Filed 4/11/19 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2019 ND 102

State of North Dakota, by and through

Workforce Safety and Insurance, Plaintiff and Appellee

v.

Eight Ball Trucking, Inc., 

David T. Horrocks, and 

Laurie J. Horrocks, Defendants and Appellants

No. 20180267

Appeal from the District Court of Burleigh County, South Central Judicial

District, the Honorable Gail Hagerty, Judge.

AFFIRMED.

Opinion of the Court by VandeWalle, Chief Justice.

Mitchell D. Armstrong (argued) and Sarah E. Wall (on brief), Special Assistant

Attorneys General, Bismarck, ND, for plaintiff and appellee.

Aaron W. Owens, Provo, UT, for defendants and appellants.
WSI v. Eight Ball Trucking, Inc.

No. 20180267

VandeWalle, Chief Justice.

[¶1] Eight Ball Trucking, Inc., and David and Laurie Horrocks (collectively 

“defendants”) appealed from an order entered after the district court denied their

motion under N.D.R.Civ.P. 60(b) for relief from a summary judgment. We conclude

the court did not abuse its discretion in denying the motion, and we affirm the order.

I

[¶2] The Horrocks are officers of Eight Ball, a Utah trucking company doing 

business in North Dakota during the relevant time period. A dispute arose over Eight

Ball’s allocation of employees between North Dakota and Utah and Eight Ball’s

obligation to procure North Dakota workers compensation insurance for its North

Dakota employees. In late March and early April 2016, Workforce Safety &

Insurance (“WSI”) commenced an action against the defendants by serving them with

a summons and complaint to enjoin them from employing individuals in North Dakota

and to collect $802,689.84 in unpaid workers compensation insurance premiums,

penalties, and interest. See N.D.R.Civ.P. 3 (“A civil action is commenced by the

service of a summons.”). WSI’s complaint alleged that the defendants were Utah

employers engaged in employment in North Dakota without proper workers

compensation insurance and were liable for unpaid premiums, penalties, and interest

and estimated premiums, penalties, and interest for the time period from October 10,

2009 through February 29, 2016. The complaint alleged that WSI had issued an

August 28, 2015 notice of an administrative decision finding the Horrocks personally

liable for unpaid premiums and penalties owed by Eight Ball, that the Horrocks did

not request reconsideration nor appeal from that decision, and that the administrative

decision was res judicata.

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[¶3] In an April 21, 2016 email to WSI, Laurie Horrocks indicated she was

responding to WSI’s summons and submitted documentation she claimed established

Eight Ball’s gross wages for the requested time periods. An internal WSI claim note

stated that WSI received a telephone call from Laurie Horrocks on May 27, 2016,

requesting an update on her response to the summons and complaint. The internal

claim note said Laurie Horrocks was informed the submitted documentation did not

support an adjustment to Eight Ball’s outstanding premium balance. A June 29, 2016

letter from WSI to the Horrocks informed them that WSI had finished its review of

the documentation sent on April 21, 2016, and determined the information did not

warrant a premium adjustment. WSI’s letter to the Horrocks stated it was denying the

request for an adjustment and requested payment of $802,362.52. In an October 10,

2016 letter to the Horrocks, WSI sent an Alternative Dispute Resolution Statement

indicating ADR was not appropriate because there was no dispute regarding the

amount of premium owed and multiple attempts to collect the premium had failed.

[¶4] According to WSI, the Horrocks did not respond to the October 2016 letter,

and on November 10, 2016, WSI filed the pending lawsuit in district court and moved

for summary judgment. WSI served the motion by mail on the Horrocks. According

to the Horrocks, they did not respond to the summary judgment motion because they

thought they had submitted necessary documentation to WSI to resolve the issue. On

December 15, 2016, the district court granted WSI’s motion for summary judgment,

awarding WSI $812,702.79 in premiums, penalties, and costs and disbursements and

enjoining Eight Ball from engaging in employment in North Dakota. The court

concluded the defendants were prevented by administrative res judicata from

relitigating issues or defenses that could have been raised during the administrative

process. On December 19, 2016, WSI sent the Horrocks a letter, informing them the

judgment had been entered against them on December 15, 2016, and requesting

payment. The defendants did not appeal from the summary judgment.

[¶5] On December 15, 2017, the defendants filed a motion under N.D.R.Civ.P.

