IN THE SUPREME COURT STATE OF NORTH DAKOTA
Transcript of IN THE SUPREME COURT STATE OF NORTH DAKOTA
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IN THE SUPREME COURT
STATE OF NORTH DAKOTA
Joseph C. Honrud & Debra Diane Honrud, )
Plaintiffs and Appellees )
v. ) Supreme Court No. 20190190
D. Peter LaCount ) Ward County No. 51-2017-CV-01890
Defendant and Appellant )
)
BRIEF OF APPELLANT
APPEAL TO THE SUPREME COURT OF THE STATE OF NORTH DAKOTA FROM THE ORDER OF THE NORTH CENTRAL DISTRICT COURT IN WARD COUNTY DATED MAY 9, 2018
DENIAL OF MOTION FOR RELIEF FROM JUDGMENT
D. PETER LACOUNT
PRO SE APPELLANT
1679 8TH STREET E
WEST FARGO ND 58078
20190190FILED
IN THE OFFICE OF THE CLERK OF SUPREME COURT
JULY 29, 2019 STATE OF NORTH DAKOTA
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TABLE OF CONTENTS
SECTION TITLE PAGE #
Cover Sheet ……………………………………………………………………………………… 1
Table of Contents ……………………………………………………………………………. 2
Table of Authorities ………………………………………………………………………... 3 – 4
Certificate of Compliance ………………………………………………………………… 29
PARAGRAPH #
Statement of the Issues……………………………………………………………………. 1 - 5
Statement of the Case……………………………………………………………………… 6 - 12
Statement of Facts……………………………………………………………………………. 13 - 20
Argument and Legal Analysis – Court abused its discretion ………………… 21- 27
Judgment rendered without jurisdiction is void ………………………. 28 – 36
Judgment is void as it gives effect to a void judgment ……………… 37 - 43
Judgment is wholly outside of pleadings and is void ………………… 44 – 48
Due Process …………………………………………………………………………….. 49 – 54
Full Faith and Credit, Res Judicata, Collateral Estoppel ……………. 55 - 58
Conclusion…………………………………………………………………………………………. 59 – 64
Requested Relief………………………………………………………………………………… 65 - 67
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TABLE OF AUTHORITIES
Albrecht v. Metro Area Ambulance, 1998 ND 132, ¶ 10, 580 N.W.2d 583 …………. 29
Adamsen Construction Co. v. Altendorf, 152 N.W.2d 579 (N.D. 1967) ………………. 47
Andrews v. Superior Court of San Joaquin County (1946) 29 Cal.2d 208, 214-215 . 39
Arnold v. Joines, 50 Okl. 4, 14, 150 P. 130, 133 (1915) ………………………………………… 38
Atchison, Topeka and Santa Fe Railway Co. v. Board of County Commissioners,
95 Colo. 435, 37 P (2d) ………………………………………………………………………… 31
Beneficial Haw. Inc. v. Kida, 96 Hawai’i 289, 319, 30 P.3d 895, 925 (2001) ………. 40
Bennett v. Wilson (1898) 122 Cal. 509, 513-514 …………………………………………………. 39
Bank of New York Mellon v. Reyes, 126 So.3d 304,309 (Fla. 3d DCA 2013) …………. 49
Durfee v Duke, 375 U.S. 106, 111, 84 S.Ct. 242, 245 (1963) ………………………………. 55
Espinosa, 130 S. Ct. at 1377 ………………………………………………………………………………. 25
First American Trust Co. v. Franklin-Murray Dev. Co. L.P., 59 S.W.3d 135, 141
(Tenn. Ct. App. 2001) ……………………………………………………………………………. 46
Garaas v. Cass Cty. Joint Water Res. Dist., 2016 ND 148 …………………………………… 29
Hutchins v. Priddy W.D.Mo. 103F. Supp. 601 (1952) …………………………………………. 35
Lyon Fin. Servs., Inc. v. Waddill, 625 N.W.2d 155, 158 (Minn. App. 2001) …………… 24
Marshall, 575 F.2d at 422 n.19 …………………………………………………………………………… 25
Morrow v. Corbin 62 S.W.2d 641, 645 (Tex. 1933) ……………………………………………… 32
Mullne v. Sea-Tech Constr. Inc., 84 So.3d 1247, 1249 (Fla. 4th DCA 2012) ……………. 49
Newman v. Bullock 23 Colo. 217, 47, Pac. 379 …………………………………………………… 31
Northern Trust Co. v. Albert Lea College, 68 Minn. 112, 71 N.W.9. …………………… 45
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Randolph v. Jenks v. Merchants’ Nat’l Bank, 77 Tenn. 63, 68 (Tenn. 1882) ………… 46
Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1240 ……… 39
Robertson Lbr. Co. v. Progressive Contractors, Inc., …………………………………………… 57
160 N.W.2d 61, 76 (N.D. 1968)
Rudnick v. City of Jamestown, 463 N.W.2d 632, 635 (N.D. 1990) ……………………… 29
S. Indus. Tire, Inc. v. Chicago Indus. Tire, Inc.,
541 So.2d 790, 791 (Fla. 4th DCA 1989) ………………………………………………… 49
Sache v. Wallace, 101 Minn. 169, 172, 112 N.W. 386, 387,
11 L.R.A.(N.S.) 803, 118 A.S.R. 612, 11 Ann. Cas. 348 …………………………. 45
Sierra Club v. TNRCC 26 S.W.3d 684 (July, 2000)……………………………………………… 32
Sramek v. Sramek 17 Kan. App.2d 573 (1992) …………………………………………………. 43
Wachovia Mortg. Corp. v. Paul J. Posti Jr., The Unknown Spouse of
Paul J. Posti, Jr., Bella Terra Cmty. Ass’n., Inc (Fla. 4th DCA 2015) ………… 49
WALLS v. ERUPCION MIN. CO. 6 P.2d 1021 November 3, 1931 …………………….. 41
Valley Vista Development Corp. v. City of Broken Arrow,
766 P.2d 344, 1988 OK 140 (Okla. 12/06/1988) …………………………………. 42
