Fredericks v. Eide-Kirschmann Ford, Mercury, Lincoln, Inc., EIDE-KIRSCHMANN

• Citation: 462 N.W.2d 164
• Decision Date: 31 October 1990
• Docket Number: EIDE-KIRSCHMANN,No. 900145,900145
• Parties: Shawn D. FREDERICKS and John Fredericks, Jr., Plaintiffs and Appellants, v.FORD, MERCURY, LINCOLN, INCORPORATED, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 164

462 N.W.2d 164

Shawn D. FREDERICKS and John Fredericks, Jr., Plaintiffs and Appellants, v. EIDE-KIRSCHMANN FORD, MERCURY, LINCOLN, INCORPORATED,

Defendant and Appellee.

Civ. No. 900145.

Supreme Court of North Dakota.

Oct. 31, 1990.

Nodland, Tharaldson & Dickson, Bismarck, for plaintiffs and appellants; argued by Thomas A. Dickson.

Pearce & Durick, Bismarck, for defendant and appellee; argued by B. Timothy Durick.

ERICKSTAD, Chief Justice.

Shawn D. and John Fredericks, Jr. (Fredericks), enrolled members of the Three Affiliated Tribes and residents of the Fort Berthold Reservation, have appealed from a district court judgment granting the motion of Eide-Kirschmann Ford, Mercury, Lincoln, Inc. (Eide) for summary judgment dismissing Fredericks' action to enforce a tribal court judgment and denying Fredericks' motion for summary judgment enforcing the tribal court judgment. We reverse and remand for entry of a judgment enforcing the tribal court judgment.

On May 14, 1983, Shawn D. Fredericks purchased a 1983 Ford pickup from Eide for $14,856. Eide received a down payment of $3,721.25. The remaining balance was to be paid, with interest, in four annual installments. John Fredericks, Jr., cosigned the retail installment contract as a "Second Buyer."

When Shawn Fredericks failed to pay the first installment, Eide sued him in tribal court by complaint dated September 12, 1984. Eide's complaint sought "payoff on the contract in the amount of $13,989.64 due as of September 12, 1984," and an order allowing it to "repossess and to sell [the pickup] and apply the proceeds of the sale against the amount of the Judgment herein." Eide also filed a motion for immediate repossession of the pickup.

On October 4, 1984, Eide repossessed the vehicle through self-help procedures in Bismarck. ¹ By letter of October 9, 1984, counsel for Eide informed the clerk of the tribal court that "[e]ven though we have possession of Shawn Fredericks' vehicle, we will proceed with our action for a Judgment against him." On October 23, 1984, the tribal court issued an order directing Shawn Fredericks to show cause why Eide was not entitled to the immediate repossession of the vehicle.

At a hearing on December 21, 1984, Eide moved to amend its summons and complaint to include John Fredericks, Jr., as a defendant and informed the tribal court that it "intended to proceed to obtain a money Judgment against both defendants, and, following the sale of the motor vehicle, if so ordered by the Court, intended to execute on any balance remaining on the Judgment." On January 9, 1985, Eide filed an amended summons and complaint joining John Fredericks, Jr., as a defendant. In its January 10, 1985, pretrial brief, Eide urged that "it be entitled to a money Judgment for the full amount owed under the retail installment contract," that it be allowed to sell the pickup and apply the proceeds "against the amount of the Judgment," and that it be allowed "to execute on any balance which may remain on the Judgment after said proceeds have been applied."

In a January 18, 1985, memorandum opinion, the tribal court concluded that Eide's self-help repossession of Fredericks' vehicle in Bismarck violated the tribal repossession statute. ² The tribal court allowed the parties to file post-trial briefs on the matter of damages. In an April 1, 1985, post-trial brief on damages, Eide maintained that it did not violate the tribal repossession statute and that Fredericks "suffered no actual damages in this case."

On April 25, 1985, the tribal court ordered that Eide return the vehicle; that Eide be liable for damages for Fredericks' loss of use of the vehicle at a rate of $10 per day from October 4, 1984, until return of the vehicle; that Eide be liable for mileage, attorney fees, and telephone calls in the amount of $838.00; and that Eide prepare a new installment contract "for the sole signature of Shawn D. Fredericks" which "will use the starting figure representing the pay off of the previous contract as of the date of repossession."

Eide appealed the April 25, 1985, tribal court order to the Intertribal Court of Appeals, which ordered Eide to file a brief by September 30, 1985. On November 25, 1985, Eide sold the repossessed vehicle. In its order of January 27, 1986, the Intertribal Court of Appeals noted that Eide "failed to file the Appellant's Brief pursuant to Rule 4(c)." The court also observed that on October 15, 1985, Eide's attorney ³ "notified the Court that he desired to withdraw as counsel and he also notified the Court that Eide Kirschmann did not desire to prosecute the above-entitled Appeal." The Intertribal Court of Appeals directed Eide to return the vehicle in accordance with the tribal court order, dismissed Eide's appeal, and remanded the case to the tribal court "for further proceedings consistent with the Tribal Court's Order and Judgment dated the 25th day of April, 1985."

