Discover Bank v. Bolinske, Sr. , 2020 ND 228 ( 2020 )

Filed 10/27/2020 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 228
Discover Bank, Plaintiff and Appellee
v.
Robert V. Bolinske Sr., Defendant and Appellant
No. 20200098
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Pamela A. Nesvig, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
Amanda M. Lee and Clifton G. Rodenburg, Fargo, ND, for plaintiff and
appellee; submitted on brief.
Robert V. Bolinske, Sr., Bismarck, ND, defendant and appellant; submitted on
brief.
Discover Bank v. Bolinske, Sr.
No. 20200098
McEvers, Justice.
[¶1] Robert V. Bolinske, Sr., appeals from an order denying his motion to
vacate a default judgment. We conclude the district court did not abuse its
discretion by not holding a hearing or by denying Bolinske’s motion to vacate.
We affirm.
I
[¶2] Discover Bank (“Discover”) sued Bolinske for unpaid debt in the amount
of $3,915.53 on a credit card Discover issued to Bolinske. Bolinske was
personally served with a summons and complaint on November 15, 2019. On
December 13, 2019, Discover’s counsel notarized an affidavit of no answer,
which was filed with the district court along with a proposed order for a default
judgment on December 16, 2019. An order for judgment was entered on
December 18, 2019. Notice of entry of judgment was served on Bolinske on
December 23, 2019.
[¶3] Bolinske moved to vacate judgment on January 10, 2020. Bolinske
claimed he attempted to respond to Discover’s summons and complaint by mail
on December 6, 2019, but accidentally misaddressed the envelope to Discover’s
counsel and sent his answer and counterclaims to an incorrect address.
Bolinske argued after his answer and counterclaims were returned as
undelivered, he mailed them to the proper address on December 16, 2019.
Bolinske argued that same day, he placed a call to Discover’s counsel and left
a voicemail stating that he was making an appearance to avoid a default
judgment and explaining he had sent his answer and counterclaim to the
wrong address. Discover’s counsel asserted she did not receive Bolinske’s
voicemail until after e-filing the motion for default judgment, but
acknowledged the voicemail was received on December 16.
[¶4] Bolinske argued in his brief supporting his motion to vacate that his
voicemail left with Discover’s counsel constituted an appearance entitling him
to notice before entry of default. Bolinske also argued that he was entitled to
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relief from judgment due to his mistake, inadvertence, and excusable neglect
because he misaddressed his answer and counterclaims on December 6, 2019.
Bolinske requested a hearing on the motion. The district court denied
Bolinske’s motion on January 31, 2020 without holding a hearing, stating
Bolinske had not demonstrated sufficient justification to set the judgment
aside. Bolinske filed his notice of appeal from the denial on March 23, 2020.
II
[¶5] On July 6, 2020, Discover moved this Court to strike a portion of
Bolinske’s appendix containing Bolinske’s purported answer and counterclaim
because it did not appear in the district court record. Under N.D.R.App.P.
10(a), the record on appeal includes documents and exhibits in the district
court, transcripts, and a certification by the clerk stating what constitutes the
record filed with the district court. Bolinske included what he claimed was a
“corrected and typed from the original handwritten version” answer and
counterclaim labeled as Exhibit H in his appendix on appeal. Neither the
original handwritten answer and counterclaim nor the retyped version were
filed with the district court, and Bolinske has not moved to supplement the
record.
[¶6] Under N.D.R.App.P. 30(a)(1), only items in the record may be included
within the appendix. It is well established that this Court may not consider
items outside of the record. State v. Proell, 2007 ND 17, ¶ 16, 726 N.W.2d 591.
Bolinske’s answer and counterclaim, included in his appendix on appeal, which
were not a part of the record, violated N.D.R.App.P. 30(a)(1). Accordingly,
Discover’s Motion to Strike Bolinske’s answer and counterclaim is granted.
