Anheluk v. Kubik
Decision Date | 04 September 1985 |
Docket Number | No. 10900,10900 |
Parties | 28 Ed. Law Rep. 573 Richard D. ANHELUK, Plaintiff and Appellee, v. Joseph H. KUBIK, Defendant and Appellant. Civ. |
Court | North Dakota Supreme Court |
Freed, Dynes, Reichert & Buresh, Dickinson, for plaintiff and appellee; argued by George T. Dynes, Dickinson.
Kubik, Bogner & Ridl, Dickinson, for defendant and appellant; argued by Joseph H. Kubik, Dickinson.
Joseph H. Kubik appeals from a county court judgment in the amount of $2,383.99 in a contract action for court reporting services rendered by Richard D. Anheluk. We affirm in part and reverse in part.
The underlying action in which Anheluk rendered court reporting services was a quiet title and slander of title action entitled Anderson Petroleum, Inc. v. John P. and Darlene V. Sikorski and was filed in the Southwest Judicial District of North Dakota. The Sikorskis had retained John B. Stone of Denver, Colorado, to defend them in the action, and Stone contacted Kubik to act as resident counsel for the action. During the course of that action, pretrial depositions of the Sikorskis were taken by Anheluk in April 1982, at Dickinson, North Dakota. Anheluk was aware that several depositions in that case were scheduled to be taken on May 14, 1982, in Denver, Colorado, and he approached Kubik and requested that Kubik consider using him as the court reporter for those depositions because he wanted to go to Denver on a vacation and he was willing to do the depositions for the standard reporting fees without charging traveling expenses. Kubik contacted Stone and they agreed that Anheluk would take the Denver depositions. Kubik's office notified Anheluk that he could take the Denver depositions. Anheluk subsequently provided court reporting services for those depositions and billed Stone $815.90 for his services.
In April 1983, the Anderson Petroleum, Inc. v. Sikorski case came to trial. During the course of the trial, John Sikorski became ill and informed the court that he was unable to continue with the trial as scheduled. The court granted a continuance and also ordered sua sponte that John Sikorski's deposition be taken in order to preserve evidence for trial and that Sikorski be responsible for the costs incurred in taking the deposition. Counsel for Anderson Petroleum served Kubik with a Notice of Deposition and arranged to have Anheluk take the deposition. Sikorski's deposition was taken by Anheluk on June 1 and 2, 1983, in Dickinson, North Dakota, and Anheluk billed Kubik $1264.65 for that deposition. The Sikorskis subsequently went through bankruptcy and the bills for the May 1982 depositions in Denver and Sikorski's June 1983 deposition were not paid.
Anheluk then commenced the instant action against Kubik in small claims court, and Kubik removed it to county court. After a bench trial, the county court ordered judgment against Kubik for Sikorski's June 1983 deposition and dismissed Anheluk's claim for services rendered for the Denver depositions. Anheluk filed a motion to reconsider his claim for the May 1982 deposition, and the court, after noting that Kubik had failed to resist Anheluk's motion, 1 granted Anheluk's claim for the May 1982 depositions. Judgment was entered against Kubik in the amount of $2383.99 for the costs of the May 1982 and June 1983 depositions.
The underlying issue raised by this appeal is whether an attorney or the client is liable for court reporter costs incurred in the course of a lawsuit.
The county court followed the rule that an attorney is personally liable to third parties for litigation expenses unless the attorney expressly and specifically disclaims liability for those expenses in advance of or prior to the services being rendered.
Kubik contends that the county court erred in following this rule of law and should have followed general agency law that an attorney, as an agent of the client, is not personally liable on contracts made for the disclosed principal, in the absence of an express agreement by the attorney to be bound.
Anheluk contends that the county court correctly applied the better rule that an attorney is liable for litigation expenses unless he specifically disclaims responsibility for those expenses.
The question of an attorney's personal liability for services obtained in aid of litigation for a named client absent an express agreement on the subject has been considered in other jurisdictions and there exists a split of authority as to the proper resolution of this issue. See Annot., 15 A.L.R.3d 531 (1967). Some jurisdictions refuse to hold the attorney personally liable on the general agency rule that an agent, the attorney, who is acting for a disclosed principal, the named client, should not be liable for services contracted on behalf of the client. See Annot., supra, Sec. 3, pp. 536-538.
Other jurisdictions have modified this rule of agency and concluded that, in the absence of an express disclaimer of responsibility, an attorney requesting services in connection with litigation is treated as a principal and held personally liable for expenses for those services. See Annot., supra, Sec. 4, pp. 538-540. The rationale underlying this rule is that the attorney-client relationship differs from the general agency relationship because the attorney-client relationship is subject to an established code of professional responsibility governing members of the Bar, and the attorney, not the client, is in charge of the litigation and determines the services necessary to promote the best interests of the litigation. See Judd & Detweiler v. Gittings, 43 App.D.C. 304 (1915); Molezzo Reporters v. Patt, 94 Nev. 540, 579 P.2d 1243 (1978); Burt v. Gahan, 351 Mass. 340, 220 N.E.2d 817 (1966); Monick v. Melnicoff, 144 A.2d 381 (D.C.Mun.App.1958); Roberts, Walsh & Co. v. Trugman, 109 N.J.Super. 594, 264 A.2d 237 (1970); Brown & Huseby, Inc. v. Chrietzberg, 242 Ga. 232, 248 S.E.2d 631 (1978).
The rationale for this rule was perhaps best stated in Judd & Detweiler v. Gittings, 43 App.D.C. at 310-311:
We believe the rationale underlying the "disclaimer" rule, as set forth in the above quotation, is persuasive. That rule is also supported by the practical basis of keeping the litigation process in motion and the possible delays in that process if court reporters have to look directly to the client for satisfaction for their services. This rationale is further supported by...
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