Dixon v. McKenzie Co. Grazing Association

20030005 John Dixon, Plaintiff and Appellant
v.
McKenzie County
Grazing Association, Defendant and Appellee

Appeal from: District Court, Northwest Judicial District, McKenzie County
Judge William W. McLees
Nature of Action: Contracts
Counsel:
Appellant: Chapman and Chapman, P.C.
Appellee: Johnson & Sundeen
Term: 11/2003   Argument: 11/19/2003  2:45pm
ND cite: 2004 ND 40
NW cite: 675 N.W.2d 414

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
1. Did the trial court err in determining, as a matter of law, that the MCGA breached no duty to John by issuing grazing permits to ranchers who did not own original base property?
2. Did the trial court err in determining, as a matter of law, that John's claim that the MCGA violated a duty to him by issuing grazing permits to ranchers, who did not own original base property, was barred by the statute of limitations?
3. Did the trial court err in determining that the MCGA did not act arbitrarily and capriciously by implicitly finding John guilty of willful unauthorized use as a result of the December 1994 trespass?
4. Did the trial court err in determining that the MCGA did not act arbitrarily and capriciously by changing John's headquarters from inventory to turn-in, as a result of the December 1994 unauthorized use complaint?
5. Did the trial court err in determining that the MCGA did not act arbitrarily and capriciously in finding John guilty of willful unauthorized use in August 1997?
6. Did the trial court err by awarding the MCGA $2,500.00 in attorney fees for three allegedly frivolous counts in John's complaint, which were dismissed at summary judgment?
7. Did the trial court err in awarding MCGA disbursements for photocopies, a binder used for trial exhibits, postage, long distance telephone calls, costs to retrieve tax returns which were not used at trial, and the unsubstantiated cost of a Forest Service search of John's records?

Appellant's Petition for Rehearing Issues
1. Did the Supreme Court err, when it accepted of a statute of limitations argument on base property, although the MCGA did not clarify base property until the 1990s?
2. Did the Supreme Court err, when it upheld the trial court's decision that MCGA did not exhibit bad faith in the discipline, arising from the 1994 trespass complaint?
3. Did the Supreme Court err, when it applied the business judgment rule to the decisions of the MCGA, even though the MCGA controls John Dixon's livelihood, in its control of his grazing rights?
4. Did the Supreme Court err, when it upheld the MCGA's decision to change John Dixon's headquarters from inventory to turn-in, as a result of the December 1994 trespass complaint, even though the MCGA rule book allowed no such sanction?
5. Did the Supreme Court err, when it upheld the trial court's decision to award the MCGA $2,500.00 in attorney fees for three allegedly frivolous counts in John's complaint, which were dismissed at summary judgment?
6. Did the Supreme Court err, when it upheld the trial court's decision to allow, as recoverable costs and disbursements, photocopies, a binder used for trial exhibits, postage, and long distance telephone calls?

Appellee's Statement of the Issues:
A. Did MCGA breach a duty owed to Dixon by issuing grazing permits to certain persons?
B. Did the Trial Court err in determining the Statute of Limitations prevented Dixon from bringing a claim against MCGA for issuing grazing permits to persons Dixon did not consider entitled to a permit?
C. Was MCGA arbitrary and capricious in finding that Dixon committed willful unauthorized use of his headquarters in 1994?
D. Was MCGA arbitrary and capricious in changing Dixon's headquarters from an inventory classification to a turn-in classification?
E. Was MCGA arbitrary and capricious in finding that Dixon committed willful unauthorized use in August 1997?
F. Did the Trial Court err in awarding MCGA $2500 in attorney's fees for frivolous counts in Dixon's Complaint that were dismissed?
G. Did the Trial Court err in awarding MCGA disbursements for certain costs?
H. What was the appropriate Standard of Review for the Trial Court in this case?

