Tibert v. City of Minto
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| 20030207 |
Melvin Tibert, Mark Tibert,
Cathy Tibert, and Suzi Tibert, Plaintiffs
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Melvin Tibert, Mark Tibert,
and Suzi Tibert, Plaintiffs and Appellants
v.
City of Minto, a Municipal
Corporation, Bill Slominski,
and Kathy Slominski, D/B/A
Minto Grain LLC, Defendants and Appellees
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| Appeal from: |
District Court,
Northeast Judicial District,
Walsh County
Judge M. Richard Geiger |
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Nature of Action: |
Real Property
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| Counsel: |
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| Term: |
01/2004 Argument: 01/26/2004 01:30pm
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| ND cite: |
2004 ND 97
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| NW cite: |
679 N.W.2d 440
Listen to recording of oral argument
using RealPlayer Basic,© a free download.
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| Issues: |
Appellant's Statement of the Issues:
1. The evidence in the trial record clearly proved that "Kilowatt Drive" was established as a Minto City Street, if it had not been earlier, as the result of a sequence of interrelated events, which occurred back in the year 1980, with "Kilowatt
Drive" deriving from its dedication for such use by Burlington Northern, Inc., the undisputed fee title owner of the land traversed by "Kilowatt Drive", at the time.
2. The self-serving, and "effectuated for litigation purposes" event, staged by defendants City of Minto and Minto Grain, LLC, in October of 2002, whereby Minto Grain purported to "grant" an easement to the City of Minto, hardly serves to render the
instant litigation "moot", or "non-justiciable".
Appellee's Statement of the Issues:
ISSUE A: Whether the Trial Court correctly found that the Tiberts failed to sustain their burden of proving by clear and convincing evidence an implied common law dedication of the subject property.
ISSUE B: Whether the Trial Court correctly concluded that there existed no justiciable controversy.
Appellee's Statement of the Issues:
1. Conspicuously absent from the brief of the appellants is any statement of the issues presented for review as required by Rule 28 (a)(3), N.D.R.App.P. From a review of the appellants' brief, the defendant/appellee City of Minto (hereinafter
referred to as "City") believes the issues for review are:
A. Whether the Trial Court's determination that the relief sought by the plaintiffs/appellants (hereinafter referred to as "Tiberts") was rendered moot, by an Easement for Ingress and Egress (App. 91-94) entered into between the City and the
defendant/appellee Minto Grain, LLC (hereinafter referred to as "Minto Grain") after this lawsuit commenced, was an abuse of discretion.
B. Whether the Trial Court's factual finding that the Burlington Northern Santa Fe Railroad (hereinafter referred to as "BNSF") did nothing that would constitute either an express or implied dedication of the subject real property (hereinafter
referred to as "Kilowatt Drive") as a public roadway was clearly erroneous.
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 Add Docket 20030207 RSS
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| 1 | | 07/14/2003 | |
NOTICE OF APPEAL: 07/11/2003 |
| 2 | | 07/25/2003 | |
Copy of letter from Margaret Campbell acknowledging receipt of OTR |
| 3 | | 07/25/2003 | |
RETENTION OF RECORD ON APPEAL: 09/12/2003 |
| 4 | | 08/06/2003 | |
ORDER FOR TRANSCRIPT: 07/28/2003 |
| 5 | | 08/06/2003 | |
RECORD ON APPEAL (3 Vol.) including transcript dated 2-12-02, deposition (1) and Exhibits |
| 6 | | 08/19/2003 | |
MOT. EXT/TIME APPELLANT BRIEF & Affidavit in Support(faxed copy) |
| 7 | | 08/19/2003 | |
ACTION BY CLERK (ATB due 40 days after filing of TRA). Granted: 11/08/2003 |
| 8 | | 08/19/2003 | |
MOTION FOR CONSOLIDATION w/20030208 & Affidavit in Support (part of Mot/Ext/Time)(faxed) |
| 9 | | 08/22/2003 | |
Letter dated 08/21/03 from Ron Fischer stating he takes no position w/ respect to motion to |
| 10 | | 08/22/2003 | |
consolidate appeal and no objection to mot. for ext. of time to file Appellants' Brief |
| 11 | | 08/25/2003 | |
