In the Supreme Court

State Of North Dakota

February 13, 2017

Supreme Court No. 20160314

Grand Forks County Number: 18-2012-DM-00578

Nina Maureen Gabrielle Lewis, f/k/a Nina M.G. Smart, Plaintiff/Appellee,

v.

John Gordon Smart, Defendant/Appellant, And

Dashiell J. Lewis Smart, Intervenor.

APPEAL FROM FINAL JUDGMENT OF

THE DISTRICT COURT OF GRAND FORKS, NORTH DAKOTA NORTHEAST CENTRAL JUDICIAL DISTRICT

THE HONORABLE DEBBIE G. KLEVEN, PRESIDING __________________________________________________________________

BRIEF OF APPELLANT JOHN SMART __________________________________________________________________

DEWAYNE JOHNSTON (ND ID # 05763)

ATTORNEY FOR APPELLANT JOHNSTON LAW OFFICE 221 SOUTH 4TH STREET

GRAND FORKS, ND 58201 Ph. (701) 775-0082

DEWAYNE@WEDEFENDYOU.NET

20160341 FILED IN THE OFFICE OF THE CLERK OF SUPREME COURT FEBRUARY 14, 2017 STATE OF NORTH DAKOTA

TABLE OF CONTENTS

TABLE OF AUTHORITIES……………………………………………….iii

STATEMENT OF THE ISSUES…………………………………………...¶1 STATEMENT OF THE CASE……………………………………………..¶6 STATEMENT OF THE FACTS……………………………………………¶11 STANDARD OF REVIEW………………………………………………...¶16 LAW AND ARGUMENT………………………………………………….¶20 CONCLUSION………………………………………………………….…¶42

TABLE OF AUTHORITIES

Cases

Anderson v. Baker, 2015 ND 269, 871 N.W.2d 830 ..................................................... ¶18 DeMers v. DeMers, 2006 ND 142, ¶31; 717 N.W.2d 545 ................................................... ¶31 Holte v. Holte, 2013 ND 174, ¶38; 837 N.W.2d 894 (ND 2013) .......................................... ¶31 Marschner v. Marschner, 2001 ND 4; 621 N.W.2d 339……..…………………………. ¶31 Larson v. Larson, 2016 ND 76; 878 N.W.2d 54 ............................................................ ¶18 Pearson v. Pearson, 2009 ND 154, 771 N.W.2d 288……………............................. …¶17 Murphy v. Rossow, 2010 ND 162, 787 N.W.2d 746..................................................... ¶27 Pozarnsky v. Pozarnsky, 494 N.W.2d 148 (N.D.1992)…………………………………..¶36 Wanttaja v. Wanttaja, 2016 ND 14; 873 N.W.2d 911 .................................................. ¶35 Peterson v. Peterson, 313 N.W.2d 743, 744 (N.D. 1981) .............................................. ¶33 Wolfe v. Wolfe, 391 N.W.2d 617, 619 (N.D. 1986) ....................................................... ¶32 Woodward v. Woodward, 2013 ND 58; 830 N.W.2d 82 ............................................... ¶31 Zuger v. Zuger, 1997 ND 97, ¶11; 563 N.W.2d 804 ........................................................... ¶31 Wilhelm v. Wilhelm, 1998 ND 140, ¶18; 582 N.W.2d 6 ...................................................... ¶31

STATUTES

NDCC 14–05–24 .................................................................................................... ¶4, 5,23

N.D.C.C. § 14–05–23 .............................................................................................. ¶18, 35

N.D.R.App.P 38............................................................................................................ ¶41

[¶1] STATEMENT OF THE ISSUES

[¶2] Did the District Court err in assessing defendant/appellant John Smart with $267,000.00 in alleged waste for not paying a storage fee when he was unable to do so, the plaintiff/appellee had the means to pay the storage fee, and the property in storage was not marital property and is plaintiff/appellee required to pay to defendant/appellant John Smart the sum of $267,000.00 as the district court divided the marital estate in light of the erroneous subtraction of that same $267,000.00 by imposing an unwarranted sanction upon defendant/appellant John Smart?

