*1 City did not act the Grafton Council unreasonably in capriciously, arbitrarily, cases.

these judgments are affirmed.

ERICKSTAD, C.J., LEVINE, GIERKE, JJ.,

VANDE WALLE

concur. ELEVATOR, FARMERS

UNDERWOOD Appellee,

Plaintiff and LEIDHOLM, Defendant

Ron Appellant. No.

Civ. of North Dakota.

Sept. Kirmis, Zuger, K.

Kathleen Davison Smith, Bismarck, plaintiff Bolinske & Murray G. Appearance by appellee. Sagsveen. Law Bruggman Vogel M.

Colette Mandan, Firm, appellant. for defendant and WALLE, Justice. VANDE appealed order from an Ron denying his to vacate Farm- in favor him of Underwood against remand We reverse and ers Elevator. proceedings. *2 due, any secure or or to Elevator to due to become with the Leidholm contracted per contingent liability on be- 25,000 person against at of oats $1.50 deliver bushels specify defendant, both, did not in the The contract half of the or bushel. ad- 1988 Leidholm delivery by date. subdivision. prescribed manner that, drought due to the Elevator vised “(2) writing must be A statement conditions, deliver he be unable to defendant, made, signed by and veri- the “buy out” his requested He the oats. oath, following effect: by fied to the price market of at the then-current contract amount for “1. It must state the refused. The Elevator per bushel. $1.53 may entered and judgment be which sought to again later Leidholm One week entry judgment of there- authorize the price market his contract at the buy out fore; and again re- bushel. The Elevator per $1.63 finally allowed to fused. Leidholm was If confessed “2. the be later, price of due, month when the buy out a it money is for due or to become per had soared to bushel because $2.67 oats concisely the facts out of must state drought conditions. Leid- widespread arose, the and must show which debt delay caused him holm asserts that this just- the sum confessed therefor that $29,750 liability, than a $750 incur a rather due; or ly or to become due buy out if he had been allowed to liability If confessed “3. be per at bushel. $1.53 securing purpose of is for the on request, Leidholm At the Elevator’s contingent liability, plaintiff against a signed a confession December concisely the facts consti- it must state $29,- Elevator for judgment in favor of the tuting liability and must show that percent interest. Leidholm plus twelve does not the sum confessed therefor verifying that he signed a statement also liability. the amount of that exceed judgment and read the confession of had “(3) presented The statement must be therein were true. the statements and, if the same is found to the court signed the that he Leidholm now asserts sufficient, clerk the court shall order the manager’s with confession statement, order judgment. to enter just formality, and that it was assurance judgment entered con- judgment, for and attempt would not the Elevator Execution stitute the roll. repayment later work out collect but would may issued and enforced the same terms, of the amount. including a reduction judgments in other upon manner as the confession Judgment entered on was judg- If the cases. which .23,1989, Leidholm May on due, or is is not all ment is recovered judgment. notice of given installments, install- payable in sought collection When the due, the execution ments are not all for vacation of judgment, Leidholm moved collec- issue 60(b), Rule N.D.R. under due, and must be tion of installments court denied the Civ.P. district form, endorsed but must have the usual appealed. Leidholm issuing attorney person by thereon appeal is dispositive issue on wheth- a direction to the sheriff showing that has been a sufficient er there due on the collect the amount knowingly, intel- stated, inter- must be with which amount rights to due-process ligently waived his and the costs of est thereon and a when pre-judgment notice Notwithstanding the issue and ment. signed the confession execution, collection governed by judgment is Confession security for the installments remains as 68(c), N.D.R.Civ.P.: due, and whenever thereafter become due, “(c) Judgment. ex- installments become Confession may be issued for in like manner ecution “(1) may be A confession and enforcement.” action, money its