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Linda A. Smestad v. Bruce G. Harris

August 16, 2012

LINDA A. SMESTAD,
PLAINTIFF AND APPELLEE
v.
BRUCE G. HARRIS,
DEFENDANT AND APPELLANT



Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Cynthia Mae Feland, Judge.

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

N.D. Supreme Court

Smestad v. Harris, 2012 ND 166

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

[Download as WordPerfect] Dissent filed.

AFFIRMED.

Opinion of the Court by Crothers, Justice.

Smestad v. HarrisNo. 20120051

[¶1] Bruce G. Harris appeals a district court judgment awarding Linda A. Smestad $30,025 plus interest on the theory of unjust enrichment. Harris argues the district court erred by (1) deciding the issue remanded without notifying Harris or holding a hearing, (2) considering unjust enrichment because Smestad's complaint did not include an unjust enrichment claim and (3) finding Smestad proved unjust enrichment. We affirm.

I

[¶2] Our prior decision in this case contains the relevant facts, and we will not repeat them except as necessary to resolve the issues raised in this appeal. See Smestad v. Harris ("Smestad I"), 2011 ND 91, 796 N.W.2d 662. Smestad and Harris were involved in a personal and business relationship from spring 2007 through late 2008. Harris owned and operated Oasis Water Systems, Inc. During the relationship, Smestad wrote numerous checks to Harris, Oasis and others on behalf of Harris and Oasis. After the relationship ended, Smestad brought an action seeking repayment of more than $112,000 in loans she made to Harris and Oasis. Following a bench trial, the district court found Harris orally agreed to repay Smestad some of the loans to Harris and awarded Smestad $30,025 plus interest. Harris appealed.

[¶3] In Smestad I, we affirmed in part, reversed in part and remanded for further proceedings. We concluded the district court's finding of an oral agreement was not clearly erroneous and further concluded the oral agreement was unenforceable under the statute of frauds, N.D.C.C. § 9-06-04(4), because the aggregate amount of the loan exceeded $25,000. Noting Smestad's complaint sought "such other and further relief as the Court deems just and equitable," we remanded for determination whether Smestad had requested equitable relief against Harris that must be considered by the district court. We recognized the district court judge who decided Smestad I had retired and stated the district court would either need to make an N.D.R.Civ.P. 63 certification before conducting further proceedings or order a new trial.

[¶4] On remand, the new judge certified familiarity with the record and determined she could proceed without prejudicing the parties. The district court determined no additional proceedings were necessary and relied on the record to resolve the case. In an order dated September 23, 2011, the district court found Smestad was entitled to equitable relief under the theory of unjust enrichment. The next document in the record is a "Proposed Judgment" filed November 8, 2011. The record is not clear who filed the document. On November 17, 2011, the district court filed a judgment ordering Harris to pay Smestad $30,025 plus interest. On November 17, 2011, Smestad mailed Harris notice of entry of judgment.

[ΒΆ5] On November 30, 2011, Harris filed a "Motion for Relief and Motion for New Trial," in which he argued the district court judgment was erroneous for several reasons, including that he did not have the opportunity to present additional evidence or argument on remand and that he did not learn of the judgment until it was published on the North Dakota Supreme Court website. Harris included with the motion a "Defendant's Affidavit of Service by Publication," in which he stated, "[T]he defendant had no actual notice or knowledge of the ...


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