Moen v. Thomas

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

Appeal from: District Court, Northwest Judicial District, Williams County
Judge Debbie Gordon Kleven
Nature of Action: Real Property
Counsel:
Appellant: Hennessy Law Office, P.C.
Appellee: MacMaster & Geltel Ltd.
Term: 02/2001   Argument: 02/26/2001  10:45am
ND cite: 2001 ND 95
NW cite: 627 N.W.2d 146

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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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Docket entries:
105/31/2000 NOTICE OF APPEAL: 05/30/2000
205/31/2000 ORDER FOR TRANSCRIPT: 05/30/2000
306/07/2000 Ltr from Greg Hennessy to Penny Miller dtd 6-6-00, stating intent to file separate briefs and have
406/07/2000 two separate oral arguments in this case and 20000111
506/07/2000 Ltr from Fred E. Whisenand dated 6-6-00 re two separate appeals
606/07/2000 RETENTION OF RECORD ON APPEAL: 07/17/2000
706/21/2000 TRANSCRIPT DATED MAY 13, 1999, FILED IN CASE NO. 20000111.
809/21/2000 MOT. EXT/TIME APPELLANT BRIEF (sua sponte from settlement of record)
909/21/2000 ACTION BY CLERK. Granted: 10/24/2000
1009/25/2000 RECORD ON APPEAL (2 vols.) & Depositions (3) (NOTE: ROA filed in 20000111)
1109/26/2000 Admin. R.5 Motion for Compliance with App.R.31
1209/26/2000 ACTION BY CLERK. granted
1309/26/2000 Faxed attachment to Admin. R5 Motion (attached to original Admin. R5 Motion)
1410/17/2000 MOT. EXT/TIME APPELLANT BRIEF
1510/17/2000 ACTION BY CLERK. Granted: 11/24/2000
1611/17/2000 MOT. EXT/TIME APPELLANT BRIEF
1711/17/2000 ACTION BY CHIEF JUSTICE. Granted: 12/04/2000
1811/20/2000 Faxed copy of Supplement to Admin.R.5 Request for Extension to File Briefs
1911/21/2000 Supplement to Admin.R.5 Request for Extension to File Briefs (Same as Faxed Copy)
2012/04/2000 APPELLANT BRIEF
2112/04/2000 DISK - ATB (disk filed under 20000111 - also contains atb for 20000111)
2212/13/2000 APPELLANT APPENDIX
2312/28/2000 MOT. EXT/TIME APPELLEE BRIEF (Copy in 20000111)
2412/28/2000 ACTION BY CLERK (MAE). Granted: 01/16/2001
2501/16/2001 APPELLEE BRIEF (Moen & Thomas)
2601/17/2001 DISK - AEB (Moen & Thomas)
2701/24/2001 Corrected Table of Authorities for AEB (Moen & Thomas)
2801/24/2001 DISK - AEB (Corrected)
2902/26/2001 APPEARANCES: Greg W. Hennessy; John H. MacMaster
3002/26/2001 ARGUED: Hennessy; MacMaster (Vol. X; page 112)
3102/26/2001 ORAL ARGUMENT WEBCAST
3205/22/2001 DISPOSITION: AFFIRMED
3305/22/2001 UNANIMOUS OPINION: Neumann, William A.
3405/22/2001 Costs on appeal taxed in favor of appellees
3505/24/2001 Order/Judgment Mailed to Parties
3606/15/2001 MANDATE
3706/19/2001 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
3806/06/2007 EXPUNGED - Nonpermanent record items destroyed

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