Lang v. Bank of Steele

• Decision Date: 19 November 1987
• Docket Number: No. 870082,870082
• Citation: 415 N.W.2d 787
• Parties: Ernest LANG, Plaintiff and Appellant, v. BANK OF STEELE, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 787

415 N.W.2d 787

Ernest LANG, Plaintiff and Appellant, v. BANK OF STEELE, Defendant and Appellee.

Civ. No. 870082.

Supreme Court of North Dakota.

Nov. 19, 1987.

Ernest Lang, pro se.

Arlen M. Ruff of Kelsch, Kelsch, Ruff & Austin, Mandan, for defendant and appellee.

VANDE WALLE, Justice.

Ernest Lang appealed from a judgment granting the motion of the Bank of Steele (hereinafter Bank) to dismiss for failure to state a claim upon which relief can be granted and for judgment on the pleadings, and awarding the Bank reasonable attorney fees. We affirm the judgment on the pleadings and reverse the award of attorney fees.

The facts giving rise to this action were well described by this court in Bank of Steele v. Lang, 399 N.W.2d 293, 294 (N.D.1987) (Lang I ):

"On May 11, 1984, Lang executed a promissory note to the Bank of Steele for $140,000.00. This note renewed Lang's prior debt to the Bank of Steele and also provided Lang with two advances totaling $18,928.38. To secure payment of Lang's prior debt, the Bank of Steele had perfected a security interest in Lang's farm equipment, livestock, crops and proceeds. As additional collateral for the renewal and advances, Lang gave the Bank of Steele a real estate mortgage on his farmland which was second in priority to the real estate mortgage held by the Bank of North Dakota. The promissory note was due and payable on October 8, 1984.

"On May 11, 1984, the Bank of North Dakota, having foreclosed its real estate mortgage on Lang's real estate, apparently purchased Lang's farmland at the sheriff's sale for $100,683.01. Almost one year later, the Bank of North Dakota apparently assigned its sheriff's certificate of sale to the Bank of Steele for $105,648.20.

"Lang defaulted on the promissory note due to the Bank of Steele. On April 12, 1985, the Bank of Steele served Lang with a summons and complaint seeking a money judgment on Lang's promissory note and foreclosure of its security interest in Lang's personal property."

In Lang I after the trial court granted the Bank a money judgment against Lang and foreclosed the Bank's security interest in Lang's equipment, livestock, crops, and proceeds and dismissed with prejudice Lang's counterclaims against the Bank for fraud and violation of the corporate farming law, Lang appealed to this court. We affirmed the trial court's decision.

While Lang was appealing the decision affirmed in Lang I, he began the present action. Lang alleged that the Bank failed to follow procedures specified in Chapter 28-24, N.D.C.C., regarding redemption 1. That the assignment of the sheriff's certificate issued to the Bank of Steele "be declared null and void due to the absence of a notice of intent to redeem as required by Statute 28-24-03";

when the Bank purchased the sheriff's certificate held by the Bank of North Dakota, covering land once owned by Lang and upon which the Bank of North Dakota had foreclosed. Lang asked for the following forms of relief:

2. That the sheriff's deed issued therefrom "likewise be declared null and void";

3. That five days of lost redemption time be reinstated;

4. That treble damages in the amount of $688,353.33 be awarded because of the Bank's alleged fraud and collusion in attempting to acquire Lang's "livelihood";

5. That Lang receive costs and disbursements; and

6. That the Bank be required to reimburse Lang for all rents and government subsidies received because its acquisition of the land allegedly violated the corporate farming law.

The Bank filed an answer and moved to dismiss the complaint on the ground that it failed to state a claim upon which relief could be granted and asked for judgment on the pleadings. The Bank also asserted that the judgment of the trial court in the proceedings which eventually led to our decision in Lang I was res judicata.

Subsequently, the trial court issued a memorandum opinion regarding the motion. ¹ The court denied the motion to dismiss on the basis of res judicata, but granted the motion to dismiss on the basis of failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(5), N.D.R.Civ.P., and for judgment on the pleadings pursuant to Rule 12(c), N.D.R.Civ.P. The court also granted the Bank's request for reasonable attorney fees, finding Lang's claims to be without merit and frivolous.

Thereafter, the clerk of court issued a judgment in this case granting the motion to dismiss and for judgment on the pleadings, and awarding reasonable attorney fees in the amount of $442.50. It is from this judgment that Lang appeals. However, no document entitled "Order for Judgment" was ever issued by the court below.