Varnes v. Local 91, Glass Bottle Blowers 674 F.2d 1365 (1982) ………………………. 33
OTHER AUTHORITIES
1 Freeman on Judgments, 120c ………………………………………………………………………… 30
30A Am.Jur., "Judgments," Section 213, page 289 ……………………………………………. 47
49 C.J.S., Judgments, 36, p.88
71 C.J.S., Pleading, 321, 412, 413 ……………………………………………………………………… 35
Article IV, Section 1 of the United States Constitution ………………………………………. 55
Rest.2d, Judgments, Introductory Note to Chapter 5, Comment C, p. 143 ………… 26
Restatement (Second) of Conflict of Laws 104 (1969) ……………………………………….. 56
Rule 60.02 Minnesota Rules of Civil Procedure…………………………………………………… 22
Rule 60.03 Minnesota Rules of Civil Procedure…………………………………………………… 23
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STATEMENT OF ISSUES
1) [1] Does the court have the authority to render a default judgment and
award damages that are not based upon the complaint, but based upon a
previous complaint that was already successfully vacated and declared void?
2) [2] Does using the amount of the original judgment instead of basing the
default upon the actual pleadings before the court give effect to a void
judgment and is therefore void? Does that giving effect to a void judgment
make the amended judgment void or voidable?
3) [3] Does res judicata, collateral estoppel and the need for the finality of a
judgment apply to the successful Motion to Vacate Judgment from the
Original Complaint proceedings which is the final judgment of that
proceeding or does it attach to the Amended Complaint proceedings
regardless of the fact that the damages were exclusively based upon the
Original Judgment?
4) [4] If the default judgment is alleged to be void on its face, and the Appellant
only uses the judgment roll to prove its facially invalid, can a collateral attack
be made on said judgment?
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5) [5] Do violations of one’s due process rights make a judgment void or
voidable?
STATEMENT OF THE CASE
[6] The Defendant/Appellant was sued in Minnesota for damages that occurred
to a home he was renting in Otter Tail County, MN. The Plaintiffs sought $352,767.15 in
damages, plus costs and pre-judgment interest thereon. Of this amount, only
$345,567.15 is accounted for by the Complaint. That Lessor amount consists of (a)
$63,388.62 in general damages, (b) $26,605.78 in consequential damages, (c)
$25,194.65 for bodily injury in the form of current and future medical expenses, and
pain and suffering, and (d) $230,378.10 in treble costs under the property waste statute,
Minn. Stat. 561.17. The Defendant failed to answer the complaint and the Plaintiff
obtained an administrative default judgment of $352,767.15 on or around December 8,
2015, jointly and severally with the Defendants co-defendant. (See Appendix Pages 5 -
13)
[7] Defendant/Appellant hired counsel and motioned the court to vacate the
judgment based on Rule 60.02(a) excusable neglect. At the Motion Hearing both sides
were represented by counsel and the court noted sua sponte that the entry of an
administratively default judgment was inappropriate in this case as the damages were
not for a sum certain. On May 5, 2016 the 7th District Court issued the order to vacate
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the administratively awarded judgment based on the fact that it was void. The court
further ordered that the “Plaintiffs shall be permitted to file an amended complaint,
Defendants shall be required to file an Answer, and the parties shall submit Civil Cover
Sheets, all within the time provided by the rules, as if this action had just now
commenced.” (See Appendix Pages 14 - 17)
[8] Plaintiffs amended the complaint, this time demanding (a) an excess of
$11,699.62 in general damages, (b) an excessive of $335,457.36 in consequential
damages, (c) $25,194.65 in bodily injury and (d) treble damages for waste. (See
Appendix Pages 18 - 25)
[9] At the Pre-Trial Hearing, the court stated the Defendant would be sanctioned
for his failure to supplement answers in the interrogatories and admittances. The Court
then asked the Plaintiff’s Counsel what he would request the court to sanction the
Defendant listing the 4 sanctions for discovery violations listed in the Rules of Civil
Procedure. Plaintiff’s Counsel stated, “At this point I’d request the default judgment
against Mr. LaCount for the original amount that was entered against him previously.”