[¶3] Did the District Court err in asserting jurisdiction over the non-marital trust when the Trust property did not belong to Smart or Lewis and was distinguished in the Rule 8.3 [Doc 150] from property awarded to each party in the original judgment [Doc 184]?

[¶4] Did the District Court err in rejecting the position of defendant/appellant John Smart stating that the contract upon which the original stipulation was based must be set aside when the contractual stipulation, such as the property settlement agreement at issue, is disturbed by the Court in a post-judgment change to the terms and benefits enjoyed by him under the original agreement.

[¶5] Did the District Court err in awarding attorney fees against defendant/appellant John Smart in favor of plaintiff/appellee?

[¶6] NATURE OF THE CASE AND PROCEDURAL HISTORY

[¶7] The case at hand originated by summons and complaint involving divorce

and child related issues on or about August 28, 2012 in Grand Forks County

North Dakota. App.16. An answer and counterclaim was filed on October 12,

2012. App.20. An answer to the Counterclaim was filed on October 15, 2012.

App.25.

[¶8] On September 4, 2013, following a partial trial, the parties entered into a

stipulated settlement agreement which was placed on the record. App.117-167.

Order for judgment was entered October 16, 2016. App.59-86. Judgment was

entered October 17, 2013. App.87-111. Notice of Entry of Judgment was served

that same day. D.185. On December 16, 2013, Appellant motioned the Court pro

se seeking relief from Judgment. D.187-190. The motion was denied on

February 26, 2014. D.220.

[¶9] On September 15, 2014, Appellant filed a request for Rule 60 relief. D.226-

239.

[¶10] The motion was granted on December 5, 2014. App.168. Hearing was

scheduled for April 2, 2015 but suspended mid-hearing. App.178. The hearing

was completed on March 8, 2016. Notice of this appeal was timely filed with the

Supreme Court on February 25, 2016. App.228.

[¶11] STATEMENT OF THE FACTS

[¶12] On September 4, 2013 the Appellee Nina Smart (Nina) and Appellant

John Smart (John) entered into a stipulated settlement agreement that was orally

placed upon the record. App.117. The agreement disposed of all issues related

to the marital estate and custody, with the reservation of Nina’s vested right to

inherit from her recently deceased father. APP.130-131,L.20-25,L.1-2. Specifically,

the inheritance asset was stricken from the Rule 8.3 Property & Debt statement,

by agreement of counsel, as that asset was not addressed in the divorce

settlement. App.131,L.4-21.

[¶13] The estate of Robert W. Lewis (Nina’s father) was filed as a probate

action in Grand Forks County on October 7, 2013. See 18-2013-PR-00156. Doc.223.

The Last Will and Testament, left Nina and her sister as sole benefactors after

small bequests. Doc.232. Nina requested court permission to serve as the

personal representative of the estate stating her father had passed on August 26,

2013. Doc.233 As personal representative of the estate, it is difficult to believe

that Nina did not have access to a copy of the Will as represented to the Court on

September 3, 2013. App.L. 16-23 (Nina’s counsel stating to the Court that she did

not believe her client had a vested interest in the estate).

[¶14] Without legal counsel, John attempted to gain relief from the court on

December 16, 2013 by asking for a division of the funds inherited by Nina. D.187-

190. Nina resisted that motion claiming that John was aware of the estate and

waived his right to any inheritance Nina received. D.195,¶2. Nina sworn

affidavit to the Court was contrary to the record. D.187-190. John’s motion for

relief was denied on February 26, 2014. D.220. The Court found that John did

not provide sufficient support (in part, transcripts from court) for his claims that

the issue to reopen the divorce estate based on the inheritance was reserved.

Id.at¶9.

[¶15] On September 15, 2014, John filed a request for Rule 60 relief. D.226-239.

