefit and possession of the common property. Stevahn v. Meidinger, 79 N.D.

323, 331, 57 N.W.2d 1, 7 (1952). However, if a cotenant has been ousted from the property

by another cotenant, the party who ousted the cotenant may be responsible for rents to the

ousted cotenant. Parceluk v. Knudtson, 139 N.W.2d 864, 873 (N.D. 1966).

[50] The law recognizes that one cotenant may oust another, but it cannot be done

except by acts so distinctly hostile to the rights of others that the intent to dispossess is

clear and unmistakable. Hagen v. Hagen, 137 N.W.2d 234, 236 (N.D. 1965). In Stoll v.

Gottbreht, “ouster” was described as:

[A]n emphatic deprivation of the rights of the cotenants as to show either

direct knowledge to the other cotenants of such claim, or of circumstances

sufficient to establish such knowledge or the means of the knowledge

thereof.

45 ND 158, 158 176 N.W. 932, 934 (1920). Therefore, before possession of one tenant in

common can be adverse as to the other common tenants, the tenant in possession must give

notice to his cotenants, either directly or by a course of conduct which is in direct hostility

to the rights of the other cotenants so that a clear ouster of the rights of the cotenants is

shown. Ellison v. Strandback, 62 N.W.2d 95, 100-01 (N.D. 1953). Ouster by a tenant in

possession does not imply an act accompanied by force, but does imply intent to oust, and

may be inferred from circumstances showing an entry and a claim of exclusive possession

to the other tenants in common. See Simons v. Tancre, 321 N.W.2d 495 (N.D. 1982); and

Condra v. Grogan Mfg. Co., 233 S.W.2d 565 (TX. 1950). Here, Steven and Gail

unequivocally demonstrated that they were ousted from the Property by William and were

entitled to reasonable rents.

[51] A common theme within this appeal is that William desires to re-litigate

factual issues that were decided by the trial court. His argument relating to ouster and rents

is no different. After trial in which the trial court received testimony from the parties, heard

from an expert witness, and received numerous pieces of evidence, the trial court found

that William ousted Steven and Gail from the Property:

William [], without any authority or consent from Steven [] and Gail [],

decided he was in charge and would make all the decisions concerning the

[Property] inherited as tenants in common from their mother, Elsie R.

Haykel.

William has been in exclusive control and possession of the [Property].

Without any notice to Steven and Gail, William changed the locks on the

[Property] and did not give Steven and Gail a key. William informed Steven

that if Steven wanted to come over to the [Property] he had to bring a

witness, not Steven’s wife, with him. Gail was informed by William that if

she ever came over to the [Property], he would call the police. William also

removed Steven and Gail as insureds on the State Farm condominium

insurance.

By these acts, there is no question that William ousted Steven and Gail from

the [Property].

App. 929 (emphasis added). The trial court was best suited to hear the testimony of the

parties and judge the credibility of the witnesses. Simply because the trial court found the

testimony and arguments of Steven and Gail more credible than those of William’s, does

not mean that the trial court was clearly erroneous in its decision.

[52] The trial court was presented with ample evidence regarding ouster and it was

well informed of the law regarding ouster. At trial, it was presented that William had been

exclusively residing in the Property since around January 1, 2015. App. 317-339. It was

further presented that both Steven and Gail had been denied access to the Property. First,

William admitted that he changed the locks on the Property in approximately August, 2015

and did not notify Steven and Gail or give them a copy of the key. Tr. of June 29, 2017

trial at pg. 230, ln. 22-24. William’s conduct of changing the locks without providing a

copy to Steven and Gail amounts to an ouster.

[53] In Parker v. Shecut, 562 S.E.2d 620 (S.C. 2002), the South Carolina Supreme

Court analyzed whether the changing of locks to a piece of real property without providing

a cotenant a copy of the key amounted to an ouster. In Parker, siblings Anne and Bo

inherited a beach house. Id. at 621. Similarly as in this case, in January 1996, Bo, without

consulting Anne, made the beach house his primary residence and on June 13, 1997, he

changed the locks and therefore Anne no longer had a working key. Id. Anne initiated an

action for partition and rent for being ousted. Id. The lower court found that Anne was

not entitled to rents because she presented no ouster or exclusion from the beach house.

[54] On appeal, the South Carolina Supreme Court disagreed with the lower courts

and held:

In our view, the preponderance of the evidence demonstrates ouster. Bo's

own testimony establishes that on or about June 13, 1997, he changed the

locks to the beach house. Further, he testified that he had not given Anne a

working key, nor did he have any intention of giving Anne a key unless the

master ordered him to do so. Bo's actions in changing the locks and

refusing to provide Anne with a key are so distinctly hostile to Anne's rights

that Bo's intention to disseize is clear and unmistakable. Further, Bo's

actions clearly evince his claim of exclusive right and a denial of Anne's

right to use the property. Accordingly, we find that Bo ousted Anne on June

13, 1997.

