Greenwood, Greenwood & Greenwood, P.C. v. Klem

Citations: 450 N.W.2d 745; 1990 N.D. LEXIS 21; 1990 WL 2972Docket: Civ. 890102

Court: North Dakota Supreme Court; January 18, 1990; North Dakota; State Supreme Court

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Ernest E. Klem appealed a county court order awarding Greenwood, Greenwood, Greenwood, P.C. $2,655.60 plus interest, costs, and disbursements for legal services in his criminal case. After a mistrial for gross sexual imposition, Klem retained Greenwood's firm, paying a $5,000 retainer for a second trial, which ultimately cost him $12,800. After Klem’s conviction was reversed in a prior appeal, he failed to pay the additional amount claimed by the firm, prompting them to sue him while he was incarcerated. Klem represented himself and denied owing the money. A bench trial found against him, leading to his appeal. 

Klem argued the trial court improperly denied his demand for a jury trial. However, under North Dakota law, a party must demand a jury trial within ten days of the last pleading. Klem's demand was made nearly eight months later, which constituted a waiver of his right to a jury trial. His claim that the demand was timely based on a court order regarding trial scheduling was dismissed, as that order was not a pleading. The court affirmed the trial court's decision, stating it would not reverse the denial of an untimely jury request unless there was an abuse of discretion, which was not found in this case.

A trial court has discretion to deny a Rule 39(b) motion for a jury trial if the request is made late due to oversight or misunderstanding of the rules by the moving party. In this case, Klem, acting pro se, filed a jury demand just eight days before trial, eight months after the last pleading, and after being informed of the scheduled bench trial. The court found no abuse of discretion in denying Klem's request, affirming that pro se litigants are held to the same standards as attorneys.

Klem also claimed Attorney Mark Greenwood violated professional conduct rules by allegedly lacking authority to file suit against him. However, the burden of proving lack of authority lies with the party denying it, and Klem did not challenge Greenwood's authority in the lower court, thus forfeiting the right to raise it on appeal. Klem further argued that Greenwood had a conflict of interest due to alleged ineffective representation in a prior criminal case. The court determined that the fee dispute was based on a contractual agreement, and attorneys can pursue collection actions against former clients without establishing a conflict of interest.

Lastly, Klem contended that the Greenwood firm improperly requested payment without providing an itemized breakdown of fees. The court's findings of fact on this issue were reviewed under the "clearly erroneous" standard, which assesses whether the findings are supported by sufficient evidence.

A finding of fact is deemed clearly erroneous when the reviewing court, after assessing all evidence, is firmly convinced a mistake occurred. In the case of Coldwell Banker v. Meide, Son, Inc., evidence presented at trial included Klem's total payments, the outstanding balance, an itemized statement of services from the Greenwood firm, and the corresponding charges. Although fees for jury selection and trial were not itemized hourly, they were documented daily, providing a basis for calculation. The written agreement stipulated that fees for these services adhered to the "court appearances" provision, permitting minimum fees exceeding hourly rates. Klem claimed an oral modification of the retainer agreement, asserting he and Mark Greenwood agreed verbally to settle for $11,500 if paid by November 13, 1987, but failed to do so. The court concluded that Klem owed the Greenwood firm $2,655.60 for legal services, finding no clear error in this determination.

Klem alleged bias from the trial court, which allowed him ample opportunity to present his defense regarding ineffective representation. Under Rule 408, N.D.R.Ev., the court did not err in excluding a settlement offer from the Greenwood firm related to Klem's legal malpractice claim. Klem also alleged violations of judicial conduct rules, claiming the court improperly denied his jury trial request and allowed attorney Gene Buresh to represent the Greenwood firm. However, the court acted within its discretion in denying the jury trial request, as Klem did not challenge the authority of trial counsel earlier. Klem's assertion that the court violated Rule 3(A)(6), N.D.R.J.C. by referencing his malpractice action was unfounded; the mention occurred in the context of trial proceedings and did not breach the rule. The county court suggested the potential need for a compulsory counterclaim for Klem's malpractice case, but both parties agreed to separate hearings. The county court's judgment was affirmed, and the appeal was properly before the court despite Klem's notice referencing an earlier order.

In *Federal Savings, Loan Insurance Corp. v. Albrecht*, 379 N.W.2d 266 (N.D. 1985), the legal framework governing jury trials in North Dakota is outlined. Rule 38 of the North Dakota Rules of Civil Procedure (N.D.R.Civ.P.) allows any party to demand a jury trial in writing within 10 days after the last pleading on the issue. Failure to make such a demand constitutes a waiver of the right to a jury trial, which is not revoked by amendments to the pleadings that relate to the original claims. Once made, a demand for a jury trial cannot be withdrawn without consent from all parties involved.

Rule 39(b) articulates that issues not demanded for trial by jury will be tried by the court, although the court may order a jury trial at its discretion upon a motion from either party, even if a jury was not initially requested. Additionally, Section 27-13-04 of the North Dakota Century Code allows a court to require proof of an attorney's authority to represent a party, staying proceedings until such proof is provided.

Rule 408 of the North Dakota Rules of Evidence (N.D.R.Ev.) prohibits the admissibility of evidence related to compromises or negotiations regarding disputed claims to prove liability or validity, though such evidence may be admissible for other purposes, such as demonstrating witness bias or disproving undue delay. Lastly, Rule 3(A)(6) of the North Dakota Rules of Judicial Conduct mandates that judges refrain from public comments on pending cases, while still allowing statements related to court procedures in their official capacity.