Brakke v. Rudnick

• Decision Date: 24 June 1987
• Docket Number: No. 11339,11339
• Citation: 409 N.W.2d 326
• Parties: Ronald D. BRAKKE and Alice M. Brakke, Plaintiffs and Appellants, The Estate of Jean M. Brakke; and Nancy Bye, Guardian for Timothy Duane Brakke, Ronald Daren Brakke and Kara Jean Brakke, Plaintiffs, v. Donald RUDNICK, as an individual and as Sheriff of the County of Cass, the State of North Dakota; Robert Hoy, as an individual and as States Attorney for said State of North Dakota; Deputy Sheriffs, County of Cass: Rodney Kitzan, Steven Dawson, Steven Gabrielson, Mike Kelly, Robert Brandon, Arland Rasmussen, Dean Fercho, Rick Majerus, Tony Krogh, Bud Warren, Greg Holm, Dean Wavers, Larry Burbach, Jim Thoreson, Glenn Ellingsberg; Jerald Beck; William Yuill; Lillian Stegman; Robert Steffes; Dakota Bank and Trust Company together with its Officers and as individuals Dan Stroh, Earl Schouweiler and Dan Schalek; John Doe and Mary Doe, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 326

409 N.W.2d 326

Ronald D. BRAKKE and Alice M. Brakke, Plaintiffs and Appellants The Estate of Jean M. Brakke; and Nancy Bye, Guardian for Timothy Duane Brakke, Ronald Daren Brakke and Kara Jean Brakke, Plaintiffs, v. Donald RUDNICK, as an individual and as Sheriff of the County of Cass, the State of North Dakota; Robert Hoy, as an individual and as States Attorney for said State of North Dakota; Deputy Sheriffs, County of Cass: Rodney Kitzan Steven Dawson, Steven Gabrielson, Mike Kelly, Robert Brandon, Arland Rasmussen, Dean Fercho, Rick Majerus, Tony Krogh, Bud Warren, Greg Holm, Dean Wavers, Larry Burbach Jim Thoreson, Glenn Ellingsberg; Jerald Beck; William Yuill; Lillian Stegman; Robert Steffes; Dakota Bank and Trust Company together with its Officers and as individuals Dan Stroh, Earl Schouweiler and Dan Schalek; John Doe and Mary Doe, Defendants and Appellees.

Civ. No. 11339.

Supreme Court of North Dakota.

June 24, 1987.

Ronald A. Brakke and Alice M. Brakke, pro se, argued by Wendy A. Nora, Minneapolis, Minn.

Wegner, Fraase, Nordeng & Johnson, Fargo, for defendants and appellees Donald Rudnick, Robert Hoy, Rodney Kitzan, Steven Dawson, Steven Gabrielson, Mike Kelly, Robert Brandon, Arland Rasmussen, Dean Fercho, Rick Majerus, Tony Krogh, Bud Warren, Greg Holm, Dean Wavers, Larry Burbach, Jim Thoreson and Glenn Ellingsberg; argued by Mervin D. Nordeng.

Gunhus, Grinnell, Klinger, Swenson & Guy, Moorhead, Minn., for defendant and appellee Robert Steffes; argued by Barry P. Hogan.

Lamb, McNair, Larson & Carlson, Fargo, for defendants and appellees Dakota Bank and Trust Co., Dan Stroh, Earl Schouweiler and Dan Schalek; argued by Bruce H. Carlson.

William Yuill, Fargo, pro se. Submitted on brief.

Jerald Beck, Riverside, pro se. Submitted on brief.

ERICKSTAD, Chief Justice.

The plaintiffs appeal from a district court order dismissing their complaint without prejudice, enjoining them from commencing a lawsuit within the district without first submitting their pleading to the court, and awarding the defendants costs, disbursements and attorney's fees. We affirm in part and reverse in part.

The factual circumstances underlying this action involve the repossession of a tractor on the Ronald Brakke farm on June 18, 1985. The plaintiffs, appearing pro se in the trial court, alleged in substance that the various defendants unlawfully repossessed the tractor before the expiration of the ten days required by N.D.R.Civ.P. 62(a), ¹ and that the defendants' conduct constituted criminal trespass, armed robbery, assault, conspiracy, a violation of civil rights, and a deprivation of due process. The plaintiffs alleged that Ronald and Jean Brakke were beaten during the repossession and sought $3.5 million in damages.

All the defendants answered, denying liability, and moved to dismiss, asserting insufficient service of process and that the complaint failed to conform to the "concise" and "short and plain statement of claim" requirements of N.D.R.Civ.P. 8, and failed to state a claim upon which relief could be granted. The defendants also asserted that the complaint was frivolous and sought costs, disbursements, and attorney's fees and injunctive relief against the plaintiffs prohibiting them from commencing, filing or serving any pleadings or other document upon any persons without first submitting that document to the court for review.

A hearing on the defendants' motion was scheduled for August 15, 1986. Without securing approval from the court, Brakke contacted the calendar control clerk for another hearing date and, on August 8, 1986, filed a Notice of Cancellation of Hearing and Notice of Rescheduled Hearing for October 6, 1986. The court notified all the parties that Brakke had not contacted the court to reschedule the hearing and indicated that the hearing would proceed as originally scheduled. On August 14, 1986, Brakke served a Notice of Removal purporting to remove the action to the Federal District Court of Minnesota.