Appellee's Statement of the Issues:
Should the record be supplemented on appeal?
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Docket entries:
101/03/2003 NOTICE OF APPEAL: 01/02/2003
201/03/2003 ORDER FOR TRANSCRIPT: 01/02/2003
301/14/2003 Copies of letters from Sandra Ostrom to Mr. Chapman re: cost of transcript
401/28/2003 RECORD ON APPEAL (3 Vols.) - Depositions (9), Exhibits, Transcripts dated 12-22-97 & 5-08-00
502/07/2003 Copy of Notice of Entry of Amended Judgment and Amended Judgment
602/10/2003 SUPPLEMENTAL CLERK'S CERTIFICATE DATED FEBRUARY 7, 2003 (Entries 204 & 205)
702/10/2003 Ltr from Charles Chapman regarding second notice of appeal
802/12/2003 Second Notice of Appeal (filed in trial court 2-10-03)
902/12/2003 Second Supplemental Clerk's Certificate dated 2-11-03 (Entry Nos. 206 & 207)
1002/20/2003 MOT. EXT/TIME TRANSCRIPT (faxed copy)
1102/20/2003 ACTION BY TRIAL COURT. Granted: 04/21/2003
1202/21/2003 Motion for Ext/Time/Transcript & Order of Judge McLees (Same as faxed copy filed 2-20-03)
1304/21/2003 TRANSCRIPT COMMENCING DECEMBER 17, 2001 (4 VOL.) AND MASTER INDEX
1404/21/2003 DISK - TRA - 4 vol & Index
1505/27/2003 MOT. EXT/TIME APPELLANT BRIEF
1605/27/2003 ACTION BY CLERK. Granted: 06/25/2003
1706/24/2003 APPLICATION FOR ADDITIONAL WORDS for ATB
1806/24/2003 ACTION BY CHIEF JUSTICE (Add'l 1000 words for ATB). Granted
1906/25/2003 APPELLANT BRIEF
2006/25/2003 APPELLANT APPENDIX
2106/25/2003 DISK - ATB
2207/10/2003 MOT. EXT/TIME APPELLEE BRIEF & Aff/Support(faxed)
2307/10/2003 MOTION FOR Add'l Words for AEB (part of Mot/Ext/AEB)(faxed)
2407/10/2003 E-FILED MOTION &Aff/Support(Ext/time AEB & Add'l Words)
2507/10/2003 ACTION BY CHIEF JUSTICE (Mot/Ext/AEB). Granted: 09/01/2003
2607/10/2003 ACTION BY CHIEF JUSTICE (Mot/Add'l Words). Denied
2707/11/2003 Original of Motion ext/time AEB & Add'l Words for AEB
2808/15/2003 MOTION TO SUPPLEMENT RECORD OR, IN THE ALTERNATIVE, FOR A REMAND TO TRIAL COURT
2908/18/2003 ACTION BY CHIEF JUSTICE (Remand). Granted
3008/18/2003 ORDER OF REMAND
3108/19/2003 Order of Temporary Remand Mailed to Parties
3208/28/2003 APPELLEE BRIEF
3308/28/2003 APPELLEE APPENDIX
3408/28/2003 DISK - AEB (e-mailed)
3508/29/2003 Refiled RECORD ON APPEAL (3 vols.), Exhibits, Transcripts (2), & Depositions (9)
3609/12/2003 SUPPLEMENTAL CLERK'S CERTIFICATE OF RECORD DATED 9-11-2003 (Entries No. 215, 216 & 217)
3709/12/2003 The Notice of Appeal, Entry No. 215, is being filed as a Third Notice of Appeal
3809/12/2003 REPLY BRIEF
3909/13/2003 DISK - RYB
4009/17/2003 Second Supplemental Clerk's Certificate dated 9-16-03 (Entry Nos. 218 & 219)
4109/29/2003 Supplemental Appellant's Brief
4209/29/2003 Supplemental Appellant's Appendix
4309/29/2003 DISK - (Supplemental ATB)
4410/07/2003 Supplemental Appellee's Brief
4510/07/2003 Supplemental Appellee's Appendix
4610/07/2003 DISK - (Supplemental AEB - electronically filed)
4711/19/2003 APPEARANCES: Charles "Casey" L. Chapman, John Dixon; Dennis E. Johnson, Keith Winter, McKenzie Co.
4811/19/2003 Grazing Association
4911/19/2003 ARGUED: Chapman; Johnson (Vol. Y; Page 173)
5011/19/2003 ORAL ARGUMENT WEBCAST
5102/25/2004 DISPOSITION: AFFIRMED
5202/25/2004 UNANIMOUS OPINION: Sandstrom, Dale V.
5302/25/2004 Costs on appeal taxed in favor of appellee
5402/26/2004 Judgment Mailed to Parties
5503/10/2004 PETITION FOR REHEARING
5603/15/2004 Copies of corrected TOA and pages for Petition for Rehearing (Inserted)
5703/15/2004 DISK - PER (e-mailed)
5803/23/2004 ACTION BY SUPREME COURT. Denied
5903/31/2004 MANDATE
6004/08/2004 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
6110/28/2009 EXPUNGED - Nonpermanent record items destroyed

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