(See Appendix Page 35 Line 15 - 17)
The Court then made the “default” judgment for the original amount plus some costs
and prejudgment interest and further stated that the judgment so entered is jointly and
severally tied to any judgment that may be awarded against the co-defendant. (See
Appendix Pages 27 - 30)
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[10] The Defendant next made an unsuccessful and ill-advised direct appeal
solely basing his argument that the Defendant did not have a pattern of non-
compliance. (See Appendix Pages 38 - 46)
[11] Defendant next made a motion for relief within the one-year time
requirement that is demanded of Rule 60(b) motions and was defeated due to the
original District Court’s complete disregard for fundamental fairness and the Rules of
Civil Procedure. The Defendant/Appellant did not appeal that denial of the motion to
vacate because the footnotes in the Minnesota Rules of Appellant Procedure expressly
forbid an appeal on denial of a motion for relief from judgment of a default judgment
unless no appearance by the Defendant was made. (See appendix Pages 31 – 34)
[12] The Appellant then made a motion for relief from the foreign judgment
docketed in Ward County and Cass County on the basis that the judgment is void and
the judgment failed to follow due process requirements. The North Central District
Court denied the motion on the basis that the motion is untimely and that he had two
opportunities to argue the issues in the original jurisdiction and failed to obtain relief.
This appeal follows.
STATEMENT OF FACT
[13] There exists an original default judgment that was administratively awarded,
which the Appellant successfully vacated because it was void. (See Order to Vacate
Original Judgment in Appendix Page 14 - 17).
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[14] In that Order to vacate, the Honorable Mark Hansen further ordered the
Plaintiffs to amend the complaint, stating “Plaintiffs shall be permitted to file an
amended complaint, Defendants shall be required to file an Answer, and the parties
shall submit Civil Cover Sheets, all within the time provided by the rules, as if this action
had just now commenced.” (See Appendix Page 14 Item 2)
[15] The Appellant, due to withdrawn counsel’s neglect, failed to supplement
answers on the interrogatories and was given notice that said failure may result in the
listed sanctions in Rule 37 in the Order to Compel Discovery.
[16] The Appellant’s co-defendant who failed to participate in discovery in any
manner was involuntarily civilly committed to the State Hospital in Jamestown and
diagnosed with Schizoaffective Disorder prior to the Pre-Trial Hearing. Plaintiff’s
counsel was made aware of that and sent a letter to the Judge seeking permission to
proceed individually against the Appellant and postpone any actions against the co-
defendant until she could appear in court again.
[17] The Court replied to that letter stating “That the co-defendant will likely be
given a continuance due to her commitment and with respect to the Appellant stated,
“Additionally, a dispositive motion, such as a motion for default judgment against Mr.
LaCount, may be brought so that it can be heard at the same Pre-Trial Hearing.” No
motion for default judgment was made. (See Courts Response to Plaintiff in Appendix
Page 26)
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[18] At the Pre-Trial Hearing, the court on its own decided that the Appellant
would be facing sanctions and asked the Plaintiffs’ Counsel of the 4 listed sanctions that
the Defendant was warned might be enacted, which of the 4 would you have the court
impose? The Plaintiff’s Counsel stated “At this point, the Plaintiff’s request a default
judgment in the amount of the Original Judgment.” (see Appendix page 35 Lines 15-17)
[19] The court then asked the Plaintiff if he had the order ready for her to sign
and the Plaintiff’s counsel stated again since he had no idea what was going to happen
today, he did not have the order ready but he could get it ready and e-mail it to her
clerk by the end of the next day. The Court then made a judgment against the Appellant
the following day.
[20] The defendant made an unsuccessful direct appeal that is not dispositive to
this appeal and after that made a motion in the original court for relief from the
judgment. The order denying the motion contains prima fascie proof that the court
didn’t just error in the amount it awarded, but made judicial determinations on the
original complaint and applied it to the Amended complaint action, even though the
court knew the Original Complaint is void. (See order denying motion to vacate in
Appendix page 34 Item 16). Furthermore, the court allows the affidavit of Robert
Russell stating the Appellant failed to respond to the Original Complaint as the proof
necessary to make a judgment on damages after default. This is again absolute proof
that the court was adjudicating on the Original Complaint and acting as an Appellant
court and overruling the successful motion to vacate.
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LEGAL ANALYSIS AND ARGUMENT
[21] Subject matter jurisdiction is reviewed de novo. Mixed questions of law and
facts are reviewed under the clear error standard and a denial of a motion for relief
from judgment is reviewed under the abuse of discretion standard.
[22] Rule 60.02 states “on motion and just terms, the court may relieve a party
or its legal representative from a final judgment, order, or proceeding for the following
reasons:
(d) the judgment is void
(e) the judgment has been satisfied, released, or discharged; it is based on an
earlier judgment that has been reversed or vacated; or applying it prospectively
is no longer equitable; or
(f) any other reason that justifies relief.
[23] Rule 60.03 states
(1) Timing. A motion under Rule 60(b) must be made within a
reasonable time, and for reasons (1), (2), and (3) no more than a year
after notice of entry of the judgment or order in the action or
proceeding if the opposing party appeared, but not more than one
year after a default judgment has been entered.