Id. at 622 (internal citations omitted) (emphasis added). Similar to the facts in Parker,

William changed the keys to the Property, did not notify Steven and Gail of changing the

keys, and no keys were provided to Steven and Gail. Based upon this, ouster occurred and

Steven and Gail are entitled to reasonable rents.

[55] Steven and Gail’s ouster from the Property by William is also based upon

William removing Steven and Gail as named insureds on the condominium unitowners

policy. Prior to June 10, 2015, the parties were named as insureds on the condominium

unitowners policy. App. 388. However, because of what William deemed a “libelous

letter” that was sent by Gail to the condominium association’s attorney, an accusation that

Gail denies, Steven and Gail were removed as insureds. App. 317-339; 385-387; 389-390.

By removing Steven and Gail as additional insureds, William deprived Steven and Gail of

their rights to insurance proceeds in the event of a catastrophe and such actions were

directly hostile to Steven and Gail.

[56] In addition to changing the keys and removing Steven and Gail as insureds,

William informed Gail in December, 2015 that she was not permitted to come to the

Property. App. 317-339 (“I informed her in that phone call that she would not be permitted

entry to the house, yes.”). In addition, William readily admitted that prior to visiting the

Property, Steven was required to call him and had to bring a witness with him. App. 361-

380. By William’s own words, he unequivocally denied Steven and Gail access to the

Property which is further proof of an ouster. Because William changed the locks, removed

Steven and Gail as insureds, and denied Steven and Gail unfettered access to the Property,

William ousted them and was thus liable to them for reasonable rents.

[57] If a cotenant has been ousted from the property by another cotenant, the party

who ousted the cotenant is responsible for rents to the ousted cotenant. Parceluk, 139

N.W.2d at 873. In this case, Steven and Gail were awarded rent from May 2015 through

July 2017 at the rate of $1,500 per month based upon the expert testimony of Todd Wood,

with whom the trial court found to be credible and have the expertise to establish a fair

rental value for the Property. App. 945-951. The trial court’s finding that there was an

ouster by William of Steven and Gail, thus entitling them to rents was a proper conclusion

based upon the facts of the case and the law regarding ouster. Accordingly, the trial court’s

decision should be affirmed.

[58] IV. The Trial Court’s Decision to Award Attorney’s Fees to Steven and Gail

Pursuant to N.D.C.C. §§ 28-26-01(2) and 28-26-31 Was Not an Abuse of

Discretion.

[59] At issue is whether the trial court abused its discretion in awarding Steven and

Gail attorney’s fees pursuant to N.D.C.C. §§ 28-26-01(2) and 28-26-31. Under North

Dakota law, parties to a lawsuit generally pay their own attorney fees, absent statutory or

contractual authority. Strand v. Cass County, 2008 ND 149, ¶9, 753 N.W.2d 872. In

Sagebrush Resources, LLC v. Peterson, this Court analyzed the framework for an award of

attorney’s fees pursuant to N.D.C.C. §§ 28-26-01(2) and 28-26-31:

Section 28-26-01(2), N.D.C.C., requires courts in civil actions to award

attorney fees to the prevailing party upon finding a claim for relief is

frivolous. Strand, 2008 ND 149, ¶11, 753 N.W.2d 872. “Frivolous claims

are those which have ‘such a complete absence of actual facts or law that a

reasonable person could not have expected that a court would

render judgment in [that person's] favor.’” Deacon's Dev., LLP v.

Lamb, 2006 ND 172, ¶12, 719 N.W.2d 379 (quoting Peterson v. Zerr, 477

N.W.2d 230, 236 (N.D.1991) and N.D.C.C. § 28-26-01(2)). If a court

determines a claim is frivolous, the plain language of N.D.C.C. § 28-26-

01(2) requires the court to award attorney fees regardless of the good faith

of the attorney or party making the claim. Strand, at ¶¶11–12. We have

recognized “‘[a]uthorizations of attorney's fees for frivolous claims are not

meant to chill enthusiasm and creativity in pursuing factual or legal theories,

and a court should not use the wisdom of hindsight to determine whether

claims are frivolous,’” because “‘[i]f the law is unclear or unsettled on a

particular claim, that circumstance makes it more likely that a party might

reasonably expect to prevail on that claim.’” Strand, at ¶11

(quoting Soentgen v. Quain & Ramstad Clinic, P.C., 467 N.W.2d 73, 84-85

(N.D.1991)). Under N.D.C.C. § 28-26-01(2), a court has discretion to

determine whether a claim is frivolous and to decide the amount and

reasonableness of an award of attorney fees, but if the court decides a claim

is frivolous, the court must award attorney fees. Strand, at ¶¶12–13. A

court's discretionary determinations under N.D.C.C. § 28-26-01(2) will not

be overturned on appeal absent an abuse of discretion. Strand, at ¶¶11-12.

