Feickert v. Feickert

                                                                                FILED
                                                                        IN THE OFFICE OF THE
                                                                     CLERK OF SUPREME COURT
                                                                         NOVEMBER 23, 2022
                                                                      STATE OF NORTH DAKOTA




                   IN THE SUPREME COURT
                   STATE OF NORTH DAKOTA

                                

Ashley Feickert,                                        Plaintiff and Appellee
      v.
Cheryl Feickert,                                    Defendant and Appellant



                                No. 20220102

Appeal from the District Court of Wells County, Southeast Judicial District,
the Honorable James D. Hovey, Judge.

AFFIRMED.

Opinion of the Court by McEvers, Justice.

Micheal A. Mulloy, Bismarck, ND, for plaintiff and appellee.

Jennifer M. Gooss, Beulah, ND, for defendant and appellant.
                             Feickert v. Feickert
                                No. 20220102

McEvers, Justice.

[¶1] Cheryl Feickert appeals from a district court’s judgment entered after a
bench trial. On appeal, Cheryl Feickert argues the district court erred by
failing to consider her unjust enrichment claim and by denying her an offset to
the damages awarded to Ashley Feickert. We affirm.

                                         I

[¶2] Ashley Feickert was a minor when her father died intestate in 1988.
Ashley Feickert inherited an undivided one-fourth interest in real property in
Sheridan County from her father. Her mother, Cheryl Feickert, became her
conservator in 1990. Cheryl Feickert, as conservator, leased Ashley Feickert’s
interest in the land starting in April 1989, but failed to provide an accounting
of the lease income until September 2020.

[¶3] In March 2021, Ashley Feickert commenced this action against Cheryl
Feickert, alleging breach of fiduciary duties for failure to keep suitable records,
self-dealing, and failure to distribute assets as Ashley Feickert’s conservator.
Cheryl Feickert filed an answer asserting the affirmative defenses of estoppel,
waiver, laches, contributory negligence, unclean hands, and unjust
enrichment. The answer included a prayer for relief requesting the court to
dismiss the action, award reasonable fees and costs, and any other such relief
the court deemed just and proper. Cheryl Feickert’s answer did not include
facts supporting her claimed defenses, nor did it specifically include a
counterclaim for unjust enrichment or a request for a damages offset.

[¶4] A bench trial was held on December 6, 2021. On February 16, 2022, the
district court issued its order and entered judgment. The court found Cheryl
Feickert breached multiple fiduciary duties as Ashley Feickert’s conservator.
The court ordered Cheryl Feickert to pay $119,994.97 plus post-judgment
interest to Ashley Feickert for damages sustained from Cheryl Feickert’s
breach of fiduciary duties. The court held Cheryl Feickert failed to properly
plead the unjust enrichment counterclaim. The court further held Cheryl

                                        1
Feickert failed to provide legal authority in support of her request to offset
damages. Cheryl Feickert appeals.

                                       II

[¶5] Before addressing the merits, we first address the appealability of this
case. Following entry of judgment, but prior to filing her notice of appeal,
Cheryl Feickert voluntarily payed $20,000 against the judgment, resulting in
a partial satisfaction of the judgment. After receiving the notice of appeal,
Ashley Feickert moved to dismiss the appeal, arguing Cheryl Feickert waived
her right to appeal by partially satisfying the judgment. Cheryl Fieckert
responded to the motion arguing the $20,000 was an undisputed amount that
she had in savings from the land rent for Ashley Feickert.

[¶6] “[A] party who voluntarily pays a judgment against him waives the right
to appeal from the judgment.” State ex rel. Storbakken v. Scott’s Electric, Inc.,

, 

. We have declined to state a definitive rule
on whether a voluntary partial payment or satisfaction of a judgment for
damages constitutes a waiver of the right to appeal. 

 (noting that courts in
other jurisdictions have reached different results depending on the particular
facts of the case). We have recognized that payment of costs which are only
incidental to the judgment and do not in any way go to the merits does not
defeat the right to appeal. Twogood v. Wentz, 

, 

; Cf. Mr. G’s Turtle Mt. Lodge, Inc. v. Roland Twp., 

, 

 (“Unlike an ordinary judgment for statutory costs to a prevailing
plaintiff, an award of actual costs and attorney’s fees for bringing a frivolous
action is based upon, and goes to, the merits of the case.”). We have also
concluded the right to appeal was not waived when all the issues of trial and
damages therefrom have not been satisfied. Schwab v. Zajac, 

, 

 (allowing appeal where earnest money for land was released
but money judgment for slander of title claim had not been paid).

[¶7] In Scott’s Electric, Scott’s voluntarily paid the State an amount for
undisputed wages, penalties, and interest. 2014 ND at ¶ 5. This Court
concluded that because Scott’s paid an undisputed amount, it cannot then
dispute its “undisputed” liability on appeal. 