The motion was granted on December 5, 2014. App.168. On December 4, 2014,

District Court Judge Debbie Kleven found that John had met his burden for Rule

60 relief based on the record. App.168-171. Specifically, Judge Kleven indicated

that the case would be reopened for the “sole purpose” of considering the

“existence of any additional marital property that is a result of Nina Smart’s

inheritance from her father’s estate”. App.171,¶8. (emphasis added).

Following that order, the Court essentially allowed and participated in

reevaluating the entire marital estate, essentially negating and repudiating the

parties original stipulated agreement and making new findings of fact. At the

time of settlement in September of 2013, the parties specifically agreed what

personal property were trust items, and what property would remain in trust

with a successor trustee named. App.122,L.23-15&App.123,¶L.1-12. John would

continue to use and possess trust property, specifically outlined by his counsel

no later than September 13 2013, which was completed. App.180. There was no

agreement of John and Nina to invade or dissolve the trust. App.117-135. The

trust issue and other items the court ordered for Amended Judgment were well

beyond of scope of the Rule 60 relief granted. App.168-171&185-198.

[¶16] STANDARD OF REVIEW

[¶17] A District court's distribution of marital property and award of spousal

support in a divorce action is treated as a finding of fact, which the Supreme

Court reviews under the clearly erroneous standard of review. NDCC 14–05–

24(1). Finding of fact is clearly erroneous if it is induced by an erroneous view of

the law, if there is no evidence to support it, or if, after reviewing all the

evidence, the Supreme Court is left with a definite and firm conviction a mistake

has been made. Pearson v. Pearson, 2009 ND 154, ¶ 5, 771 N.W.2d 288

[¶18] [¶17] The district court's decision whether to award attorney fees under

N.D.C.C. § 14–05–23 will not be reversed on appeal unless the court abused its

discretion. Larson v. Larson, 2016 ND 76, ¶32; 878 N.W.2d 54, 64. “A district court

abuses its discretion if it acts in an arbitrary, unconscionable, or unreasonable

manner, if its decision is not the product of a rational mental process leading to a

reasonable determination, or if it misinterprets or misapplies the law.” Id. citing

Anderson v. Baker, 2015 ND 269, ¶ 7, 871 N.W.2d 830.

[¶19] The interpretation and application of a statute, relating to a trust, is a

question of law, which is fully reviewable upon appeal using the de novo

standard. Determining a mistake of fact or finding of fact relative to a trust, is

subject to the clearly erroneous standard of review.

[¶20] LAW AND ARGUMENT

[¶21] The District Court erred in assessing defendant/appellant John Smart with $267,000.00 in alleged waste for not paying a storage fee when he was unable to do so, the plaintiff/appellee had the means to pay the storage fee, and the property in storage was not marital property and is plaintiff/appellee required to pay to defendant/appellant John Smart the sum of $267,000.00 as the district court divided the marital estate in light of the erroneous subtraction of that same $267,000.00 by imposing an unwarranted sanction upon defendant/appellant John Smart.

[¶22] On December 4, 2014, the Honorable Debbie G. Kleven granted John’s

motion. D.251. In her order, Judge Kleven specifically indicated the one and

sole purpose of reopening the matter under Rule 60 and that purpose related to

the property inherited by Plaintiff Nina Maureen Gabrielle Lewis “Nina”:

D.251, ¶8. Even more important is the fact that counsel for Nina drafted the

original judgment without input from John’s counsel stating that, by agreement

and stipulation, on the basis of irreconcilable differences only and not the

conduct of the parties:

D.184, ¶4. Further proceedings constant with the District Court’s Order

reopening the matter to value and distribute the inheritance should not have

disregarded the prior stipulation reduced to judgment stating the parties agree

that there exist irreconcilable differences and equity not fault was the basis in

relation to the parties’ property distribution. See APP_63,&87.

