950 N.W.2d 417
N.D.2020Background:
- Discover Bank sued Bolinske for $3,915.53; Bolinske was personally served on November 15, 2019.
- December 6, 2019 was the last day to answer; Bolinske mailed a handwritten answer/counterclaim late and to the wrong address (postmarked Dec. 7).
- Discover’s counsel filed an affidavit of no answer on Dec. 13 and a default judgment was entered Dec. 18; notice of entry served Dec. 23.
- Bolinske moved to vacate on Jan. 10, 2020, claiming misaddressing and that he left a voicemail for Discover’s counsel on Dec. 16 saying he was appearing; he requested a hearing.
- The district court denied the motion without a hearing on Jan. 31, 2020; this Court granted Discover’s motion to strike Bolinske’s answer/counterclaim from the appendix as not part of the district-court record and affirmed the denial of the motion to vacate.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Inclusion of answer/counterclaim in appellate appendix | Bolinske’s included document was not filed in district court and therefore is outside the record | Bolinske relied on a corrected/typed version of his handwritten pleading in the appendix | Appendix item struck; Court cannot consider documents not in the district-court record |
| Request for oral hearing on motion to vacate | Court may decide routine motions on the briefs; hearing request must be secured and scheduled by the requester under N.D.R.Ct. 3.2 | Bolinske requested a hearing and argued denial without hearing was error | Denial of hearing affirmed: Bolinske did not secure/schedule a hearing as required, so request was waived |
| Relief under N.D.R.Civ.P. 60(b)(1) for misaddressed filing (mistake/excusable neglect) | Negligent misaddressing that causes a late/missed response is not shown to be excusable neglect warranting relief | Misaddressing was a mistake/inadvertence and entitles him to relief from default judgment | Denial affirmed: Bolinske offered no authority that his negligence merits 60(b)(1) relief; district court did not abuse discretion |
| Whether voicemail constituted an "appearance" that voids judgment for lack of notice | Even if voicemail were an appearance, a party must file a pleading showing a meritorious defense to reopen a default; Bolinske never filed an answer | Voicemail was an effective appearance (per Perdue) and entitled him to notice before default | Court assumed arguendo voicemail could be an appearance but held Bolinske failed to file an answer or show a meritorious defense; judgment not vacated |
Key Cases Cited
- Perdue v. Sherman, 246 N.W.2d 491 (N.D. 1976) (telephone contact can constitute an appearance requiring notice before entry of default)
- Desert Partners IV, L.P. v. Benson, 855 N.W.2d 608 (N.D. 2014) (Rule 3.2 requires the party requesting oral argument to secure and schedule a hearing)
- Gustafson v. Gustafson, 841 N.W.2d 743 (N.D. 2014) (whether an act constitutes an appearance is a question of law)
- Bickler v. Happy House Movers, L.L.P., 915 N.W.2d 690 (N.D. 2018) (standards for Rule 60(b) relief from default judgments; abuse-of-discretion review)
- State v. Proell, 726 N.W.2d 591 (N.D. 2007) (appellate courts may not consider items outside the trial-court record)
- Key Energy Servs., LLC v. Ewing Constr. Co., Inc., 911 N.W.2d 319 (N.D. 2018) (Rule 60(b) is not a substitute for appeal; moving party bears burden to show exceptional circumstances)