[374 N.W.2d 70]

"Q. Are you familiar with the practice of any of the other Court Reporters in the State?

"A. That practice that I just said is a standard practice anywhere.

"Q. Even out of the state?

"A. Yes."

This practice was substantiated by another court reporter and an attorney.

We hold that when an attorney requests goods or services in connection with litigation for a named client, the law will consider the attorney as the principal and will imply a promise on the part of the attorney to pay the reasonable expenses for the goods or services unless the attorney expressly disclaims liability.

We must now apply this rule to the instant case. Kubik contends that he was not in charge of the litigation at the time of the May 14, 1982, depositions in Denver and that he was merely co-counsel with Stone, who was Sikorski's chief attorney. Kubik also contends that Stone ordered Anheluk's services for the May 14, 1982, depositions that he, Kubik, was merely a conduit for the order.

The county court made the following finding of fact:

"That rule applied to the factual situations in this case leads the Court to conclude that Attorney Kubik is liable for the costs of the deposition taken in Denver, Colorado. Kubik was the counsel for Sikorski as far as Anheluk was concerned and Anheluk has a right to look to Kubik for the payment of his fees. Kubik made the arrangements with Anheluk and Kubik did not at that time disclaim his personal responsibility for the costs of the Denver deposition."

That finding is not clearly erroneous under Rule 52(a), N.D.R.Civ.P., and supports the lower court's decision that Kubik was liable for the Denver deposition because he made the arrangements for Anheluk to do that deposition. Accordingly, we conclude that the lower court properly determined that Kubik was responsible for payment for the May 14, 1982, deposition in Denver.

Kubik contends that he should not be responsible for the June 1 and 2, 1983, deposition of Sikorski because the deposition was taken pursuant to court order and arrangements for the deposition were made by counsel for Anderson Petroleum, and the discussion at the end of the deposition indicates that Sikorski would be personally responsible for the deposition.

At the conclusion of Sikorski's June 1 and 2 deposition, the following transpired:

"MR. MUELLER: Okay, could we have some kind of agreement on the payment of the court reporter in view of the Court's Order in requiring Mr. Sikorski to pay the costs?

"MR. KUBIK: I don't know if that's our--it is ordered by the Court that we pay it. I don't know why we have to agree with you to pay it.

"MR. SHERMAN: Well, I hired the reporter. That's what we're talking about.

"MR. KUBIK: Oh, that's fine. Mr. Sikorski understands it's his obligation.

"MR. SHERMAN: So you'll be paying him direct, and we don't include that in our statement?

"MR. KUBIK: Yeah, that would be fine.

"MR. MUELLER: So it would be okay if you just send us a copy of the deposition, but send the bill for both our copy and whatever they require directly to them.

"MR. SHERMAN: We're entitled to two copies, one each.

"MR. MUELLER: Yes. Is that agreeable with everybody.

"MR. KUBIK: Yup.

"THE WITNESS [Sikorski]: In what way?

"MR. KUBIK: What?

"THE WITNESS: In what way is that agreeable?

"MR. KUBIK: Well, it's agreeable with me if this is the way it's agreeable.

"THE WITNESS: I see."[374 N.W.2d 71]

In this instance, the Court ordered Sikorski's deposition with instructions that Sikorski would bear all costs and expenses of the deposition. The arrangements for Sikorski's deposition were made by counsel for Anderson Petroleum and were not made by Kubik. These circumstances distinguish this case from the case in which the attorney who requests the goods or services is the attorney who is responsible for the costs and expenses unless there is a specific disclaimer. our research has not revealed a case with a factual situation similar to the instant case.

However, in Molezzo Reporters v. Patt, supra, a district court ordered reporting without specifying responsibility for payment. Attorney Patt requested Molezzo Reporters to handle the reporting. The Nevada Supreme Court stated that it had found no cases regarding an attorney's, liability for reporting costs ordered by the court without specification for payment and in those circumstances it would appear to be fair for all counsel and their clients to be jointly and severally liable to the reporter. We believe that that case recognizes the distinguishing factor of a court ordered deposition and the responsibility for payment.

However, the instant case goes one step further than Molezzo Reporters v. Patt, supra, because, in this case, the court order directed Sikorski to be responsible for the costs of the deposition. Thus, there is an explicit indication that Sikorski and not Kubik or any other attorney was responsible for payment of the costs and expenses of the deposition. Furthermore, Kubik did not make arrangements with Anheluk to take the deposition. We do not believe the discussion among counsel at the end of Sikorski's deposition can be fairly construed as shifting the responsibility to Kubik personally for payment of the costs and expenses of the depositions. This is especially true in view of the specific court order which undercuts the rationale that the attorney is in charge of the litigation and determines the services necessary to promote the best interests of the litigation. Under these circumstances, we believe that Kubik is not responsible to Anheluk for the costs and expenses of Sikorski's deposition.

Accordingly, we affirm that portion of the judgment dealing with the Denver depositions and reverse that portion of the judgment dealing with Sikorski's deposition.

H.F. Gierke III
Ralph J. Erickstad, C.J.
Gerald W. VandeWalle
Beryl J. Levine
Herbert L. Meschke

Footnote:

1. Rule 3.2(d), NDROC, provides as follows:

"(d) Failure to File Briefs. Failure to file briefs or to request the taking of testimony or oral argument within the prescribed time subjects a motion to summary ruling. Failure to file a brief by the moving party is an admission that, in the opinion of counsel, the motion is without merit. Failure to file a brief by the adverse party is an admission that, in the opinion of counsel, the motion is meritorious."

See Martinson Bros. v. Hjellum, 359 N.W.2d 865 (N.D. 1985); Neuner v. Ballantyne, 336 N.W.2d 342 (N.D. 1983).