Binek v. Ziebarth, 890317

• Citation: 456 N.W.2d 515
• Decision Date: 01 June 1990
• Docket Number: No. 890317,890317
• Parties: William W. BINEK, d/b/a Binek Law Office, Plaintiff and Appellee, v. Silver ZIEBARTH, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 515

456 N.W.2d 515

William W. BINEK, d/b/a Binek Law Office, Plaintiff and Appellee, v. Silver ZIEBARTH, Defendant and Appellant.

Civ. No. 890317.

Supreme Court of North Dakota.

June 1, 1990.

Silver Ziebarth (argued), Scranton, for defendant and appellant. Pro se.

William W. Binek (argued), Bismarck, for plaintiff and appellee. Pro se.

ERICKSTAD, Chief Justice.

Silver Ziebarth appeals from an order issued by the District Court for Bowman County on July 7, 1989, denying his motion to vacate judgment. We reverse and remand.

During the period of December 18, 1978, through February 12, 1985, William Binek allegedly provided legal services to Ziebarth in the amount of $33,977.65 plus costs advanced in the sum of $2,674.38, for a total of $36,652.03. Ziebarth has paid $13,772.50, leaving a balance of $22,879.53.

Binek commenced an action to recover the amount due by summons and complaint dated July 16, 1987. The summons and complaint were not filed in the office of the clerk of the District Court for Bowman County until August 20, 1987. The summons and complaint were served on Ziebarth's daughter at Ziebarth's residence on July 30, 1987, as indicated by the sheriff's affidavit of July 30, 1987, which says:

"I Rodger A. Bangs Sheriff of said Bowman County hereby certify and return that I received the: summons & complaint on the 27th day of July 1987 and that on the 30th day of July within said county of Bowman, I served or attempted to serve a copy of each document on Silver Ziebarth Defendant ____ in said action in the manner hereinafter set forth, to wit:

* * * * * *

x by leaving a true and correct copy at his dwelling house in the presence of Nola Horvey (his daughter) who is a person of suitable age and discretion then residing therein."

On August 20, 1987, Binek served Ziebarth by mail with a notice of motion for default judgment. ¹ The notice expressly set out the date and time for the hearing of the motion for default judgment as September 1, 1987, at 1:00 p.m., in the district courtroom of the Bowman County Courthouse. No return was filed by Ziebarth to said motion for default judgment and on September 1, 1987, the District Court for Bowman County entered an order for default judgment in favor of Binek and against Ziebarth.

On September 11, 1987, Ziebarth filed a motion for relief from the default judgment pursuant to Rule 60 of the North Dakota Rules of Civil Procedure along with supporting brief and affidavit.

The District Court for Bowman County issued an order for hearing on Ziebarth's motion for relief from the default judgment. On October 22, 1987, the district court entered an order granting Ziebarth's motion in part, so as to permit him to file responsive pleadings and to offer evidence in resistance to the default judgment. The default judgment, however, was not vacated.

Trial was subsequently scheduled for March 15, 1988. On January 13, 1988, Ziebarth filed a voluntary Chapter 11 bankruptcy petition in the United States Bankruptcy Court for the district of North Dakota. The proceedings pertaining to the default judgment were thus automatically stayed pursuant to 11 U.S.C. Sec. 362(a). Ziebarth's bankruptcy petition was dismissed on April 5, 1989, by the United States Bankruptcy Court for the District of North Dakota. On May 24, 1989, Binek filed a motion for relief from the October 22, 1987, order of continuance. Ziebarth did not respond to Binek's motion, but instead, on June 19, 1989, filed a motion to set aside the default judgment and set for hearing pursuant to Rule 3.2 of the North Dakota Rules of Court. On July 7, 1989, the district court issued an order denying Ziebarth's motion to vacate the default judgment. The district court also vacated the October 22, 1987, order of continuance which had stayed the enforcement of the default judgment.