Under N.D.C.C. § 28-26-31, a trial court is authorized to award attorney

fees for “[a]llegations and denials in any pleadings in court, made without

reasonable cause and not in good faith, and found to be untrue.” Under that

language, this Court has said that an award of attorney fees “requires a

finding that allegations and denials in any pleadings are made without

reasonable cause and not in good faith, and found to be untrue.” Westchem

Agric. Chems., Inc. v. Engel, 300 N.W.2d 856, 859 (N.D.1980). We have

said an award of attorney fees under N.D.C.C. § 28-26-31 is within a trial

court's discretion, but we have also recognized that “[a]lthough the trial

court's award of attorney's fees and costs under N.D.C.C. § 28-26-31 is

discretionary, the court's exercise of that discretion must be based on

evidence that the pleadings were made without reasonable cause and not in

good faith, and are found to be untrue.” Strand, 2008 ND 149, ¶14, 753

N.W.2d 872.

A trial court “abuses its discretion when it acts in an arbitrary, unreasonable,

or unconscionable manner, when the court misinterprets or misapplies the

law, or when its decision is not the product of a rational mental process

leading to a reasoned determination.” Barrett v. Gilbertson, 2013 ND 35,

¶25, 827 N.W.2d 831.

2014 ND 3, ¶¶14-17, 841 N.W.2d 705.

[60] In their Motion for Attorney’s Fees and Costs, Steven and Gail requested

attorney’s fees based upon William’s counterclaims; his Motion to Dismiss for Failure to

Join indispensable Party; and discovery subpoenas, all being frivolous. App. 963-973. In

its Order, the trial court found that (1) As it related to William’s counterclaim for breach

of quite enjoyment, his allegations in his Counterclaim were mere allegations unsupported

by a legal or factual basis; (2) William’s Motion to Dismiss for Failure to Join

indispensable Party lacked a factual basis and legal basis because the Property was not the

homestead of Steven and Gail; and (3) William’s Motion for Order to Compel lacked a

legal or factual basis and was irrelevant to the partition action. App. 1472-1477. The trial

court further went on to hold that the motions were frivolous in nature since there was such

a complete absence of actual facts or law that a reasonable person could not have expected

that a court would enter judgment in William’s favor. Id.

[61] In his brief, William argues that the trial court erred in finding that his causes

of action for undue influence and lack of capacity were frivolous. Appellant’s Brief at

¶¶23-33 (emphasis added). A thorough review of the trial court’s Order regarding

attorney’s fees gives no indication that the trial court assessed attorney’s fees against

William because of his claims of undue influence and lack of capacity as it relates to the

Quit Claim Deed. App. 1472-1477. Despite William’s confusing argument that is contrary

to the trial court’s opinion, Steven and Gail assert that the award of attorney’s fees set forth

in the trial court’s Order on attorney’s fees was not an abuse of discretion. The trial court

unequivocally found that William’s counterclaim for breach of quite enjoyment was

frivolous. Id. Upon such a finding, the trial court was required to award attorney’s fees.

Strand, 2008 ND 149, ¶12-13, 753 N.W.2d 872. Furthermore, the trial court did not abuse

its discretion when it found that two motions filed by William were frivolous. For these

reasons, the trial court’s decision should be affirmed.

[62] V. The Trial Court’s Decision to Limit Discovery and Strike Affidavits from

the Record was not an Abuse of Discretion.

[63] At issue is whether the trial court’s decision on discovery and evidentiary

matters was an abuse of discretion. As to discovery, a trial court has broad discretion

regarding the scope of discovery, and its discovery decisions will not be reversed on appeal

absent an abuse of discretion. Lynch v. New Pub. Sch. Dist., 2012 ND 88, ¶23, 816 N.W.2d

53. A court abuses its discretion when it acts in an unreasonable, arbitrary, or

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

leading to a reasoned decision, or when it misinterprets or misapplies the law. Simpson v.

Chicago Pneumatic Tool Co., 2003 ND 31, ¶10, 657 N.W.2d 261.

[64] Here, William argues that the trial court erred in “preventing any discovery

whatsoever on any relevant document pertaining to the issue of undue influence or lack of

capacity.” Appellant’s Brief at ¶34. While the argument is unclear, William seems to be

arguing that the trial court abused its discretion when it denied William’s two motions to

compel discovery regarding the issuance of numerous subpoenas to medical providers and

financial institutions of the parties’ late mother, Ms. Haykel, and her late husband Abraham

Haykel. App. 392-415, 419-489. After receiving briefs and hearing oral argument on

William’s motions to compel, the trial court ruled from the bench:

As far as the motions to compel are concerned, I don’t see them being

relevant in this particular partition action at all, so I would not grant the

motions to compel. I would deny them. I would tend to agree with [Steven

and Gail] in this particular case. [The requests] are not relevant. It’s more

of a fishing expedition than anything.