[¶23] Despite the directives of the Court to focus on inheritance issues only,

Nina filed pleadings requesting that John be contempt of court and motioning

the District Court for other peripheral matters “outside” the scope of the

directive and “sole purpose” of reopening the judgment. As example, Nina filed

an affidavit requesting that John be held in contempt of court due to items of

“sentimental” value belonging to her which were in storage at Whalen’s Moving

& Storage in Grand Forks. D248. Nina informed the court that John had not

paid the bill at Whalen’s. Id. at ¶3. Nina went on to complain that she is

missing a Shamrock coffee table and that tuition has not been paid for their son

from previous years. Id. at ¶¶5-6. Nina also reported that there are issues with

the IRS and North Dakota Tax Commission. Id. at ¶7. Nina explains to the

Court that Whalen’s intended on selling the items in storage, at auction, if the

outstanding bill was not paid. Id. at ¶10.

[¶24] In February of 2015, John filed an emergency request with the Court

regarding the property in storage at Whalen’s as it was in danger of being

actioned. D.277-282. John indicates in his filings that he did not have the funds

to pay Whalen’s and that Nina has the funds in her possession to pay. Id. John

asked that Nina pay the Whalen’s bill and that the matter be accounted for in the

division of the inherited money Nina received from her father. Id. Nina resisted

John’s motion, which was ultimately denied by the Court. D.302. The evidence

showed that John did not have the funds to pay Whalen’s D.461(John’s Check

Registry). It is believed that Nina inherited in excess of $936,600. D.474. The

Court in relation to the storage bill made the following observations:

Okay. Ms. Johnston? Seems like this is all Mr. Smart stuff. I don’t understand why he doesn’t just get it paid. (Page 15 line 10 – 12);

Or we let it go to creditors and be done with at all. That’s probably the easiest thing. (Page 15 line 14 – 15);

… And if he doesn’t have the money, that’s even more reason to just let it go and satisfy creditors to the extent it can be. But it’s not an emergency at this point. It’s really his problem. (Page 18 line 23 – 25).

February 23, 2015 transcript of the ex parte hearing.

[¶25] John highlighted the unmistakable fact that Nina was the named trustee

of the trust and had a duty to protect the items owned by the trust and in storage

at Whalen’s. See APP_99.

See App_99. John provided the requisite list of trust items he intended to use and

asked Nina to return many items she had in her possession. See APP_180.

Because no successor Trustee has been named to date, Nina undeniably has a

fiduciary duty to the trust while John does not as be was a named beneficiary.

D.287 – 289 (Nina’s Opposition to John’s motion requiring Nina to pay Whalen to

avoid the auction)). John again told the court that the trust was its own “animal”

and that neither John nor Nina had the ability to contract outside the terms of the

trust in regard to the trust property. Id. at ¶6. John again asked that the trust

issues or any actions concerning the trust be taken outside of the divorce file. Id.

[¶26] The District Court erred in asserting jurisdiction over the non-marital trust when the Trust property did not belong to Smart or Lewis and was distinguished in the Rule 8.3 [Doc 150] from property awarded to each party in the original judgment [Doc 184].

[¶27] It is well settled law in the State of North Dakota that the corpus of a trust is not

owned by the individual and available for distribution as a marital asset. The value of the

parties interest in a trust in his property that will be included in the marital state and

available for division or inclusion in the calculation of equitable distribution.

The parties divorced on January 19, 2005. At that time, the Murphy family trust still existed, and Murphy had only a beneficiary interest in the trust. Murphy did not obtain an outright ownership interest in the trust minerals until the trust's dissolution in May 2008. The district court erred when it divided the trust minerals between Murphy and Rossow because the trust minerals were not owned by either party at the time of divorce. See Ulsaker v. White, 2009 ND 18, P 17, 760 N.W.2d 82. We reverse the distribution of the trust minerals and remand for the district court to determine [***8] the value of Murphy's beneficiary interest in the Murphy family trust at the time of divorce. See Zuger v. Zuger, 1997 ND 97, P 15, 563 N.W.2d 804 (holding beneficiary interest in trust is property subject to division in divorce). On remand, the district court also must equitably distribute the value of Murphy's trust interest at the time of divorce.

