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Raymond J. German, Ltd v. Rodney Brossart

May 3, 2012

RAYMOND J. GERMAN, LTD.,
PLAINTIFF AND APPELLEE
v.
RODNEY BROSSART, DEFENDANT AND APPELLANT



Appeal from the District Court of Nelson County, Northeast Central Judicial District, the Honorable Lee A. Christofferson, Judge.

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

N.D. Supreme CourtRaymond J. German, Ltd. v. Brossart,

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

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2012 ND 89

MODIFIED AND AFFIRMED.

Opinion of the Court by Sandstrom, Justice.

[¶1] Rodney Brossart appeals from a default judgment against him in a collection action brought by Raymond J. German, Ltd., for legal services allegedly rendered to Brossart. We modify the default judgment and affirm, concluding the district court did not err in entering a default judgment in favor of German, because Brossart "appeared" under N.D.R.Civ.P. 55(a) and German provided Brossart notice of the motion for a default judgment under N.D.R.Civ.P. 55(a)(3). We also conclude the court did not err in requiring the production of a written, attorney-client agreement between German and Brossart before entering a default judgment.

I

[¶2] On July 29, 2011, German's summons and complaint were served upon Brossart for legal fees and expenses as the result of alleged unpaid legal services provided by German to Brossart between December 31, 2008, and March 4, 2011. See N.D.R.Civ.P. 3 ("A civil action is commenced by the service of a summons."). On August 16, 2011, Brossart returned the summons and complaint to German with a note on the bottom of each page reading, "This is my property I do not agree to this sale." Brossart signed and dated each page underneath the note. The record does not reflect that Brossart otherwise communicated with German before German moved for a default judgment on August 24, 2011.

[¶3] In support of the motion for a default judgment, German filed affidavits of proof, default, identification and no military service, and costs and disbursements. German also filed a proposed order for judgment and entry of judgment as well as Brossart's communications to him, dated August 16, 2011. German served each of the documents upon Brossart on August 24, 2011.

[¶4] On September 23, 2011, Brossart moved for summary judgment by submitting a proposed order for the district court to sign and date, granting summary judgment in his favor, but Brossart provided no motion or brief in support of the motion, and he did not serve the motion upon German. The court denied Brossart's motion for summary judgment and granted German's motion for a default judgment in the amount of $43,487.60, plus $110 in costs and disbursements. In its order for judgment and entry of judgment, the court concluded Brossart "failed to answer, move against or otherwise appear within twenty days of service of process . . . [and he] is hereby judged to be in default." Brossart appealed the court's decision without first moving the court to vacate the default judgment under N.D.R.Civ.P. 60(b).

[¶5] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Brossart timely appealed from the default judgment under N.D.R.App.P. 4(a). We have jurisdiction under N.D. Const. ...


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