ZIEBARTH v. STATE, 526 N.W.2d 107 (N.D. 1994)

Sylvester A. ZIEBARTH, a/k/a Silver Ziebarth, and Carol A. Ziebarth, Plaintiffs and Appellants, v. The STATE of North Dakota; The County of Bowman, in its corporate capacity; The Federal Land Bank of Saint Paul, a foreign un-registered corporation, its successors of interest, and its agents; Rodger Bangs, in his capacity as sheriff, and as an individual; Steve Wild, in his capacity as state’s attorney, and as an individual; Leinniece Kempenich, in her capacity as register of deeds, and as an individual; John Sherman, in his capacity as an attorney, and as an individual; Charles Erickson, in his capacity as a fiduciary officer, and as an individual; Dave Larson, in his capacity as a fiduciary officer, and as an individual; Duane Hanson, in his capacity as a fiduciary officer, and as an individual; Donald Jorgensen, in his capacity as a judge, and as an individual; Allan Schmalenberger, in his capacity as a judge, and as an individual, Defendants and Appellees.

Civ. No. 940143.Supreme Court of North Dakota.
November 16, 1994.

Appeal from the Southwest Judicial District Court, Bowman County, Ronald L. Hilden, J.

Sylvester A. Ziebarth, pro se.

Douglas A. Bahr, Asst. Atty. Gen., Atty. General’s Office, Bismarck, for defendants and appellees State of N.D., the Honorable Donald Jorgensen and the Honorable Allan Schmalenberger.

John L. Sherman, Mackoff, Kellogg, Kirby Kloster, P.C., Dickinson, for remaining defendants and appellees.

PER CURIAM.

Sylvester and Carol Ziebarth appeal from a summary judgment dismissing their action, and from an order denying their motion for a new trial. We affirm under Rule 35.1(a)(1) and (7), N.D.R.App.P. See Federal Land Bank of St. Paul v. Ziebarth, 520 N.W.2d 51 (N.D. 1994); Ziebarth v. Farm Credit Bank of St. Paul, 494 N.W.2d 145 (N.D. 1992); Farm Credit Bank of St. Paul v. Ziebarth, 485 N.W.2d 788 (N.D.), cert. denied, ___ U.S. ___, 113 S.Ct. 501, 121 L.Ed.2d 437 (1992); Farm Credit Bank of St. Paul v. Ziebarth, 458 N.W.2d 513 (N.D. 1990).

The State of North Dakota, the Honorable Donald Jorgensen, and the Honorable Allan Schmalenberger, district judges, through the Attorney General, assert that the Ziebarths’ appeal is frivolous, and seek sanctions, including attorney’s fees, under Rule 38, N.D.R.App.P., and Rule 11, N.D.R.Civ.P. The Ziebarths’ appeal is blatantly frivolous and constitutes yet another attempt to relitigate issues which have long ago become res judicata. The Ziebarths have not challenged the reasonableness of the attorney’s fees sought by these defendants. Accordingly, we award double costs in the amount of $150.00 and attorney’s fees in the amount of $334.46 for this appeal, and we direct the Clerk of the Supreme Court to enter judgment for the State of North Dakota, Donald Jorgensen and Allan Schmalenberger in the amount of $484.46 against Sylvester Ziebarth and Carol Ziebarth.

Page 108

VANDE WALLE, C.J., and SANDSTROM, NEUMANN, LEVINE and MESCHKE, JJ., concur.