Schaan v. Magic City Beverage Co., 990119.

CourtUnited States State Supreme Court of North Dakota
Citation609 N.W.2d 82,2000 ND 71
Docket NumberNo. 990119.,990119.
PartiesDennis SCHAAN, Plaintiff and Appellee, v. MAGIC CITY BEVERAGE CO., Defendant and Appellant.
Decision Date05 April 2000

J. Philip Johnson, Wold Johnson, P.C., Fargo, N.D., and Mark J. Butz (on brief), Rugby, N.D., for defendant and appellant.

Michael R. Hoffman, Tuntland and Hoffman, Bismarck, N.D., for plaintiff and appellee.

MARING, Justice.

[¶ 1] Magic City Beverage, Inc. ("Magic City") appeals from a judgment entered upon a jury verdict and also from the trial court's order denying its motion for a new trial. Dennis Schaan filed a motion to dismiss the appeal, claiming our Court is without jurisdiction. We conclude that we lack jurisdiction, and therefore, we dismiss this appeal.

I.

[¶ 2] On November 14, 1998, a jury found Magic City discriminated against Schaan on the basis of his age and awarded Schaan $125,346 in past and future economic damages. Following the trial, Schaan requested attorney's fees as costs under the North Dakota Human Rights Act. The trial court awarded $12,825 in attorneys fees and $431.60 in other costs and entered judgment on January 22, 1999. Schaan served Magic City with a notice of entry of judgment on January 25, 1999.

[¶ 3] Magic City served a motion, dated February 26, 1999, for a new trial or judgment notwithstanding the verdict, which was filed on March 2, 1999. Magic City's stated grounds were:

1. Contemporaneous with this motion, Defendant will order from the recorder a transcript of the proceedings.

2. The estimated completion date of such transcript is April 1, 1999.

3. Within ten days of receipt of the transcript Defendant will submit its brief setting forth the grounds and argument for new trial or judgment notwithstanding the verdict.

4. Pending disposition of such motion, security has been provided and execution of the judgment stayed.

On March 3, the court ordered execution of the judgment stayed, so long as the defendant deposited $140,000 in a bank account. The court noted in its order that, "[i]n the event the proper appellate procedures are not complied with and the Defendant forfeits it's [sic] right to appeal, the deposit shall be used to satisfy the Judgment."

[¶ 4] On March 31, 1999, Schaan filed a motion requesting that the trial court enforce satisfaction of the judgment. Schaan claimed Magic City's motion for a new trial was defective because it did not state grounds with particularity, and its motion for judgment notwithstanding the verdict was defective because it was not timely filed. Schaan argued the defective motion failed to toll the time for filing the notice of appeal, which Schaan claimed had expired March 29, 1999.

[¶ 5] Magic City then served two motions, both dated April 7, 1999, and filed April 12, 1999. One motion requested an extension of time to file a motion for a new trial under Rules 59(c) and 60(b), N.D.R.Civ.P., based on the delay in obtaining the transcript and excusable neglect of defense counsel. The other motion requested a 30-day extension of the time to file a notice of appeal, based on the same grounds. Magic City filed an amended motion for a new trial or judgment as a matter of law on April 16, 1999.

[¶ 6] The trial court issued its findings and order on April 23, 1999. The order granted Magic City's motion for an extension of time to file an amended motion for a new trial, but simultaneously denied the motion for a new trial or judgment notwithstanding the verdict. The trial court acknowledged the motion for a new trial did not state its grounds with particularity, but found this did not make the motion defective because Magic City wished to procure a transcript and did, after receipt of the transcript, file an amended motion setting forth its grounds more specifically. The trial court also granted Magic City's motion for an extension of time to file a notice of appeal for good cause shown and excusable neglect, concluding Magic City's motion for a new trial or judgment notwithstanding the verdict tolled the time for filing the notice of appeal on March 2, 1999. The trial court reasoned the full time for filing the notice of appeal started to run upon the date of its ruling on the Rule 59 motion. In addition to that 60-day period, the court granted Magic City an additional 30 days for good cause shown and for the excusable neglect of Magic City's counsel. Magic City filed its Notice of Appeal on April 26, 1999.

II.

[¶ 7] Schaan contends Magic City's motion for a new trial or judgment notwithstanding the verdict was defective. First, Magic City failed to move for judgment as a matter of law within the 15-day time period allowed for such a motion under Rule 50, N.D.R.Civ.P. Second, Magic City's motion did not state its grounds with particularity as required by Rule 7(b)(1), N.D.R.Civ.P., and so failed as a motion. Thus, Schaan argues this Court is without appellate jurisdiction to review the trial court's denial of the motion on its merits. We agree.

