Flex Credit, Inc. v. Winkowitsch

• Decision Date: 16 August 1988
• Docket Number: No. 870311,870311
• Citation: 428 N.W.2d 236
• Parties: FLEX CREDIT, INC., Plaintiff and Appellee, v. Benjamin D. WINKOWITSCH and Faith Winkowitsch, Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 236

428 N.W.2d 236

FLEX CREDIT, INC., Plaintiff and Appellee, v. Benjamin D. WINKOWITSCH and Faith Winkowitsch, Defendants and Appellants.

Civ. No. 870311.

Supreme Court of North Dakota.

Aug. 16, 1988.

Pearce & Durick, Bismarck, for plaintiff and appellee; argued by Larry L. Boschee.

DeLayne G. Nassif, Fargo, and Rudolph Lion Zalowitz, Elizabeth, N.J., for defendants and appellants; argued by Rudolph Lion Zalowitz.

ERICKSTAD, Chief Justice.

Benjamin D. and Faith Winkowitsch appeal from a county court judgment declaring that Flex Credit, Inc. [Flex Credit] has the right to immediate possession of certain Burleigh County property and ordering that the Winkowitsches be evicted from that property. Flex Credit has moved to dismiss the appeal. We deny the motion to dismiss the appeal and affirm the judgment.

The Winkowitsches acquired title to the parcel of real property on December 18 1980. The property, however, was ultimately seized by the Internal Revenue Service [IRS] for collection of unpaid federal taxes. The IRS publicly offered the property for sale at a minimum price of $10,223.59. When none of the bids equaled or exceeded the minimum price, the United States purchased the property. After the applicable redemption period provided under federal law had passed, the IRS executed a "District Director's Deed" to the United States. On September 8, 1987, the United States executed a quit claim deed for the property to Flex Credit for the sum of $1,000.

On September 30, 1987, the Winkowitsches were personally served with a "Notice of Intention to Evict." The Winkowitsches remained on the property, however, and Flex Credit brought this eviction action pursuant to Chapter 33-06, N.D.C.C. On October 5, 1987, a deputy sheriff attempted to personally serve the summons and complaint upon the Winkowitsches.

The summons specified that the Winkowitsches were required to appear at the Burleigh County Courthouse at 2:30 p.m. on October 14, 1987, to defend the action. On October 12, 1987, the clerk of the county court sent a letter to counsel for Flex Credit and the Winkowitsches advising them that the court had rescheduled the hearing "to October 14, 1987, at 4:00 p.m." [Emphasis in original.] The Winkowitsches did not appear at the hearing which began at approximately 4:25 p.m. on October 14. After Flex Credit presented its proof, the court entered its findings of fact, conclusions of law, and order for judgment, and judgment was entered accordingly on October 14, 1987. The Winkowitsches served Flex Credit with an answer to the complaint on October 22, 1987, and on October 23, 1987, they filed a notice of appeal from the judgment.

MOTION TO DISMISS

Flex Credit asserts that the appeal should be dismissed because the Winkowitsches failed to serve a designation of the record and statement of issues pursuant to Rule 30(b), N.D.R.App.P., and failed to timely file their brief under Rule 31(a), N.D.R.App.P. ¹

Rule 3(a), N.D.R.App.P., provides in part that "[f]ailure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court deems appropriate, which may include dismissal of the appeal." In exercising our discretion in determining whether to dismiss an appeal, we inquire into such matters as the prejudice to the other party by appellant's failure to comply with the rules; the demonstrated justification for the appellant's failure to comply with the rules; the curing of the defect prior to oral argument so that the merits may be evaluated; and the merits of the underlying appeal. Federal Land Bank of St. Paul v. Overboe, 426 N.W.2d 1, 3 (N.D.1988).

Taking these matters into consideration, we conclude that dismissal of the appeal is not warranted in this case. Flex Credit has not demonstrated prejudice and any noncompliance with the rules has not significantly delayed processing of the appeal. See Matter of Estate of Raketti, 340 N.W.2d 894, 897-898 (N.D.1983). Inasmuch as Flex Credit has not requested any sanctions other than dismissal, we decline to assess costs against the Winkowitsches for noncompliance, deny the motion to dismiss, and proceed to the merits.

MERITS

The dispositive issues raised on appeal are 1) whether service of process was valid; 2) whether the county court erred in holding the eviction hearing before expiration of the 20 days provided under the rules of civil procedure to serve an answer; and 3) whether the Winkowitsches had adequate notice of the hearing.

