RULE 38. DAMAGES
FOR DELAY AND COSTS--FRIVOLOUS APPEAL OR DILATORY PROSECUTION OF APPEAL
If the court determines that an appeal is frivolous, or that any party has been dilatory in prosecuting the appeal, it may award just damages and single or double costs, including reasonable attorney's fees.
Rule 38 was amended, effective March 1, 2003.
This rule is derived from Fed.R.App.P. 38. It is clear under the North Dakota rule that damages may be assessed against any party to an appeal.
Rule 38 relates to an initial determination by the
North Dakota Supreme Court supreme court. In contrast, N.D.C.C. § 28-26-01, regarding "frivolous" pleadings, and N.D.C.C. § 28-26-31, regarding "untrue" pleadings made "without reasonable cause and not in good faith," involve determinations that are to be made initially by the trial district court.
Supreme Court supreme court has an inherent power to assess substantial motion costs and attorney's fees "to encourage compliance with the rules of appellate procedure." See Halverson v. Pet, Inc., 260 N.W.2d 11, 13 (N.D. 1977).
It is not intended that Rule 38 limit Rule 13.
Rule 38 was amended, effective March 1, 2003. The title of the rule was changed to track the title to Fed.R.App.P. 38 and to more completely describe the content of the rule.
SOURCES: Joint Procedure Committee Minutes of April 25-26, 2002, page 22; May 25-26, 1978, page 18; January 12-13, 1978, pages 4-5; September 15-16, 1977, page 21-22. Fed.R.App.P. 38.
SUPERSEDED: N.D.C.C. § 28-26-02(4).