60(b)(1) to set aside the summary judgment on the grounds of mistake, inadvertence,

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surprise or excusable neglect. The district court denied the motion, determining the

defendants’ disregard and neglect of the legal process was not excusable neglect and

failed to establish extraordinary circumstances necessary to set aside the judgment

under N.D.R.Civ.P. 60(b). The court said the 2016 summary judgment was a decision

on the merits and the defendants’ claims about a meritorious defense were

inapplicable. The court nevertheless explained that the defendants’ conclusory

allegations failed to provide specific facts to establish a legal basis for allowing

consideration of their alleged defenses.

II

[¶6] The defendants argue the district court erred in considering the summary

judgment as a judgment on the merits and in applying a stricter standard to set aside

the judgment rather than applying the more lenient standard for setting aside a default

judgment. They assert the summary judgment was not a judgment after a full trial on

the merits because there were factual disputes about the allocation of Eight Ball’s

wages to North Dakota employees and to Utah employees. They contend the court

erred in granting WSI’s “unsupported” and “premature” motion for summary

judgment. They argue the unopposed motion for summary judgment and resulting

summary judgment should have been vacated for mistake, inadvertence, surprise or

excusable neglect under N.D.R.Civ.P. 60(b)(1), or for any other reason justifying

relief under N.D.R.Civ.P. 60(b)(6).

[¶7] In Carroll v. Carroll, 2017 ND 73, ¶ 8, 892 N.W.2d 173 (citations omitted),

we described our standard of review of a district court’s decision on a motion to

vacate a judgment:

Under N.D.R.Civ.P. 60(b), a motion to vacate a judgment “lies

with the ‘sound discretion of the trial court, and its decision whether to

vacate the judgment will not be disturbed on appeal unless the court has

abused its discretion.’” We have explained that under Rule 60(b) “[w]e

do not determine whether the court was substantively correct in

entering the judgment from which relief is sought, but determine only

whether the court abused its discretion in ruling that sufficient grounds

for disturbing the finality of the judgment were not established.” A

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district court may grant relief under N.D.R.Civ.P. 60(b) for “(1)

mistake, inadvertence, surprise, or excusable neglect; . . . (3) fraud

(whether previously called intrinsic or extrinsic), misrepresentation, or

misconduct by an opposing party; . . . or (6) any other reason that

justifies relief.” “Rule 60(b) attempts to strike a proper balance

between the conflicting principles that litigation must be brought to an

end and that justice should be done, and, accordingly, the rule should

be invoked only when extraordinary circumstances are present.”

[¶8] A district court abuses its discretion when it acts in an arbitrary, unreasonable,

or unconscionable manner, when it misinterprets or misapplies the law, or when its

decision is not the product of a rational mental process leading to a reasoned

determination. Riak v. State, 2015 ND 120, ¶ 14, 863 N.W.2d 894. 

[¶9] In considering a motion to vacate a judgment, we have said “[a]

self-represented party ‘should not be treated differently nor allowed any more or any

less consideration than parties represented by counsel.’” Hildebrand v. Stolz, 2016

ND 225, ¶ 7, 888 N.W.2d 197 (quoting Horace Farmers Elevator Co. v. Brakke, 383

N.W.2d 838, 840 (N.D. 1986)). We have also said “‘there should generally be greater

liberty in granting motions under N.D.R.Civ.P. 60(b) when the matter involves a

default judgment rather than a judgment following a full trial on the merits.’” Key

Energy Servs., LLC v. Ewing Const., Inc., 2018 ND 121, ¶ 13, 911 N.W.2d 319

(quoting Monster Heavy Haulers, LLC v. Goliath Energy Servs., LLC, 2016 ND 176,

¶ 10, 883 N.W.2d 917). In Throndset v. L.L.S., 485 N.W.2d 775, 778-79 (N.D. 1992)

(quoting CUNA Mortgage v. Aafedt, 459 N.W.2d 801, 803 (N.D. 1990)), we

explained the bases for the more lenient standard for analyzing default judgments:

While a trial court certainly has discretion to grant or deny a Rule 60(b)

motion to vacate a default judgment, the range of that discretion is

limited by three important considerations. First, Rule 60(b) is remedial

in nature and should be liberally construed and applied. Second,

decisions on the merits are preferable to those by default. Third, as a

consequence of the first two considerations, ‘“[w]here timely relief is

sought from a default judgment and the movant has a meritorious

defense, doubt, if any, should be resolved in favor of the motion to set

aside the judgment so that cases may be decided on their merits.”’ 

