Production Credit Ass'n of Mandan v. Obrigewitch

• Court: North Dakota Supreme Court
• Writing for the Court: ERICKSTAD; LEVINE
• Citation: Production Credit Ass'n of Mandan v. Obrigewitch, 443 N.W.2d 304 (N.D. 1989)
• Decision Date: 27 June 1989
• Docket Number: No. 880354,880354
• Parties: PRODUCTION CREDIT ASSOCIATION OF MANDAN, a corporation, Plaintiff and Appellee, v. Kurt A. OBRIGEWITCH, Defendant and Appellant. Civ.

Page 304

443 N.W.2d 304

PRODUCTION CREDIT ASSOCIATION OF MANDAN, a corporation Plaintiff and Appellee, v. Kurt A. OBRIGEWITCH, Defendant and Appellant.

Civ. No. 880354.

Supreme Court of North Dakota.

June 27, 1989.

Kurt A. Obrigewitch (argued), Belfield, pro se.

Bair, Brown & Kautzmann, Mandan, for plaintiff and appellee; argued by Thomas B. Bair.

ERICKSTAD, Chief Justice.

Kurt A. Obrigewitch appeals from a default judgment entered against him November 17, 1988. We affirm.

Production Credit Association of Mandan (PCA) and Obrigewitch entered into a Basic Loan Agreement on February 17, 1987, whereby PCA agreed, upon certain terms and conditions, to lend Obrigewitch money for his farming operation. On May 15, 1987, the parties entered into a Supplementary Loan Agreement in which they agreed that, as of May 15, 1987, Obrigewitch owed PCA an outstanding principal balance of $3,550. They also agreed that "[i]f not sooner paid the entire remaining balance shall be due and paid on February 1, 1988, unless, by February 1, 1988, the parties have agreed in writing, pursuant to the Basic Loan Agreement, to repayment terms covering the period after February 1, 1988." The parties did not reach another agreement providing for repayment terms after February 1, 1988.

On May 15, 1987, Obrigewitch also granted PCA a security interest to secure the debt owed through the Supplementary Loan Agreement. The collateral subject to the security interest included all machinery and equipment, motor vehicles and fixtures, all accessions thereto, and all spare parts and special tools for such equipment; all livestock and poultry and the offspring of such livestock and poultry; all accounts arising from the sale, lease, or other disposition of the collateral; and feed, seed, fertilizer, insecticides, herbicides and other agricultural chemicals or supplies, to the extent those items were not specific crops.

Obrigewitch then defaulted on the loan and on August 25, 1988, PCA commenced this action against him. PCA asserts that Obrigewitch was personally served with a summons and complaint, but Obrigewitch contests the adequacy of the service of process. ¹ Because he believed that he had not been properly served with a summons and complaint, Obrigewitch did not file an answer.

On September 19, 1988, PCA filed a motion for default judgment pursuant to Rule 3.2 of the North Dakota Rules of Court. On October 6, 1988, the district court granted PCA's motion for default judgment. In its order granting the motion for default judgment, the court decided that "[b]ecause the parties have had adequate opportunity to present their respective positions on the facts and the applicable law through affidavits and briefs, no hearing for evidence or oral argument is necessary." The court entered an order for a money judgment against Obrigewitch in the amount of $5,270.36 plus costs.

On October 13, 1988, PCA made a motion for nunc pro tunc order for judgment; however, after being informed by the clerk of court and the state's attorney that the proposed order for judgment nunc pro tunc and the proposed judgment order were ambiguous, PCA withdrew that motion. On October 20, 1988, PCA filed a motion for an amended order for judgment pursuant to Rule 60(a) of the North Dakota Rules of Civil Procedure, on the grounds that, through clerical error, the original order for judgment was inconsistent with the prayer for relief in the complaint. ²

On October 25, 1988, Obrigewitch filed a "Return Resisting Notice of Motion and Notice Under 3.2."

On November 16, 1988, the district court issued an amended order for judgment, and on November 17, judgment was entered. The judgment decreed that Obrigewitch was wholly in default, that PCA was entitled to a money judgment, and, in addition had a lien upon the personal property described in the security agreement which it could foreclose to satisfy the money judgment. The judgment also decreed that PCA was entitled to judgment for any deficiency which remained after application of the proceeds of the foreclosure sale to Obrigewitch's debt. On November 29, 1988, Obrigewitch filed a Notice of Appeal from this judgment.