Murphy v. Rossow, 2010 ND 162, ¶ 12, 787 N.W.2d 746, 750A

[¶28] In the above-captioned case the parties stipulated to the value assigned to John’s

use of certain trust items. APP_180. In fact counsel for Nina openly indicated to the

judge that it was the use of the asset and only the use of the asset that was includable in

the marital estate.

APP_154ln12-18.

[¶29] The above-cited passage from Ms. Jensen occurred one day prior to the parties

settling the case by stipulation and presenting that stipulation to Judge Weir.

[¶30] The District Court erred in rejecting the position of defendant/appellant John Smart stating that the contract upon which the original stipulation was based must be set aside when the contractual stipulation, such as the property settlement agreement at issue, is disturbed by the Court in a post-judgment change to the terms and benefits enjoyed by him under the original agreement.

[¶31] In a divorce action, all of the parties’ are subject to distribution, including assets

brought into the marriage or acquired by inheritance or a similar manner. DeMers v.

DeMers, 2006 ND 142, ¶31; 717 N.W.2d 545. North Dakota law requires the inclusion of

inheritances in the value of the marital estate even if the parties have separated.

Marschner v. Marschner, 2001 ND 4, ¶1; 621 N.W.2d 339 citing Keig v. Keig, 270 N.W.2d

558, 560; Linrud v. Lindrud, 552 N.W.2d 342, 344; van Oosting v. van Oosting, 521

N.W.2d 93, 96 (N.D. 1994). Although equitable distribution of the marital need not be

equal, all property of the parties must be included, including property accumulated by

one party through gift or inheritance. Wilhelm v. Wilhelm, 1998 ND 140, ¶18; 582

N.W.2d 6. Interests that are vested in a party or amounts certain to become a future

inheritance, are also properly included in the marital estate. Zuger v. Zuger, 1997 ND

97, ¶11; 563 N.W.2d 804 citing van Oosting, at 96-98. The North Dakota Supreme Court

very recently stated:

“We have repeatedly held that property brought into the marriage by one party, and separate property acquired by gift, inheritance, or otherwise, must be included in the marital estate and is subject to distribution.” Ulsaker v. White, 2006 ND 133, ¶ 12, 717 N.W.2d 567 (citation omitted). In distributing property, “the origin of property is not the sole or, necessarily, the controlling factor under the Ruff–Fischer guidelines.” Id. (citation omitted). See also Murphy v. Rossow, 2010 ND 162, ¶ 20, 787 N.W.2d 746 (noting that “all property of both spouses, no matter how acquired or how owned, becomes part of the marital estate and is subject to distribution” in affirming a district court judgment equally splitting a mineral estate).

Holte v. Holte, 2013 ND 174, ¶38; 837 N.W.2d 894 (ND 2013).

[¶32] Equally important is a party’s right to resolve their differences in contract

whether or not the contract disposes of all the marital assets.

The public policy of this state favors the prompt and peaceful resolution of disputes in divorce matters. See Fleck v. Fleck, 337 N.W.2d 786, 792 (N.D. 1983); Peterson v. Peterson, 313 N.W.2d 743, 745 (N.D. 1981); Galloway v. Galloway, 281 N.W.2d 804, 807 (N.D. 1979). In recognition of this public policy and the right of a husband and wife to contract with each other, we held in Peterson, supra, that a court's authority to make a just and equitable distribution of property under § 14-05-24, N.D.C.C., does not allow the court to rewrite a valid written separation agreement absent statutory grounds for rescission under Chapter 9-09, N.D.C.C. Thus, to the extent that competent parties have voluntarily stipulated to a particular disposition of their marital property, a court ordinarily should not decree a distribution of property that is inconsistent with the parties' contract. Peterson, supra, 313 N.W.2d at 744.

