Paxton v. Wiebe

• Citation: 584 N.W.2d 72
• Decision Date: 15 September 1998
• Docket Number: No. 970151,970151
• Parties: Karla PAXTON, Plaintiff and Appellant, v. Theodore and Sandra WIEBE, Defendants and Appellees. Civil
• Court: United States State Supreme Court of North Dakota

Page 72

584 N.W.2d 72

1998 ND 169

Karla PAXTON, Plaintiff and Appellant, v. Theodore and Sandra WIEBE, Defendants and Appellees.

Civil No. 970151.

Supreme Court of North Dakota.

Sept. 15, 1998.

Gregory Ian Runge (argued), Bismarck, for plaintiff and appellant.

Gregory L. Lange (argued), of Richardson, Lange & Donovan, Hazen, for defendants and appellees.

Scott T. Solem (appearance), of Alexander and Solem Law Office, Beulah, for defendants and appellees.

MARING, Justice.

¶1 Karla Paxton appeals from the trial court's judgment denying her claims for conversion, intentional infliction of emotional distress, and related damages, but awarding her treble damages for wrongful eviction. In her notice of appeal, Paxton also appeals from an order compelling discovery, dated October 14, 1996, and an unspecified order entered on October 24, 1995. Because we conclude the district court committed no error, we affirm.

I

¶2 In late-September 1994, Karla Paxton moved from Montana to Beulah, North Dakota. With the assistance of a women's resource center, Paxton rented a mobile home from Theodore and Sandra Wiebe (Wiebes), who own a small trailer court and did not require a deposit or a written lease. The Wiebes put Paxton's utilities in their name because she could not afford the deposits.

¶3 The Wiebes permitted Paxton to move into larger mobile homes, and although she planned to purchase one, she never signed a contract. The Wiebes allowed Paxton to use two of their cars and to rent their van. The Wiebes also hired Paxton to care for Sandra Wiebe's 89-year-old father. While caring for him, Paxton stole over $1000 from him, and she later pled guilty to the theft. Finally, due to Paxton's theft and the deterioration in her work quality and attitude, the Wiebes decided things were not working out. In mid-December 1994, Sandra Wiebe told Paxton it would be best if she moved out of the mobile home she was renting, and Paxton agreed. For the next two weeks, Paxton's mobile home appeared uninhabited, and the Wiebes assumed Paxton was no longer living in the mobile home.

¶4 On December 30, 1994, Theodore Wiebe learned Paxton was staying with friends in Hazen and called her there. During this conversation Paxton told Wiebe she was moving out. When Wiebe asked when she would move her belongings, Paxton replied she had other things to do. Paxton also did not pay rent for January 1995. By January 7, 1995, the Wiebes changed the locks on the mobile home. On January 10 and 11, 1995, the Wiebes moved Paxton's remaining personal property to their farmstead. There were unsuccessful efforts in March, April, and May to have Paxton retrieve her property and pay bills she owed. Paxton made no further effort to retrieve her property over the next four months. In August 1995, Paxton commenced this action against the Wiebes alleging wrongful eviction, conversion of Paxton's personal property, and emotional distress resulting therefrom.

¶5 A bench trial was held on November 5 and 6, 1996. On December 5, 1996, the trial court issued its Memorandum Opinion. On December 18, 1996, the trial court issued its Findings of Fact, Conclusions of Law and Order for Judgment, and Judgment. The judgment granted relief for Paxton in the amount $900 for Wiebes' unlawful eviction under N.D.C.C. § 47-16-15, and granted relief to the Wiebes against Paxton in the amount of $188.03 for unpaid bills and van rental. The judgment also denied Paxton's claims of intentional infliction of emotional distress, conversion, compensatory damages, and exemplary damages. Paxton was to retrieve her property at her expense within 45 days of the entry of judgment. Because the above judgments were offsetting, judgment was entered in Paxton's favor against the Wiebes in the sum of $711.97. The notice of entry of judgment was served on December 24, 1996.

¶6 On February 25, 1997, 63 days after the notice of entry of judgment was served, Paxton served a motion for new trial under Rules 59(b) and 60(b)(ii), N.D.R.Civ.P., arguing grounds of newly discovered evidence and the trial court's judgment was against established law. This motion was filed on February 28, 1997. In an order dated March 17, 1997, the trial court denied Paxton's motion. Paxton appeals to this Court with faxed copies of the Notice of Appeal received by the Clerk on May 16, 1997, and the original documents filed May 19, 1997.

II

¶7 The Wiebes initially assert this Court's jurisdiction to hear Paxton's appeal is limited because Paxton violated certain procedural rules of this Court which are jurisdictional. "In a civil case the notice of appeal required by Rule 3[, N.D.R.App.P.,] must be filed with the clerk of the trial court within 60 days of service of notice of entry of the judgment or order appealed from." N.D.R.App.P. 4(a). "The running of the time for filing a notice of appeal is terminated as to all parties by a timely motion filed in the trial court by any party under the North Dakota Rules of Civil Procedure hereafter enumerated in this sentence...." Id. (emphasis added).

