Underwood Farmers Elevator v. Leidholm

460 N.W.2d 711 (N.D. 1990)

 

RULE:

The due-process rights to notice and a hearing prior to a civil judgment may be waived. In determining the adequacy of the waiver, the standard applicable to waiver in a criminal proceeding would apply: The waiver must be voluntary, knowing, and intelligently made. There is no presumed acquiescence in the loss of fundamental rights.

FACTS:

Appellant farmer contracted with appellee to deliver bushels of oats. The contract did not specify a delivery date. Appellant then advised appellee that, due to drought conditions, he would be unable to deliver the oats. Appellee twice refused appellant's requests to buy out his contract. Appellant appealed the order from the district court that denied appellant's motion to vacate a judgment rendered upon his signed confession of judgment under N.D. R. Civ. P. 68(c) to a financial liability arising from his buy-out of the contract with appellee. The state supreme court reversed and remanded the district court's order.

ISSUE:

Was there a sufficient showing that appellant farmer voluntarily, knowingly, and intelligently waived his due-process rights to pre-judgment notice and a hearing when he signed the confession of judgment?

ANSWER:

No.

CONCLUSION:

Appellee asked appellant to sign the confession prior to any lawsuit. Appellant was in the same position as a party to a cognovit note because he had not been served with a summons and complaint, and thus he lacked a notice and opportunity to be heard. The order was entered without any hearing under N.D. R. Ct. 3.2. The record was inadequate to decide if appellant voluntarily, knowingly, and intelligently waived his rights when he signed the confession of judgment. It could not be presumed that appellant acquiesced in his loss of fundamental rights.

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