State v. Gasser, 9864

• Decision Date: 28 May 1981
• Docket Number: No. 9864,9864
• Citation: 306 N.W.2d 205
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Jerry M. GASSER, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 205

306 N.W.2d 205

STATE of North Dakota, Plaintiff and Appellee, v. Jerry M. GASSER, Defendant and Appellant.

Civ. No. 9864.

Supreme Court of North Dakota.

May 28, 1981.

Robert W. Wirtz, Asst. Atty. Gen., Bismarck, for plaintiff and appellee State of North Dakota.

Jerry M. Gasser, pro se.

VANDE WALLE, Justice.

Jerry M. Gasser, appearing pro se, appeals "... from the judgment rendered against him in this Court (the district court of Grand Forks County) on August 28, 1980, ..." The State has moved to dismiss Gasser's appeal. The State's motion to dismiss is granted and the summary judgment of the district court is affirmed.

In May of 1978 the State initiated the underlying action involved in this appeal. That action was brought in an effort to collect civil penalties imposed against Gasser by the State Tax Commissioner pursuant to Section 57-38-45(3), N.D.C.C. The State filed a motion for summary judgment dated July 14, 1980, and that motion was heard on August 28, 1980. Following argument by the State and Gasser, the trial court determined that the State was entitled to summary judgment pursuant to Rule 56, N.D.R.Civ.P. At the close of the hearing the trial judge stated:

"The findings and determination by the Court will be directed to be transcribed for the Court's signature and stands as a memorandum decision in the case and from which appropriate findings of fact, conclusions of law, and order for judgment consistent therewith may be prepared by the State in due course.

"Defendant has a right of appeal to the North Dakota Supreme Court of this decision within the time as provided for by the statute and rules accordingly made for such cases."

On September 5, 1980, one week after the hearing on the State's motion for summary judgment, Gasser filed a notice of appeal in the district court of Grand Forks County. In that notice of appeal Gasser stated that the appeal was "... from the judgment rendered against him in this court on August 28, 1980, ..." On October 3, 1980, the trial court signed a written order granting the State's motion for summary judgment. The judgment was entered on October 9, 1980. A notice of entry of judgment was mailed to Gasser on October 14, 1980.

The State has filed a motion to dismiss Gasser's appeal, claiming that Gasser is appealing from an oral ruling made by the trial court from the bench, and that this being the case, the appeal stems from a nonappealable intermediate ruling by the trial court. Gasser, who appeared pro se at the motion hearing, claims that he is appealing from the trial court's word given at the time of the oral ruling from the bench.

Rule 4(a), N.D.R.App.P., sets forth the time limits regarding the filing of a notice of appeal. That rule states, in part:

"In a civil case the notice of appeal ... shall be filed with the clerk of the trial court within 60 days of the date of the service of notice of entry of the judgment or order appealed from."

While many of the problems which call for an examination of this rule may be in the nature of tardy appeal notices, Gasser's notice of appeal is at the opposite end of the spectrum in that he filed the notice too early. More precisely, Gasser's notice of appeal related to an occurrence which had not yet matured into an appealable event. We have previously considered the issue of premature appeals and our position is clear regarding such appeals.

In Gebeke v. Arthur Mercantile Company, 138 N.W.2d 796 (N.D.1965), the plaintiff appealed from orders granting the defendants' motions for summary judgment. The orders were made on May 7, 1965, and the judgments were entered on May 10 and May 13, 1965. However, the plaintiff's notice of appeal indicated that the appeal was from the orders made on May 7, 1965. The defendants moved to dismiss the appeal on the ground that the orders appealed from were intermediate orders and not appealable. This court pointed out that appeals from orders of the district court are limited to those described in Section 28-27-02, N.D.C.C.; that an order for entry of judgment is an intermediate order which requires the entry of judgment to give it effect and that such an order is not appealable; and that an order for entry of summary judgment must be treated the same as an order for judgment and that it therefore is not an appealable order. In Gebeke, supra, we concluded by declaring that because no appeal had been taken from the judgments this court was without jurisdiction to proceed further on the matter.

In the present case we must conclude that if an order for entry of summary judgment is not appealable, then certainly an oral recitation from the trial court bench indicating that such an order will be issued cannot be elevated to appealable status. On that basis, this court is without jurisdiction to proceed further on the matter.

There is a provision within Rule 4(a), N.D.R.App.P., which extends the 60-day filing deadline to not more than 90 days after service of notice of entry of the judgment or order appealed from. This extension is contingent upon a showing of excusable neglect. An error such as the one made by Gasser in this case conceivably could be corrected through the use of that provision. However, in this particular case the 90-day time limit has long ago expired. Thus that provision does not afford Gasser an opportunity to correct his appeal. Cottle v. Kranz, 231 N.W.2d 777 (N.D.1975).

Although he does not expressly request consideration because of his pro se status, Gasser alludes to the fact that his erroneous filing was due to his lack of knowledge regarding the difference between an oral announcement from the trial court bench and a judgment which has been entered. We need only remind Gasser that it is well settled in this State that rules or statutes will not be modified or applied differently merely because a party not learned in the law is acting pro se. State v. Faul, 300 N.W.2d 827 (N.D.1980); Latendresse v. Latendresse, 294 N.W.2d 742 (N.D.1980); Lang v. Basin Electric Power Co., 274 N.W.2d 253 (N.D.1979); Dorgan v. Mercil, 269 N.W.2d 99 (N.D.1978).

We have concluded that Gasser's appeal from the summary judgment against him is not properly before this court. This conclusion rests on a technicality which would forever foreclose Gasser from appealing that summary judgment. Because of this we have allowed Gasser to present oral argument regarding the summary judgment through the use of a portion of his allotted time for resisting this motion to dismiss his appeal. In addition, we have read and considered the merits of the issues raised by Gasser in the brief he has submitted in anticipation of this appeal. Saetz v. Heiser, 240 N.W.2d 67 (N.D.1976). However, we have determined that the issues raised by Gasser are not meritorious in that they have previously been raised and settled.

This is Gasser's third time before this court on tax matters. All three appearances are linked directly to his failure to file a 1976 tax return from which his income-tax liabilities to the State of North Dakota could be ascertained. In Gasser v. Dorgan, 261 N.W.2d 386 (N.D.1977), Gasser had requested that a subpoena duces tecum issued by the State Tax Commissioner be quashed and that the Commissioner be permanently enjoined from obtaining or attempting to...