Wolfe v. Wolfe, 391 N.W.2d 617, 619 (N.D. 1986)

[¶33] In this case, the parties while represented by counsel, over the course of two days

while trying the facts to the Judge came to an agreement that resolved the property

distribution of the estate reserving only the division of the inheritance received by Nina

from her father. The court did not have license to go back into the original agreement of

the parties and essentially rewrite the original agreement to the detriment of John while

Nina received approximately $936,600. D.474. It is clear from North Dakota common

and statutory law, that all assets from all sources, including inheritances are properly

included in the marital estate and subject to distribution upon divorce just as the parties

are free to contract for the proper dissolution of their property.

The ultimate question presented in this case is whether or not the equitable powers of a court to make a just and proper distribution of properties during a divorce proceeding allow it to modify a separation agreement executed prior to the divorce action. We conclude that ordinarily it may not. The equitable powers of § 14-05-24, NDCC, which allow the court to make a just and proper distribution of properties is not authorization to ignore or rewrite a validly written separation agreement absent statutory grounds for rescission. See Chapter 9-09, NDCC.

Peterson v. Peterson, 313 N.W.2d 743, 744 (N.D. 1981)A

[¶34] Did the District Court err in awarding attorney fees against defendant/appellant John Smart in favor of plaintiff/appellee.

[¶35] A district court may award attorney fees in a divorce action “as may be

necessary.” N.D.C.C. § 14–05–23. As stated in Wanttaja v. Wanttaja, 2016 ND 14,

¶31; 873 N.W.2d 911, 918-919.

In deciding whether to award attorney fees in a divorce action, the trial court must balance one [party's] needs against the other [party's] ability to pay. The court should consider the property owned by each party, their relative incomes, whether property

is liquid or fixed assets, and whether the action of either party unreasonably increased the time spent on the case. An award of attorney fees requires specific findings supported by evidence of the parties' financial conditions and needs. See also, Reiser v. Reiser, 2001 ND 6,¶15;621 N.W.2d 348.

[¶36] The principal factors to be considered for deciding the amount of

attorney fees are need and ability to pay. Pozarnsky v. Pozarnsky, 494 N.W.2d

148, 151 (N.D.1992). See also, Mahoney v. Mahoney, 1997 ND 149, ¶40 (emphasis

added). The district court found in its Order for Amended Judgment that each

party would be responsible for their own attorney’s fees. App.198,¶23.

[¶37] The court found that the parties’ original agreement awarded Nina

$49,000 in personal property and $23,000 in marital debt and John was awarded

$60,000 in personal property and $138,000 in marital debt. Id.at¶4. John is 68

years of age and Nina is 58 years of age. Id.at¶14(A).

[¶38] The court found that Nina’s inheritance was estimated to be

approximately $936,600. App.189,¶10. John sought the sum of $17,000 towards

his attorney’s fees. App.189,¶12. Nina has the financial ability to assist John with

his legal fees. Id. John does not have the ability to pay his legal fees or assist

Nina was hers. The court ordered John to pay Nina the sum of $2,500 for post

Amended Judgment motions. App.222,¶9(3). John is living on social security

income and his home is being foreclosed upon. App.190,¶14(B)&App.194(14(F).

The court found it would be an “unlikehood” that John would ever reimburse

Nina for payment of debts and expenses. App.196,¶18. Even after the award and

Nina’s $937,000 inheritance, the Court ordered John to pay Nina’s fees.

[¶39] John’s cannot pay his attorney’s fees, is living on Social Security income

and his residence is being foreclosed upon due to lack of income. Nina inherited

approximately $936,600. App.189,¶10. Nina has the ability to pay and John does

not. The court penalized John for being retired and 68 years of age, basically

stating that he should find employment and sell his home. App.190,¶14(A)&(B)

and 22. Nina was not penalized for not being employed with the Court

indicating her only source of income currently is her inheritance. Id. One spouse

should not bear the brunt of the overall reduction in standard of living.

