841 N.W.2d 743
N.D.2014Background
- Plaintiffs (Gustafson parties) filed an action to quiet title to mineral interests in Burke County in October 2011 by service via publication. Summons published Oct 5, 12, 19, 2011.
- Burton Imboden, trustee of the Evans Family Trust, received the summons and complaint but did not file an answer within the 21-day period.
- On October 28, 2011, Imboden called plaintiffs’ attorney and left a voicemail asking for a return call and stating opposition; he did not speak to anyone, did not follow up, and did not file any pleading.
- Plaintiffs moved for default judgment on December 21, 2011; the court entered default judgment awarding title to plaintiffs because no answer or appearance had been filed.
- In January 2013 Imboden moved under N.D.R.Civ.P. 60(b) to vacate the default judgment, arguing his October phone message constituted an appearance entitling him to notice; he also sought to file a supplemental affidavit clarifying the message.
- The district court denied both the motion to vacate (finding no appearance) and the motion to file the supplemental affidavit; the Supreme Court of North Dakota affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Imboden’s phone call/voicemail constituted an "appearance" so that notice of the default motion was required | Default judgment valid because no appearance or response filed; no notice required | The voicemail constituted an appearance (he opposed the complaint) and thus he was entitled to notice before default judgment | No; a voicemail requesting a return call without speaking to opposing counsel or clearly communicating intent to contest is not an appearance |
| Whether lack of notice renders default judgment voidable | Judgment valid absent appearance; publication service satisfied jurisdictional steps | Judgment voidable because appearance occurred and no notice of default hearing was given | Judgment not voidable here because no appearance was made; therefore no notice was required |
| Whether the district court abused its discretion denying Rule 60(b) relief | Relief denied properly because Imboden failed to appear or present evidence at hearing and no legal basis to vacate | Relief warranted because lack of notice violated procedures if an appearance occurred | No abuse of discretion in denying relief; findings supported and law correctly applied |
| Whether the court abused its discretion by denying leave to file a supplemental affidavit after the hearing | Plaintiffs: too late and would unfairly avoid cross-examination; hearing opportunity existed | Imboden: affidavit would clarify voicemail content showing he identified himself as trustee and opposed action | Denial affirmed; untimely supplementation after hearing was appropriate to refuse and new affidavit would not change appearance outcome |
Key Cases Cited
- Perdue v. Sherman, 246 N.W.2d 491 (N.D. 1976) (telephone conversation that clearly communicated an appearance constituted an appearance)
- Fed. Land Bank of St. Paul v. Lillehaugen, 370 N.W.2d 517 (N.D. 1985) (party contacts opposing party to dispute claim constituted an appearance)
- Svard v. Barfield, 291 N.W.2d 434 (N.D. 1980) (attendance at meeting to negotiate dispute constituted an appearance)
- US Bank Nat’l Ass’n v. Arnold, 631 N.W.2d 150 (N.D. 2001) (informal contact that did not communicate intent to contest did not constitute an appearance)
- State v. $33,000 U.S. Currency, 748 N.W.2d 420 (N.D. 2008) (standard of review: questions of law fully reviewable; appraisal of appearances)
- Burgard v. Burgard, 827 N.W.2d 1 (N.D. 2013) (procedural framework for default judgments and notice requirements)