F/S Mfg. v. Kensmoe

• Decision Date: 21 June 2011
• Docket Number: No. 20100167.,20100167.
• Parties: F/S MANUFACTURING, a North Dakota Corporation, Plaintiff and Appelleev.Lesa KENSMOE, Defendant and Appellant.
• Court: North Dakota Supreme Court

798 N.W.2d 853

2011 ND 113

F/S MANUFACTURING, a North Dakota Corporation, Plaintiff and Appellee

v.Lesa KENSMOE, Defendant and Appellant.

No. 20100167.

Supreme Court of North Dakota.

June 21, 2011.

Peter William Zuger (argued), Fargo, N.D., for plaintiff and appellee.Lesa Bergson f/k/a Lesa Kensmoe, Glennville, Ga., self-represented.VANDE WALLE, Chief Justice.

[¶ 1] Lesa Kensmoe, now known as Lesa Bergson, appealed from a district court order granting F/S Manufacturing renewal by affidavit of its 1998 judgment against her. We reverse, holding the district court erred in ordering a cancelled judgment renewed by filing an affidavit under N.D.C.C. § 28–20–21.

I

[¶ 2] On March 9, 1998, F/S Manufacturing obtained a default judgment in the amount of $450,894.78 against Kensmoe. When the action was commenced in 1995, Kensmoe was a resident of Moorhead, Minnesota. On April 4, 2008, F/S Manufacturing's judgment against Kensmoe was cancelled of record under N.D.C.C. § 28–20–35. On March 8, 2010, almost two years after the 1998 judgment was cancelled, F/S Manufacturing filed an affidavit attempting to renew the judgment under N.D.C.C. § 28–20–21. After being informed the judgment could not be renewed because it had expired, F/S Manufacturing filed a motion on March 11, 2010, requesting the district court to order the clerk of court to renew the judgment by affidavit under N.D.C.C. § 28–20–21.

[¶ 3] In its motion and supporting brief, F/S Manufacturing asserted that the “statute of limitations” for renewing a judgment by affidavit was tolled because Kensmoe had been absent from North Dakota for at least five years living in Georgia or, alternatively, because Kensmoe had filed for bankruptcy in Georgia on May 5, 2003, and had purportedly been involved in bankruptcy proceedings until May 10, 2005. With its motion, F/S Manufacturing submitted evidence that the 1998 North Dakota judgment had been filed in Liberty County, Georgia, and that on March 8, 2010, a Georgia state court in Liberty County had denied Kensmoe's motion to set aside the judgment. The Georgia court order found that “the statute of limitations on the underlying North Dakota judgment ... was tolled during the pendency of Defendant's two bankruptcy proceedings from May 5, 2003 through May 10, 2005” and held that the underlying North Dakota judgment was still valid and enforceable and F/S Manufacturing could “continue its collection efforts to enforce the judgment.”

[¶ 4] On May 5, 2010, the North Dakota district court granted F/S Manufacturing's motion and ordered the clerk of court to renew the 1998 judgment. In its order, the district court stated: “This Court adopts the reasoning and rationale of the March 8, 2010, State Court of Liberty County, Georgia, order, and [F/S Manufacturing's] Brief in Support of Motion of Renewal of Judgment, as its own for the purposes of this Order.”

II

[¶ 5] Kensmoe argues that F/S Manufacturing may not renew a cancelled judgment, asserting the period to renew the judgment under N.D.C.C. § 28–20–21 was not tolled. F/S Manufacturing asserts, however, the time period for renewing a judgment under N.D.C.C. § 28–20–21 was tolled under N.D.C.C. § 28–01–32, based on Kensmoe's absence from North Dakota. F/S Manufacturing also contends that Kensmoe waived any issues regarding whether or not her prior bankruptcy proceedings tolled the “statute of limitations,” because she did not raise those issues on appeal. The issues raised by the parties require interpretation of N.D.C.C. §§ 28–20–21 and 28–01–32.

Statutory interpretation is a question of law, fully reviewable on appeal. Kadlec [ v. Greendale Twp. Bd. of Supervisors], 1998 ND 165, ¶ 12, 583 N.W.2d 817. Words in a statute are given their plain, ordinary, and commonly understood meaning, unless defined by statute or unless a contrary intention plainly appears. N.D.C.C. § 1–02–02. Statutes are construed as a whole and are harmonized to give meaning to related provisions. N.D.C.C. § 1–02–07. If the language of a statute is clear and unambiguous, “the letter of [the statute] is not to be disregarded under the pretext of pursuing its spirit.” N.D.C.C. § 1–02–05. The language of a statute must be interpreted in context and according to the rules of grammar, giving meaning and effect to every word, phrase, and sentence. N.D.C.C. §§ 1–02–03 and 1–02–38(2). The primary objective in interpreting a statute is to determine the intention of the legislation. Amerada Hess Corp. v. State ex rel. Tax Comm'r, 2005 ND 155, ¶ 12, 704 N.W.2d 8.