collection either for entered certiorari; authorizing requires case-by- Overmyer or rules Statutes approach]. historically case viewed judgment have been and, are in skepticism, because reviewing After the factual circum- law, have been derogation of the common stances, held that had See, e.g., strictly Rasmussen construed.1 voluntarily, knowingly, N.W. 541 Hagler, 15 N.D. rights, its stressed that Co., 221 (1906); Gibbs v. G.H. Weston & parties experienced *3 were business entities 7, (1942); 18 698 v. N.C. S.E.2d Rivers equal bargaining power, cognovit of 172, Rivers, 568 N.C.App. 29 223 S.E.2d for, clearly bargained clause was and each (1976). party represented had been counsel. also the applicable The Court noted that States Court United provided post-judgment hearing Ohio law a process context of has addressed due through which could raise de- the debtor pursuant to a confession of a seek judgment. fenses and vacation of the Co., Overmyer cognovit clause D.H. Inc., asserts that Overmyer 405 U.S. Company, Ohio v. Frick of inapplicable cogno- because it involved 174, 775, (1972). A is a S.Ct. 31 L.Ed.2d 124 92 note, in a this vit clause whereas case in essentially cognovit clause is a volves a confession of after de whereby the in a note of included purposes due-process analy For fault. of that, default, agrees the hold debtor however, sis, significant we find little dif may obtain with er of the note cognovit ference between the situation hearing. Overmyer, out notice or a See in this present the circumstances case. We (5th Dictionary ed. supra; Black’s Law 236 significant that no lawsuit was believe 1979). commenced before the Elevator asked Leid- due- noted that the Overmyer sign the confession of holm to prior rights and a process to notice Leidholm was never served with a sum In civil be waived. to a complaint, accordingly did mons and waiver, determining adequacy of the opportunity the notice and to not receive be ap- that the standard the Court “assumed” part parcel is of those heard which proceeding to in a criminal plicable waiver respect, In this Leidholm was documents. apply: volun- The waiver must be party cogno- position as a in the same tary, knowing, made. Ov- note. vit cau- supra. The Court further ermyer, California, construing statutory provi presumed acqui- no there is tioned 68(c), strikingly our similar to Rule sion rights. in the loss of fundamental escence N.D.R.Civ.P.,2 ap Overmyer held that has Overmyer, supra. type judg confession of plies to this of cognovit claus- The Court concluded Sonoma, County 21 In Isbell v. ment. of not, se, per of due es are violative 188; 61, Cal.Rptr. 368 577 P.2d 145 Cal.3d that such cases should The Court stressed 996, banc), denied, (en 439 U.S. 99 cert. basis, case-by-case (1978), reviewed on a plain 669 58 L.Ed.2d S.Ct. im- being paramount of setting factual fraudulently receiv accused of tiffs were determining pro- due urging whether At portance ing excess welfare benefits. also, county, each See confessions of cess is satisfied in case. of Castro, alleged 444 U.S. in the amount County Ventura (1980) upon Overmyer, Relying overpayments. 62 L.Ed.2d S.Ct. en- J., court concluded that dissenting denial [Blackmun, from N.D.R.Civ.P., 68(c), is a near-verbatim Finance Dakota 1. Under North Consumer Chapter provisions adoption 28-10 “any taking prohibited are Act licensees from See Dakota Code North Revised any power attor- confession of Su- Explanatory Note N.D.R.Civ.P. to Rule running ney person himself or third turn, 28-10, nearly Chapter iden- perseded 13-03.1-16(2), judgment.” N.D. Section confess provisions. See California to the relevant tical Sections C.C. 1132-1134, Cal.Civ.Proc.Code. pursuant denying such a confession was The order the motion to vacate tered only validly if the debtor constitutional hearing, entered without a pre-judg- waived his 3.2, N.D.R.O.C., pursuant to Rule and we hearing.3 notice and a ment inadequate deter- believe the record is Overmyer due-pro- mine We conclude that the know- applies confes- analysis cess to Leidholm’s ingly, rights judgment.4 sion of noted, previously ment. As there is no issue, analyzing we note that presumption acquiescence in the loss assumed,

