Prairie Brand Seeds v. Russell ( 2019 )


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  •                           IN THE NEBRASKA COURT OF APPEALS
    MEMORANDUM OPINION AND JUDGMENT ON APPEAL
    (Memorandum Web Opinion)
    PRAIRIE BRAND SEEDS V. RUSSELL
    NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
    AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
    PRAIRIE BRAND SEEDS, LLC, APPELLEE,
    V.
    DOUGLAS RUSSELL, JR., APPELLANT.
    Filed December 3, 2019.     No. A-19-272.
    Appeal from the District Court for Nance County, RACHEL A. DAUGHERTY, Judge, on
    appeal thereto from the County Court for Nance County, STEPHEN R.W. TWISS, Judge. Judgment
    of District Court affirmed.
    Brandon B. Hanson for appellant.
    Charles L. Litow, of Gurstel Law Firm, P.C., for appellee.
    MOORE, Chief Judge, and BISHOP and ARTERBURN, Judges.
    ARTERBURN, Judge.
    INTRODUCTION
    Douglas Russell, Jr., appeals from the district court’s order that affirmed the county court’s
    order overruling his motion to vacate a foreign judgment against him. On appeal, Russell argues
    that the foreign court deviated from standard practices and engaged in irregularities when entering
    the judgment against him and, thus, may be vacated by our courts. For the following reasons, we
    affirm the order of the district court affirming the county court’s order overruling Russell’s motion
    to vacate.
    BACKGROUND
    On July 10, 2017, Prairie Brand Seeds, LLC (Prairie Brand), filed an original notice and
    petition for money judgment in the small claims division of the district court for Story County,
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    Iowa. Prairie Brand asserted that Russell owed it $4,336.02 plus interest, attorney fees, and court
    costs. A deputy personally served Russell with the original notice and petition for money judgment
    on August 1. Russell entered an appearance and answer denying the claim on August 15.
    Also on August 15, 2017, the Iowa court entered an order for mediation, scheduling it for
    August 31. The order for mediation noted that mediation is required for all contested small claims
    matters in Story County per order of the Chief Judge, and the order set forth a time and location
    for mediation between Prairie Brand and Russell. Furthermore, the order advised that failure to
    appear for mediation may result in an immediate hearing and judgment against the party who did
    not appear. On August 31, the mediator filed a certification, which stated that Russell did not
    appear for the scheduled mediation.
    Prairie Brand filed a motion for entry of judgment on September 1, 2017, stating that it was
    entitled to judgment based on Russell’s failure to appear for mediation. Counsel for Prairie Brand
    filed an affidavit on the same date, stating that he spent 6 hours working on the matter, costing
    Prairie Brand $1,650 in attorney fees. On September 5, Russell filed correspondence to the court,
    stating that he was “not aware of any mediation that was supposed to take place.” The court entered
    an order on the same date, determining that Russell’s correspondence was effectively a motion for
    a hearing on Prairie Brand’s motion for entry of default judgment, and scheduled a hearing for
    September 19.
    Counsel for Prairie Brand requested to appear telephonically for the September 19, 2017,
    default hearing, which request the court granted by an order entered on September 11. Russell filed
    correspondence with the court on September 14, asking, “can I also appear to the hearing by
    telephone?” On September 18, the court also granted his request to appear by telephone for the
    default hearing.
    The Iowa court held the scheduled default hearing on September 19, 2017, and noted that
    both Prairie Brand and Russell personally appeared. While the court noted in its order entering
    judgment that it “made findings of fact and reached conclusions of law as recited on the verbatim
    record made at hearing,” no copy of that transcript is contained within our record on appeal.
    Nevertheless, by the court’s order, judgment was entered in favor of Prairie Brand and against
    Russell in the amount of $4,336.02 with interest at 18 percent from September 19, prejudgment
    interest of $241.63, and attorney fees of $1,650. The order states that default judgment was entered
    “pursuant to Iowa Code Section 631.5(6),” which confirms that the basis for the judgment would
    be the failure to appear at mediation.
    On January 31, 2018, Prairie Brand filed an “affidavit pursuant to uniform enforcement of
    foreign judgments act” in the county court for Nance County, Nebraska, seeking to register the
    Iowa judgment for enforcement in Nebraska. On March 1, Russell filed a motion to vacate the