Tr. of May 26, 2017 hearing at pg. 21, ln. 3-8. The trial court did not abuse its discretion

by denying William the opportunity to go on a fishing expedition for irrelevant

documentations. Accordingly, the trial court’s decision should be affirmed.

[65] William further argues that the trial court erred when it struck certain affidavits

of William from the record. Appellant’s Brief at ¶35. “A trial court has broad discretion

on evidentiary matters, and this Court will not overturn its admission or exclusion of

evidence on appeal unless that discretion has been abused.” Forster v. West Dakota

Veterinary Clinic, Inc., 2004 ND 207, ¶40, 689 N.W.2d 366. Under N.D.R.Ev. 103(a)(2),

“[e]rror may not be predicated upon a ruling which ... excludes evidence unless a

substantial right of the party is affected, and ... [i]n case the ruling is one excluding

evidence, the substance of the evidence was made known to the court by offer or was

apparent from the context within which questions were asked.”

[66] Here, William does not cite to any authority as to the reason why the trial court

abused its discretion when it struck certain affidavits from the record. Furthermore, it is

unclear what relief William requests as a result of the affidavits being struck. On the other

hand, Steven and Gail, when they filed their requests to strike William’s affidavits, had

valid reasons for such requests such as the affidavits violating N.D.R.Ev. 408 and 802. The

trial court did not abuse its discretion when it struck affidavits that contained hearsay and

settlement negotiations. Accordingly, the trial court’s decision should be affirmed.

[67] VI. William’s Appeal is Frivolous Thus Entitling Steven and Gail to

Attorney’s Fees.

[68] At issue is whether William’s appeal is frivolous thus entitling Steven and Gail

to attorney’s fees. Pursuant to N.D.R.App.P. 38, this Court may award just damages and

single or double costs, including reasonable attorney’s fees, if an appeal is frivolous. In re

Hirsch, 2014 ND 135 ¶14, 848 N.W.2d 719. An appeal is frivolous if it is flagrantly

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

evidences bad faith. Id (emphasis added). In Stelly v. C.I.R., 761 F.2d 1113, 1116 (5th

Cir. 1985), the court addressed the competing interests of open access to courts against the

need to conserve judicial resources:

Frivolous appeals unjustly burden the resources of the court and the

government. The devotion of limited resources and time to these

meritless cases causes deserving litigants to wait. In addition, the opposite

party is delayed in receiving the just benefits of the trial court's judgment

until the appeal is concluded. Justice delayed is justice denied. Sanctions

are imposed to deter such suits.

[69] In United Bank of Bismarck v. Young, 401 N.W.2d 517 (N.D. 1987) this Court

found the appellant liable for sanctions and awarded the defendants attorney’s fees and

double costs where the appellant persisted in presenting his claims to the Court after being

informed of their frivolous nature by the lower court. In this case, William has pursued

claims that are frivolous and even if he were successful on any of his theories of relief, it

would not change the outcome regarding the disposition of the Property.

[70] At the trial court, William argued that the Quit Claim Deed was the product of

undue influence and lack of capacity. If William would have been successful in his pursuit,

the Property would have lapsed into the residue of Ms. Haykel’s estate. Ms. Haykel’s Will

directed that her estate be divided equally between Steven, Gail and William. See Doc. 5

in Case No. 08-2015-PR-00115. If William were to challenge Ms. Haykel’s Will, which

was signed on the same day as the Quit Claim Deed, and be successful, the Property would

pass pursuant to the intestacy laws set forth in Ch. 30.1-04. Pursuant to N.D.C.C. § 30.1-

04-03, the Property would pass equally to Steven, William, and Gail. Instead of

recognizing that all avenues lead to the same conclusion, William continues to pursue

litigation to the detriment of Steven and Gail and to the financial benefit of himself. Based

upon this continued course of action and the “no win” scenario, attorney’s fees and costs

should be assessed against William in accordance with N.D.R.App.P. 38.

[71] CONCLUSION

[72] For the foregoing reasons, Steven and Gail respectfully request that the Court

affirm the trial court’s decision and that the Court direct the trial court to decide the pending

motions before it.

Respectfully submitted this 23rd day of April, 2018.

MICHEAL A. MULLOY

STEBBINS MULLOY, LLC

Attorneys for the Appellees

120 N. 3rd Street, Suite 230

Bismarck, ND 58501

PH: 701-390-8580

FX: 701-639-2845

Email: mmulloy@stebbinsmulloylaw.com

/s/ Micheal A. Mulloy (ID# 07239)