the Court rights. Overmyer, supra; fundamental deciding, that the criminal standard would also, Shevin, 407 apply. Telephone See Fuentes v. Ohio Bell Co. v. Public Utili- 92 S.Ct. 32 L.Ed.2d 556 U.S. Ohio, ties Commission 301 U.S. (1972). apparently The Court has never (1937). S.Ct. L.Ed. 1093 We con- applicability directly addressed the of these satisfy clude in order to the Overmyer *4 type years standards to this of case the requirement case-by-case, fact-specific of a Tribe, Overmyer. since See American Con review, necessary in this instance to (2d 1988). stitutional Law 749 ed. Other hearing remand to the district court for a have, relying upon Overmyer courts how to determine Leidholm ever, consistently applied “voluntary, the knowingly, waived his knowing, intelligent to waiver” test due-process rights hearing to notice and a See, challenges due-process in civil cases. signed when he the confession of e.g., Lumber Seaboard Co. v. United ment.5 States, (Fed.Cir.1990); 903 F.2d 1560 Financial, Leasing Inc. v. IPM Atlantic & The dissent contends that whether Inc., (4th Technology, 885 F.2d 188 Cir. voluntarily, knowingly, Leidholm and intel 1989). apply the We will same standard ligently his and, accordingly, this case the is pre-judgment notice and a only voluntarily, knowing if valid signed was not ly, due-process waived his Although raised the motion to below. va rights pre-judgment notice and a hear ing. phrased in cate the was not those 5.Although Supreme evidentiary hearing appear 3. The California Court concluded in an would statutory facially procedure Isbell that its was purpose case-by-case, desirable for the of a fact- also, County violative of due See review, specific we do not here conclude it is Castro, Cal.App.3d Ventura v. 93 156 Cal. required only as a matter of law. We conclude cert, denied, (1979), Rptr. 444 U.S. 100 66 case, purposes that for the of this the record is (1980). 62 L.Ed.2d In a dissent S.Ct. to the denial of certiorari in 785 adequate for not such a review. Castro, justices two Nevertheless, because of the need to deter- of the United States Court criticized mine whether or not a confession of contravening case-by-case holding as the voluntarily, knowingly, was executed and intel- by Overmyer. County approach mandated Castro, ligently, judgment predicat- a motion to vacate a 100 S.Ct. Ventura v. 444 U.S. J., [Blackmun, indeed, (1980) dissenting may, 62 L.Ed.2d 785 ed on a confession of certiorari], from denial of require procedures different than do motions to ordinary judgments vacate entered after trial or 68(c), explanatory 4. The note to Rule N.D.R. N.D.R.Civ.P., 68(c) even after default. Rule Civ.P., concerning warning sounds a note requirements specific in its of what the state- procedure set forth therein: justify ment of facts is to contain to (c) "Subdivision authorizes i.e., the facts out of which the debt commencing confession to be entered without or, contingent liability, arose if a the facts con- This subdivision is as an action. not, stituting liability. But it does nor could 28-10, Chapter previously NDRC which it, procedures guarantee specify that the con- However, subject. depending governed the knowingly, voluntarily, was executed fession particular case a the facts of a confes- although intelligently, requirement sion of be vulnerable to consti- concisely in See, facts be stated the confession tutional attack. D.H. Co. v. judgment presumably Co., facilitates that determina- Frick 405 U.S. 92 S.Ct. (1972)." tion. L.Ed.2d terms, precise alleged following “require it rea- court determine whether a plea sons for relief: is voluntary and not result ... apart promises from those contained in a “1. Defendant Confession of Furthermore, plea agreement.” as the Judgment request at the of the Plain- Overmyer, cautioned in there is no manager tiff’s because he was informed presumed acquiescence in the loss of fun- only way it was Plaintiff rights. Orr, damental See State v. keep could on its books for (N.D.1985) N.W.2d cannot as- [Court period time. extended sume waiver a silent Under from record]. manager “2. told Defendant that issue, these circumstances believe the we pay- work out the terms of although not artfully raised or briefed be- ment at a later date. low, sufficiently permit raised us to “3. erroneously The Defendant be- concluding consider it on In appeal. so we lieved he owed the debt for which acknowledge explication this is our first Judgment; the Confession of the standard applied to a motion however, does not Defendant owe the vacate is entered on which in the Judgment amount set forth as of a basis under more specifically set out Defendant’s 68(c), N.D.R.Civ.P. Our remand is Affidavit and the attached Brief purpose permitting for the the trial $29,750.00 belief that he owed is errone- light court to consider Leidholm’smotion ous.” “voluntarily, knowingly, and intelli- support the affidavit the motion gently” standard. manager explained Leidholm states: “The *5 denying The order motion to vacate if signed that I a confession of and the is reversed case is my hold elevator would debt until a proceedings remanded for further consist- to pay. later date when I was able He opinion. ent with this explained further we could that work out repayment the terms of at a later date.” ERICKSTAD, C.J., and GIERKE and The terminology that Leidholm did not MESCHKE, JJ., concur. “voluntarily, knowingly, intelligently” and LEVINE, Justice, dissenting. pre-judg waive his appeal When there is an from an order hearing ment signed notice and when he denying a motion to vacate a we confession not used review the trial court’s order under an unduly legalistic the motion. But it is majority standard. The abuse-of-discretion alleging conclude that Leidholm was not a holds, effect, here that the trial court knowledge lack of would be its it denied abused discretion when against him he he entered when contended motion to vacate it failed to consid- because because believed er “whether Leidholm know- until a later date when hold due-pro- ingly that the pay he was terms of able rights to notice and pre-judgment cess repayment out later would be worked at a hearing allegations knowledge date. Those belie judgment.” majority remands against would be entered hearing there was to determine whether negotiations him further My prob- I rather like the result. waiver. proceedings. appear not It does we would raise the lem is that did not issue punctilious applying be so standard and did not to the trial court ask of waiver proceeding, in a criminal waiver Rule 3.2 motion for a on his judg applied standard to a vacate the example, in Overmyer. ment in For State (N.D. cogno- majority’s I share the aversion to 278 N.W.2d Gustafson, v. 1979), notes and but I determining pleas of vit confessions what does to our bedrock guilty voluntary wonder this case were issue made, principle appellate law that an not these standards we observed Disciplinary Counsel’s nity respond to appeal. on is not reviewable raised below copy thereof writing and serve a See, Bank St. Paul e.g., Land Federal on or (N.D.1985). upon Disciplinary Counsel before Wallace, v. N.W.2d timely that if no p.m., holding that in seems to majority the matter response is filed and served that every involving a confession case Disciplinary to the Board ment, be referred court must consider the trial proceedings. has or not that issue issue whether waiver good public like raised. That sounds been of North Supreme Court of the State time, but, incompati- policy at day of at 10 a.m. this 31st Dakota convened policy of equally compelling with the ble Justice, the Hon- May, the Chief therefore, I, re- orderly appellate Erickstad; the Honorable Ralph J. orable luctantly dissent. VandeWalle, Honorable H.F. Gerald W. III, Herbert L. the Honorable