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[24] Under Rule 60(b)(4) “a judgment is void if the issuing court lacked
jurisdiction over the subject matter, lacked personal jurisdiction over the parties
through failure of service that has not been waved, or acted in a manner inconsistent
with due process.” Lyon Fin. Servs., Inc. v. Waddill, 625 N.W.2d 155, 158 (Minn. App.
2001).
[25] The Federal Courts state Rule 60(b)(4) applies only in the “rare instance”
that there is a jurisdictional error or a violation of Due Process that deprives a party on
notice of its opportunity to be heard. Id. And even if there is a jurisdictional error, we
have concluded that a judgment is void only in the “rare instance of a clear usurpation
of power.” Marshall, 575 F.2d at 422 n.19; Espinosa, 130 S. Ct. at 1377 (recognizing that
this is the general rule).
[26] Some cases discuss judgments that are “void” or “voidable.” A “void
judgment means a judgment that is void on the face of the record (i.e., the judgment
roll) and subject to either direct or collateral attack, whereas a “voidable” judgment
means a judgment valid on the face of the record and may not be collaterally attacked.
(Rest.2d, Judgments, Introductory Note to Chapter 5 (Relief from Judgment), Comment
C, p. 143).
[27] The District Court in North Dakota abused its discretion in denying the
motion to vacate because the judgment that the foreign judgment is based upon is void
as per Rule 60(2)(iv), and Rule 60(2)(v), and as the alternative Rule 60(2)(vi).
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- [28] The judgment is void because the court had no authority to render the
judgment it did, by using Appellant powers not granted to it, in a clear
usurpation of power.
[29] A court must have both subject matter and personal jurisdiction to issue a
valid order or judgment. Garaas v. Cass Cty. Joint Water Res. Dist., 2016 ND 148, ¶ 4.
“‘Subject-matter jurisdiction is the court’s power to hear and determine the general
subject involved in the action.’” Id. (quoting Albrecht v. Metro Area Ambulance, 1998 ND
132, ¶ 10, 580 N.W.2d 583). The constitution is the ultimate source of a court’s judicial
power. Albrecht, at ¶ 10; Rudnick v. City of Jamestown, 463 N.W.2d 632, 635 (N.D.
1990). Under N.D. Const. art. VI, § 8, a district court has “original jurisdiction of all
causes, except as otherwise provided by law, and such appellate jurisdiction as may be
provided by law or by rule of the supreme court.” Appellate jurisdiction is the power of
a court to review a decision rendered by another court or tribunal. Rudnick, at 636.
Under those authorities, a district court does not have appellate jurisdiction to review a
decision by another court or tribunal unless authorized by statute or by rule of the
supreme court. The Constitution of the State of Minnesota states that “district courts
will have original jurisdiction in all matters and Appellant jurisdiction as granted by law.”
There is no law in Minnesota that would allow the District Court the ability to make
judicial determinations of a different District Court sua sponte, then effectively overturn
the successful motion to vacate and hijack the evidence without even having seen it.
[30] “If a court grants relief, which under the circumstances it hasn’t any
authority to grant, its judgment is to that extent void.” (1 Freeman on Judgments, 120c.)
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[31] “Considering what is meant by the term “jurisdiction” it is well settled that
this term includes the court’s power to enter the judgment, and the entry of a decree
which the court has no authority to enter is without jurisdiction and void. A void
judgment may be attacked directly or collaterally. Newman v. Bullock 23 Colo. 217, 47,
Pac. 379; Atchison, Topeka and Santa Fe Railway Co. v. Board of County Commissioners,
95 Colo. 435, 37 P (2d).
[32] This is a matter of subject matter jurisdiction and one that the Texas Court
of Appeals has made certain in its discussion in Sierra Club v. TNRCC 26 S.W.3d 684
(July, 2000). The Court spells out two certainties when it comes to subject matter
jurisdiction. “The power to award relief is an essential component of subject-matter
jurisdiction, and it may be restricted by a statute limiting the kinds of relief that may be
rendered in certain kinds of cases. See Morrow v. Corbin 62 S.W.2d 641, 645 (Tex.
1933). And in describing how to differentiate between subject matter jurisdiction and
procedural irregularities that do not go to subject matter jurisdiction it states that
subject matter jurisdiction will serve to “define, enlarge, or restrict the class of causes
the court may decide or the relief the court may award.” The Supreme Court of
Minnesota seems to agree when they discuss subject matter jurisdiction stating
“…Jurisdiction of the subject matter means, not only authority to hear and determine a
particular class of actions, but authority to hear and determine the particular questions
the court assumes to decide…When the court goes beyond and outside the issues made
by the pleadings,…. (quoted in full below).