Response of Appellees to Motion by Appellants for Extension of Time for Filin Appellants Main Brief |
| 12 | | 08/25/2003 | |
and/or for Consolidation of this Case with Supreme Court Case No. 20030207 |
| 13 | | 08/26/2003 | |
ACTION BY CHIEF JUSTICE (Mot. for Consolidation). Denied |
| 14 | | 09/08/2003 | |
MOT. EXT/TIME TRANSCRIPT (M.Campbell) |
| 15 | | 09/08/2003 | |
ACTION BY TRIAL COURT (Geiger). Granted: 09/30/2003 |
| 16 | | 09/11/2003 | |
Supplemental Clerk's Certificate dated 9-10-03 (Entry Nos. 190-192) (Not rec'd: #190--Notice from |
| 17 | | 09/11/2003 | |
S.C. Receipt of Appeal & #192--Order Extending Time to File Transcript) |
| 18 | | 09/15/2003 | |
Supplemental Clerk's Certificate dated 9-12-03 (Entry Nos. 192 & 193) |
| 19 | | 09/29/2003 | |
TRANSCRIPT COMMENCING FEBRUARY 25, 2003 (2 VOL.) |
| 20 | | 09/29/2003 | |
DISK - TRA 2-25-03 (2) |
| 21 | | 10/30/2003 | |
MOT. EXT/TIME APPELLANT BRIEF & Affidavit in Support (faxed) |
| 22 | | 10/30/2003 | |
ACTION BY CLERK. Granted: 11/21/2003 |
| 23 | | 11/21/2003 | |
APPELLANT BRIEF |
| 24 | | 11/21/2003 | |
E-FILED BRIEF (ATB) |
| 25 | | 11/21/2003 | |
APPELLANT APPENDIX |
| 26 | | 11/21/2003 | |
Proof of Service of ATB on opposing counsel dated 11/21/03 |
| 27 | | 11/21/2003 | |
Payment of $25 fee for filing electronic ATB (Receipt #15275) |
| 28 | | 12/03/2003 | |
Received ATB from Central Duplicating |
| 29 | | 12/08/2003 | |
MOTION TO STRIKE, Appellees Minto Grain, LLc, Bill Slominski & Kthy Slominski, with brief & affid.. RspDue: 12/22/2003 |
| 30 | | 12/08/2003 | |
APPELLEE CITY OF MINTO'S MOTION TO STRIKE W/BRIEF IN SUPPORT. RspDue: 12/22/2003 |
| 31 | | 12/19/2003 | |
APPELLEE BRIEF of Minto Grain, LLC, Bill Slominski & Kathy Slominski (e-filed) |
| 32 | | 12/19/2003 | |
E-FILED BRIEF (AEB -- Minto Grain, Bill Slominski & Kathy Slominski) |
| 33 | | 12/19/2003 | |
JOINT APPENDIX OF DEFENDANTS/APPELLEES (e-filed) |
| 34 | | 12/19/2003 | |
E-FILED JOINT APPENDIX of DEFENDANTS/APPELLEES |
| 35 | | 12/19/2003 | |
APPELLEE BRIEF of City of Minto |
| 36 | | 12/19/2003 | |
E-FILED BRIEF (AEB -- City of Minto) |
| 37 | | 12/22/2003 | |
Affid/Personal Service by Electronic Mail of AEB (Minto Grain, Bill Slominski & Kathy Slominski) |
| 38 | | 12/22/2003 | |
Payment of $40 surcharge for filing electronic AEB & AEA (Minto Grain, Bill Slominski & Kathy |
| 39 | | 12/22/2003 | |
Slominski) (Receipt No. 15297) |
| 40 | | 12/23/2003 | |
Response Filed by Appellants in Opposition to Motions by Appellees Minto Grain, Slominski and City |
| 41 | | 12/23/2003 | |
and City of Minto to Strike |
| 42 | | 12/31/2003 | |
Copies of AEB received from Central Duplicating |
| 43 | | 01/05/2004 | |
MOT. EXT/TIME REPLY BRIEF (Faxed letter from David Thompson dated 1-5-04) |
| 44 | | 01/05/2004 | |
ACTION BY CLERK. Granted: 01/12/2004 |
| 45 | | 01/07/2004 | |
ACTION BY SUPREME COURT (Minto Grain & Slominski Motion to Strike). Granted |
| 46 | | 01/07/2004 | |
Minto Grain & Slominskis awarded $300 in costs for bringing the motion to strike |
| 47 | | 01/07/2004 | |
ACTION BY SUPREME COURT (City of Minto Motion to Strike). Granted |
| 48 | | 01/12/2004 | |
REPLY BRIEF of Appellant (e-filed) |
| 49 | | 01/12/2004 | |
E-FILED REPLY BRIEF |
| 50 | | 01/14/2004 | |
Affidavit of Service by Electronic Mail of Reply Brief |
| 51 | | 01/16/2004 | |
Faxed letter from David Thompson dated 1-15-04 regarding Appellants' Brief and Reply Brief |
| 52 | | 01/26/2004 | |
Faxed request on behalf of Appellees to reschedule argument due to weather conditions |
| 53 | | 01/26/2004 | |
ACTION BY CHIEF JUSTICE. Denied |
| 54 | | 01/26/2004 | |
APPEARANCES: David C. Thompson; due to severe weather, Appellees were unable to appear and |
| 55 | | 01/26/2004 | |
submitted their argument on brief |
| 56 | | 01/26/2004 | |
ARGUED: Thompson (Vol. Y; pp. 197-198) |
| 57 | | 01/26/2004 | |
ORAL ARGUMENT WEBCAST |
| 58 | | 05/05/2004 | |
DISPOSITION: AFFIRMED |
| 59 | | 05/05/2004 | |
UNANIMOUS OPINION: Neumann, William A. |
| 60 | | 05/05/2004 | |
Costs on appeal taxed in favor of appellees |
| 61 | | 05/07/2004 | |
Judgment Mailed to Parties |
| 62 | | 05/27/2004 | |
MANDATE |
| 63 | | 06/01/2004 | |
RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE |
| 64 | | 11/04/2010 | |
EXPUNGED - Nonpermanent record items destroyed |