III
[¶7] Bolinske argues the district court erred when it did not give him the
hearing he requested on his motion to vacate the judgment. “If the party
requesting oral argument fails within 14 days of the request to secure a time
for the argument, the request is waived and the matter is considered submitted
for decision on the briefs.” N.D.R.Ct. 3.2(a)(3). Rule 3.2, N.D.R.Ct., applied to
Bolinske’s request for a hearing:
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Rule 3.2, N.D.R.Ct., applies to all motion practices, unless a
conflicting rule governs the matter. Paxton [v. Weibe], 1998 ND
169, ¶ 13, 584 N.W.2d 72. Under N.D.R.Ct. 3.2(a)(3), a court may
decide routine motions on briefs without holding a formal hearing,
unless a party requests one. Breyfogle v. Braun, 460 N.W.2d 689,
693 (N.D. 1990). If a party who timely served and filed a brief
requests a hearing on a motion, then “such a hearing must be held
and it is not discretionary with the trial court.” Anton v. Anton,
442 N.W.2d 445, 446 (N.D. 1989). “[T]he party requesting oral
argument must secure a time for the argument and serve notice
upon all other parties.” Matter of Adoption of J.S.P.L., 532 N.W.2d
653, 657 (N.D. 1995). A request for oral argument is not complete
until the requesting party has secured a time for oral argument.
Bakes v. Bakes, 532 N.W.2d 666, 668 (N.D. 1995).
Desert Partners IV, L.P. v. Benson, 2014 ND 192, ¶ 18, 855 N.W.2d 608.
[¶8] Bolinske had the burden to secure the hearing under N.D.R.Ct. 3.2 and
nothing in the record reflects Bolinske scheduled a hearing. Therefore, the
district court did not err by not holding a hearing on the motion to vacate.
IV
[¶9] Bolinske argues the district court erred in failing to give him relief from
judgment under N.D.R.Civ.P. 60(b)(1) on the basis of his “mistake,
inadvertence and/or excusable neglect” in misaddressing his initial response.
Bolinske also argues he made a telephone appearance and that the default
judgment entered against him was voidable because he was not given proper
notice under N.D.R.Civ.P. 55 prior to entry. Related to the telephone
appearance, Bolinske further argues Discover committed fraud on the court by
failing to notify the court of his voicemail.
[¶10] This Court reviews the denial of a motion to vacate judgment under
N.D.R.Civ.P. 60(b) under an abuse of discretion standard. Citibank v.
Reikowski, 2005 ND 133, ¶ 6, 699 N.W.2d 851. “An abuse of discretion occurs
when a trial court acts in an arbitrary, unreasonable, or unconscionable
manner, or when it misinterprets or misapplies the law.” State v. $33,000 U.S.
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Currency, 2008 ND 96, ¶ 6, 748 N.W.2d 420. Bolinske bears the burden to
show the district court abused its discretion:
On appeal, to establish a basis for relief under N.D.R.Civ.P. 60(b)
from a district court’s denial of a motion for relief from a default
judgment, a party must show the district court abused its
discretion.... An abuse of discretion by the [district] court is never
assumed and must be affirmatively established, and this Court
will not overturn a court’s decision merely because it is not the one
it would have made had it been deciding the motion.
Bickler v. Happy House Movers, L.L.P., 2018 ND 177, ¶ 12, 915 N.W.2d 690
(citing Key Energy Servs., LLC v. Ewing Constr. Co., Inc., 2018 ND 121, ¶ 13,
911 N.W.2d 319).
[¶11] This Court has previously stated there should generally be greater
liberty in granting motions under N.D.R.Civ.P. 60(b) when the matter involves
a default judgment rather than a judgment following a full trial on the merits.
However, a Rule 60(b) motion is not a substitute for an appeal and should not
be used to relieve a party from free, calculated and deliberate choices he or she
has made. Bickler, 2018 ND 177, ¶ 12. The moving party bears the burden of
establishing sufficient grounds for disturbing the finality of the judgment, and
relief should be granted only in exceptional circumstances. Id. at ¶ 18. “A
defendant’s own errors will not always constitute proper grounds for relief from
a default judgment.” Id. at ¶ 12 (citing Key Energy Servs, 2018 ND 121, ¶ 13).
Rather, the applicable standard under N.D.R.Civ.P. 60(b)(1) to relieve a party
from a judgment is whether there was “mistake, inadvertence, surprise, or
excusable neglect.” Id.
A
[¶12] Bolinske argues he is entitled to relief because he mistakenly sent his
answer and counterclaim to the wrong address under N.D.R.Civ.P. 60(b)(1).
Bolinske acknowledges December 6, 2019, was the last day he could timely
respond to the summons and complaint. Bolinske mailed his response to the
wrong address after 7:00 pm on December 6, so it is postmarked December 7,
2019. Bolinske cites no precedent to support the proposition that a party’s own
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negligence in misaddressing a responsive pleading and thereby missing the
deadline for a timely response entitles him to relief from judgment under
N.D.R.Civ.P. 60(b)(1). “Issues are not adequately briefed when an appealing
party fails to cite any supporting authority, and we will not consider them.”