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[33] Finally in the particular issue, the United States Court of Appeals, Eleventh
Circuit on May 6, 1982 in Varnes v. Local 91, Glass Bottle Blowers 674 F.2d 1365 (1982)
was confronted with a similar issue. It states as follows; “Second Varnes asserts it is of
no consequence that there could be no valid judgment on the amended complaint
because the final judgment was based upon the allegations and requested relief in the
original complaint. We have held above that no default could issue on the amended
complaint against the union because it was not properly served. We now hold that no
default could issue on the original complaint either. The District Court, with Varnes’
consent, dismissed the original complaint for failure to state a claim upon which relief
could be granted, and granted Varnes 20 days leave to Amend. Varnes drafted the
order of dismissal and filed the amended complaint. Varnes was not barred, by
consenting the dismissal and filing the amended complaint, from raising on appeal the
correctness of the dismissal order, [Citation omitted] nor should she be denied a trial on
the merits because of an improper pleading that can be corrected by amendment
[citation omitted]. However, she should not be able to engraft necessary portions of the
amended complaint onto the original complaint to perfect the original complaint or
have the court reinstate a dismissed complaint for the sole purpose of legitimating a
clerk’s default; yet that is what Varnes asks this court to do”.
[34] One simply has to replace the word dismissed with the word void to have it
pertain to the instant case. The 7th District Court in the state of Minnesota not only
allows the legitimization of a void complaint, it actually defends its judgment by
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switching the two complaints as if they were interchangeable and pretends it is doing
the Appellant a favor by so doing.
[35] In Hutchins v. Priddy, W.D.Mo. 103 F. Supp. 601 (1952) United States District
Court, W.D. on the 10th of March, 1952 stated “Before progressing to that subject, we
believe certain fundamental principles so well grounded in procedure in courts of this
land that they need no citation of authorities to sustain them should be called to mind.
It is hornbook that an amended pleading which is complete in itself and does not refer
to a prior pleading supersedes the prior pleading so that it no longer remains a part of
the record in an action; and where the method of serving an amended pleading is
regulated by statute, such method must be followed.” 71 C.J.S., Pleading, 321, 412, 413.
[36] Although the amended complaint did rely heavily on the original complaint, the
same principle can be applied to an amended pleading based on the original judgment
that was declared void. It should be axiomatic that the Original Pleading has no
authority or grants no right after the judgment it was based upon was void and further
that the Order to Vacate demanded the Plaintiff’s submit an amended complaint which
must be seen as a requirement to proceed further with the litigation.
- [37] A judgment is void if it gives effect to a void judgment.
Here it must be noted that the Original Complaint and the damages awarded
were already declared void, and further discourse about what jurisdiction means and if
the court had the authority to sentence the Appellant is not actually relevant to this
instance although the Appellant makes said arguments regardless. The issue is whether
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or not a void judgment can be re-instated by a different judge in the same court that
voided the Original. So now I will discuss what effect a void judgment has upon future
litigation.
[38] The reason the Appellant is so convinced that this judgment is void is
because it awarded the exact same damages as the Original void judgment, the sole
reason for the amount of damages awarded is the request to match a void judgment, it
uses the same exact evidence to support it, not the same evidence in a re-written
affidavit but the exact same affidavit, the court claimed it made an “express judicial
determination” whereas the original judgment was without judicial determination and
last but not least, it is reported to be a default judgment and therefor must be based
upon pleadings or a complaint, the only logical one is the Original Complaint. When the
Plaintiff’s Counsel asked of a judgment in the amount of the original judgment as
previously awarded, that amount was not $352,767.15. It was nothing, since there is no
judgment after a judgment is declared void. So, what was requested was a judgment
that amounted to nothing. It is not even accurate to say it was zero, since it in reality
did not exist. When the Court awarded the amount of 352,767.15, one very important
thing occurred. What was nothing now became a value, and what was nothing has now
been given a new inception, a new life and that is the very opposite of what the court is
mandated to do. See they are mandated to oppose void judgments and remove them
whenever found from the records. This court breathed new life into a void judgment
and all who attempt to enforce it are trespassers. “A void judgment is, in legal effect, no
judgment at all. By it no rights are divested; from it no rights can be obtained. Being
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worthless, in itself, all proceedings founded upon it are necessarily equally worthless,
and have no effect whatever upon the parties or matters in question. A void judgment
neither binds nor bars anyone. All acts performed under it, and all claims flowing out of
it, are absolutely void. The parties attempting to enforce it are trespassers.” Arnold v.
Joines, 50 Okl. 4, 14, 150 P. 130, 133 (1915).
[39] “A judgment absolutely void may be attacked anywhere, directly or
collaterally whenever it presents itself, either by parties or strangers. It is simply a
nullity, and can be neither a basis nor evidence of any rights whatever.” Andrews v.
Superior Court of San Joaquin County (1946) 29 Cal.2d 208, 214-215. “A void judgment
or order is, in legal effect, no judgment. By it no rights are divested. From it no rights
can be obtained. Being worthless in itself, all proceedings founded upon it are equally
worthless. It neither binds nor bars any one.” (Rochin v. Pat Johnson Manufacturing Co.
(1998) 67 Cal.App.4th 1228, 1240, quoting Bennett v. Wilson (1898) 122 Cal. 509, 513-
514.)
[40] The Hawai’i Supreme Court has stated: “[v]oid means null; ineffectual,
unable, in law, to support the purpose for which it was intended; an instrument or
transaction which is wholly ineffective, inoperative, and incapable of ratification and
which thus has no force or effect so that nothing can cure it.” Beneficial Haw. Inc. v.