¶8 In this case, the notice of entry of judgment was served on December 24, 1996. Paxton's motion for a new trial, based on Rule 59(b), N.D.R.Civ.P., and 60(b)(ii), N.D.R.Civ.P., was served on February 25, 1997, 63 days after service of the notice of entry, and was filed on February 28, 1997, 66 days after service of the notice of entry. On March 17, 1997, the court issued an order denying Paxton's motion for a new trial. Paxton's notice of appeal was filed May 16, 1997.

¶9 Rule 59, N.D.R.Civ.P., as was in effect in 1996 and 1997, allows a motion for a new trial to be "made" within 60 days after notice of entry of judgment, and Rule 6(e), N.D.R.Civ.P., allows three additional days when the notice is served by mail. Paxton thus had 63 days from December 24, 1996, to "make" her Rule 59(b) motion.

¶10 The Wiebes contend Paxton's notice of appeal was untimely because Paxton's motion for new trial based upon Rule 59(b) was not timely in that it was not filed within the 63 day time limit. Thus, the running of the time for filing a notice of appeal was not terminated. For purposes of this case, we disagree.

¶11 The issue to be resolved can be stated as follows: when is a Rule 59(b) post-judgment motion "timely" so that when it is filed, it terminates the running of the time for filing a notice of appeal. The Wiebes present an interesting argument that in order for Paxton's Rule 59(b) motion to be a "timely motion" it must be filed within the time period of 63 days. In support of their proposition, the Wiebes point to the language of Rule 3.2, N.D.R.O.C., regarding submission of motions, which throughout refers to "service and filing" as part of making a motion. The Wiebes also point to the requirement that a notice of appeal must be filed and that mailing does not satisfy this filing requirement. See Filler v. Bragg, 559 N.W.2d 225, 227 (N.D.1997); Moe v. Moe, 460 N.W.2d 411, 412 (N.D.Ct.App.1990).

¶12 In Schaff v. Kennelly, 61 N.W.2d 538, 543 (N.D.1953), this Court analogized the making of a motion to the commencement of an action "in that it seeks the determination of the court with respect to a right claimed by the moving party." In Schaff, we found no statute required filing as a condition precedent to the making of a motion, and service was sufficient even though nothing had been filed with the trial court. Id. Schaff was decided, however, before the adoption of the North Dakota Rules of Civil Procedure. The Wiebes argue Rule 3.2, N.D.R.O.C., now requires filing the motion as a condition precedent to "making" a Rule 59 motion.

¶13 We have said generally under Rule 1.1, N.D.R.O.C., that Rule 3.2, N.D.R.O.C., applies to all motion practice unless there is a conflicting rule governing the matter. Duncklee v. Wills, 542 N.W.2d 739, 741 (N.D.1996). We conclude the language found in Rule 59, N.D.R.Civ.P., and Rule 4, N.D.R.App.P., prior to the March 1, 1998, amendments to these rules, does conflict with the language of Rule 3.2, N.D.R.O.C., requiring "service and filing" and, therefore, Rule 3.2, N.D.R.O.C., does not govern this case.

¶14 Prior to the March 1, 1998, amendments, Rules 59 and 4 contained language which supported the proposition a motion need only be "served" to be made. Although Rule 59(c), N.D.R.Civ.P., only used general terms stating, "A motion for a new trial must be made not later than the following time after notice of entry of judgment," Rule 59(i) stated, "[T]he court may grant a motion for a new trial, timely served, for a reason not stated in the motion." (Emphasis added.) Furthermore, Rule 59(j) provided, "A motion to alter or amend the judgment must be served not later than 10 days after notice of entry of the judgment." (Emphasis added.) This language demonstrates that "service" was contemplated as the operative action in making a post-judgment motion. Additionally, Rule 4(a)(6), N.D.R.App.P., stated in part, "if the motion is served not later than 10 days after the notice of entry of judgment." (Emphasis added.) This language, also, was present before the March 1, 1998, changes took effect.

¶15 Effective March 1, 1998, Rule 59, N.D.R.Civ.P., and Rule 4, N.D.R.App.P., were amended so as to require "service and filing" in an effort to provide a consistent uniform measure for determining when post-judgment motions must be made. These amendments to the North Dakota rules were prompted, at least in part, by amendments to the Federal Rules of Civil Procedure.

¶16 Rules 50, 52, and 59, Fed.R.Civ.P., were amended, effective December 1, 1995, to provide a consistent uniform measure for determining when post-judgment motions must be made. Minutes of Joint Procedure Committee 10 (Sept. 26-27, 1996). Prior to these 1995 amendments, "the federal rules were inconsistent as to whether a post-judgment motion must be 'served,' 'made' or 'filed' not later than 10 days after entry of judgment." Id. "After the 1995...