from the District Court of Ward County, North Central
Judicial District, the Honorable Douglas L. Mattson, Judge.
Larson, Minot, ND, for plaintiffs and appellees.
Michael Ward, Minot, ND, for defendant and appellant.
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.
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.
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, ¶ 8, 871 N.W.2d
830). This Court ...