Kida, 96 Hawai’i 289, 319, 30 P.3d 895, 925 (2001). (emphasis added)
[41] “The fact that the void judgment has been affirmed on review in an
appellate court or an order or judgment renewing or reviving it entered adds nothing to
its validity. Such a judgment has been characterized as a dead limb upon the judicial
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tree, which may be chopped off at any time, capable of bearing no fruit to plaintiff but
constituting a constant menace to defendant.” WALLS v. ERUPCION MIN. CO. 6 P.2d
1021 November 3, 1931.
[42] “The general rule is that a void judgment is no judgment at all. Where
judgments are void, as was the judgment originally rendered by the trial court here, any
subsequent proceedings based upon the void judgment are themselves void. In
essence, no judgment existed from which the trial court could adopt either findings of
fact or conclusions of law. Valley Vista Development Corp. v. City of Broken Arrow, 766
P.2d 344, 1988 OK 140 (Okla. 12/06/1988).
[43] In Sramek v. Sramek 17 Kan. App.2d 573 (1992), the Kansas Court of Appeals
asked itself this question, If the initial order was void, can it be revived? The answer was
this, “We conclude, based on our reading of the cases from other jurisdictions, that a
void judgment is an absolute nullity and may be ignored or disregarded, vacated on
motion, or attacked on habeas corpus.
- [44] A judgment is void if it awards damages that are wholly outside the pleadings.
[45] A judgment that gives relief or awards damages that are not part of the issues
presented to the court for its decision is wholly outside the pleadings and void due to
jurisdictional infirmities and violations of the due process rights of the parties. This is
much different from a judgment that awards excess or different in kind of damages
which would have to be attacked directly. “Whether the court had jurisdiction to render
the judgment in question is to be determined by rules which we think are well settled.
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There can be no doubt that the court had jurisdiction of the parties and of the subject
matter in the general sense that it had authority to hear and determine the class of
cases to which the instant one belongs. But that is not enough; it is necessary that the
court should have had authority also to decide the particular question which the
judgment assumes to determine. As we held in Sache v. Wallace, 101 Minn. 169, 172,
112 N.W. 386, 387, 11 L.R.A.(N.S.) 803, 118 A.S.R. 612, 11 Ann. Cas. 348: “…Jurisdiction
of the subject matter means, not only authority to hear and determine a particular class
of actions, but authority to hear and determine the particular questions the court
assumes to decide…When the court goes beyond and outside the issues made by the
pleadings, and in the absence of one of the parties determines property rights against
him which he has not submitted to it, the authority of the court is exceeded, even
though it had jurisdiction of the general subject of the matters adjudicated…It is of the
utmost importance both as a matter of justice and policy to observe the rules just
announced. After all, parties to a lawsuit do not become subject to the court’s power
for all purposes, but only to the extent that judicial power is invoked by the issues raised
to decide the particular questions such issues present for decision. Furthermore, a
defendant should have the right to submit without contest to a judgment specifically
demanded by the plaintiff in his complaint; and where he so submits, the defendant
should not be obligated to follow the proceedings to see to it that only such a judgment
is taken against him, but should be protected in the assumption that only a judgment
can and will be granted.” Sache v. Wallace, supra; Northern Trust Co. v. Albert Lea
College, 68 Minn. 112, 71 N.W.9.
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[46] Courts can only act upon matters that are properly brought before them
pursuant to “the settled law, practice and usage.” Randolph v. Jenks v. Merchants’ Nat’l
Bank, 77 Tenn. 63, 68 (Tenn. 1882). That was not the case in Hodge. “Orders issued by a
court without jurisdiction are void, and we are under an affirmative duty to vacate void
orders without reaching the merits of the issues on appeal.” Hodge, 2007 WL 3202769,
at *2 (citing Tenn. R. App. P. 13(b); First American Trust Co. v. Franklin-Murray Dev. Co.
L.P., 59 S.W.3d 135, 141 (Tenn. Ct. App. 2001)). Accordingly, we vacated the 2005 Order
of Reference as being void due to a lack of jurisdiction. Id. at *4.
[47] It is a fundamental rule of practice that a judgment by default must be justified
by the pleadings. This rule is set out in 30A Am.Jur., "Judgments," Section 213, page 289,
where it is stated that: "Although, after the entry of a judgment by default, formal
defects in the mode of pleading are not regarded as material, it is a general rule that a
judgment by default must be justified by the pleadings. Such a judgment may not be
rendered where the pleadings of the plaintiff omit averments essential to the showing
of a cause of action, ***” This rule is based on the proposition that the default admits
nothing more than what is alleged in the complaint. Adamsen Construction Co. v.
Altendorf, 152 N.W.2d 579 (N.D. 1967)
[48] It is said that the jurisdiction of a particular court is always at rest until formally
invoked by a complaint from a party that has been harmed by another party. When a
court awards damages based on a void complaint, it has no jurisdiction to do so. And
without jurisdiction any decree it makes is invalid and void.