 However, this Court reasoned

                                       2
that Scott’s did not waive its entire right to appeal from the judgment by
partially satisfying the judgment. Id. at ¶ 8. The Court held Scott’s could only
challenge the judgment in excess of the “undisputed” amount that had been
satisfied. Id. While we declined to resolve the issue and announce a rule in
Scott’s Electric, we now abandon the voluntary payment rule in cases of
voluntary partial payment of the judgment, but the challenge to the judgment
is limited to disputed claims and the amount of damages that have not been
satisfied.

[¶8] Here, the district court found Cheryl Feickert testified she was holding
$20,000 for Ashley Feickert’s benefit. As in Scott’s Electric, Cheryl Feickert did
not dispute at trial that she held the funds for Ashley Feickert’s benefit prior
to voluntarily paying $20,000 towards the judgment. Therefore, she cannot
dispute this amount on appeal, nor can she dispute she breached her fiduciary
duties. She can only dispute the remainder of the damages in excess of the
payment and independently disputed claims. We conclude Cheryl Feickert’s
partial satisfaction of the judgment does not waive her right to appeal the
disputed amount.

[¶9] The rule still stands that satisfaction of judgment extinguishes the
underlying claim. Lyon v. Ford Motor Co., 

, 

.
Despite not entirely waiving her right to appeal because she only partially
satisfied the judgment, the underlying claims for breach of her fiduciary duties
to Ashley Feickert are extinguished, except the disputed amount of damages.
In the interests of certainty and finality, a party should not be allowed to
mislead the opposing party into believing that the controversy is over and then
later contest the claim and seek recovery. Id. at ¶ 11. With this rule, we seek
to promote the judicial policy of furthering the intentions and legitimate
expectations of the parties. See id.

                                       III

[¶10] Cheryl Feickert argues the district court erred by failing to consider her
claim for unjust enrichment. She argues she specifically pled unjust
enrichment as an affirmative defense. In the alternative, she argues her



                                        3
answer put Ashley Feickert on notice of an independent claim of unjust
enrichment.

[¶11] Cheryl Feickert cannot argue unjust enrichment as an affirmative
defense to the breach of fiduciary duty claim against her because she waived
appeal on the breach of duty claim by voluntarily making partial payment.
However, we will consider whether she pled an independent claim for unjust
enrichment.

[¶12] Rule 8 of the North Dakota Rules of Civil Procedure governs pleadings
for claims for relief:

            A pleading that states a claim for relief – whether an original
      claim, a counterclaim, a crossclaim, or a third-party claim – must
      contain: (1) a short and plain statement of the claim showing that
      the pleader is entitled to relief; and (2) a demand for the relief
      sought, which may include relief in the alternative or different
      types of relief.

N.D.R.Civ.P. 8(a). While a concise and non-technical complaint is all
N.D.R.Civ.P. 8(a) requires, it must be sufficient to inform and notify both the
adversary and the court of the pleader’s claim. Trauger v. Helm Bros., Inc., 

 (N.D. 1979). “If a party mistakenly designates a defense as a
counterclaim, or a counterclaim as a defense, the court must, if justice requires,
treat the pleading as though it were correctly designated, and may impose
terms accordingly.” N.D.R.Civ.P. 8(c)(2).

[¶13] The purpose of the pleading requirements in Rule 8 is to apprise the
opposing party of the nature of the claim. Tibert v. Minto Grain, LLC, 

, 

. “Pleadings must be construed so as to do justice.”
N.D.R.Civ.P. 8(e). The requirement of substantial justice equally applies to
both parties’ entitlement to notice of any claims against him. Tibert, 2004 ND
at ¶ 21. If, after review of a complaint, no assertion is offered that would allow
for the minimal notice required under Rule 8, the district court may dismiss
the complaint. Id. at ¶ 19. The same would be true when reviewing a
counterclaim. City of Fargo v. Rakowski, 

, 

(holding the district court did not err by dismissing a counterclaim that did not

                                        4
show why a party was entitled to relief). A claim may fail under Rule 8(a) if the
opposing party is unable to frame an appropriate responsive pleading. Tibert,
2004 ND, at ¶ 21.

[¶14] We agree Cheryl Feickert’s answer did not comply with the requirements
of Rule 8(a). Cheryl Feickert merely listed unjust enrichment as part of a long
list of affirmative defenses in her answer. She did not plead facts in support of
a claim for unjust enrichment. The district court did not err by holding Cheryl
Feickert failed to satisfy the minimal notice requirements of N.D.R.Civ.P. 8(a).

                                       IV

[¶15] Cheryl Feickert argues the district court erred by failing to offset the
amount of damages it awarded Ashley Feickert by the damages Cheryl
Feickert claims Ashley Feickert was unjustly enriched. As we explained above,
Cheryl Feickert is not entitled to an offset because she did not properly plead
a claim for unjust enrichment. Cheryl Feickert did not provide authority for
this argument to the district court. She has not provided authority for her
position on appeal. “Where a party fails to provide supporting argument for an
issue listed in his brief, he is deemed to have waived that issue.” In re J.S.,

, ¶ 13, 

 (citation omitted). We will not consider this
issue absent authority to support her argument.

                                       V

[¶16] The judgment is affirmed.

[¶17] Jon J. Jensen, C.J.
      Gerald W. VandeWalle
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte




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