Gierke Justices; Meschke, Deputy Clerk Court, Miller, Penny being of the present directed the above order. Application of the for DIS-

In the Matter F. ACTION AGAINST

CIPLINARY LARSON, a Member

Lorene Whitesides of North Dako- of the Bar State Application for DIS- In the Matter ta. AGAINST F. CIPLINARY ACTION LARSON, a Member Lorene Whitesides THE SU- BOARD OF DISCIPLINARY of North Dako- of the Bar of the State OF PREME COURT OF STATE ta. DAKOTA, Petitioner, NORTH THE SU- DISCIPLINARY BOARD OF *6 PREME OF the STATE OF COURT F. Lorene Whitesides DAKOTA, Petitioner, LARSON, Respondent. NORTH No. 890231. F. Lorene Whitesides of North Dakota.

Supreme Court LARSON, Respondent. Sept. No. 890231. CONTINUING ORDER FOR North Dakota. Supreme Court of SUSPENSION 11, 1990. Disciplinary Upon consideration May Board’s motion of sus- Lorene Whitesides Larson was F. and consistent evidence filed therewith 1,1990, days March pended for 90 effective NDPRLDD; 4.5(B.), January by Supreme Order dated ORDERED, IT HEREBY IS Larson suspension of F. Lorene Whitesides Berg, May Vivian E. Staff On basis, pending final an interim

continue on Disciplinary Board Counsel for predicated upon proceedings disposition of Court, filed Motions for Continu- practice continued to allegations that she Contempt of the ing Suspension and for practice of suspended from the law while brief and supporting above Order with law. of this Court dated By Order affidavits. suspension of F. Lorene ORDERED, May that F. IT IS FURTHER Larson, con- Respondent, was opportu- Whitesides have an Larson Lorene Whitesides