I

We first consider whether this court has jurisdiction to consider this appeal. "Only those judgments and decrees which constitute a final judgment of the rights of the parties to the action and those orders enumerated by statute are appealable." Allen v. White Drug of Minot, Inc., 346 N.W.2d 279, 280 (N.D.1984).

Lang has brought to our attention the fact that no order for judgment was issued by the court below before the clerk of court issued a judgment. He argues that this voids the judgment and thus there is nothing from which an appeal may be taken.

Rule 58, N.D.R.Civ.P., provides: "A judgment upon an issue of law or of fact or upon confession or upon failure to answer may be entered by the clerk upon the order of the court or the judge thereof, ..." This court has previously decided that this language requires the existence of an order for judgment before a valid judgment may be issued. See Dibble v. Hanson, 17 N.D. 21, 114 N.W. 371 (1908) (on rehearing), and Fettig v. Fettig, 176 N.W.2d 523 (N.D.1970).

We believe that in this case an order for judgment is implicit in the trial court's memorandum opinion. Although the memorandum opinion contains no magic language to the effect that "judgment should issue accordingly," it does plainly state that "the defendant's motion to dismiss and for judgment on the pleadings is granted." Stating this, the trial court intended to dispose of this case, and it intended that a This determination is consistent with our recognition that an appeal from a memorandum decision may be taken where "there is an indication in the memorandum decision that it was intended to constitute a final order of the court." Midwest Federal Sav. Bank v. Symington, 393 N.W.2d 753, 754 (N.D.1986). Here, if the trial court did not intend its memorandum opinion to be a final order [see Eisenzimmer v. City of Balfour, 352 N.W.2d 628 (N.D.1984) ], it did intend that a judgment issue commensurate to the opinion. We believe the trial court's memorandum opinion contained an implicit order for judgment. Therefore, the judgment issued is one from which an appeal can be taken.

judgment conforming to the memorandum opinion be issued.

II

Lang contends that the court below erred in granting judgment on the pleadings and in dismissing his complaint on the ground that it failed to state a claim upon which relief can be granted. When reviewing a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(5), N.D.R.Civ.P., we recognize that:

"... a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.... The court's inquiry is directed to whether or not the allegations constitute a statement of a claim under Rule 8(a), N.D.R.Civ.P., which sets forth the requirements for pleading a claim and calls for 'a short and plain statement of the claim showing that the pleader is entitled to relief.'

"The complaint is to be construed in the light most favorable to the plaintiff, ... and the allegations of the complaint are taken as true.... The motion for dismissal of the complaint should be granted only if it is disclosed with certainty the impossibility of proving a claim upon which relief can be granted." Johnson & Maxwell, Ltd. v. Lind, 288 N.W.2d 763, 765 (N.D.1980). [Citations omitted.]

Our observations regarding a motion under Rule 12(b)(5) are pertinent to a motion under Rule 12(c), N.D.R.Civ.P. McCroskey v. Cass County, 303 N.W.2d 330 (N.D.1981).

The major contention of Lang's complaint is that the Bank was required to file a notice of redemption pursuant to Section 28-24-03, N.D.C.C., when it purchased the sheriff's certificate from the Bank of North Dakota. Lang further alleges that this failure deprived him of an extra 60 days of redemption time.

Underlying this contention is the premise that the Bank was required to redeem the land in question rather than to purchase the sheriff's certificate of sale. The trial court apparently agreed with this premise, stating that the Bank's purchase of the sheriff's certificate was an act of redemption. However, the trial court dismissed the complaint because it determined that Lang suffered no detriment. We disagree with the trial court's conclusion that the Bank was required to follow the redemption process; however, we agree that the complaint failed to state a claim upon which relief can be granted. We therefore affirm the dismissal. In doing so we follow the principle that "A correct outcome will not be set aside merely because the trial court assigned an incorrect reason for its decision 'if the results are the same under applicable reasons.' " First Nat. Bank of Belfield v. Burich, 367 N.W.2d 148, 154 (N.D.1985). [Citation omitted.]

We rejected Lang's contention that the Bank was required to redeem rather than purchase the sheriff's certificate in Lang I. While we noted that the issue was not properly before us then, we did discuss the applicable law. Our view of the law has not changed. In Lang I we stated, "No law prohibits a corporation, in protecting its security interest in real property, from purchasing an assignment of the sheriff's certificate of sale to the real property." 399 N.W.2d at 296. Thus a creditor...