Johnson, Johnson, Stokes, Sandberg & Kragness, Ltd. v. Birnbaum, 960130

• Decision Date: 13 November 1996
• Docket Number: No. 960130,960130
• Citation: Johnson, Johnson, Stokes, Sandberg & Kragness, Ltd. v. Birnbaum, 555 N.W.2d 583 (N.D. 1996)
• Court: North Dakota Supreme Court
• Parties: JOHNSON, JOHNSON, STOKES, SANDBERG & KRAGNESS, LTD., Plaintiff and Appellant, v. Leonard BIRNBAUM, Defendant and Appellee. Civil

Page 583

555 N.W.2d 583

JOHNSON, JOHNSON, STOKES, SANDBERG & KRAGNESS, LTD.Plaintiff and Appellant, v.Leonard BIRNBAUM, Defendant and Appellee.

Civil No. 960130.

Supreme Court of North Dakota.

Nov. 13, 1996.

Kragness & Sandberg, Ltd., Wahpeton, for plaintiff and appellant.Submitted on brief by Duane Kragness.

Krassin Law Office, Wahpeton, for defendant and appellee.Submitted on brief by Don R. Krassin.

VANDE WALLE, Chief Justice.

The law firm of Johnson, Johnson, Stokes, Sandberg & Kragness, Ltd. [Johnson Law Firm] appealed from a district court order vacating a default judgment for damages against Leonard Birnbaum.We hold the default judgment was not void and, consequently, the district court erred in vacating it under Rule 60(b)(iv), N.D.R.Civ.P.We reverse.

In 1986, attorney A.W. Stokes, an attorney in the Johnson Law Firm, performed legal services for Birnbaum.After Stokes left the firm, it sued Birnbaum for fees allegedly due for Stokes's legal services.A default judgment was entered against Birnbaum on February 3, 1993, for $1,253.06.

In November 1995, after the Johnson Law Firm proceeded against Birnbaum's property to collect the judgment, Birnbaum filed a motion under Rule 60(b), N.D.R.Civ.P., to vacate the judgment.The district court granted the motion, explaining its reasons in a written memorandum opinion:

"The only basis on which the Court will make its decision is whether or not the judgment is void.The Court has determined after a review of briefs and arguments submitted by the parties and a review of applicable case and statutory law that the judgment is void.

"At the hearing on the motion, the Defendant presented unrefuted evidence that he had a contingency fee arrangement with Attorney at Law A.W. Stokes for work Plaintiff was to do for Defendant in 1986....

"The question thus becomes, is the judgment void because the contingency fee agreement entered into between the parties would have not allowed the Plaintiff to proceed to a judgment based on hourly billings?

"[T]he original judge apparently did not have the knowledge that a contingency fee agreement existed....

* * * * * *

"[B]ut the Plaintiff cannot have a money judgment based on an hourly fee contract when no such contract ever existed."

The Johnson Law Firm asserts the trial court erred in vacating the default judgment.Generally, an order vacating a default judgment is not appealable.Suburban Sales v. District Court of Ramsey County, 290 N.W.2d 247(N.D.1980).However, because the court's order in this case appeared to effectively dispose of the lawsuit on its merits, it is a final and appealable order.E.g., Lang v. Bank of Steele, 415 N.W.2d 787(N.D.1987)(recognizes that trial court's memorandum opinion intended to constitute final order of the court is appealable).

One who moves for Rule 60(b) relief has the burden of establishing sufficient grounds for disturbing the finality of the judgment.McComb v. Aboelessad, 535 N.W.2d 744(N.D.1995).The decision whether to vacate a judgment under Rule 60(b)(iv), N.D.R.Civ.P., is not within the district court's discretion; rather, if the judgment is valid the motion to vacate it must be denied, and if the judgment is void the court must vacate it.First...