Skogen v. Hemen Twp. Bd. of Twp. Supervisors, 2010 ND 92, ¶ 20, 782 N.W.2d 638.

We construe statutes to avoid absurd or illogical results. County of Stutsman v. State Historical Soc'y, 371 N.W.2d 321, 325 (N.D.1985).

A

[¶ 6] In North Dakota the duration of a judgment is governed by N.D.C.C. § 28–20–35, which provides for cancellation of a judgment after certain time periods:

After ten years after the entry of a judgment that has not been renewed, or after twenty years after the entry of a judgment that has been renewed, the judgment must be canceled of record.

See Investors Title Ins. Co. v. Herzig, 2011 ND 7, ¶ 11, 793 N.W.2d 371. “After the time periods set forth in the statute governing cancellation of judgments have passed, a judgment is unenforceable against the judgment debtor.” Id. (citing Jahner v. Jacob, 515 N.W.2d 183, 186 (N.D.1994)). A judgment creditor may commence a separate action to renew a judgment. See, e.g., Union Nat'l Bank v. Ryan, 23 N.D. 482, 483, 137 N.W. 449 Syl. 2 (1912) (“judgment creditor may renew his judgment by either affidavit or by action if he pursues the remedies provided by said sections”). North Dakota law also provides for a concurrent, simplified procedure to renew a judgment by filing an affidavit. See N.D.C.C. §§ 28–20–21, 28–20–22, and 28–20–23.

[¶ 7] Section 28–20–21, N.D.C.C., provides the required contents of a renewal affidavit and states, in part:

Any judgment which in whole or in part directs the payment of money and which may be docketed in the office of the clerk of any district court in this state may be renewed by the affidavit of the judgment creditor or of the judgment creditor's personal representative, agent, attorney, or assignee at any time within ninety days preceding the expiration of ten years from the first docketing of such judgment.

(Emphasis added.) If the judgment to be renewed was rendered in this state, “the affidavit for renewal must be filed with the clerk of court where the judgment was first docketed.... The clerk of court shall immediately enter in the judgment docket the fact of renewal, the date of renewal, and the amount for which the judgment is renewed.” N.D.C.C. § 28–20–22 (emphasis added). Section 28–20–23, N.D.C.C., provides that “[t]he entry and docketing of an affidavit of renewal of a judgment operates to continue the lien of the judgment to the extent of the balance due” on the judgment for a period of ten years from the affidavit's docketing.

[¶ 8] This Court has said that renewal by affidavit is purely a statutory matter and the procedure must be substantially complied with, since “[t]he courts are not at liberty to say that any of the statutory requirements to perfect or continue a lien may be omitted.” Groth v. Ness, 65 N.D. 580, 584, 260 N.W. 700, 701 (1935). “Where the Legislature has clearly prescribed what facts shall be set forth in the statement, the courts have no power to add to or subtract therefrom.” Id. Thus, “[a]n original judgment is renewed for an additional ten years by filing an affidavit of renewal within 90 days of expiration of the original judgment.” Jahner, 515 N.W.2d at 186 (citing N.D.C.C. §§ 28–20–21, 28–20–22, and 28–20–23). “If the judgment creditor does not file an affidavit of renewal within the original ten-year period, NDCC 28–20–35 declares that the judgment is canceled of record and is unenforceable.” Jahner, at 186.

[¶ 9] It is undisputed that F/S Manufacturing did not file a renewal affidavit “within ninety days preceding the expiration of ten years from the first docketing” of its 1998 judgment against Kensmoe, and it is undisputed that the 1998 judgment was cancelled of record on April 4, 2008. Relying on Ryan, 23 N.D. 482, 137 N.W. 449, and N.D.C.C. § 28–01–32, F/S Manufacturing argues the time period provided in N.D.C.C. § 28–20–21 to renew the judgment by affidavit was tolled. Under N.D.C.C. § 28–01–32, the statute of limitations for “an action” against a person may be tolled based on that person's absence from the state:

If any person is out of this state at the time a claim for relief accrues against that person, an action on such claim for relief may be commenced in this state at any time within the term limited in this chapter for the bringing of an action on such claim for relief after the return of such person into this state. If any person departs from and resides out of this state and remains continuously absent therefrom for the space of one year or more after a claim for relief has accrued against that person, the time of that person's absence may not be taken as any part of the time limited for the commencement of an action on such claim for relief. The provisions of this section, however, do not apply to the foreclosure of real estate mortgages by action or otherwise and do not apply if this state's courts have jurisdiction over a person during the person's absence.

(Emphasis added.) Although F/S Manufacturing asserts that Kensmoe has been absent from the state for at least five years, that the two exceptions in N.D.C.C. § 28–01–32 do not apply, and that Kensmoe has waived any argument regarding jurisdiction, F/S Manufacturing's reliance on N.D.C.C. § 28–01–32 and Ryan is misplaced.

[¶ 10] Ryan involved an action for renewal of a domestic judgment against a judgment debtor, who had been absent from the state after judgment was entered. 23 N.D. at 484, 137 N.W. at 449. If the judgment debtor's absence was...