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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

DANPELA911@GMAIL.COM

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 steve@okeeffeattorneys.com 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.