Friedt v. Moseanko
Decision Date | 24 March 1993 |
Docket Number | No. 920058,920058 |
Citation | 498 N.W.2d 129 |
Parties | Delores FRIEDT, Plaintiff and Appellee, v. James MOSEANKO d/b/a Prairie Hills Dairy, Defendant and Appellant, v. SCHULTZ CREAMERY, Garnishee, v. Deborah MOSEANKO and Sam Zarek, Third-Party Defendants, Farmers Home Administration, Third-Party Defendant. Civ. |
Court | North Dakota Supreme Court |
McGee, Hankla, Backes & Wheeler, Ltd., Minot, for plaintiff and appellee; argued by Lolita Romanick.
Clare R. Hochhalter (appeared), Asst. U.S. Atty., United States Attorney's Office, Bismarck, for third-party defendant.
James Moseanko (argued), Butte, pro se, for defendant and appellant. Appearance by Deborah Moseanko.
James Moseanko appeals from the garnishment and execution seizure of the proceeds from the sale of milk to a creamery, and from orders denying his claims that the milk funds were exempt from seizure as "earnings" or "crops." We affirm.
Delores Friedt sued James Moseanko in 1988 to collect a promissory note. "After Moseanko had three times failed to appear for depositions scheduled by Friedt," the trial court granted default judgment to Friedt under NDRCivP 37 as a discovery sanction. Friedt v. Moseanko, 459 N.W.2d 240, 241 (N.D.1990) (Moseanko I ). We explained:
Moseanko repeatedly failed to attend properly noticed depositions, without timely prior objection, notification, or justification, even after being ordered by the district court to attend any subsequent deposition for which he was properly served with notice. Moseanko provided tardy "responses" to the notices to take his oral deposition and failed to seek any protective orders in advance of his failure to appear for any of the three scheduled depositions. Under these circumstances, we are unable to conclude that the district court acted arbitrarily, unreasonably, or unconscionably in ordering default judgment against Moseanko as a sanction for Moseanko's abuse of the discovery process.
Moseanko I at 242. After we affirmed, Friedt garnished the proceeds of milk production that the Moseankos sold to Schultz Creamery.
Over resistance by James Moseanko and Deborah, his spouse, the trial court ordered the garnished funds applied on Friedt's judgment. In Friedt v. Moseanko, 484 N.W.2d 861 (N.D.1992) (Moseanko II ), we affirmed that order.
Meanwhile, Friedt served two more garnishee summons on Cass Clay Creamery on July 26, 1991 and September 13, 1991, and on James on August 6, 1991 and September 20, 1991. Farmers Home Administration (FmHA) appeared and asserted a secured interest in proceeds of milk seized by those garnishments. Cass Clay deposited the garnished funds with the trial court. The trial court ordered the milk funds held in an interest-bearing bank account at First American Bank Minot pending this litigation.
James moved to dismiss "this action ... based on fraud, deception and the outright theft of property," still disputing that he owed the promissory note to Friedt, demanding payment of half of the milk funds to Deborah, and claiming that his half of the milk funds were exempt "earnings." After a hearing, the court ruled that the garnished milk funds were not protected by restrictions on garnishment of "earnings" in NDCC 32-09.1-03 and 15 U.S.C. Sec. 1673, that FmHA held a security interest in half of the proceeds, and that Friedt had properly garnished the other half of the milk funds. The trial court denied the motion to dismiss, rejected the other claims by James and Deborah, and ordered entry of a Judgment of Garnishment.
After the Judgment of Garnishment was entered on February 19, 1992, Friedt caused the clerk of court to issue a writ of execution, had the sheriff serve a notice of execution levy on James on February 21, 1992, and levied on the milk funds deposited in First American Bank Minot. The sheriff's notice of levy to James included a notice for claiming exemptions:
Any claim or demand you may have for exemption against said levy must be made by you within ten days from the service of this notice.
However, on March 2, 1992, the sheriff's office wrote James to nullify the notice for claiming exemptions:
In the notification, you will notice that it directs you to file any claims of exemptions within ten days of receipt of the notice. It has been brought to my attention the Judgment of Garnishment issued on February 13, 1992 nullifies any exemptions to be claimed in this matter.
Also on March 2, 1992, James simultaneously filed an affidavit "for Claim of Exemptions" and a notice of appeal from the Judgment of Garnishment. His affidavit sought to exempt the homestead and other items, described as absolute exemptions "to a value of $25,000.00 [sic]", under NDCC 28-22-02, including "crops and grain grown on 160 acres," and "[d]isposable earnings ... to 75% or 40 times the federal minimum hourly wage per week WHICHEVER IS GREATER, pursuant to NDCC Sec. 32-09.1-03." James's affidavit also claimed, "All specific partnership property of Deborah Moseanko, 100% of [her] interest, including at least 50% interest in 'any and all money' ... as absolutely exempt as to [the] writ of execution named against only James Moseanko/First American Bank Minot, pursuant to NDCC Sec. 45-08-02 [ ]."
On March 6, 1992, the sheriff collected the seized funds from First American Bank Minot. After deducting itemized costs, the sheriff paid $8,191 to the U.S. Attorney's office for FmHA and another $8,191 to Friedt on her judgment.
