Greenwood, Greenwood & Greenwood, P.C. v. Klem

• Decision Date: 18 January 1990
• Docket Number: No. 890102,890102
• Court: North Dakota Supreme Court
• Parties: GREENWOOD, GREENWOOD & GREENWOOD, P.C., Plaintiff and Appellee, v. Ernest E. KLEM, Defendant and Appellant. Civ.

Page 745

450 N.W.2d 745

GREENWOOD, GREENWOOD & GREENWOOD, P.C., Plaintiff and Appellee, v. Ernest E. KLEM, Defendant and Appellant.

Civ. No. 890102.

Supreme Court of North Dakota.

Jan. 18, 1990.

Freed, Dynes, Reichert & Buresh, P.C., Dickinson, for plaintiff and appellee; argued by Eugene F. Buresh.

Ernest E. Klem, Belfield, pro se.

ERICKSTAD, Chief Justice.

Ernest Klem appealed from a county court order ¹ awarding the law firm of Greenwood, Greenwood & Greenwood, P.C., $2,655.60 plus interest, costs and disbursements for legal services rendered in a criminal proceeding against Klem. We affirm.

After a mistrial on two counts of gross sexual imposition, Klem retained the Greenwood law firm to defend him in a second trial on those charges. On August 17, 1987, Klem and Mark Greenwood executed a written agreement in which the Greenwood law firm agreed to defend Klem. According to the written agreement, Klem paid the Greenwood firm $5,000 as an initial retainer which was to be "applied against the legal services actually performed (for Klem) ... by the firm ... at standard hourly rates for partners and associates from $75.00 per hour to $150.00 per hour, except Court appearances, (and) depositions for which minimum fees in excess of hourly fees may be charged." The written agreement also required Klem to pay out-of-pocket disbursements.

Klem was convicted on both counts of gross sexual imposition and incarcerated in the State Penitentiary in January 1988. He retained a different attorney and appealed the conviction to this court. In State v. Klem, 438 N.W.2d 798 (N.D.1989), decided on March 22, 1989, a majority of this court reversed Klem's conviction and remanded for a new trial. Klem was then released from the State Penitentiary, and the criminal charges against him have since been dismissed.

Klem paid the Greenwood law firm a total of $12,800 for legal services rendered in the second trial. The law firm claimed that Klem owed it an additional $2,655.60 plus interest, and when he failed to pay that amount, it commenced this action to collect that amount by serving a summons and complaint upon Klem in the State Penitentiary on July 7, 1988. On July 13, 1988, Klem, representing himself, answered, denying that he owed the firm $2,655.60. A bench trial was scheduled for December 20, 1988, but was continued until March 17, 1989. On March 6, 1989, the county court informed the parties that the trial would not be continued again. On March 9, 1989, Klem served a demand for a jury trial which the trial court denied. After a bench trial on March 17, 1989, the court found that Klem owed the Greenwood law firm $2,655.60 plus interest, costs and disbursements. Klem has appealed.

I

Klem contends that the trial court abused its discretion in denying his demand for a jury trial.

Article I, Section 13, of the North Dakota Constitution provides, in part, that "[t]he right of trial by jury shall be secured to all, and remain inviolate." However, under Rule 38, N.D.R.Civ.P., ² a party waives a jury trial on any issue triable of right by a jury unless an affirmative demand for a jury trial is made no later than ten days after service of the last pleading directed to that issue. Land Office Co. v. Clapp-Thomssen Co., 442 N.W.2d 401 (N.D.1989).

In this case, the Greenwood law firm served the summons and complaint on Klem on July 7, 1988. Klem answered on July 13, 1988; however, he did not demand a jury trial until March 9, 1989. Under Rule 38, N.D.R.Civ.P., the demand for a jury trial was therefore not within 10 days after the service of Klem's answer, the last pleading directed to the issues. Klem therefore waived his right to a jury trial. Klem's assertion that his demand for a jury trial was timely because it was made within ten days of the trial court's March 6, 1989 order that the trial would not be continued again ignores that that order is not a pleading directed to the issues of the case.

Pursuant to Rule 39(b), N.D.R.Civ.P., ³ a trial court has broad discretion to grant relief from the waiver of the right to a jury trial, and we will not reverse the denial of an untimely request for a jury trial unless the trial court abused its discretion. Land Office Co. v. Clapp-Thomssen, supra; Bank of Steele v. Lang, 399 N.W.2d 293 (N.D.1987); Shark v. Thompson, 373 N.W.2d 859 (N.D.1985). A trial court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably. Land Office Co., supra. Relying on federal caselaw construing the corresponding federal rule, in Shark v. Thompson, supra, we said that a trial court does not abuse its discretion in denying a Rule 39(b) motion when the failure to make a timely demand for a jury trial results from mere oversight or inadvertence on the part of the moving party. We also said that "[c]ounsel's misunderstanding of the rules or a mistaken belief that no demand was necessary amounts to mere inadvertence." Shark v. Thompson, supra, 373 N.W.2d at 864, citing Beckham v. Safeco Insurance Co. of America, 691 F.2d 898 (9th Cir.1982), and Aetna Casualty and Surety Co. v. Jeppesen & Co., 642 F.2d 339 (9th Cir.1981).

