Bachmeier v. Bachmeier, 2013 ND 76

Waslaski was convicted of aggravated assault in 2000 via negotiated guilty plea.
In 2011 he sought post-conviction relief alleging he was not properly informed of rights before the plea; sought a transcript, but the record no longer exists.
Waslaski submitted an affidavit recounting the hearing and urged the court to accept it in lieu of a verbatim record due to unavailability of the judge, deceased defense attorney, and unrecallable State’s Attorney.
May 29, 2012, district court denied the petition citing credibility and timing concerns.
On June 20, 2012 Waslaski withdrew his appeal; July 9, 2012 he filed a “motion for reconsideration” with affidavits from witnesses (wife and brother-in-law) supporting his claim.
September 27, 2012 this Court allowed appeal on the reconsideration/to-amend issues and addressed timeliness and appealability; ultimately the district court’s denial was affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness and appealability of the reconsideration order	Waslaski contends the reconsideration motion should be considered and timely.	State argues the motion was untimely and the underlying order not properly reviewable.	The order was appealable; the motion was untimely under Rule 59(j) and not a proper 60(b) vehicle for review.
Whether the motion for reconsideration was properly treated as Rule 59(j) or Rule 60(b) relief	Waslaski intended Rule 59(j) relief for newly discovered evidence.	Respondent argues the motion fell outside timely Rule 59(j) and was untimely for Rule 60(b) purposes.	Motion deemed untimely under Rule 59(j); even under Rule 60(b), it was untimely for direct review of the underlying order.
Whether the affidavits constitute newly discovered evidence warranting relief	Affidavits from witnesses present at sentencing would support error in informing rights.	Evidence was not newly discovered; witnesses were known at sentencing.	The affidavits did not constitute new evidence entitling relief; court did not abuse discretion.

White v. Altru Health System, 746 N.W.2d 173 (N.D. 2008) (motion for reconsideration treated as either Rule 59(j) or Rule 60(b))
Hammeren v. Hammeren, 823 N.W.2d 482 (N.D. 2012) (motions for reconsideration analyzed under Rule 59/60 standards)
Mann v. N.D. Tax Comm'r, 692 N.W.2d 490 (N.D. 2005) (an order denying a motion for reconsideration is appealable if final)
Austin v. Towne, 560 N.W.2d 895 (N.D. 1997) (timeliness for Rule 59(j) motions starts on actual knowledge of entry of judgment)
Larson v. Larson, 653 N.W.2d 869 (N.D. 2002) (new information must be newly discovered to warrant Rule 60(b) relief)