During the appeal, upon Friedt's motion opposed by James, we remanded to the trial court "for the limited purpose of consideration of [James's] Claims for Exemptions and [Friedt's] Motion to Dismiss Claims for Exemptions." After a hearing on June 1, 1992, the trial court rejected James's claims for exemptions "because they were untimely and insufficient."
In this Moseanko III appeal, James appears without the aid of an attorney, and makes a hodgepodge of arguments. James again attacks Friedt's judgment that we affirmed in Moseanko I and refused to vacate in Moseanko II. James renews arguments that the trial court lacked venue and jurisdiction to enter that judgment for Friedt; makes a new argument that a "non-intervention clause" in the will of the deceased payee of the note precluded court action to enforce the debt; and urges that, because Friedt lives in Washington and James lives in North Dakota, "diversity of citizenship" deprived North Dakota courts of jurisdiction to enforce the debt. We reject these meritless arguments.
Absent clear fraud or another timely cause under NDRCivP 60(b), we cannot reconsider Friedt's final judgment against James at this late date. A deeply embedded finality principle does not permit this court to do so.
In resolving legal controversies the public interest demands that, at some point, there be an end to litigation so that the parties may go about their normal business.... Our rules of procedure, statutes, and other established legal doctrines are all geared toward the final resolution of legal controversies. If the time for appeal may be extended indefinitely, the rights of intervening innocent parties also may be jeopardized. At some point, the public and third parties must be able to rely on the finality of a decision.
Lang v. Bank of North Dakota, 377 N.W.2d 575, 579 (N.D.1985) (citations omitted). An eminent jurist explains this principle emphatically:
[T]he labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case,....
Benjamin N. Cardozo, The Nature of the Judicial Process, in Selected Writings of Benjamin Nathan Cardozo 107, 171 (1921). We again refuse to review James's claims of error in the initial judgment.
James argues that, because FmHA's security interest in the milk or its proceeds is unperfected, FmHA was not entitled to share in the garnished funds. However, FmHA has held a security interest since January 9, 1986 in "[a]ll livestock now owned or hereafter acquired" by James and Deborah Moseanko, "including proceeds and products thereof." Even though the 1986 public filing of the financing statement lapsed after five years, see NDCC 41-09-42(2) (UCC 9-403), the lapse did not rescind FmHA's security in Deborah's share of livestock products. A security agreement remains enforceable between the debtor and the creditor whether or not perfected by the public filing of a financing statement. NDCC 41-09-14 (UCC 9-201) ("Except as otherwise provided by this title a security agreement is effective according to its term between the parties,...."). See 69 AmJur2d Secured Transactions, Sec. 345 (1973). See also NDCC 41-09-27(2) (UCC 9-306) ("Except where this chapter otherwise provides, a security interest continues in collateral notwithstanding sale ... unless the disposition was authorized by the secured party ..., and also continues in any identifiable proceeds including collections received by the debtor."). On the other hand, FMHA's security in James's share lost priority and became subordinate to the lien of Friedt's garnishment because the financing statement had lapsed, and the security interest had become unperfected. NDCC 41-09-22(1)(b) (UCC 9-301). See also NDCC 41-09-27(3), (4) (UCC 9-306). This argument about Deborah's share of the milk funds has little merit and is futile.
However, the exemptions claimed by James present new and open questions reviewable on this appeal. James mainly argues that the trial court mistakenly classified his "Milk Farm Products" as nonexempt.
James employs this "farm products" argument in three disconnected ways. First, James argues that, since milk is a farm product, "product earnings ... are not subject to garnishment by statutes intended for wage-earners,...." Alternatively, he argues that "farm products" are "earnings," partially protected from garnishment under NDCC 32-09.1-03, imploring that "[t]he milking of cattle is how the Moseanko...
To continue reading
Request your trial-
In re Pruss
...garnishments or bankruptcy. Neither did his `compensation' depend upon `personal services' as used in the statute."); Friedt v. Moseanko, 498 N.W.2d 129, 133-34 (N.D. 1993) (holding that proceeds from milk were not "earnings" as defined by N.D.Cent.Code § 32-09.1-03 and 15 U.S.C. § 1673; "S......
-
Federal Land Bank of St. Paul v. Ziebarth
...interest demands that, at some point, there be an end to litigation, so the parties may go about their normal business. Friedt v. Moseanko, 498 N.W.2d 129, 132 (N.D.1993); In re Estate of Kjorvestad, 395 N.W.2d 162, 164 (N.D.1986). As we reiterated in Texaro Oil Co. v. Mosser, 299 N.W.2d 19......
-
Phi Fin. Servs., Inc. v. Johnston Law Office, P.C.
...pay."(Emphasis added.) Although this definition is broad, the term "earnings" does not include "business profits." Friedt v. Moseanko , 498 N.W.2d 129, 133 (N.D. 1993).[¶12] While Johnston Law as a professional corporation is a "person" under N.D.C.C. § 32-09.1-01(4), the fees that its clie......
- State v. Bernstein