Dunseith Sand & Gravel Co., Inc. v. Albrecht

• Decision Date: 07 January 1986
• Docket Number: No. 11010,11010
• Citation: Dunseith Sand & Gravel Co., Inc. v. Albrecht, 379 N.W.2d 803 (N.D. 1986)
• Court: North Dakota Supreme Court
• Parties: DUNSEITH SAND & GRAVEL COMPANY, INC., Plaintiff and Appellee, v. Ivanlee ALBRECHT, Defendant and Appellant. Civ.

Page 803

379 N.W.2d 803

DUNSEITH SAND & GRAVEL COMPANY, INC., Plaintiff and Appellee, v. Ivanlee ALBRECHT, Defendant and Appellant.

Civ. No. 11010.

Supreme Court of North Dakota.

Jan. 7, 1986.

Ivanlee Albrecht, for defendant and appellant, pro se.

Carol E. Harrang [argued], of Vaaler, Gillig, Warcup, Woutat, Zimney & Foster, Grand Forks, for plaintiff and appellee.

GIERKE, Justice.

The defendant Ivanlee Albrecht appealed from an order for judgment granted by the District Court of Rolette County. We reverse.

The action was commenced by Dunseith Sand & Gravel Co., Inc., against Ivanlee Albrecht [Albrecht] for principal and interest on a past due open account for goods allegedly sold to him personally by Dunseith Sand & Gravel Co., Inc. [Dunseith]. Albrecht argues that any amounts owing to Dunseith are an obligation incurred by "Ivanlee's Construction and Supply, Inc." and are not his personal obligation.

After discovery was completed, pursuant to Rule 56 of the North Dakota Rules of Civil Procedure, Dunseith brought a motion for summary judgment against Albrecht; and, pursuant to Rule 3.2 of the North Dakota Rules of Court, it filed a notice of submission on briefs. The motion for summary judgment was mailed to Albrecht on April 19, 1985, and filed with the district court.

Albrecht's response to the motion was dated and mailed to Dunseith on May 1, 1985. It was not received by the district court for filing within the statutory time limit. The district court deemed Albrecht's failure to file a response brief within the ten-day time limit to be an admission that the motion was meritorious and, consequently, granted summary judgment on May 8, 1985.

Albrecht then filed a motion to vacate the order for judgment on the ground that his response to Dunseith's summary judgment motion was filed on time. Dunseith resisted the motion to vacate the order for judgment.

On May 30, 1985, the district court denied the motion by way of letter opinion. The district court chose not to rule on the timeliness of Albrecht's response, emphasizing that Rule 3.2 is applied with discretion by the trial judge. Further, the district court noted it is not its practice to issue orders exactly on the day of presumed default. Rather, the district court examined the merits of the motion for summary judgment and concluded that, timeliness aside, the judgment had been appropriately entered.

Albrecht has brought this appeal from an order. The record contains a later judgment which is consistent with this order. Recently, in Olson v. Job Service North Dakota, 379 N.W.2d 285 (N.D.1985), we determined that when the record contains a judgment which is consistent with the order, we will treat the appeal as an appeal from the judgment. Olson, supra. Accordingly, we will now examine the merits of this appeal.

The dispositive issue on appeal is whether or not Dunseith was entitled to summary judgment. Summary judgment is properly granted only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), N.D.R.Civ.P. The evidence must be viewed in the light most favorable to the party against whom summary judgment is sought. Norman Jessen & Assoc. v. Amoco Prod. Co., 305 N.W.2d 648, 650 (N.D.1981). We have noted that summary judgment is not proper merely because the trial court believes that the movant will prevail if the action is tried on the merits. First State Bank of Buxton v. Thykeson, 361 N.W.2d 613, 616 (N.D.1985).

It is the general rule that officers and directors of a corporation are not liable for the ordinary debts of the corporation. Hilzendager v. Skwarok, 335 N.W.2d 768 (N.D.1983).

Upon considering...