Klem contends that he is not learned in the law and that he did not know when he was required to demand a jury trial. However, an attorney's misunderstanding of the rules constitutes mere inadvertence [Shark v. Thompson, supra ], and it is a well established principle of law in this state that our statutes or rules on procedure will not be modified or applied differently merely because a party not learned in the law is acting pro se. E.g., Federal Land Bank of St. Paul v. Overboe, 426 N.W.2d 1 (N.D.1988); Hennebry v. Hoy, 343 N.W.2d 87 (N.D.1983). Klem, as a pro se litigant, is not entitled to any different treatment than an attorney.

Klem demanded a jury trial on March 9, 1989, just eight days before the scheduled date of trial and eight months after the service of the last pleading directed to the issues in this case. In September 1988 the parties were notified that the case had been set for a bench trial on December 20, 1988. On December 16, 1988, the parties were notified that the bench trial scheduled for December had been continued until March 17, 1989.

We conclude that the trial court did not act arbitrarily, capriciously, or unreasonably in denying Klem's belated request for a jury trial. We therefore conclude that the court did not abuse its discretion.

II

Klem asserts that Attorney Mark Greenwood's participation in this action violated several rules of professional conduct. Klem first claims that Mark Greenwood violated certain ethical considerations because he did not offer any evidence that he was authorized by the Greenwood law firm to file suit against Klem.

Section 27-13-04, N.D.C.C., ⁴ allows a court, on motion of either party, to require the adverse party to prove the authority under which the attorney appears. Our statute follows the strong presumption that an attorney who files a lawsuit does so with the authority of his client and the burden of proving lack of authority is on the party denying the authority of the attorney. See 7 Am.Jur.2d, Attorneys at Law, Secs. 142, 145 (1980). Klem did not make a motion under Section 27-13-04, N.D.C.C., or raise any issue about the authority of counsel in the lower court, and he cannot raise that issue for the first time on appeal. See First Nat'l Bank & Trust Co. v. Jacobsen, 431 N.W.2d 284 (N.D.1988); Flex Credit, Inc. v. Winkowitsch, 428 N.W.2d 236 (N.D.1988).

Klem also argues that Mark Greenwood has a conflict of interest in prosecuting this civil action for "illegal and unearned fees" because of Greenwood's ineffective representation of Klem in the criminal action. The ethical considerations cited by Klem generally refer to conflicts of interest; however, this collection action is based upon a contractual agreement between Klem and the Greenwood firm for payment for legal services.

It is well established that an attorney may commence an action against a former client in a fee dispute. Holie v. Forbes et al., 64 N.D. 696, 256 N.W. 157 (1934); see, e.g., 7 Am.Jur.2d, Attorneys at Law Sec. 306 (1980). Additionally the attorney may testify at the trial of the fee dispute. See Rule 3.7(a)(2), N.D. Rules of Professional Conduct. There was no conflict of interest in bringing this action to collect legal fees.

III

Klem argues that the trial court abused its discretion by allowing the Greenwood firm to request payment of fees without an itemized hourly breakdown for the work performed. Klem's argument is essentially that the court's findings of fact are not supported by evidence.

Our review of the trial court's findings of fact is governed by the "clearly erroneous" standard of Rule 52(a), N.D.R.Civ.P. A finding of fact is clearly erroneous when, although there may be some evidence to support it, the reviewing court, on the entire evidence, is left with a definite and firm conviction that a mistake was made. Coldwell Banker v. Meide & Son, Inc., 422 N.W.2d 375 (N.D.1988).

In this case the evidence adduced at trial included the total amount that had been paid by Klem, the balance due, an itemized statement of the services rendered by the Greenwood firm, and the amount charged for the services. That evidence supports the trial court's findings. Although the fees for jury selection and the jury trial were not itemized on an hourly charge, the fees were itemized on a daily basis and therefore provided a discernible basis for calculation. Moreover, the written agreement specified that fees for those services were governed by the "court appearances" provision of the contract "for which minimum fees in excess of hourly fees may be charged."

Klem also relied upon a purported oral modification of the written retainer agreement. According to Klem, in November 1987 he and Mark Greenwood had entered into a verbal agreement in which the law firm agreed to accept $11,500 as payment in full for the attorney...