Volker v. Nygaard, No. 20250309 (2026)

Case details
Full caption
Scott VOLKER v. Danielle NYGAARD and Ahlaina Mohler
Country
United States
Jurisdiction
North Dakota (ND)
Court
North Dakota Supreme Court
Decided
2026
Disposition
Dismissed
Majority
Tufte (J.) (unanimous Court)
Volker v. Nygaard, --- N.W.3d ---- (2026)2026 ND 56 © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 533638Supreme Court of North Dakota.Scott VOLKER, Plaintiff and Appellantv.Danielle NYGAARD and AhlainaMohler, Defendants and AppelleesNo. 20250309|Filed 02-26-2026Appeal from the District Court of Cass County, East CentralJudicial District, the Honorable Cherie L. Clark, Judge.Attorneys and Law FirmsScott Volker, self-represented, Golden Valley, Minnesota,plaintiff and appellant; submitted on brief.James A. Teigland and Kyle Christianson, Fargo, NorthDakota, for defendants and appellees; submitted on brief.OpinionTufte, Justice.*1 [¶1] Scott Volker appeals from a district courtjudgment dismissing his claims with prejudice as a Rule 11,N.D.R.Civ.P., sanction for repeatedly submitting fictitious,AI-generated case citations. Danielle Hough, formerly knownas Danielle Nygaard, and Ahlaina Mohler moved to dismissthe appeal as untimely. We dismiss the appeal.I[¶2] Volker commenced this action against Hough andMohler, who moved to dismiss the complaint at the districtcourt. During the hearing on the motion, the court warnedVolker that his filings contained fictitious legal citations.Despite this warning, Volker filed additional briefs containingfictitious citations. The district court then issued an Order toShow Cause.[¶3] At the Order to Show Cause hearing, the district courtfound that Volker had willfully defied the court and dismissedthe action with prejudice as a Rule 11 sanction. On May20, 2025, the district court entered an Order for Judgmentand Judgment dismissing Volker's claims with prejudice andawarding the defendants “their costs and disbursements.” TheOrder for Judgment stated that the defendants “may makean application for reasonable costs and disbursements, whichwill then be included in the judgment.” Notice of entry ofjudgment was served on May 21, 2025.[¶4] The defendants filed a Statement of Costs andDisbursements seeking $55 in statutory costs. Volker filedno objection to the statement. On June 18, 2025, CassCounty Court Administration administratively approved theunopposed costs application and entered a document styled“Amended Judgment.” The only difference between the May20 judgment and the June 18 amended judgment was theinsertion of the $55 statutory costs amount. No post-judgmentmotions were filed.[¶5] Volker filed his notice of appeal on August 28, 2025—more than 90 days after May 21, 2025, the date of serviceof notice of entry of the May 20 judgment. Volker's briefstates that he seeks review of the district court's dismissalwith prejudice. On September 17, 2025, this Court enteredan order extending the deadline to appeal from a judgmententered June 18, 2025.II[¶6] This Court must have jurisdiction to consider the meritsof an appeal. Desert Partners IV, L.P. v. Benson, 2014 ND192, 6, 855 N.W.2d 608. “The time limit for filing a noticeof appeal is jurisdictional.” Id. If this Court lacks jurisdiction,the appeal must be dismissed. Holverson v. Lundberg, 2015ND 225, 6, 869 N.W.2d 146.III[¶7] Under N.D.R.App.P. 4(a)(1), a notice of appeal in acivil case “must be filed with the clerk of the supreme courtwithin 60 days from service of notice of entry of the judgmentor order being appealed.” After the 60-day period expires,this Court may extend the deadline for an additional 30days upon a showing of excusable neglect or good cause.N.D.R.App.P. 4(a)(4). The “90-day limit, not the 60-day limitfor filing notice of appeal, is jurisdictional.” City of GrandForks v. Henderson, 297 N.W.2d 450, 451 (N.D. 1980). ThisCourt may not extend the time for appeal beyond the 90-day jurisdictional deadline. Id. Accordingly, the dispositive
Volker v. Nygaard, --- N.W.3d ---- (2026)2026 ND 56 © 2026 Thomson Reuters. No claim to original U.S. Government Works.2question is whether the appeal period runs from the May 20merits judgment or the June 18 amended judgment.*2 [¶8] The May 20 judgment dismissed Volker's complaintwith prejudice and awarded the defendants their costs anddisbursements. That judgment resolved all claims on themerits. The fact that the specific dollar amount of costs hadnot yet been calculated did not render the May 20 judgmentnon-final, because “[a] judgment consists of two parts, oneon the merits, and the other for the costs.” Twogood v. Wentz,2001 ND 167, 7, 634 N.W.2d 514 (cleaned up). Statutorycosts are not related to the merits of the cause of action and“are only incidental to the judgment.” See Feickert v. Feickert,2022 ND 210, 6, 982 N.W.2d 316.