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State v. Riemers

March 16, 2010

STATE OF NORTH DAKOTA, BY NORTH DAKOTA DEPARTMENT OF LABOR, FOR THE BENEFIT OF FAIR HOUSING OF THE DAKOTAS, PLAINTIFF AND APPELLEE
v.
ROLAND RIEMERS, DEFENDANT AND APPELLANT AND AFFORDABLE APARTMENTS, LLC, DEFENDANT



Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Karen Kosanda Braaten, Judge.

The opinion of the court was delivered by: Kapsner, Justice

AFFIRMED.

[¶1] Roland Riemers appealed from a district court order denying his motion to reopen the case under N.D.R.Civ.P. 60(b). We affirm.

I.

[¶2] The State, through the North Dakota Department of Labor, sued Riemers and his limited liability company, Affordable Apartments, LLC, alleging Riemers had committed a discriminatory housing practice by publishing an advertisement in a local newspaper indicating a preference not to rent to individuals who were eligible for public assistance. The summons and complaint were mailed to Riemers but were returned, marked "refused." Riemers contends he never received the summons and complaint.

[¶3] When Riemers failed to answer the summons and complaint, the State sought a default judgment. On August 24, 2007, the district court signed an order directing entry of a default judgment against Riemers and Affordable Apartments for violating state fair housing advertising laws. On September 4, 2007, after the district court had signed the order for judgment but before the clerk of the district court filed the order or entered judgment, Riemers filed a response to the complaint and a response to the State's motion for default judgment. On October 18, 2007, the clerk of the district court filed the order for judgment and entered judgment.

[¶4] On October 26, 2007, Riemers filed a request to reopen the case. On December 14, 2007, before the district court had ruled on that request, Riemers filed a notice of appeal from the default judgment. This Court remanded to the district court to rule on Riemers' pending request to reopen the case, and the district court issued an order denying the request to reopen. Both the district court and this Court treated Riemers' request to reopen the case as a motion under N.D.R.Civ.P. 60(b).

[¶5] After the district court denied the motion, the Clerk of the Supreme Court sent a letter to Riemers expressly advising him that, if he intended to raise issues on appeal regarding the order denying his request to reopen the case, a separate notice of appeal would have to be filed. Riemers did not file a separate notice of appeal from the district court's order nor amend his original notice of appeal.

[¶6] We then held that the only matter properly before us was the default judgment and, because no irregularities appeared on the face of the judgment, we affirmed the judgment. State v. Riemers, 2008 ND 191, ¶¶ 11-15, 28, 757 N.W.2d 50. Although we noted that Riemers was entitled to notice of the motion for default judgment under N.D.R.Civ.P. 55, we concluded that the issue was not properly before us because Riemers had failed to appeal from the order denying his motion under N.D.R.Civ.P. 60(b) and we therefore had no jurisdiction to provide relief. Riemers, at ¶¶ 25, 28. We also held we would not consider Riemers' challenge to an award of attorney fees or his argument that the judgment violated his right to free speech because those issues had not been raised in the district court. Id. at ¶ 27.

[¶7] Several months after this Court's opinion was issued, Riemers filed another N.D.R.Civ.P. 60(b) motion again seeking to reopen the case. The district court denied the motion, concluding the motion was barred by the doctrines of res judicata and law of the case. Riemers has appealed from the order denying his second N.D.R.Civ.P. 60(b) motion to reopen the case, alleging that the failure to comply with N.D.R.Civ.P. 55 entitles him to relief under N.D.R.Civ.P. 60(b) and that his right to free speech was violated.

II.

[¶8] The issues which Riemers seeks to raise on this appeal were either resolved by the district court's order denying his first N.D.R.Civ.P. 60(b) motion or were not properly raised in the district court. Riemers failed to appeal from the order denying his first Rule 60(b) motion, and on the first appeal we affirmed the default judgment, noting that neither the N.D.R.Civ.P. 55 violation nor the commercial free speech issue were properly before us. In effect, Riemers is attempting to use a second Rule 60(b) motion, and second appeal to this Court, to raise issues which were finally resolved in the prior unappealed denial of his first Rule 60(b) motion and in the prior appeal.

[¶9] A motion for relief under N.D.R.Civ.P. 60(b) is not a substitute for appeal and should not be used to relieve a party from free, calculated, and deliberate choices he has made. Shull v. Walcker, 2009 ND 142, ¶ 14, 770 N.W.2d 274; Laib v. Laib, 2008 ND 129, ¶ 17, 751 N.W.2d 228. In Latham v. Wells Fargo Bank, N.A., 987 F.2d 1199, 1203-04 (5th Cir. 1993) (citations omitted), the court addressed the application of Fed.R.Civ.P. 60(b) under similar circumstances:

[W]e have frequently upheld district court decisions denying Rule 60(b) motions where it appeared that Rule 60(b) was being used as a substitute for a timely appeal. This is particularly appropriate in a case such as this one where a Rule 60(b) motion is itself an attack on the denial of a prior post-judgment motion that asserted virtually identical grounds for relief, and where, as here, it is filed after the time for giving notice of appeal from the order denying the earlier motion. . . . In effect, by filing a Rule 60(b) motion following the prior denial of an earlier virtually identical post-trial motion, Latham is using the second motion, which is ...


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