Raymond J. German, Ltd. v. Brossart
816 N.W.2d 47
| N.D. | 2012Background
- German sued Brossart for unpaid legal fees and expenses for services between 2008 and 2011.
- Brossart returned the summons and complaint with notes saying the property is his and he does not agree to the sale, signed on each page.
- German moved for a default judgment; documents were served on Brossart on August 24, 2011.
- Brossart moved for summary judgment on September 23, 2011, but did not serve the motion on German; the court granted default judgment for German.
- The district court noted Brossart failed to answer or appear within twenty days; the judgment stated default.
- On appeal, the court held Brossart appeared under Rule 55(a) and that notice for the default judgment was proper; it also addressed the burden of proving an attorney-client agreement and corrected the time to respond in light of Rule 12(a)(1)(A).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Brossart appeared under Rule 55(a) to warrant a default judgment | Brossart appeared via the August 16, 2011 notes; notice of motion was served. | Appearance was not made under Rule 55(a) and thus default was improper without full compliance. | Yes; Brossart appeared under Rule 55(a) and notice complied with Rule 55(a)(3). |
| Whether the court properly required proof of an attorney-client agreement | Adequacy of proof issue is within Rule 55(a) scope and supports default. | Attorney-client agreement was not established, challenging the default. | Issue is outside face-judgment review; not dispositive to sustain default. |
| Whether the time to respond was mis-stated as twenty days instead of twenty-one | Judgment relied on timely service and appearance; 21 days now aligns with Rule 12. | Textual error is an irregularity but does not void the judgment given appearance and service. | We modify to 21 days to respond; judgment affirmed. |
Key Cases Cited
- Throndset v. Hawkenson, 532 N.W.2d 394 (N.D.1995) (appearance includes any response giving notice of contest)
- Svard v. Barfield, 291 N.W.2d 434 (N.D.1980) (appearance need not be a formal pleading)
- Perdue v. Sherman, 246 N.W.2d 491 (N.D.1976) (nonformal discussions can constitute appearance)
- Lillehaugen, 370 N.W.2d 517 (N.D.1985) (formal document not required for appearance)
- Commercial Bank of Mott v. Stewart, 429 N.W.2d 402 (N.D.1988) (default judgment standards and notice relevance)
- Overboe v. Odegaard, 496 N.W.2d 574 (N.D.1993) (district court discretion in proof for default judgment)
- Riemers Seed Co. v. Stedman, 465 N.W.2d 175 (N.D.Ct.App.1991) (review of default judgment for facial irregularities)
- State ex rel. Department of Labor v. Riemers, 2008 ND 191 (N.D.2008) (facial validity of judgments and review standard)
- Commercial Bank v. Mott, 429 N.W.2d 402 (N.D.1988) (default judgment mechanics in North Dakota)