IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|Edward Dean Waslaski, Jr.,||)|
|)||Supreme Court No. 20120342|
|)||Stark County Case No. 45-00K-599|
|The State of North Dakota,||)|
APPEAL FROM ORDER
FROM THE DISTRICT COURT
STARK COUNTY, NORTH DAKOTA
SOUTHWEST JUDICIAL DISTRICT
HONORABLE H. PATRICK WEIR
|Assistant State's Attorney for|
|ND Bar ID# 03669|
|P.O. Box 130|
|Dickinson, ND 58602|
|Attorney for Respondent|
TABLE OF CONTENTS
|TABLE OF CASES||ii|
|STATEMENT OF THE ISSUES ...||1|
|STATEMENT OF THE CASE . 2|
|STATEMENT OF THE FACTS ....||3|
|LAW AND ARGUMENT ....||4|
|CONCLUSION . 6|
|CERTIFICATE OF SERVICE ... 7|
TABLE OF CASES
|American Ins. Co., v. Midwest Motor Express, Inc., 554 NW2d 182 (ND 1996) 4|
|Austin v. Towne, 1997 ND 59... 4, 5|
|Johnson v. State, 2004 ND 130 ¶6. 5|
|Lapp v. Reeder Public School District, 544 NW2d 164 (ND 1996).... 4|
|N.D.C.C. Section 28-27-02 ... 5|
|N.D.R.Civ.P., 59(j). 4|
STATEMENT OF THE ISSUES
STATEMENT OF THE CASE
The Respondent has no disagreement with the Petitioner's Statement of the Case, except to add that the Petitioner filed a Notice of Appeal on May 30, 2012, from the trial court's Memorandum Opinion of May 29, 2012. That appeal was dismissed on June 21, 2012.
STATEMENT OF THE FACTS
The Respondent has so objection to the Statement of the Facts presented by the Petitioner except for those assertions which are clearly argumentative in nature.
LAW AND ARGUMENT
The first issue concerns the appealability of the Court's Order Denying Motion for Reconsideration. This Court, in Austin v. Towne, 1997 ND 59, stated in paragraph 7: "A motion to reconsider is a motion to alter or amend the judgment under N.D.R.Civ.P. 59(j)...N.D.R.Civ.P., 59(j) provides that "A motion to alter or amend a judgment must be served and filed no later than 28 days after notice of entry of the judgment." In this case, notice of the trial court's Memorandum Opinion was served on May 29, 2012. The Motion for Reconsideration was filed on July 9, 2012. That was beyond the 28 day period. Nevertheless, this rule can be set aside in certain circumstances. See e.g. Lapp v. Reeder Public School District, 544 NW2d 164 (ND 1996).
The Respondent does not believe that the Order Denying Motion for Reconsideration is an appealable issue. The Respondent would concede that the Court's Memorandum of May 29, 2012, would be appealable because it bore all the hallmarks of a final order. As this Court explained in Footnote 1 of American Ins. Co., v. Midwest Motor Express, Inc., 554 NW2d 182 (ND 1996):
"A memorandum decision is generally not appealable under N.D.C.C. § 28-27-02. See Zueger v. Carlson, 542 NW2d 92, 94 n. 2 (ND 1996). However, an appeal may be taken from a memorandum decision if the record also contains a final order or judgment which is consistent with the memorandum decision, see Ehli v. North Dakota Workers Compensation Bureau, 447 NW2d 313, 314-315 (ND 1989), or if the memorandum decision demonstrates it was intended to constitute the final order of the court. See Midwest Federal Sav. Bank v. Symington, 393 NW2d 753, 754 (ND 1986). Although the record does not contain a formal order or judgment consistent with the memorandum decisions, the memorandum decisions indicate they were intended to be final orders of the court."
In this case, however, the appeal from the Memorandum Opinion was dismissed. That should foreclose any appeal from that order.
With respect to an appeal from an Order Denying Motion for Reconsideration, the case for appealability is less persuasive. The Motion for Reconsideration in this case is largely a "do over". It has none of the characteristics of a final order and should be considered non-appealable. "Post-conviction proceedings are civil in nature and all rules and statutes applicable in civil proceedings are available to the parties...." Johnson v. State, 2004 ND 130 ¶6. Because of this fact, it would appear that N.D.C.C. Section 28-27-02 would appear to govern what type of orders are appealable in the context of post-conviction relief. In examining that statute, a motion to reconsider does not appear to be of a type set forth in that statute.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION
This Court, Austin v. Towne, 1997 ND59, in paragraph 8 held as follows:
"[¶8] A decision on a N.D.R.Civ.P. 59 motion is within the sound discretion of the trial court. Lapp v. Reeder Pub. Sch. Dist. No. 3, 544 NW2d 164, 166 (ND 1996); Schatke v. Schatke, 520 ND2d 833, 835 (ND 1994). We will not reverse the denial of a motion under N.D.R.Civ.P. 59 absent a manifest abuse of discretion. Lapp; Schatke. "A trial court abuses its discretion if it acts in an arbitrary, capricious, or unreasonable manner, or if it misinterprets or misapplies the law." Filler v. Bragg, 1997 ND 24, ¶9, 559 NW2d 225; Weber v. Weber, 548 NW2d 781, 783 (ND 1996)."
The Court did not abuse its discretion. The new information did not add any information at all. Critical gaps still exist and do not advance the Defendant's case in any significant respect.
For this reasons stated herein, the decision of the trial court should be affirmed.
Dated this day of December 2012, at Dickinson, North Dakota.
|Assistant State's Attorney|
|ND Bar ID #03669|