Diocese of Bismarck Trust, In re

• Decision Date: 12 September 1996
• Docket Number: No. 960040,960040
• Citation: 553 N.W.2d 222
• Parties: In re DIOCESE OF BISMARCK TRUST (Created by the Last Will and Testament of T. Clem Casey, Deceased.) DIOCESE OF BISMARCK, Respondent and Appellant, v. Myron H. ATKINSON, Jr., and First Trust Company of North Dakota, N.A., Former Co-Trustees Petitioners and Appellees. Civil
• Court: North Dakota Supreme Court

Page 222

553 N.W.2d 222

In re DIOCESE OF BISMARCK TRUST (Created by the Last Will

and Testament of T. Clem Casey, Deceased.)

DIOCESE OF BISMARCK, Respondent and Appellant, v. Myron H. ATKINSON, Jr., and First Trust Company of North

Dakota, N.A., Former Co-Trustees Petitioners and Appellees.

Civil No. 960040.

Supreme Court of North Dakota.

Sept. 12, 1996.

Dwight C.H. Kautzmann, Bismarck, for respondent and appellant.

Kermit E. Bye of Vogel, Kelly, Knutson, Weir, Bye & Hunke, Fargo, for petitioners and appellees.

NEUMANN, Justice.

The Diocese of Bismarck appeals from an order denying its motion to expunge a pretrial brief and appendix from the district court's record. We affirm the district court's ruling.

In 1969, T. Clem Casey executed his Last Will and Testament. Article VI of the Last Will and Testament created the Diocese of Bismarck Trust. In 1970, T. Clem Casey died. Under the terms of his Will, the co-trustees, Myron Atkinson and First Trust Company of North Dakota, were directed to pay funds to the governing board of the Diocese of Bismarck for capital improvements of Bismarck's parochial school facilities.

In 1990, a dispute arose between the co-trustees and the Diocese of Bismarck concerning the construction of the trust's terms. In 1991, the parties entered into a settlement agreement. As part of that settlement agreement, the trust was placed under the supervision of the district court according to N.D.C.C. Chapter 59-04. The district court has held annual hearings at which the court has reviewed and approved the trust's annual accounting.

In 1994, another dispute arose between the parties concerning proper use of the trust's funds. As a result, the co-trustees moved to amend the 1991 settlement agreement. The parties conducted discovery and filed additional motions. The district court scheduled a hearing for September 18, 1995. In preparation for the hearing on the pending motions, the co-trustees prepared a prehearing brief with a related appendix.

On September 18, 1995, the day originally scheduled for the hearing, the parties reached a verbal agreement that was read into the record. On September 29, 1995, the co-trustees delivered their prehearing brief and a proposed order confirming the verbal agreement to the district court and to the Diocese. On October 3, 1995, the district court filed the brief.

On October 2, 1995, the Diocese signed the written settlement agreement. Four days after signing the written settlement, the Diocese moved the district court to reject the co-trustees' brief. On December 15, 1995, the district court issued its order confirming the verbal agreement and denying the Diocese's motion to reject the brief.

The Diocese appeals the district court's refusal to expunge the brief. Its argument focuses on three main issues. First, the Diocese argues the district court violated Rule 5(d)(1), N.D.R.Civ.P., by improperly allowing the brief, accompanied with discovery materials, to be filed. Second, it argues the court violated Rule 5(d)(2), N.D.R.Civ.P., by accepting the brief two weeks after the trial had been canceled. Finally, the Diocese argues the court erred by allowing the brief to be filed without first being scrutinized under the North Dakota Rules of Evidence.

A trial court's order refusing to expunge filed documents will not be disturbed unless this court finds the district court abused its discretion in accepting the documents. Cf. Smith v. State, 389 N.W.2d 808, 812 (N.D.1986) (reviewing a court's decision to grant a protective order and deny a discovery request under an abuse of discretion standard). An abuse of discretion is never assumed; the burden is upon the party seeking relief to affirmatively establish it. Mertes v. Walberg, 548 N.W.2d 378, 380 (N.D.1996). We do not consider the trial court's acceptance of this prehearing brief and appendix to be an abuse of discretion.

The prehearing brief and appendix filed by the co-trustees contained copies of documents concerning the trust, and other materials including letters, minutes from meetings, memos, a deposition and spreadsheets. The North Dakota Rules of Civil Procedure do not prohibit most of these materials from being filed but because some discovery material was included in the appendix, Rule 5(d)(1), N.D.R.Civ.P., is applicable. The relevant section of Rule 5(d)(1) of the North Dakota Rules of Civil Procedure states:

"A party may not file discovery materials with the clerk unless the materials are to be submitted to the court for disposition of a pending motion, the court orders them to be filed, or a party certifies that the filing is necessary for safekeeping of the papers or exhibits pending completion of the case."

According to the explanatory note of Rule 5(d)(1), N.D.R.Civ.P., the purpose of limiting the filing of discovery materials is to alleviate storage problems. Therefore, Rule 5(d)(1), N.D.R.Civ.P., does not provide a blanket ban on the filing of discovery materials, but rather, gives the court discretion in accepting discovery documents as outlined in the rule.

Here, the co-trustees offer two reasons for submitting the brief. First, the co-trustees contend they filed the brief as a reference point for any future controversies concerning the trust. Second, they explain the brief was filed to help guide the district court in assessing attorney fees that, at the time the brief was filed, remained to be confirmed.

The trial court did not provide an exact reason for its decision, but the court's order refusing to expunge the brief could reasonably fall under the second or third exception in Rule 5(d)(1), N.D.R.Civ.P. Under the second exception, the district court has the discretion to order discovery materials filed. Although in this case the court did not originally order the brief to be filed, the court did order the brief to remain filed, essentially satisfying this exception. In addition, the co-trustees filed the brief to ensure the information would be available for future reference. This suggests the co-trustees saw a need for the documents to be filed for the purposes of safekeeping. Although the co-trustees did not officially certify to the court that safekeeping was necessary, the court could have interpreted the need for safekeeping and refused to expunge the materials based on this reason. Because one could reasonably argue the brief was filed under a court order or for the purposes of safekeeping the materials, the court has not abused its discretion by refusing to expunge the brief under Rule 5(d)(1), N.D.R.Civ.P.

The Diocese's second argument, that accepting the brief two weeks after the settlement violates Rule 5(d)(2), N.D.R.Civ.P., is also unfounded. Rule 5(d)(2), N.D.R.Civ.P., provides that all documents "designed to be used upon the hearing of a motion ... shall be filed at least 24 hours...