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Bickler v. Happy House Movers, L.L.P.

Supreme Court of North Dakota

July 18, 2018

Steven Bickler and Linda Bickler, Plaintiffs and Appellees
v.
Happy House Movers, L.L.P., Defendant and Appellant

          Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Douglas L. Mattson, Judge.

          Shelby Larson, Minot, ND, for plaintiffs and appellees.

          Michael Ward, Minot, ND, for defendant and appellant.

          OPINION

          McEvers, Justice.

         [¶ 1] Happy House Movers, L.L.P., appeals from a district court order denying their motion to vacate the default judgment and granting Bickler's motion to strike the supporting affidavits. We affirm the district court's order.

         I

         [¶ 2] In April 2016, Steven and Linda Bickler commenced an action against Happy House Movers. The Bicklers had contracted with Happy House Movers to raise their house eight feet to protect the house against rising waters at Rice Lake. While Happy House Movers had the house resting on supports above its original position, the house fell, causing significant structural damage.

         [¶ 3] In August 2016, the Bicklers moved for a default judgment. In September 2016, Michael Knoke, an employee of Happy House Movers, moved for an extension of time to file an answer. Knoke argued Happy House Movers made an appearance, indicating it could not find an attorney and requested a hearing. The motion also notified the Bicklers that Happy House Movers was contesting the motion for default judgment. Knoke filed an answer to the complaint he prepared himself. The district court ordered Knoke's answer be stricken from the record sua sponte, because Happy House Movers is a separate entity requiring it to be represented in court by a person licensed in law, citing N.D.C.C. § 27-11-01, and Knoke was not licensed to practice law. The court extended Happy House Movers' deadline to properly file an answer to October 13, 2016, and indicated it would review the motion for default judgment shortly thereafter. On December 15, 2016, the court entered an order for default judgment, concluding Happy House Movers failed to properly respond to the summons and complaint. Based on its review of the record and pleadings, the court awarded the Bicklers $251, 711.68, and entered a judgment indicating the same on December 20, 2016.

         [¶ 4] The Bicklers served notice of entry of judgment on Happy House Movers in April 2017. On November 14, 2017, Happy House Movers filed a motion to vacate judgment and allow imposition of the answer, an answer to Bicklers' complaint, a brief in support of the motion to vacate, and two affidavits in support of the motion to vacate the judgment. The Bicklers responded on December 1, 2017, requesting the district court deny Happy House Movers' motion and award attorney's fees and costs for defending against the "frivolous motion." The Bicklers also moved the court to strike the affidavits in support of the motion to vacate the judgment arguing non-compliance with form of pleadings, improper identification of affiant, non-conforming acknowledgment, erroneous and prohibited content, and false content. On December 20, 2017, the court granted Bicklers' motion to strike the affidavits.

         [¶ 5] On December 28, 2017, Happy House Movers indicated by letter they did not receive service of Bicklers' response to the motion and motion to strike. The parties stipulated to vacating the order granting the motion to strike, allowing Happy House Movers to reply to Bicklers' response to the motion to vacate and answer Bicklers' motion to strike the affidavits, and affording the Bicklers time to reply. The court vacated the order granting the motion to strike based on the stipulation.

         [¶ 6] Happy House Movers responded to the motion to strike the affidavits by filing two supplemental affidavits "to avoid any disagreement as to technical matters." No legal argument was made that the first two affidavits should not be stricken. The Bicklers filed their reply to Happy House Movers' response to the motion to strike. Happy House Movers filed a response to Bicklers' reply. The district court granted Bicklers' motion to strike the affidavits and denied Happy House Movers' motion to vacate. The court concluded the first two affidavits filed were deficient and did not consider those affidavits in ruling on the motion to vacate. The court further concluded Happy House Movers' motion did not fit within the grounds set out in N.D.R.Civ.P. 60(b).

         [¶ 7] Happy House Movers moved for a stay of execution pending appeal, and filed a notice of appeal. The district court denied the motion to stay.

         II

         [¶ 8] Happy House Movers appeals from the district court's order dated February 26, 2018, granting Bicklers' motion to strike and denying the motion to vacate. It did not appeal from the December 20, 2016, judgment by default. "An appeal from a [district] court's refusal to vacate an order under Rule 60(b), N.D.R.Civ.P., does not permit the appellant to attack the underlying order from which an appeal could have been, but was not, brought." Kautzman v. Doll, 2018 ND 23, ¶ 5, 905 N.W.2d 744 (quoting Anderson v. Baker, 2015 ND 269, ΒΆ 8, 871 N.W.2d 830). This Court ...


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