The judgment entered November 17, 1988, began:

"The above matter is a suit that was instituted by the Plaintiff against the Defendant to enforce payment of a debt owed by the Defendant to the Plaintiff.

"The Summons and Complaint in this action having been served upon the Defendant on August 25, 1988, and no Answer or other proper response having been received by or served on the Plaintiff's attorney as required by the Summons, the Defendant is wholly in default."

Obrigewitch, who has been acting pro se throughout these proceedings, admits that he did not file an answer but argues that he did not need to respond to the summons and complaint with an answer because he had not been properly served. It is a fundamental duty of a trial court to assure that basic rules of procedure are followed. Rules cannot be applied differently merely because a party not learned in the law is acting pro se. See McWethy v. McWethy, 366 N.W.2d 796 (N.D.1985).

According to Rule 12(b) of the North Dakota Rules of Civil Procedure, a party who wishes to raise the defense of insufficiency of process may do so either by asserting that defense in a responsive pleading, or by motion. Under Rule 12(d), the defense specifically enumerated in 12(b), including insufficiency of process, whether made in a pleading or by motion, shall be heard and determined before trial on application of any party.

If Obrigewitch believed that he had not been properly served, the appropriate course of action would have been to raise this issue before the trial court. As Obrigewitch did not file an answer, he should have raised the defense of insufficiency of process by motion. Perhaps Obrigewitch intended the unsworn document entitled "Judicial Notice and Affidavant" filed September 22, 1988, together with a similar document filed October 5, 1988, to be such a motion. However, Rule 7(b)(1), N.D.R.Civ.P., provides in part that a "motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefore, and shall set forth the relief or order sought." Obrigewitch's papers do not meet these requirements.

On October 25, 1988, after the trial court had issued its original order granting default judgment, and after PCA had filed a Rule 3.2 motion to amend the judgment, Obrigewitch filed a "Return Resisting Notice of Motion and Notice Under 3.2." In this document he stated that "Obrigewitch hereby gives notice that he objects to the use of 3.2 and asserts his rights under 3.2 C of the North Dakota Rules of Court wherein he demands all motions be scheduled for hearing and timely notice of date, time and place according to the North Dakota Court Rules." It is unclear whether or not Obrigewitch also intended this document to be a response to PCA's motion for amended judgment. ³ Obrigewitch contends that despite his demand for hearing, the trial court "arbitrarily made the decision to ignore the requirements of the North Dakota Rules of Court, and failed to hold a necessary hearing."

Rule 3.2(c) of the North Dakota Rules of Court reads:

"Submission on Briefs. Unless otherwise ordered by the court, upon serving and filing a motion, the moving party shall serve and file a brief and other supporting papers and the adverse party shall have 10 days after service of the brief within which to serve and file an answer brief and other supporting papers. Upon the filing of briefs, or upon expiration of the time for filing, the motion is deemed submitted, heard, and taken under advisement by the court, unless counsel for any party who has timely served and filed a brief requests the taking of testimony or oral argument on the motion. If any party requests the taking of testimony or oral argument, the procedures under the rules for obtaining a hearing must be followed, unless otherwise ordered by the court. The court, in its discretion, may require the taking of testimony or oral argument. Each motion must be heard at a time designated by the court. The court, with the consent of all parties affected, may hear oral argument on any motion by telephonic conference." [Emphasis added.]

Rule 3.2 specifically states that "[u]pon the filing of briefs, or upon expiration of the time for filing, the motion is deemed submitted, heard, and taken under advisement by the court, unless counsel for any party who has timely served and filed a brief requests the taking of testimony or oral argument on the motion." [Emphasis added.] Obrigewitch did not file a brief in support of his Rule 3.2 motion or in response to PCA's Rule 3.2 motion to amend the judgment. In fact, in his brief before this Court, Obrigewitch cited Rule 3.2(c) as supporting his position; however, he neglected to include the language we have emphasized.

Because Obrigewitch failed to file a brief in support of his Rule 3.2 motion, and because he failed to file a brief in response to PCA's initial motion for default judgment, or...