On February 11, 1986, Fredericks moved to amend the tribal court's order to assess attorney fees and damages for Eide's sale of the vehicle in violation of the tribal court order. On February 21, 1986, Eide was served with a tribal court order to show cause why the tribal court's order of April 25, 1985, "should not be amended to the relief as the Defenants [sic] demand or as the Court shall determine." Eide failed to file any responsive pleadings and failed to appear at the April 11, 1986, hearing on the order to show cause. The tribal court's amended judgment of December 30, 1986, awarded Fredericks the following damages:

"1. Court Order of April 25, 1985:

                     "A.   Mileage                                                    $  288.00
                     "B.   Attorney Fees                                              $  500.00
                     "C.   Phone Calls                                                $   50.00
                     "D.   $10 per day loss of use from October of 1984 to April of   $ 5450.00
                             1986
                "2.  Loss of Down Payment                                             $ 3721.00
                "3.  Exemplary (punitive) Damages resulting in [sic] sale of vehicle  $15000.00
                       in direct violation of Court's Order of April 25, 1985
                "TOTAL OF ALL DAMAGES                                                 $25009.00
                "Interest per Tribal Code 10% from date of April 25, 1985."
                

On January 9, 1987, Eide was served with notice of entry of the amended judgment.

Fredericks commenced this action in district court for enforcement of the amended tribal court judgment on May 3, 1989. Eide and Fredericks both filed motions for summary judgment pursuant to Rule 56, N.D.R.Civ.P. The district court granted Eide's motion for summary judgment of dismissal and denied Fredericks' motion for summary judgment enforcement. Judgment was entered accordingly.

On appeal, Fredericks contends that the tribal court judgment should be enforced as a matter of comity. Eide contends that the tribal court lacked subject matter jurisdiction and that the tribal court judgment is not entitled to enforcement as a matter of comity.

Comity is a nation's voluntary recognition and execution of another nation's laws where the rights of individuals are concerned. Hilton v. Guyot, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95 (1895). Comity "promote[s] justice between individuals, and ... produces[s] a friendly intercourse between the sovereignties to which they belong." Id., 159 U.S. at 165, 16 S.Ct. at 144, 40 L.Ed. at 109. Comity "is the voluntary act of the nation by which it is offered, and is inadmissible when contrary to its policy, or prejudicial to its interests." Id. Comity is "a willingness to grant a privilege not as a matter of right but out of deference and good will." Lohnes v. Cloud, 254 N.W.2d 430, 433 (N.D.1977).

"Every foreign judgment, of whatever nature, in order to be entitled to any effect, must have been rendered by a court having jurisdiction of the cause, and upon regular proceedings, and due notice. In alluding to different kinds of judgments, therefore, such jurisdiction, proceedings, and notice will be assumed. It will also be assumed that they are untainted by fraud...."

Hilton v. Guyot, supra, 159 U.S. at 166-167, 16 S.Ct. at 144, 40 L.Ed. at 109. The court enunciated a number of factors to consider in determining the conclusiveness of a foreign judgment as a matter of comity:

"When an action is brought in a court of this country, by a citizen of a foreign country against one of our own citizens, to recover a sum of money adjudged by a court of that country to be due from the defendant to the plaintiff, and the foreign judgment appears to have been rendered by a competent court, having jurisdiction of the cause and of the parties, and upon due allegations and proofs, and opportunity to defend against them, and its proceedings are according to the course of a civilized jurisprudence, and are stated in a clear and formal record, the judgment is prima facie evidence, at least, of the truth of the matter adjudged; and it should be held conclusive upon the merits tried in the foreign court, unless some special ground is shown for impeaching the judgment, as by showing that it was affected by fraud or prejudice, or that by the principles of international law, and by the comity of our own country, it should not be given full credit and effect."

Id., 159 U.S. at 205-206, 16 S.Ct. at 159-160, 40 L.Ed. at 123. If the foregoing factors exist, the merits of a foreign judgment should not ordinarily be retried:

"[if] there is nothing to show either prejudice in the court, or in the system of laws under which it was sitting, or fraud in procuring the judgment, or any other special reason why the comity of this nation should not allow it full effect, the merits of the case should not, in an action brought in this country upon the judgment, be tried afresh, as on a new trial or an appeal, upon the mere assertion of the party that the judgment was erroneous in law or in fact."

Id., 159 U.S. at 202-203, 16 S.Ct....