Moen v. Thomas
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| 20000169 |
Carol Kay Moen and LaRae A.
Thomas, Co-Trustees of the
Jay V. Thomas Family Trust, Plaintiffs and Appellees
v.
Laurie Thomas, individually
and as surviving spouse, heir
and personal representative of
Jerry J. Thomas, deceased, and
his estate, and Kisten Thomas
and Tessa Thomas, their minor
children, by Laurie Thomas,
their guardian, Defendants, Third-Party
Plaintiffs and Appellants
v.
Fred C. Rathert and Neff Cresap
Rathert Eiken & Irigoin, P.C., Third-Party Defendants
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| Appeal from: |
District Court,
Northwest Judicial District,
Williams County
Judge Debbie Gordon Kleven |
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Nature of Action: |
Real Property
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| Counsel: |
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| Term: |
02/2001 Argument: 02/26/2001 10:45am
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| ND cite: |
2001 ND 95
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| NW cite: |
627 N.W.2d 146
Listen to recording of oral argument
using RealPlayer Basic,© a free download.
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| Issues: |
Appellant's Statement of the Issues:
1. Was there an unsigned, but express lease/option under 9-06-01 NDCC that survived Jerry's death because of partial performance?
2. Did the trial court err in admitting hearsay statements of decedent Jerry contrary to R.Evid. 802, 804(b), 807 solely because he was unavailable?
3. Was there proper thirty (30) day notice to quit by the Trustees under 47-16-15 NDCC to Laurie and the girls for the 1998 farm year?
4. Did the fiduciary Trustees gain personal advantage under 59-01-16 NDCC by the failing to deliver to Jerry a lease/option according to Jay's Will and then serving notice to quit on the trust beneficiaries who were Jerry's heirs.
Appellee's Statement of the Issues:
1. Were any of the trial court's findings of fact clearly
erroneous and did the trial court make any improper
conclusions of law in determining that any lease held
by the decedent Jerry Thomas terminated December 31, 1997, and that any option to purchase the leasehold estate held by him was not inheritable?
2. Did the trial court act within its discretion under
N.D.R.Ev. 804(b)(3) in admitting a hearsay statement
of the decedent Jerry Thomas?
3. Were any of the trial court's findings of fact clearly
erroneous and did the trial court make any improper
conclusions of law in dismissing the counterclaim of
defendants Laurie Thomas and her daughters against the
plaintiffs/trustees for misrepresentation, breach of
fiduciary duty and constructive fraud?
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 Add Docket 20000169 RSS
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| 1 | | 05/31/2000 | |
NOTICE OF APPEAL: 05/30/2000 |
| 2 | | 05/31/2000 | |
ORDER FOR TRANSCRIPT: 05/30/2000 |
| 3 | | 06/07/2000 | |
Ltr from Greg Hennessy to Penny Miller dtd 6-6-00, stating intent to file separate briefs and have |
| 4 | | 06/07/2000 | |
two separate oral arguments in this case and 20000111 |
| 5 | | 06/07/2000 | |
Ltr from Fred E. Whisenand dated 6-6-00 re two separate appeals |
| 6 | | 06/07/2000 | |
RETENTION OF RECORD ON APPEAL: 07/17/2000 |
| 7 | | 06/21/2000 | |
TRANSCRIPT DATED MAY 13, 1999, FILED IN CASE NO. 20000111. |
| 8 | | 09/21/2000 | |
MOT. EXT/TIME APPELLANT BRIEF (sua sponte from settlement of record) |
| 9 | | 09/21/2000 | |
ACTION BY CLERK. Granted: 10/24/2000 |
| 10 | | 09/25/2000 | |
RECORD ON APPEAL (2 vols.) & Depositions (3) (NOTE: ROA filed in 20000111) |
| 11 | | 09/26/2000 | |
Admin. R.5 Motion for Compliance with App.R.31 |
| 12 | | 09/26/2000 | |
ACTION BY CLERK. granted |
| 13 | | 09/26/2000 | |
Faxed attachment to Admin. R5 Motion (attached to original Admin. R5 Motion) |
| 14 | | 10/17/2000 | |
MOT. EXT/TIME APPELLANT BRIEF |
| 15 | | 10/17/2000 | |
ACTION BY CLERK. Granted: 11/24/2000 |
| 16 | | 11/17/2000 | |
MOT. EXT/TIME APPELLANT BRIEF |
| 17 | | 11/17/2000 | |
ACTION BY CHIEF JUSTICE. Granted: 12/04/2000 |
| 18 | | 11/20/2000 | |
Faxed copy of Supplement to Admin.R.5 Request for Extension to File Briefs |
| 19 | | 11/21/2000 | |
Supplement to Admin.R.5 Request for Extension to File Briefs (Same as Faxed Copy) |
| 20 | | 12/04/2000 | |
APPELLANT BRIEF |
| 21 | | 12/04/2000 | |
DISK - ATB (disk filed under 20000111 - also contains atb for 20000111) |
| 22 | | 12/13/2000 | |
APPELLANT APPENDIX |
| 23 | | 12/28/2000 | |
MOT. EXT/TIME APPELLEE BRIEF (Copy in 20000111) |
| 24 | | 12/28/2000 | |
ACTION BY CLERK (MAE). Granted: 01/16/2001 |
| 25 | | 01/16/2001 | |
APPELLEE BRIEF (Moen & Thomas) |
| 26 | | 01/17/2001 | |
DISK - AEB (Moen & Thomas) |
| 27 | | 01/24/2001 | |
Corrected Table of Authorities for AEB (Moen & Thomas) |
| 28 | | 01/24/2001 | |
DISK - AEB (Corrected) |
| 29 | | 02/26/2001 | |
APPEARANCES: Greg W. Hennessy; John H. MacMaster |
| 30 | | 02/26/2001 | |
ARGUED: Hennessy; MacMaster (Vol. X; page 112) |
| 31 | | 02/26/2001 | |
ORAL ARGUMENT WEBCAST |
| 32 | | 05/22/2001 | |
DISPOSITION: AFFIRMED |
| 33 | | 05/22/2001 | |
UNANIMOUS OPINION: Neumann, William A. |
| 34 | | 05/22/2001 | |
Costs on appeal taxed in favor of appellees |
| 35 | | 05/24/2001 | |
Order/Judgment Mailed to Parties |
| 36 | | 06/15/2001 | |
MANDATE |
| 37 | | 06/19/2001 | |
RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE |
| 38 | | 06/06/2007 | |
EXPUNGED - Nonpermanent record items destroyed |