    foreign judgment pursuant to Neb. Rev. Stat. §§ 25-1587.03 and 25-2001 (Reissue 2016).
    Thereafter, on March 19, Prairie Brand filed a resistance to Russell’s motion to vacate. Two brief
    hearings were held on April 2 and 16.
    During the second hearing in county court, Russell argued that the foreign default judgment
    ought to be vacated because the default judgment was entered pursuant to a statute for a party’s
    failure to appear even though he personally appeared at the default hearing. He further argued that
    he had never been physically present in the Iowa courthouse. Prairie Brand responded by arguing,
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    in part, that the default judgment was entered based on Russell’s failure to appear for the
    court-ordered mediation.
    On June 27, 2018, the county court entered an order denying Russell’s motion to vacate
    the foreign judgment. In particular, the county court determined that there was no deviation by the
    Iowa court from the standard practice with regard to noting the appearance of parties who appear
    by telephone.
    On July 26, 2018, Russell appealed the county court’s decision to the district court for
    Nance County. In his statement of errors, Russell alleged that a deviation from standard practice
    in obtaining the foreign judgment existed insofar as the Iowa court noted that Russell appeared
    personally even though he had never physically entered the courthouse in Story County, Iowa. He
    further alleged that an irregularity existed because the Iowa court entered judgment under its statute
    for a party’s failure to appear, Iowa Code § 631.5(6), even though Russell appeared telephonically
    for the default hearing.
    After a hearing held on February 1, 2019, the district court entered an order on February
    12, affirming the county court’s denial of Russell’s motion to vacate the foreign judgment. The
    district court determined that the Iowa court did not deviate from standard practices regarding
    noting the personal appearance of a party who, although not physically present in the courthouse,
    appears at a hearing by telephone. Moreover, the district court was not persuaded by Russell’s
    argument regarding the Iowa court’s entry of default judgment pursuant to a statute for a party’s
    failure to appear. The district court recited evidence showing that Russell was granted notice and
    an opportunity to be heard and that he appeared at the default hearing. Accordingly, the district
    court affirmed the county court’s order overruling Russell’s motion to vacate a foreign judgment.
    Russell now appeals from the district court’s order affirming the county court’s order.
    ASSIGNMENTS OF ERROR
    Russell assigns, restated and consolidated, that the district court erred in affirming the
    county court’s order overruling his motion to vacate a foreign judgment for irregularities or
    deviations from standard practice. He first notes that the Iowa court described him as personally
    appearing even though he was not physically present in the Iowa courthouse. Second he contends
    that default judgment was entered against him for failure to appear even though the record
    demonstrates he did in fact appear in the Iowa court.
    STANDARD OF REVIEW
    The district court and higher appellate courts generally review appeals from the county
    court for error appearing on the record. Houser v. American Paving Asphalt, 
    299 Neb. 1
    , 
    907 N.W.2d 16
    (2018). When reviewing a judgment for errors appearing on the record, the inquiry is
    whether the decision conforms to the law, is supported by competent evidence, and is neither
    arbitrary, capricious, nor unreasonable. 
    Id. In instances
    when an appellate court is required to
    review cases for error appearing on the record, questions of law are nonetheless reviewed de novo
    on the record. Millard Gutter Co. v. Farm Bureau Prop. & Cas. Ins. Co., 
    295 Neb. 419
    , 
    889 N.W.2d 596
    (2016).
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    We have held that in an appellate review of a matter appealed from a county court to a
    district court, this court can consider only such evidence as was presented to the district court in
    its intermediate review of the county court judgment. McNamee v. Marriott Reservation Ctr., 
    16 Neb. Ct. App. 626
    , 
    747 N.W.2d 30
    (2008).
    ANALYSIS
    For purposes of the Nebraska Uniform Enforcement of Foreign Judgments Act, foreign
    judgment means any judgment, decree, or order of a court of the United States or of any other
    court which is entitled to full faith and credit in this state. Neb. Rev. Stat. § 25-1587.02 (Reissue
    2016). A foreign judgment filed with the clerk of court in any state court having jurisdiction shall
