Desert Partners IV, L.P. v. Benson

• Decision Date: 28 October 2014
• Docket Number: No. 20140066.,20140066.
• Citation: 855 N.W.2d 608
• Parties: DESERT PARTNERS IV, L.P., and Family Tree Corporation, Plaintiffs v. Thomas H. BENSON, Leatrice Benson, John Benson, Brian Benson, Ann P. Kemske, Jon Kemske; and all other persons unknown claiming any estate or interest in, or lien or encumbrance upon, the property described in the Complaint, Defendants. John Benson, Appellant.
• Court: North Dakota Supreme Court

855 N.W.2d 608

DESERT PARTNERS IV, L.P., and Family Tree Corporation, Plaintiffs

v.Thomas H. BENSON, Leatrice Benson, John Benson, Brian Benson, Ann P. Kemske, Jon Kemske; and all other persons unknown claiming any estate or interest in, or lien or encumbrance upon, the property described in the Complaint, Defendants.

John Benson, Appellant.

No. 20140066.

Supreme Court of North Dakota.

Oct. 28, 2014.

John Benson, self-represented, Minnetonka, MN, defendant and appellant.

Opinion

McEVERS, Justice.

[¶ 1] John Benson appeals from a district court summary judgment quieting title to disputed mineral interests in favor of Desert Partners. Desert Partners moves to dismiss Benson's appeal as untimely. We deny Desert Partners' motion to dismiss. Further, we reverse the district court's grant of summary judgment against John Benson and remand for a hearing on the motions, concluding the district court did not properly notice the hearing it held.

I

[¶ 2] Desert Partners IV, L.P., and Family Tree Corporation (“Desert Partners”) sued to quiet title to certain mineral interests in McKenzie county to Desert Partners. Numerous parties were included in the action. John Benson and Brian Benson, self-represented litigants, answered counterclaiming ownership of the disputed mineral interests. Desert Partners and Benson both moved for summary judgment.¹ No other parties responded to the motions for summary judgment. Desert Partners did not request a hearing on its motion. Benson requested a hearing on the summary judgment motions and then filed a notice of hearing. Benson's notice of hearing stated oral arguments would be heard “on October 30, 2013 at 10:00 am, or as soon as counsel may be heard.” On December 3, 2013, the district court ordered summary judgment in favor of Desert Partners, noting there was no dispute as to material facts and no one had appeared for the hearing on November 1, 2013. The record reflects notice of entry of judgment on December 5, 2013.

[¶ 3] Benson emailed an unsigned notice of appeal and faxed a signed notice of appeal on February 3, 2014. On February 4, 2014, the clerk of district court sent Benson an email stating the clerks' offices are unable to file documents submitted by email or fax. Further, the email stated the original documents could be mailed to the office. Benson mailed the notice of appeal on February 4, 2014. According to documentation submitted by Benson, the clerk of district court received the mailed noticed of appeal on February 7, 2014, and recorded the notice of appeal as filed on February 12, 2014.

[¶ 4] Upon receiving the notice of appeal from the district court, the Chief Deputy Clerk of the Supreme Court emailed Benson informing him the timeliness of his appeal was in question, as the deadline for filing was February 6, 2014. Further, the Chief Deputy Clerk advised Benson he may seek an extension of time from the district court to file the notice of appeal under N.D.R.App.P. 4(a)(4), if he could show excusable neglect or good cause. Benson did not move for an extension to file the notice of appeal. Desert Partners moved this Court to dismiss the appeal as untimely and Benson responded. In his response, Benson argues his appeal should be treated as timely. He contends he did not move for an extension because he filed a timely notice of appeal.

[¶ 5] On appeal, Benson argues summary judgment was improperly granted because he requested a hearing on the motions for summary judgment, but did not receive one. Desert Partners did not file a brief in response.

II

[¶ 6] Before we consider the merits of an appeal, we must have jurisdiction. Dietz v. Kautzman, 2004 ND 164, ¶ 6, 686 N.W.2d 110. The time limit for filing a notice of appeal is jurisdictional, and we dismiss an appeal if we conclude we do not have jurisdiction. State v. Neigum, 369 N.W.2d 375, 377–78 (N.D.1985). Desert Partners moves this Court to dismiss Benson's appeal as untimely, because Benson's mailed notice of appeal was not filed until after the filing deadline. Additionally, Desert Partners asserts the notice of appeal cannot be filed via facsimile or email and it must be signed. Benson argues his signed faxed notice of appeal should be treated as timely, as he submitted it to the clerk of the district court, on February 3, 2014.

[¶ 7] Under N.D.R.App.P. 4(a)(1), a party seeking to appeal a civil judgment must file a notice of appeal with the clerk of the district court within 60 days from the service of notice of entry of the judgment being appealed.² When notice of entry of judgment is delivered by mail or third-party commercial carrier, three days must be added, after the 60 days has elapsed. N.D.R.App.P. 26(c). A party may move to extend the time to file a notice of appeal up to 30 days after the initial 60 days has elapsed, if the party shows excusable neglect or good cause. N.D.R.App.P. 4(a)(4)(A).

