Discover Bank v. Hornbacher ( 2020 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
DECEMBER 17, 2020
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 307
Discover Bank, Plaintiff and Appellant
v.
Bryan L. Hornbacher, Defendant
No. 20200232
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Bruce A. Romanick, Judge.
REVERSED AND REMANDED.
Opinion of the Court by Tufte, Justice.
Clifton G. Rodenburg and Amanda M. Lee, Fargo, N.D., for plaintiff and
appellant; submitted on brief.
Bryan L. Hornbacher, defendant; no appearance.
Discover Bank v. Hornbacher
No. 20200232
Tufte, Justice.
[¶1] Discover Bank (Discover) appeals a district court order denying its
motion for judgment and dismissing the case. On appeal, Discover argues the
district court erred in finding that the stipulation stated Discover would not
move for judgment unless the terms of the agreement were breached. We
reverse and remand for entry of judgment.
I
[¶2] Discover sued Bryan Hornbacher, alleging he was indebted to it on a
credit card debt for $14,695.13. The parties entered into a stipulation and
consent. The stipulation provided an acknowledgment by Hornbacher that he
had been served with the summons and complaint and an admission that he
had no defenses to the allegations in the complaint. Hornbacher consented to
entry of judgment in the amount of $14,695.13 in exchange for Discover’s
agreement to accept $10,080.00 payable over three years as full satisfaction of
the judgment, and to forego execution on the judgment unless there were a
default in the agreed-upon payment schedule.
II
[¶3] “Generally, the construction of a written contract to determine its legal
effect is a question of law for the court to decide.” Welch Constr. & Excavating,
LLC v. Duong, 2016 ND 70, ¶ 6, 877 N.W.2d 292 (citation omitted). This Court
has recognized two different types of stipulations. Lawrence v. Lawrence, 217
N.W.2d 792, 796 (N.D. 1974). A stipulation aimed at facilitating the course of
a lawsuit is procedural in nature. Id. A stipulation that affects the subject
matter of a lawsuit is contractual in nature. Id. Contractual stipulations deal
with the rights or property at issue, and they are entitled to all the sanctity of
a conventional contract. Id. Here, the stipulation states, “Defendant consents
to entry of judgment for the amount of $14,695.13, costs of $35.00 and any
additional costs and disbursements to date of judgment.” The stipulation,
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therefore, deals with the subject matter of the lawsuit by resolving the merits
of the case and is a contractual stipulation. All the provisions of this stipulation
must be considered together, and the plain language of the agreement controls.
See Markwed Excavating, Inc. v. City of Mandan, 2010 ND 220, ¶¶ 19-20, 791
N.W.2d 22.
[¶4] In its order, the court found that “[p]laintiff files a stipulation stating it
will not move for judgment unless the terms of the agreement are [breached].”
This is an error. The stipulation provided, in part:
[Hornbacher] consents to entry of judgment for the amount of
$14,695.13, costs of $35.00 and any additional costs and
disbursements to date of judgment. In this regard, defendant
consents and agrees that plaintiff by affidavit may cause judgment
to be entered against defendant by the court in the amount noted
above, less payments made, without necessity of notice, hearing or
court order.
The stipulation further provided that Discover would “not execute on said
judgment unless there [was] a default in the following payment schedule. . . .”
Section 28-21-01, N.D.C.C., establishes that execution is a post-judgment
means to collect upon a judgment. A judgment must be entered before a party
can execute on the judgment, and the terms of the judgment determine the
execution available. N.D.C.C. §§ 28-21-01 to 28-21-04.1. “If the judgment
requires the payment of money . . . the judgment may be enforced by
execution.” N.D.C.C. § 28-21-03.1.
[¶5] The court, in its order, focused on the lack of default under the
stipulation having occurred. This was in error, as Discover was not moving to
execute the judgment, but rather was, by affidavit, moving for judgment to be
entered against Hornbacher pursuant to the stipulation. The court misread the
stipulation and misapplied the law.
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III
[¶6] Because the plain language of the stipulation provided for judgment
against Hornbacher to be entered, we reverse and remand for entry of
judgment.
[¶7] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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