DUE PROCESS
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[49] The award of damages that are wholly outside the pleadings are implicate
both jurisdictional and due process violations that would void the judgment. The
District Court of Appeal of Florida, Fourth District on the June 17, 2015 stated “A trial
court is without jurisdiction to award relief that was not requested in the pleadings or
tried by consent. See S. Indus. Tire, Inc. v. Chicago Indus. Tire, Inc., 541 So.2d 790, 791
(Fla. 4th DCA 1989) (citation omitted); see also Mullne v. Sea-Tech Constr. Inc., 84 So.3d
1247, 1249 (Fla. 4th DCA 2012). Thus, “a judgment which grants relief wholly outside the
pleadings is void.” Bank of New York Mellon v. Reyes, 126 So.3d 304,309 (Fla. 3d DCA
2013). Further, granting relief which is neither requested by appropriate pleadings, nor
tried by consent, is a violation of due process. Wachovia Mortg. Corp. v. Paul J. Posti Jr.,
The Unknown Spouse of Paul J. Posti, Jr., Bella Terra Cmty. Ass’n, Inc (Fla. 4th DCA 2015).
[50] Due process encompasses more than just the right to notice and the right to
be heard. The most authoritative “list” of procedural due process was developed by
Judge Henry Friendly which are:
1) An unbiased Tribunal
2) Notice of the proposed action and the grounds asserted for it
3) Opportunity to present reasons why the proposed action should not be taken
4) The right to present evidence, including the right to call witnesses
5) The right to know opposing evidence
6) The right to cross examine witnesses
7) A decision based exclusively on the evidence presented
8) Opportunity to be represented by counsel
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9) Requirement that the tribunal prepare a record of the evidence presented
10) Requirement that the tribunal prepare written findings of fact and reasons
for its decision.
[51] Notice and notice of the proposed action and the grounds asserted for it are
the number one most important rights of due process. Notice is also required when a
party answers a complaint but otherwise fails to defend and the opposing party seeks a
default judgment. The oral motion that the District Court claims was sufficient is not at
all sufficient for a motion for default because it requires and affidavit of proof and it
must be given to the party who is defending against the default judgment motion 3 days
before the hearing. But in the instant case the Appellant was on “notice” that a default
judgment would not be allowed until the Plaintiffs made the motion for default
judgment because those were the District Courts instructions to the Plaintiff in the very
letter the court claims put me on notice.
[52] Since the Appellant had no notice of a default hearing, no notice that the
“default hearing” would take place at the Pre-Trial Hearing, had actual notice that a
default judgment would not happen until a motion was made by the Plaintiff/Appellee,
the Defendant/Appellant was at a great disadvantage since he was so inadequately
prepared and had no idea the court would ignore its own instructions. If notice had
been given with the affidavit making a prima facie case proving the damages and
proving the claims were based upon actual law that the Defendant/Appellant would
have committed, he would have had 3 days to write down the arguments he wanted to
present and made sure the conclusions of law in fact valid. The Defendant has never
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been able to think well on his feet and under the intimidating conditions that a
courtroom invariably had, admittedly failed to address the very valid reasons that would
have significantly reduced the award based on the damages and not the liability. Even
having constructive notice in this instance was not enough, since the damages awarded
were not based upon the Amended Complaint, were not addressed by affidavit, and was
caught off guard that the Court acted in such an unfair and prejudicial way.
[53] The Second major breech of due process was courts rather silly proposition
that the damages of the default judgment could be ascertained on the Original Affidavit
of no reply when the Defendant addressed the fact in his denied motion for relief that
the default judgment had absolutely zero evidence supporting it. There was no affidavit
at the time of sentencing as there should have been, so to grant to the
Plaintiff/Appellee the proof it needed almost one full year after the sentence was
rendered is fundamentally unfair. Even at the hearing on the motion for relief, the
Plaintiff did not actually submit the affidavit it claims proved the damages, it merely
suggested the Defendant failed to acknowledge the original affidavit, and that
statement and that statement alone was enough for the Court to claim damages were
proven by the Original Affidavit. The Court never actually had the Affidavit before the
court for review, and the Affidavit’s whole premise was the Defendant failed to respond,
which clearly, he did, makes the Affidavit invalid and not proof of damages.
[54] Finally concerning due process, just an observation, the court held the Rules
of Civil Procedure were so sacred that it interjected itself into the case, not allowing the
judgement on the merits and awarding a huge award to the Plaintiffs. As soon as the
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court decided to step in, then not one singe rule of civil procedure had any importance
and in fact the court actively assisted the Plaintiff in skirting the same Rules it held so
sacredly before. This double standard the Court obviously maintained, casts a long
shadow on bias of the Court.
Full Faith and Credit and Res Judicata and Collateral Estoppel
[55] The Enforcement of foreign decisions in each state court is guided by Article
IV, Section 1 of the United States Constitution, which states that “[f]ull faith and credit
shall be given in each state to the public acts, records and judicial proceedings of every
other state.” The Supreme Court in Durfee v Duke, 375 U.S. 106, 111, 84 S.Ct. 242, 245
(1963) states “A state court judgment is entitled to full faith and credit in other states
when it is determined that questions have been fully and fairly litigated and finally
decided in the original court.”