    be treated in the same manner as a judgment of a court in this state. § 25-1587.03. A judgment so
    filed has the same effect and is subject to the same procedures, defenses, and proceedings for
    reopening, vacating, or staying as a judgment of a court of this state and may be enforced or
    satisfied in like manner. 
    Id. As relevant
    in the present appeal, a district court may vacate or modify its own judgments
    or orders after the term at which such judgments or orders were made for mistake, neglect, or
    omission of the clerk, or irregularity in obtaining a judgment or order. § 25-2001(4)(a) (emphasis
    supplied). The operative definition of “irregularity” in our precedent limits the term to doing or
    not doing that, in the conduct of a suit at law, which, conformably with the practice of the court,
    ought or ought not to be done. Roemer v. Maly, 
    248 Neb. 741
    , 
    539 N.W.2d 40
    (1995). A judgment
    marred by irregularity is one rendered contrary to the course of law and practice of the court. 
    Id. In the
    present case, Russell first argues that there was an irregularity in obtaining the Iowa
    default judgment because the court’s order notes that he personally appeared at the hearing on
    Prairie Brand’s motion for entry of judgment even though he has never been physically present in
    the Iowa courthouse. We find no error in the determination that the Iowa court did not deviate
    from standard practices in noting a party’s appearance by telephone.
    On August 15, 2017, 2 weeks after being served with Prairie Brand’s complaint, Russell
    entered an appearance and answer denying the claim made against him. Thereafter, Russell failed
    to attend a scheduled mediation. After apparently receiving a copy of the mediator’s report and/or
    Prairie Brand’s motion for entry of judgment, Russell wrote to the court explaining his failure to
    attend. The court treated the letter as a motion for hearing and scheduled a hearing on the motion.
    After Prairie Brand requested to appear for the hearing telephonically, Russell requested the same,
    and the court granted both parties’ requests. While it may be true that Russell “has never stepped
    foot in the Story County Court,” he caused his own lack of physical presence as he requested that
    the court allow him to personally appear by telephone for the default hearing. Personal appearance
    and physical presence are not synonymous. Nothing about Russell’s appearance by telephone at
    the default hearing demonstrates how the Iowa court’s mention of his personal appearance
    constitutes a deviation from standard practice. Therefore, we can find no irregularity in the
    proceedings as to the identification of Russell appearing personally.
    Russell’s second argument stands in stark contrast to his first, because he argues that he
    did in fact appear and, thus, the Iowa court deviated from standard practice by entering default
    judgment based on any failure to appear. The Iowa court entered a default judgment against Russell
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    pursuant to Iowa Code § 631.5(6), which provides that judgment shall be rendered against a
    defendant if the relief is readily ascertainable and the defendant failed to appear after proper notice
    had been given. In the present case, it is plainly apparent from the record before the district court
    that Russell failed to attend court-ordered mediation, for which the court had provided him with
    notice. That absence formed the basis for the Iowa court’s entry of default judgment pursuant to
    Iowa Code § 631.5(6). Russell’s attendance at the default hearing does not negate his failure to
    appear previously. According to the judgment entered by the Iowa court, testimony and other
    evidence was adduced at the hearing, and the court recited findings of fact and conclusions of law.
    The court then found that Russell was in default and “judgment should enter accordingly.” There
    is no showing in the record that the Iowa court’s action violated recognized practice or in any way
    constituted an irregularity as to how the judgment was obtained. Accordingly, the district court
    was correct in finding that the county court did not err in overruling Russell’s motion to vacate the
    foreign judgment against him, and we affirm with respect to this point as well.
    CONCLUSION
    Based on the foregoing, we find no error in the district court’s order affirming the county
    court’s order overruling Russell’s motion to vacate the foreign default judgment entered against
    him.
    AFFIRMED.
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Document Info

Docket Number: A-19-272

Filed Date: 12/3/2019

Precedential Status: Precedential

Modified Date: 12/3/2019