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[¶10] The defendants claim the district court erred in not considering their motion

to set aside the summary judgment under the more lenient standard for setting aside

a default judgment. We have often recognized that summary judgment is a procedural

device for promptly resolving a case on the merits. E.g., Markgraf v. Welker, 2015

ND 303, ¶ 10, 873 N.W.2d 26. We have also said the failure to respond to a summary

judgment motion does not transform the resulting summary judgment into a default

judgment. Gustafson v. Poitra, 2008 ND 159, ¶ 16, 755 N.W.2d 479. See

Hildebrand, 2016 ND 225, ¶¶ 8-9, 888 N.W.2d 197 (stating judgment entered after

failure to appear for trial does not constitute default judgment); Goetz v. Gunsch, 80

N.W.2d 548, 552-53 (N.D. 1956) (stating default judgment is judgment taken when

defendant fails to answer or enter timely appearance and not when defendant fails to

appear at trial). In Gustafson, at ¶¶ 14-18, we rejected a defendant’s argument the

district court denied him due process by not providing a hearing date before granting

an unopposed motion for summary judgment. We explained the defendant’s failure

to respond to the summary judgment motion did not convert the subsequent summary

judgment into a default judgment. Id. at ¶ 16. See N.D.R.Ct. 3.2(c) (stating failure

to file brief by opposing party may be deemed admission that in opinion of party or

counsel, the motion is meritorious); N.D.R.Civ.P. 56(e) (requiring party opposing

summary judgment to set forth specific facts showing genuine issue for trial).

[¶11] Here, in response to WSI’s commencement of the action in late March and

early April 2016, the Horrocks submitted documentation they claimed supported an

adjustment to their premium balance. Their submissions constituted an appearance

in the pending litigation. See State v. $33,000.00 U.S. Currency, 2008 ND 96, ¶¶ 8-9,

748 N.W.2d 420 (stating issue of appearance is question of law and appearance is any

response sufficient to give plaintiff notice of intent to contest claim). We conclude

the summary judgment entered after the failure to respond to WSI’s motion for

summary judgment is an adjudication on the merits and the court did not err in

declining to apply the more lenient standard for a default judgment to the defendants’

motion to vacate the summary judgment.

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[¶12] The district court determined the defendants’ disregard and neglect of the legal

process was not excusable neglect. Although the defendants were not represented by

counsel before the summary judgment was entered, their disregard of the legal process

is not entitled to any different treatment because of their self-represented status and

their claims about confusion and a mistaken belief that there was no need to respond

to the summary judgment motion. See Hildebrand, 2016 ND 225, ¶ 7, 888 N.W.2d

197. Moreover, the defendants’ motion to vacate, with counsel, was not brought until

one year after the summary judgment was entered. We have said timeliness is a factor

in considering a motion to vacate, and a defendant who allows a judgment to be

entered and waits until the eleventh hour to challenge the judgment may bear the

consequences of the delay. See Key Energy, 2018 ND 121, ¶ 14, 911 N.W.2d 319

(affirming denial of motion to vacate default judgment brought more than ten months

after entry of default judgment). The defendants also complain about the amount

awarded in the summary judgment. We have recognized that under some

circumstances the amount of money at stake may be a legitimate factor for

consideration, but we have also explained that factor is not enough to warrant

vacation of a judgment in the absence of a good excuse. See Key Energy, 2018 ND

121, ¶¶ 2, 14, 911 N.W.2d 319 (affirming denial of motion to vacate default judgment

for $951,191.62). 

[¶13] The district court determined the defendants had not established excusable

neglect. Moreover, the court also determined the defendants failed to identify any

specific facts to establish a meritorious defense to the summary judgment or any other

extraordinary circumstances warranting relief from the judgment. The court’s denial

of the defendants’ motion to vacate the summary judgment was not a misapplication

of the law and was the product of a rational mental process leading to a reasoned

determination. We conclude the court’s decision was not arbitrary, capricious, or

unreasonable and was not an abuse of discretion.

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III

[¶14] We affirm the order denying the defendants’ motion for relief from the

judgment.

[¶15] Gerald W. VandeWalle, C.J.

Jerod E. Tufte

Daniel J. Crothers

Lisa Fair McEvers

Jon J. Jensen

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