I

The Winkowitsches assert that service of the summons and complaint was invalid because the documents were merely left on the floor of the entryway to their residence. In the sheriff's return, the deputy sheriff certified that he had served the Winkowitsches on October 5, 1987 "by leaving 2 copies inside the residence, door was open, defendants osberved (sic) inside the house, refused to come to door, defendants were told the papers were being left."

Rule 4(d)(2)(A)(i), N.D.R.Civ.P., allows service of process within the state to be made "upon an individual 14 or more years of age by ... delivering a copy of the summons to him personally." It is well settled that when a person refuses to accept service, personal service may be effected by leaving the papers at a location, such as on a table or on the floor, near that person. E.g., Novak v. World Bank, 703 F.2d 1305, 1310 n. 14 (D.C.Cir.1983); Errion v. Connell, 236 F.2d 447, 457 (9th Cir.1956); Heritage House Frame and Moulding Co., Inc. v. Boyce Highlands Furniture, 88 F.R.D. 172, 174 (E.D.N.Y.1980); Bossuk v. Steinberg, 58 N.Y.2d 916, 460 N.Y.S.2d 509, 447 N.E.2d 56 (1983); 4A C. Wright and A. Miller, Federal Practice and Procedure Sec. 1095, at pp. 71-72 (1987).

The Winkowitsches assert in their appellate brief that they found the summons and complaint on the floor of the entry to their residence "the morning of October 10, 1987." However, evidence which does not appear in the record of the trial court proceedings cannot be considered by this court on appeal. See Vorachek v. Citizens State Bank of Lankin, 421 N.W.2d 45, 51-52 (N.D.1988) [refusal to consider evidentiary assertions in appellate briefs]; In Interest of R.H., 262 N.W.2d 719, 722 (N.D.1978) [refusal to consider testimony not made a part of the record on appeal]; Svihla v. Svihla, 126 N.W.2d 135, 137-138 (N.D.1964) [refusal to consider affidavit not included in record]. See also Rule 10(a), N.D.R.App.P. [Composition of the Record on Appeal]. We recognize that the Winkowitsches did not appear at the trial to offer evidence in this case. However, there are post-judgment proceedings available whereby evidence may be submitted for consideration by the trial court, and on appeal, by this court. See, e.g., Rule 60(b), N.D.R.Civ.P. The Winkowitsches did not attempt to supplement the record through post-judgment procedures, and we will not apply our rules differently merely because they were acting pro se below. E.g., Hennebry v. Hoy, 343 N.W.2d 87, 90 (N.D.1983).

The record before us reflects that upon the Winkowitsches' refusal to accept service, the deputy sheriff placed the documents in their general vicinity inside the residence and informed them he was doing so. We conclude that the manner of service was appropriate under the circumstances.

II

The Winkowitsches assert that the county court erred in holding the eviction hearing before expiration of the 20 days allowed under Rule 12(a), N.D.R.Civ.P., to answer a complaint. We disagree.

Rule 12(a), N.D.R.Civ.P., states in part that "[a] defendant shall serve his answer within 20 days after the service of the summons upon him, ..." However, Rule 81(a), N.D.R.Civ.P., provides that "[s]tatutory procedures, whether or not listed in Table A, are excepted from these rules insofar as they are inconsistent or in conflict with the procedure and practice provided by these rules." Although the statutes governing eviction procedures, Chapter 33-06, N.D.C.C., are not listed in Table A [see North Dakota Court Rules, at pp. 144-145 (West 1988) ], it is apparent that Sec. 33-06-02, N.D.C.C., is "inconsistent or in conflict" with Rule 12(a), N.D.R.Civ.P. Section 33-06-02, N.D.C.C., provides that "[i]n any action for eviction the time specified in the summons for the appearance of the defendant may not be less than three nor more than fifteen days from the date on which it is issued." Further, because Chapter 33-06, N.D.C.C., constitutes a special statutory proceeding within the meaning of Rule 81(a), and it is not listed in Table B [see North Dakota Court Rules, at pp. 146-153 (West 1988) ], and thus not intended to be superseded, it is not superseded under Rule 86(b), N.D.R.Civ.P. ² Thus, the expedited time period provided under Sec. 33-06-02, rather than the 20 days allowed under Rule 12 for service of an answer, governs the time within which a defendant must appear and defend in an eviction action. ³

III

The Winkowitsches assert that they did not receive adequate notice of the time of the hearing. ⁴ They claim, once again in their appellate brief, that they did not receive the letter mailed October 12, 1987, from the clerk of court rescheduling the hearing from 2:30 p.m. to 4 p.m. on October 14 until the day after trial. They further assert in their brief that at approximately 2:30 p.m. on October 14 "Faith Winkowitsch appeared at the Burleigh County Courthouse to attend a purported hearing of which Appel...