Woodward v. Woodward, 2013 ND 58, ¶8; 830 N.W.2d 82, 85 citing Becker at ¶30.

The court made its order, with clear intention that Nina’s standard of living

would not be reduced at the expense of John. App.62.

[¶40] The court’s finding are not the legal standard. In rendering it decision,

the court did not award John liquid assets to allow for the payment of attorney’s

fees or even save his home from foreclosure. App.185-198. Conversely, Nina

bought a new home for herself with inherited funds with a taxable value in

excess of $254,000. Doc.234-235. Further, Nina has unnecessarily increased John’s

fees by filing to hold John in contempt of court for inability to pay, and

addressing issues outside of the scope of direction the court initially provided in

its Rule 60 relief. App.171,¶8-9. Nina did everything she could to muddy the

waters and avoid John obtaining Rule 60 relief.

[¶41] When John filed his appeal, Nina attempted to dismiss the action by

motion to the Supreme Court. There is no basis for Nina’s motion as outlined in

John’s responsive brief. Regardless, John was forced to respond. John should

be awarded fees for being forced to respond to Nina’s motion to dismiss as well

as this appeal. N.D.R.App.P 38. There has been no evidence presented to

support that Nina has not funded her legal expense throughout this proceeding.

There has been no evidence to support that John can afford to fund his legal

expense.

[¶42] CONCLUSION

[¶43] That the result requested is reversing the District Court and require Nina to pay,

within 30 days of the Mandate from this Court, John $267,000.00. Alternatively, this

court should either remand with instructions to the District Court regarding the division

of the inheritance without disturbing the parties’ prior settlement agreement or require a

trial de novo in the District Court with regard to the division of the marital estate.

Dated this 13th day of February, 2016.

JOHNSTON LAW OFFICE /s/ DeWayne Johnston DeWayne A. Johnston (ND#5763) dewayne@wedefendyou.net Attorney at Law 221 South Fourth Street Grand Forks, ND 58201 P: (701) 775-0082 F: (701) 775-2230 Counsel for Appellant

IN THE SUPREME COURT STATE OF NORTH DAKOTA

Nina Maureen Gabrielle Lewis, f/k/a Nina M.G. Smart, Plaintiff/Appellee, Supreme Court No. 20160341 v. Grand Forks Co. No. 18-2012-DM-00578 John Gordon Smart,

Defendant/Appellant, And

Dashiell J. Lewis Smart, Intervenor.

APPEAL FROM THE DISTRICT COURT,

GRAND FORKS, NORTH DAKOTA NORTHEAST CENTRAL JUDICIAL DISTRICT

THE HONORABLE DEBBIE KLEVEN, PRESIDING

CERTIFICATE OF SERVICE INTIAL BRIEF AND APPENDIX OF APPELLANT, JOHN SMART

DEWAYNE JOHNSTON (ND ID #5763) ATTORNEY FOR APPELLANT

JOHNSTON LAW OFFICE 221 SOUTH 4TH STREET

GRAND FORKS, ND 58201 PH. (701) 775-0082

DEWAYNE@WEDEFENDYOU.NET

CERTIFICATE OF SERVICE

I, DeWAYNE JOHNSTON, attorney for Defendant and officer of the court, hereby certify that a true and correct copy of the foregoing:

1. Initial Brief of Appellant; and 2. Appendix of Appellant

was served by EMAIL on this 13th day of February, 2017, to the following:

Patti Jensen, attorney for Plaintiff at pjensen@gjmlaw.com

Ron McLean, attorney for Dashiell Smart at rmclean@serklandlaw.com

JOHNSTON LAW OFFICE

/s/ DeWayne Johnston DeWayne Johnston (ND ID #05763)

dewayne@wedefendyou.net 221 South 4th Street Grand Forks, ND 58201 (701) 775-0082 Attorney for Appellant