Investors Title Ins. Co. v. Herzig - No. 20090213
Case Summary
Southeastern Shelter Corporation ("Southeastern") appeals from a district court order entered in post-judgment proceedings, which denied Southeastern's motions to obtain discovery, to prohibit the sale of property, and to attach property to satisfy judgment entered against David Herzig; and which granted cancellation of a lis pendens.
In 1998, Southeastern filed in North Dakota a 1989 North Carolina judgment in which Southeastern, a co-defendant with David Herzig, was awarded a $149,598.14 judgment against David Herzig. In 2004, Alphild Herzig, David Herzig's mother, was added as a defendant as a result of proceedings to collect on the judgment. In February 2009, the parties appealed to this Court after the district court denied a motion to dismiss the action and granted a motion to substitute Alphild Herzig's personal representative as a defendant after her June 2008 death. While that appeal was pending, the district court denied additional motions filed by Southeastern attempting to enforce the judgment against David Herzig and granted a motion filed by Sheldon Smith, in his capacities as the personal representative of the Alphild Herzig estate, the trustee of the Alphild Herzig trust, and general partner of the Dakota Land and Cattle Company, to cancel the lis pendens filed by Southeastern against real property owned by the partnership. Southeastern appeals from the district court's June 2009 order denying its motions to attach, to prohibit sale, and to compel, and granting Smith's motion to cancel the lis pendens.
On appeal, Southeastern argues that the assets of the revocable trust may be used to satisfy a judgment creditor's claim and against a beneficiary when the statute permits attachment of both present and future interests. Southeastern also argues that the district court erred in not appointing a receiver as required by statute, in canceling the lis pendens when it lacked jurisdiction and when the facts show Southeastern is entitled to the lis pendens, and in not permitting Southeastern discovery. The appellees argue that Southeastern has appealed from a non-appealable order and that the district court did not err by denying Southeastern's motion to attach trust property, by not appointing a receiver, by canceling the lis pendens, and by denying Southeastern's motion to compel production of documents.