Ziebarth filed an appeal of the April 5, 1989, dismissal of his bankruptcy petition. On July 10, 1989, Ziebarth made a motion in the United States Bankruptcy Court for the District of North Dakota, requesting a stay pending the appeal of that court's April 5, 1989, dismissal of his bankruptcy petition. The bankruptcy court ordered the stay on July 13, 1989.

On October 19, 1989, the United States District Court affirmed the bankruptcy court's order to dismiss. On October 28, 1989, Ziebarth filed a notice of appeal to the United States Court of Appeals for the Eighth Circuit. On October 28, 1989, Ziebarth also filed, in the District Court for Bowman County, a motion to set aside that court's July 7, 1989, order denying his motion to vacate the default judgment.

On September 5, 1989, Ziebarth appealed to this Court from the July 7, 1989, order denying his motion to vacate the default judgment. On January 25, 1990, Ziebarth filed a motion with this Court for a stay of the appeal due to his filing of a Chapter 12 bankruptcy petition on December 22, 1989. The stay of appeal was granted on March 1, 1990. See Binek v. Ziebarth, 452 N.W.2d 327 (N.D.1990). The United States Bankruptcy Court for the District of North Dakota dismissed Ziebarth's Chapter 12 bankruptcy petition without prejudice on May 18, 1990. Pursuant to that dismissal, we now address the merits of Ziebarth's appeal. The issue we will address is whether or not the trial court abused its discretion in denying Ziebarth's motion to vacate the default judgment and in vacating the October 22, 1987, order of continuance which had stayed the enforcement of the default judgment. The facts and procedures which occurred in this case are very confusing. Therefore, we will reiterate the specific actions which led to the district court's reentry of the September 1, 1987, default judgment.

On September 11, 1987, nine days after entry of the default judgment against him, Ziebarth filed a motion for relief from the default judgment pursuant to Rule 60 of the North Dakota Rules of Civil Procedure. In his brief in support of that motion, Ziebarth asserted that while his daughter was served with the summons and complaint, he was out of the country and did not return until August 16, 1987. He contended that he attempted to file an answer on August 18, 1987, but was told at the courthouse that the summons and complaint had not been filed and that thus, he could not file his answer. ² The answer was left with the district court on August 20, 1987, to be filed upon filing of the summons and complaint. The answer was not signed, however, until September 4, 1987. Ziebarth also contends that he did not receive the notice of motion for default judgment.

On September 30, 1987, the district court issued an order for hearing on Ziebarth's motion for relief from the default judgment. The hearing was scheduled for October 19, 1987. The parties appeared on October 19, 1987, but requested additional time for settlement possibilities. On October 22, 1987, the district court ordered:

"It is therefore the Order of the Court that the Defendant's Motion pursuant to Rule 60 of the North Dakota Rules of Civil Procedure is herewith granted in part, so as to permit the Defendant to file responsive pleadings to the Plaintiff's Complaint, and further to offer evidence in resistance thereto. It is the further Order of the Court that the Judgment previously granted by the Court to the Plaintiff as against the Defendant and dated September 1, 1987, shall remain of record until the conclusion of the hearing upon the merits, or the parties stipulation of settlement of this litigation."

On October 29, 1987, the district court further ordered:

"It now appearing to the Court that trial of the foregoing litigation is scheduled for 3rd day of November, 1987, and under the date of October 26, 1987, the Defendant Silver Ziebarth, has filed with the Court the Defendant's Motion for continuance for a period of forty-five to sixty days, so as to permit the Defendant to secure counsel to represent him in the foregoing matter.

"It is therefore the Order of the Court that trial of the foregoing litigation shall be scheduled by the Court Administrator, Southwest Judicial District, at the first available opportunity subsequent to the 15th day of December, 1987."

Trial was subsequently scheduled for March 15, 1988. Notice of trial was mailed to the parties on January 7, 1988. ³

On January 13, 1988, Ziebarth filed a voluntary Chapter 11 bankruptcy petition in the United States Bankruptcy Court for the District of North Dakota. Ziebarth made a request in a letter to the district court to set aside and remove the default judgment from the record. In response, the Honorable Donald L. Jorgensen, responded with a letter to Ziebarth which...