On August 15, 1986, the hearing on the defendants' motion to dismiss was held as scheduled. The trial court initially determined that the plaintiffs' purported removal was to the wrong jurisdiction and was not authorized under 28 U.S.C. 1446(a). ² The trial court determined that there was insufficient service of process on all the defendants and dismissed the plaintiffs' complaint without prejudice. The trial court also determined that the complaint failed to state a claim for relief and was frivolous and awarded the defendants their costs, disbursements and attorney's fees, ³ and enjoined the plaintiffs from commencing, filing and serving any future summonses or complaints or any other pleadings within the judicial district without first submitting the document to the court for review.

An order for judgment was entered on September 2, 1986, and a corresponding judgment was entered on September 4, 1986. Notice of entry of judgment was served on the plaintiffs on September 9, 1986. On September 8, the plaintiffs filed a notice of appeal from the order of the district court entered on September 2, 1986. ⁴

The defendants have moved to dismiss the plaintiffs' appeal, contending that they have not appealed from an appealable order.

We have recently held that when an appeal is taken from an order for judgment and the record includes a judgment which is consistent with that order, we will consider the appeal to be from the judgment. Olson v. Job Service of North Dakota, 379 N.W.2d 285 (N.D.1985); Federal Savings & Loan Insurance Corp. v. Albrecht, 379 N.W.2d 266 (N.D.1985); Dunseith Sand & Gravel Company, Inc. v. Albrecht, 379 N.W.2d 803 (N.D.1986). In this case the record includes a judgment entered on September 4, 1986, which is consistent with the September 2, 1986, order for judgment. Accordingly, the instant appeal is properly before this court, and we will examine the merits.

Although the plaintiffs' statement of issues in their brief does not specifically delineate an issue relating to the trial court's decision to dismiss for improper service of process, the plaintiffs state in their brief that they "seek reversal of all action taken" by the district court and specifically "the dismissal of the case, the injunctive relief and the sanctions." Thus, we will initially review the trial court's dismissal of the complaint and specifically the issue relating to service of process. ⁵ The plaintiffs contend that service of process was proper because "all parties were served directly or through their authorized agents."

Relevant to this case N.D.R.Civ.P. 4(d)(2), ⁶ requires service of process on an individual by delivering a copy of the summons to "his agent authorized by appointment or by law to receive service of process" and on a corporation by delivering a copy of the summons to an "officer, director, superintendent or managing or general agent, or partner, or associate, or to an agent authorized by appointment or by law to receive service of process in its behalf."

The relevant part of our rule relating to service of process is patterned after the corresponding federal rule and, although we are not compelled to follow the federal courts' interpretation of the federal rule, those interpretations are highly persuasive in interpreting our rule. E.g., Estate of Elmer, 210 N.W.2d 815 (N.D.1973).

The federal courts have consistently held that, in the absence of an express agreement between the defendant and agent or in the absence of circumstances which clearly show that such an agreement was intended by the parties, authorization of an agent to accept service of process on behalf of a corporation or an individual is not deemed to exist. WICA, Inc. v. WWSW, Inc., 191 F.2d 502 (D.C.1951); Smith v. Western Offshore, Inc., 590 F.Supp. 670 (E.D.La.1984); Richards v. New York State Dep't of Correctional Services, 572 F.Supp. 1168 (S.D.N.Y.1983); Lamont v. Haig, 539 F.Supp. 552 (W.D.S.D.1982); Miree v. United States, 490 F.Supp. 768 (N.D.Ga.1980); United States v. Marple Community Record, Inc., 335 F.Supp. 95 (E.D.Pa.1971); Burger Chef Systems, Inc. v. Baldwin, Incorporated, 365 F.Supp. 1229 (S.D.N.Y.1973).

In states having a service of process rule similar to the federal and North Dakota rules, the same or similar language has been construed to mean that a person who was an agent for a different purpose may not bind a defendant by receiving process for him. Thus, an agent authorized to collect rent for a property owner is not considered to have been appointed to receive process for his principal, Foster v. Lewis, 78 Nev. 330, 372 P.2d 679 (1962); an office secretary is not an agent authorized to receive service for her employer at his office, Haley v. Hershberger, 207 Kan. 459, 485 P.2d 1321 (1971), and a son, who was an employee of his father, was not an agent authorized by appointment or by law to receive service of process upon his father at his father's place of business. Emerson v. Bridgforth, 271 Ark. 289, 608 S.W.2d 47 (1980).

4 Wright & Miller, Federal Practice & Procedure: Civil at Sec. 1097 states:

"The cases dealing with agency by appointment indicate that an actual appointment for the specific purpose of receiving process normally is expected. Accordingly, the mere fact that a person acts as defendant's agent for some purposes does not necessarily mean that he has authority to receive process. The courts look to the circumstances of the agency relationship, and although authority to accept process need not be explicit, it must either be express or implied from the type of relationship between defendant and the alleged agent. Thus, a financial agent or manager of defendant's business or even his attorney probably will not be deemed an agent appointed to receive process absent a factual basis for believing that an appointment of this type has taken place. Consistently with this judicial construction of 'appointment,' the courts have held that protestations by an...