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N.D.R.App.P. 38

Not legal advice. Verify against official sources before relying on this text in any legal matter.

Rule 38 Damages and Costs—Frivolous Appeal or Dilatory Prosecution of Appeal

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Rule Text

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.

Amendment history: (Adopted May 25, 1978; amended Mar. 1, 2003.)

Plain-English Summary (for reference only — not a substitute for the rule text above)

This summary is not the rule. The rule text controls.

If someone files an appeal that has no real legal merit, or drags out the appeal process without good reason, the court can make them pay for it. This means the court can order that person to pay damages, cover court costs (possibly double the normal amount), and pay the other side's attorney's fees.

This rule exists to stop people from using appeals to waste time or bully the other party with unnecessary delays and expenses. If you win your case at trial and the other side appeals just to stall or cause you more legal costs, this rule gives the court a way to penalize that behavior. It protects people from having to deal with appeals that are filed in bad faith or handled irresponsibly.

If you're on the receiving end of a frivolous or slow-moving appeal, you can ask the court to apply this rule and make the other party pay for the trouble they caused.

Committee Notes

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 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 district court. It is not intended that Rule 38 limit Rule 13.

Rule 38 was amended, effectiveMarch 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 ofApril 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.

STATUTES AFFECTED:

SUPERSEDED: N.D.C.C. § 28-26-02(4).

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