Tibert v. City of Minto

20030207 Melvin Tibert, Mark Tibert,
Cathy Tibert, and Suzi Tibert, Plaintiffs
------------
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

Appeal from: District Court, Northeast Judicial District, Walsh County
Judge M. Richard Geiger
Nature of Action: Real Property
Counsel:
Appellant: David C. Thompson, P.C.
Appellee: Hodny Currie Lawyers
Appellee: Pearson Christensen & Clapp, PLLP
Appellee: Zimney Foster P.C.
Term: 01/2004   Argument: 01/26/2004  1:30pm
ND cite: 2004 ND 97
NW cite: 679 N.W.2d 440

Listen to recording of oral argument in MP3 format

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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Docket entries:
107/14/2003 NOTICE OF APPEAL: 07/11/2003
207/25/2003 Copy of letter from Margaret Campbell acknowledging receipt of OTR
307/25/2003 RETENTION OF RECORD ON APPEAL: 09/12/2003
408/06/2003 ORDER FOR TRANSCRIPT: 07/28/2003
508/06/2003 RECORD ON APPEAL (3 Vol.) including transcript dated 2-12-02, deposition (1) and Exhibits
608/19/2003 MOT. EXT/TIME APPELLANT BRIEF & Affidavit in Support(faxed copy)
708/19/2003 ACTION BY CLERK (ATB due 40 days after filing of TRA). Granted: 11/08/2003
808/19/2003 MOTION FOR CONSOLIDATION w/20030208 & Affidavit in Support (part of Mot/Ext/Time)(faxed)
908/22/2003 Letter dated 08/21/03 from Ron Fischer stating he takes no position w/ respect to motion to
1008/22/2003 consolidate appeal and no objection to mot. for ext. of time to file Appellants' Brief
1108/25/2003 Response of Appellees to Motion by Appellants for Extension of Time for Filin Appellants Main Brief
1208/25/2003 and/or for Consolidation of this Case with Supreme Court Case No. 20030207
1308/26/2003 ACTION BY CHIEF JUSTICE (Mot. for Consolidation). Denied
1409/08/2003 MOT. EXT/TIME TRANSCRIPT (M.Campbell)
1509/08/2003 ACTION BY TRIAL COURT (Geiger). Granted: 09/30/2003
1609/11/2003 Supplemental Clerk's Certificate dated 9-10-03 (Entry Nos. 190-192) (Not rec'd: #190--Notice from
1709/11/2003 S.C. Receipt of Appeal & #192--Order Extending Time to File Transcript)
1809/15/2003 Supplemental Clerk's Certificate dated 9-12-03 (Entry Nos. 192 & 193)
1909/29/2003 TRANSCRIPT COMMENCING FEBRUARY 25, 2003 (2 VOL.)
2009/29/2003 DISK - TRA 2-25-03 (2)
2110/30/2003 MOT. EXT/TIME APPELLANT BRIEF & Affidavit in Support (faxed)
2210/30/2003 ACTION BY CLERK. Granted: 11/21/2003
2311/21/2003 APPELLANT BRIEF
2411/21/2003 E-FILED BRIEF (ATB)
2511/21/2003 APPELLANT APPENDIX
2611/21/2003 Proof of Service of ATB on opposing counsel dated 11/21/03
2711/21/2003 Payment of $25 fee for filing electronic ATB (Receipt #15275)
2812/03/2003 Received ATB from Central Duplicating
2912/08/2003 MOTION TO STRIKE, Appellees Minto Grain, LLc, Bill Slominski & Kthy Slominski, with brief & affid.. RspDue: 12/22/2003
3012/08/2003 APPELLEE CITY OF MINTO'S MOTION TO STRIKE W/BRIEF IN SUPPORT. RspDue: 12/22/2003
3112/19/2003 APPELLEE BRIEF of Minto Grain, LLC, Bill Slominski & Kathy Slominski (e-filed)
3212/19/2003 E-FILED BRIEF (AEB -- Minto Grain, Bill Slominski & Kathy Slominski)
3312/19/2003 JOINT APPENDIX OF DEFENDANTS/APPELLEES (e-filed)
3412/19/2003 E-FILED JOINT APPENDIX of DEFENDANTS/APPELLEES
3512/19/2003 APPELLEE BRIEF of City of Minto
3612/19/2003 E-FILED BRIEF (AEB -- City of Minto)
3712/22/2003 Affid/Personal Service by Electronic Mail of AEB (Minto Grain, Bill Slominski & Kathy Slominski)
3812/22/2003 Payment of $40 surcharge for filing electronic AEB & AEA (Minto Grain, Bill Slominski & Kathy
3912/22/2003 Slominski) (Receipt No. 15297)
4012/23/2003 Response Filed by Appellants in Opposition to Motions by Appellees Minto Grain, Slominski and City
4112/23/2003 and City of Minto to Strike
4212/31/2003 Copies of AEB received from Central Duplicating
4301/05/2004 MOT. EXT/TIME REPLY BRIEF (Faxed letter from David Thompson dated 1-5-04)
4401/05/2004 ACTION BY CLERK. Granted: 01/12/2004
4501/07/2004 ACTION BY SUPREME COURT (Minto Grain & Slominski Motion to Strike). Granted
4601/07/2004 Minto Grain & Slominskis awarded $300 in costs for bringing the motion to strike
4701/07/2004 ACTION BY SUPREME COURT (City of Minto Motion to Strike). Granted
4801/12/2004 REPLY BRIEF of Appellant (e-filed)
4901/12/2004 E-FILED REPLY BRIEF
5001/14/2004 Affidavit of Service by Electronic Mail of Reply Brief
5101/16/2004 Faxed letter from David Thompson dated 1-15-04 regarding Appellants' Brief and Reply Brief
5201/26/2004 Faxed request on behalf of Appellees to reschedule argument due to weather conditions
5301/26/2004 ACTION BY CHIEF JUSTICE. Denied
5401/26/2004 APPEARANCES: David C. Thompson; due to severe weather, Appellees were unable to appear and
5501/26/2004 submitted their argument on brief
5601/26/2004 ARGUED: Thompson (Vol. Y; pp. 197-198)
5701/26/2004 ORAL ARGUMENT WEBCAST
5805/05/2004 DISPOSITION: AFFIRMED
5905/05/2004 UNANIMOUS OPINION: Neumann, William A.
6005/05/2004 Costs on appeal taxed in favor of appellees
6105/07/2004 Judgment Mailed to Parties
6205/27/2004 MANDATE
6306/01/2004 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
6411/04/2010 EXPUNGED - Nonpermanent record items destroyed

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