[¶ 8] Rule 4(a), N.D.R.App.P., does not define what constitutes filing, in regard to filing the notice of appeal. Accordingly, we look to the North Dakota Rules of Court which governs filing in the district court, for the applicable definition. Rule 3.1(e), N.D.R.Ct., states “[a] party seeking to file a pleading or other document must submit it to the clerk.” Under N.D.R.Ct. 3.5(a)(1), “[d]ocuments filed electronically in the district courts must be submitted through the Odyssey electronic filing system.” Further, N.D.R.Ct. 3.5(a)(2) states “[a]ll documents filed after the initiating pleadings must be filed electronically except for documents filed by self-represented litigants and prisoners.” (Emphasis added.) However, neither N.D.R.Ct. 3.1 nor N.D.R.Ct. 3.5 specifies how self-represented litigants should file their documents.

[¶ 9] “The interpretation of a court rule, like the interpretation of a statute, is a question of law.” State v. Ebertz, 2010 ND 79, ¶ 8, 782 N.W.2d 350. When interpreting court rules, we apply principles of statutory construction to ascertain intent. Matter of J.D.F., 2010 ND 160, ¶ 11, 787 N.W.2d 738. First, we determine intent by looking to the language of the rule and giving words their plain, ordinary, and commonly understood meaning. Id. Additionally, we construe rules “to harmonize related provisions to give meaning to each provision if possible.” Datz v. Dosch, 2014 ND 102, ¶ 9, 846 N.W.2d 724. “If a rule is ambiguous, we may resort to extrinsic aids, including the rule's historical development, to construe it.” State v. Lamb, 541 N.W.2d 457, 461 (N.D.1996) (citing N.D.C.C. § 1–02–39 ).

[¶ 10] Here, the plain meaning of the language of N.D.R.Ct. 3.1(e) and 3.5(a)(1)–(2) does not include permissible methods of filing for self-represented litigants. Moreover, we are unable to harmonize the N.D.R.Ct. 3.1(e) definition of filing with the N.D.R.Ct. 3.5(a)(1)–(2) definition of electronic filing, to determine the permissible methods of filing for self-represented litigants. As such, the North Dakota Rules of Court are ambiguous to this extent, and we briefly review the historical development of N.D.R.Ct. 3.5.

[¶ 11] Rule 3.5, N.D.R.Ct., originated as N.D. Sup. Ct. Admin. Order 16, which permitted electronic filing via facsimile transmission or email by both attorneys and self-represented litigants. The order was revised various times. The amended version of N.D. Sup. Ct. Admin. Order 16, effective July 1, 2012, omitted the reference to facsimile transmission and email. Instead, it limited electronic filing to submitting documents through the Odyssey system. Effective January 15, 2013, the contents of N.D. Sup. Ct. Admin. Order 16 were subsumed into N.D.R.Ct. 3.5.

[¶ 12] On February 3, 2014, Benson emailed an unsigned notice of appeal and faxed a signed notice of appeal to the clerk of the district court. Benson then mailed a signed notice of appeal to the clerk of the district court, on February 4, 2014. Benson's emailed notice of appeal was defective because it was unsigned. Under N.D.R.Ct. 3.1(b), documents submitted to the court by an unrepresented party must be signed by that party. Benson's mailed notice of appeal was also untimely. “Mailing is not filing under North Dakota law.” Filler v. Bragg, 1997 ND 24, ¶ 4, 559 N.W.2d 225. Under N.D.R.App.P. 4(a)(1) and 26(c), Benson had 63 days to file the notice of appeal because the notice of entry of judgment was delivered by mail. The record reflects notice of entry of judgment on December 5, 2013. Therefore, the filing deadline for the notice of appeal was February 6, 2014. Although Benson mailed his notice of appeal before the February 6, 2014, deadline, it was not filed by February 6, 2014. As such, Benson's mailed notice of appeal is untimely.

[¶ 13] Benson's faxed notice of appeal was submitted before the February 6, 2014, deadline. However, the North Dakota Rules of Court are ambiguous as to whether submitting via facsimile is an acceptable method of filing for self-represented litigants. Under N.D.R.Ct. 3.5(a)(2), it is clear self-represented litigants are excepted from filing electronically via the Odyssey system, but it is unclear how self-represented litigants may file documents with the court. Rule 3.1(e), N.D.R.Ct., solely states a party seeking to file a document with the court must submit it to the clerk. It does not provide guidance as to how a self-represented litigant must submit the document. The rules regarding the filing of documents by self-represented litigants are further confused by the fact that facsimile filing was previously permitted, as recently as June 2012. See N.D. Sup. Ct. Admin. Order 16(B) (Mar. 1, 2011) (stating “Documents filed electronically must be submitted by facsimile transmission or email to the district court clerk unless otherwise ordered by the court.”). Additionally, N.D.R.Ct. 3.5(a)(4) provides “[a] document filed electronically has the same legal effect as a paper document.”

[¶ 14] This Court does not grant self-represented litigants leniency merely because of their status as such. See Rosendahl v....