[56] Restatement (Second) of Conflict of Laws 104 (1969) states: “A judgment
rendered without judicial jurisdiction or without adequate notice or adequate
opportunity to be heard will not be recognized or enforced in other states.”
[57] Res Judicata can be defined as “a thing or matter that has been definitely
and finally settled and determined on its merits by the decision of a court of competent
jurisdiction.” Robertson Lbr. Co. v. Progressive Contractors, Inc., 160 N.W.2d 61, 76
(N.D. 1968) citing Knutson v. Ekren, 72 N.D. 118, 5 N.W.2d 74 (1942).
[58] The Court claims to have made an express judicial determination when it
awarded the damages that were solely based upon the Original Judgment, and it even
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allows the exact same “proof” that was submitted to the Clerk for the administratively
awarded and void judgment. So, the final determination in the Original Judgment was
the Order to Vacate the Original Judgment since the Order made it certain that the
parties were to start from scratch with an amended complaint, new civil coversheets,
and a new responsive brief, and the damages sought were unrecognizable to each
other. So in order to apply these principles of collateral estoppel and res judicata and
the need for finality in judgments, one would have to remove those same rights that
were the Appellants and without any justification apply them to the illegal order and
turn the whole concept on its head and use the concepts that should protect the
Appellant into reasons to again give effect to a void judgment.
CONCLUSION
To summarize:
1) [59] The Court abused its discretion in denying relief from a void judgment
because it was void and therefor could not have been untimely, however, it
abused its discretion more by not adjudicating upon it whatsoever. Since
judgements that are void can be challenged at any point in any proceeding
including at an oral testimony in front of the Supreme Court for the first
time, I am asking the Supreme Court of ND to adjudicate upon this matter.
2) [60] This foreign judgment is void simply because the judgment it is founded
upon is void and was void at the time the court decided to make a judicial
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determination that it could “devoid” a void judgment. And that judgment is
void for the following reasons
a. [61] The court had no authority to render the judgement it did – Both
because it had to assume Appellant Powers that it was not given by
law to assume and because it awarded relief that it had no authority
to award.
b. [62] The Judgement, being based exclusively upon a prior void
judgment is void and void ab initio, otherwise it gives effect to a void
judgment. The Original Court stated in the denied motion to vacate
that it made an express judicial determination to revive the void
judgment and this is the opposite of what would be required of any
court when confronted by any void judgment.
c. [63] The judgment adjudicated upon pleadings that were not properly
before it. Courts can only act upon issues that were formally pled by
a party who suffered actual injury. It cannot interject itself into any
conflict by itself. A court’s jurisdiction is always at rest until it is
invoked by a party and any further controversy it pretends to decide
is void.
d. [64] Since the Appellant had no notice of a default hearing, no notice
that the “default hearing” would be during the Pre-Trial Hearing, had
actual notice that a default judgment would not happen until a
motion was made by the Plaintiff/Appellee, the Defendant/Appellant
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was at a great disadvantage when it was demanded he react without
preparation to the sua sponte default hearing. And by allowing the
Plaintiffs to provide new evidence of proof of damages a year after
the court made its decision is also a serious violation of due process
and fundamental fairness.
REQUEST FOR RELIEF
[65] The Appellant is asking the Supreme Court of ND to void the judgments
docketed anywhere in the State of North Dakota and issue an order to cease and desist
any and all enforcements of this judgment in the matter anywhere it arises in the State
of North Dakota including all liens, levies, garnishments including all costs of
enforcement that will be born by the Plaintiff. The Appellant is also requesting the
return of all property including personal property, real property, garnishments and bank
levies and any other instrument designed to collect this void judgment to be returned in
7 days after the decision by the Supreme Court.
[66] Alternatively, the Appellant is requesting that if the Supreme Court
determines they do not have the jurisdiction to hear this appeal, based upon the fact
that it was not a final judgment, to issue a stay on all enforcement of the judgment until
the judgment has been finalized in the original jurisdiction and the Appellant be given
the chance to appeal it in said original jurisdiction.
[67] Any other argument based on Rule 52(a) the Appellant declines to address.
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CERTIFICATE OF COMPLAINCE
I, Daniel Peter LaCount, on this 29th day of July certify that the brief submitted was
authored by myself, is of appropriate type face and font size and does not exceed 38
pages as required by Rule 38A(8)(A) of the North Dakota Rules of Appellant Procedure.
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IN THE SUPREME COURT
STATE OF NORTH DAKOTA
Joseph C. Honrud & Debra Diane Honrud, )
Plaintiffs and Appellees )
v. ) Supreme Court No. 20190190
D. Peter LaCount ) Ward County No. 51-2017-CV-01890
Defendant and Appellant )
CERTIFICATE OF SERVICE
I, Daniel Peter LaCount, on this 2nd day of August certify that the brief as written was
served via e-mail to [email protected] with the minor changes requested by
the Clerk of Supreme Court and no changes other than those requested have occurred.
This serves as proof of service as the e-mail will show it copied to the opposing counsel.