[¶9] Having established that the May 20 judgment was final,we turn to whether the clerk's June 18 insertion of statutorycosts restarted the appeal period for that judgment. UnderN.D.R.Civ.P. 54(e)(1), costs and disbursements “must beallowed as provided by statute.” The rule provides a detailedprocedural framework for determining costs: the prevailingparty must file a verified statement of costs within 30 daysafter entry of the order for judgment; objections must be filedwithin 14 days; and “[i]f no objections are filed within thetime designated under this rule, the clerk must allow the costsand disbursements included in the statement and insert themin the judgment.” N.D.R.Civ.P. 54(e)(1)(D). Significantly,the rule directs the clerk—not the court—to “insert” costsinto an existing judgment. The procedure for assessing costsunder Rule 54(e)(1) is ministerial and contemplates that thejudgment exists at the time the costs are determined.[¶10] Costs under Rule 54(e)(1) are treated differently fromattorney's fees under Rule 54(e)(2). The costs frameworkoperates on a timeline anchored to the entry of the orderfor judgment—the prevailing party files a statement “within30 days after entry of an order for judgment,” and the clerkinserts costs into the judgment. N.D.R.Civ.P. 54(e)(1)(A),(D). By contrast, attorney's fees are determined by motionfiled “within 21 days after notice of entry of judgment,”and a motion for attorney's fees stays the time for appeal.N.D.R.Civ.P. 54(e)(2)(A); N.D.R.App.P. 4(a)(3)(A)(iii). Noanalogous stay applies to proceedings for costs under Rule54(e)(1).[¶11] Here, the district court clerk's June 18 action inserted$55 of unopposed statutory costs into the existing judgment,“per Rule 54 (e)(D).” Although the correct citation wasRule 54(e)(1)(D), it is clear the clerk was referencing thestatutory costs rule. No judicial decision was made. Nopost-judgment motion was filed or decided. The substantiverights determined by the May 20 judgment—the dismissal ofVolker's claims with prejudice—were untouched. AlthoughCourt Administration labeled the resulting document an“Amended Judgment,” that label does not change itscharacter.[¶12] The result here is consistent with the general rule that“when an amended judgment alters content other than thematerial terms from which a party may appeal, its entry doesnot serve to enlarge the time for appeal.” Vierstra v. Vierstra,153 Idaho 873, 292 P.3d 264, 270-71 (2012); see also Morrellv. Edwards, 98 Nev. 91, 640 P.2d 1322, 1324 (1982) (“Thetest for determining whether an appeal is properly taken froman amended judgment rather than the judgment originallyentered depends upon whether the amendment disturbed orrevised legal rights and obligations which the prior judgmenthad plainly and properly settled with finality.”).[¶13] Because the June 18 costs insertion did not restart theappeal period for the merits judgment, the appeal deadline ranfrom May 21, 2025—the date notice of entry of the May 20judgment was served. The 60-day period to file a notice ofappeal expired on July 21, 2025. See N.D.R.App.P. 26(a)(1)(C). The 90-day jurisdictional deadline expired on August 19,2025. Volker filed his notice of appeal on August 28, 2025—nine days after the jurisdictional deadline.*3 [¶14] Volker contends that this Court's September 17,2025 order, which extended the time for appeal from ajudgment entered June 18, 2025, cured any timeliness defect.That order, however, was entered on a procedural motionwithout the benefit of full briefing on the jurisdictionalquestion, and this Court reserved the jurisdictional issue forconsideration with the merits of the appeal. See N.D.R.App.P.27(c) (“Any party adversely affected by action on [amotion for a procedural order] may request reconsideration,vacation, or modification of the action.”). Furthermore, thisCourt cannot extend the time for appeal beyond the 90-day jurisdictional limit. Henderson, 297 N.W.2d at 451.Because the 90-day jurisdictional deadline from the May 20merits judgment expired on August 19, 2025, no extension—whether granted before or after that date—could conferjurisdiction over an appeal from the merits judgment. TheSeptember 17 order, to the extent it purported to extend thedeadline for appealing the merits judgment, was beyond thisCourt's authority.
Volker v. Nygaard, --- N.W.3d ---- (2026)2026 ND 56 © 2026 Thomson Reuters. No claim to original U.S. Government Works.3IV[¶15] Because the 90-day jurisdictional deadline from theMay 20 merits judgment expired on August 19, 2025, andVolker did not file his notice of appeal until August 28,2025, this Court lacks jurisdiction to review the dismissal ofVolker's claims. We dismiss the appeal.[¶16] Lisa Fair McEvers, C.J.Daniel J. CrothersJerod E. TufteJon J. JensenDouglas A. BahrAll Citations--- N.W.3d ----, 2026 WL 533638, 2026 ND 56End of Document© 2026 Thomson Reuters. No claim to original U.S. Government Works.
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