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F/S Manufacturing, A North Dakota Corporation v. Lesa Kensmoe

June 21, 2011


Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Wade L. Webb, Judge.

The opinion of the court was delivered by: VandeWalle, Chief Justice.

N.D. Supreme Court

F/S Manufacturing v. Kensmoe, 2011 ND 113

This opinion is subject to petition for rehearing. [Go to Documents]

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Opinion of the Court by VandeWalle, Chief Justice.

F/S Manufacturing v. Kensmoe

No. 20100167

[¶1] Lesa Kensmoe, now known as Lesa Bergson, appealed from a district court order granting F/S Manufacturing renewal by affidavit of its 1998 judgment against her. We reverse, holding the district court erred in ordering a cancelled judgment renewed by filing an affidavit under N.D.C.C. § 28-20-21.


[¶2] On March 9, 1998, F/S Manufacturing obtained a default judgment in the amount of $450,894.78 against Kensmoe. When the action was commenced in 1995, Kensmoe was a resident of Moorhead, Minnesota. On April 4, 2008, F/S Manufacturing's judgment against Kensmoe was cancelled of record under N.D.C.C. § 28-20-35. On March 8, 2010, almost two years after the 1998 judgment was cancelled, F/S Manufacturing filed an affidavit attempting to renew the judgment under N.D.C.C. § 28-20-21. After being informed the judgment could not be renewed because it had expired, F/S Manufacturing filed a motion on March 11, 2010, requesting the district court to order the clerk of court to renew the judgment by affidavit under N.D.C.C. § 28-20-21.

[¶3] In its motion and supporting brief, F/S Manufacturing asserted that the "statute of limitations" for renewing a judgment by affidavit was tolled because Kensmoe had been absent from North Dakota for at least five years living in Georgia or, alternatively, because Kensmoe had filed for bankruptcy in Georgia on May 5, 2003, and had purportedly been involved in bankruptcy proceedings until May 10, 2005. With its motion, F/S Manufacturing submitted evidence that the 1998 North Dakota judgment had been filed in Liberty County, Georgia, and that on March 8, 2010, a Georgia state court in Liberty County had denied Kensmoe's motion to set aside the judgment. The Georgia court order found that "the statute of limitations on the underlying North Dakota judgment . . . was tolled during the pendency of Defendant's two bankruptcy proceedings from May 5, 2003 through May 10, 2005" and held that the underlying North Dakota judgment was still valid and enforceable and F/S Manufacturing could "continue its collection efforts to enforce the judgment."

[¶4] On May 5, 2010, the North Dakota district court granted F/S Manufacturing's motion and ordered the clerk of court to renew the 1998 judgment. In its order, the district court stated: "This Court adopts the reasoning and rationale of the March 8, 2010, State Court of Liberty County, Georgia, order, and [F/S Manufacturing's] Brief in Support of Motion of Renewal of Judgment, as its own for the purposes of this Order."


[¶5] Kensmoe argues that F/S Manufacturing may not renew a cancelled judgment, asserting the period to renew the judgment under N.D.C.C. § 28-20-21 was not tolled. F/S Manufacturing asserts, however, the time period for renewing a judgment under N.D.C.C. § 28-20-21 was tolled under N.D.C.C. § 28-01-32, based on Kensmoe's absence from North Dakota. F/S Manufacturing also contends that Kensmoe waived any issues regarding whether or not her prior bankruptcy proceedings tolled the "statute of limitations," because she did not raise those issues on appeal. The issues raised by the parties require interpretation of N.D.C.C. §§ 28-20-21 and 28-01-32.

Statutory interpretation is a question of law, fully reviewable on appeal. Kadlec [v. Greendale Twp. Bd. of Supervisors], 1998 ND 165, ¶ 12, 583 N.W.2d 817. Words in a statute are given their plain, ordinary, and commonly understood meaning, unless defined by statute or unless a contrary intention plainly appears. N.D.C.C. § 1-02-02. Statutes are construed as a whole and are harmonized to give meaning to related provisions. N.D.C.C. § 1-02-07. If the language of a statute is clear and unambiguous, "the letter of [the statute] is not to be disregarded under the pretext of pursuing its spirit." N.D.C.C. § 1-02-05. The language of a statute must be interpreted in context and according to the rules of grammar, giving meaning and effect to every word, phrase, and sentence. N.D.C.C. §§ 1-02-03 and 1-02-38(2). The primary objective in interpreting a statute is to determine the intention of the legislation. Amerada Hess Corp. v. State ex rel. Tax Comm'r, 2005 ND ...

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