A.

[¶ 8] Under Rule 50(b), a party may move for judgment as a matter of law ("JAML") "by serving and filing a motion not later than 15 days after notice of entry of judgment and may request a new trial or join a motion for a new trial under Rule 59." The trial court interpreted the provision allowing joinder of the two motions as substituting the 60-day time period allowed for filing a motion for a new trial under Rule 59, for the 15-day time period allowed under Rule 50(b). Thus, the trial court concluded Magic City's post-trial motion for JAML was timely filed on March 2, 1999, because Magic City had 60 days to file its motion following the notice of entry of judgment on January 25, 1999. We disagree with this analysis.

[¶ 9] Rule 50(b) contains only one time limit and draws no distinction between the treatment of a motion which is solely for JAML and that of a JAML motion joined with a motion for a new trial. In addition, Rule 50(b) is the only rule which provides that motions for a new trial and JAML may be joined; Rule 59 does not state the motions may be joined and submitted within its 60-day deadline. We do not believe a party's decision to join the two motions extends the time allowed for filing a motion for JAML by an additional 45 days. We conclude a motion for a new trial under Rule 59 may be joined with a timely filed Rule 50 motion for JAML, but joining the motions does not extend the time limit for filing a Rule 50 motion beyond the 15 days allowed by that rule.

[¶ 10] Magic City received the notice of entry of judgment on January 25, 1999. Under Rule 50(b), Magic City then had 15 days to file a motion for JAML, plus three days for service by mail allowed under Rule 6(e). Under our rules, the deadline for such a motion was February 12, 1999; Magic City's motion for JAML was not filed until March 2, 1999. Thus, the motion for JAML was untimely. An untimely JAML motion does not toll the running of time for filing a notice of appeal under N.D.R.App.P. 4(a). Magic City's appeal was not filed within 60 days of notice of entry of judgment. As we note below, no other action taken by Magic City or the trial court properly extended the time for appeal. Therefore, we are without jurisdiction to consider Magic City's appeal from the trial court's denial of the motion.

B.

[¶ 11] Rule 59, N.D.R.Civ.P., governs motions for new trials in civil cases. Under Rule 59(c)(2), a motion for a new trial must be served and filed within 60 days after notice of entry of judgment, unless the court extends the time for good cause shown. Rule 6(e), N.D.R.Civ.P., permits an additional three days to be added to this time period for service by mail. A motion under Rule 59 is subject to the requirement stated in N.D.R.Civ.P. 7(b)(1), that a motion "shall state with particularity the grounds therefore."

[¶ 12] The particularity requirement codified in Rule 7(b)(1) has long been part of North Dakota law. See Olson v. Great Northern Ry. Co., 56 N.D. 690, 219 N.W. 209 (1928). Three policy grounds support the particularity requirement: (1) it spares the court a search of the record and directs the court's attention to possible faults; (2) it advises opposing counsel so that she may prepare and adequately contest the motion; and (3) it provides an adequate record for appellate review. Fowler v. Delzer, 177 N.W.2d 756, 762 (N.D.1970); Sullwold v. Hoger, 110 N.W.2d 457, 459 (N.D.1961). This Court has often stated the requirement that grounds be specified is not a "technical obstacle[ ] to a moving party seeking justice." Sullwold, 110 N.W.2d at 459. Rather, the rule is a procedural safeguard in that if the `grounds' which the litigant considers meritorious are actually lacking in merit, the requirement of particularity in presentation will serve to disclose to the examining eye and the evaluating mind their weakness.

Id.

[¶ 13] Our Court has held repeatedly that specifying "grounds" means something more than stating generalities. See Porter v. Porter, 274 N.W.2d 235, 242 (N.D.1979)

; Fowler, 177 N.W.2d at 762. In Porter, we concluded a motion for a new trial under Rule 59 did not adequately specify its grounds when it merely stated that "material mistakes of fact occurred in a particular finding or conclusion of law." 274 N.W.2d at 242. There we stated:

[i]t is not the duty of the trial court on a motion for a new trial to search the record to determine whether or not the evidence is sufficient to sustain a finding. The party making the motion must point out where the evidence is insufficient. (Citation omitted.) The mere assertion that a mistake was made in a particular finding does not meet the specificity requirement.

Id.

[¶ 14] We conclude Magic City's motion lacked the level of particularity required by Rule 7(b)(1). In the motion, Magic City made no attempt whatsoever to explain the basis for its request for a new trial. Rather, the motion Magic City submitted contained no grounds at all, not even a general...

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