Frith v. N.D. Workforce Safety & Ins., 2014 ND 93, ¶ 25, 845 N.W.2d 892.
Bolinske has failed to show the district court abused its discretion by denying
Bolinske’s motion to vacate based on his mistake, inadvertence, or excusable
neglect.
B
[¶13] Bolinske argues the judgment should be vacated because he made a
telephone appearance. Whether Bolinske’s voicemail constituted an
appearance is fully reviewable by this Court as a question of law. Gustafson v.
Gustafson, 2014 ND 8, ¶ 15, 841 N.W.2d 743.
[¶14] Under N.D.R.Civ.P. 12(a)(1)(A), a defendant has twenty-one days to
answer a complaint. If the defendant fails to answer or otherwise appear, a
default judgment may be entered under N.D.R.Civ.P. 55(a). However, once a
defendant appears in an action, a default judgment may not be entered without
notice to the defaulting party. Under N.D.R.Civ.P. 55(a)(3), if an appearance
is made, notice must be given and served with the motion for default judgment
according to N.D.R.Ct. 3.2(a). Gustafson, 2014 ND 8, ¶ 10.
[¶15] Bolinske relies on Perdue v. Sherman to support his voicemail
constituting an appearance entitling him to notice. 246 N.W.2d 491 (N.D.
1976). In Perdue, the defendant made a call to the plaintiff’s attorney one day
before entry of the default judgment and had a conversation with the plaintiff’s
attorney. Id. at 493. The trial judge was not informed of the conversation and
entered a default judgment the day after this conversation. Id. The defendant
then moved to reopen the default judgment along with a proposed answer and
counterclaim. Id. On appeal, it was undisputed that the telephone call was
intended to constitute an appearance. Id. at 494. This Court held the phone
call constituted an appearance entitling the party to eight days’ notice before
entry of default. Id. at 495.
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[¶16] We need not decide whether Bolinske’s voicemail constituted an
appearance. Even assuming Bolinske’s voicemail constituted an appearance,
an appearance only renders the judgment voidable. If an appearance was
made by a party and that party did not receive notice before entry of the default
judgment, the judgment is “irregular and voidable.” Perdue, 246 N.W.2d at
495. Once a default judgment is determined to be voidable, the district court
examines the moving party’s answer to determine if it contains “on its face a
presumably meritorious defense.” Id. The Perdue court, upon finding a
telephone conversation constituted an appearance, evaluated whether the
party moving to reopen the judgment had presented a meritorious defense in
his answer. Id. Upon determining Perdue had put forth a meritorious defense
in his answer, the court granted Perdue’s motion to reopen the judgment and
stated “[u]pon remand, he is entitled to notice.” Id.
[¶17] In contrast to the party in Perdue, the record reflects Bolinske did not
file an answer with the district court. An appearance, without a pleading, does
not protect a party from default judgment. State v. Martin, 2018 ND 262, ¶ 9,
920 N.W.2d 317. Bolinske has not shown that he pleaded a meritorious defense
in this case. Even if Bolinske’s voicemail constituted an appearance entitling
him to notice, Bolinske is not entitled to have the default judgment vacated
without filing his answer or otherwise showing a meritorious defense.
V
[¶18] Bolinske argues the district court should have set forth findings of fact
in its order denying his motion to vacate judgment. However, Bolinske admits
the court was not required to do so. Rule 52(a)(3), N.D.R.Civ.P., states “[t]he
court is not required to state findings or conclusions when ruling on a motion
under Rule 12 or 56 or, unless these rules provide otherwise, on any other
motion.” The court did not abuse its discretion by ruling on Bolinske’s motion
to vacate judgment without making findings of fact, because the court was not
required to make any such findings. Other issues raised by Bolinske are either
unnecessary to our opinion or are without merit.
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VI
[¶19] We conclude the district court did not abuse its discretion. We affirm
the order denying Bolinske’s motion to vacate the default judgment
[¶20] Lisa Fair McEvers
Jerod E. Tufte
Allan L. Schmalenberger, S.J.
Gerald W. VandeWalle
Daniel J. Crothers, Acting C.J.
[¶21] The Honorable Allan L. Schmalenberger, S.J., sitting in place of Jensen,
C.J., disqualified.
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