Tibert v. Minto Grain

20030208 Mark Tibert and Suzi Tibert, Plaintiffs and Appellants
v.
Minto Grain, LLC, Bill Slominski,
and Kathy Slominski, 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: Zimney Foster P.C.
Term: 01/2004   Argument: 01/26/2004  10:45am
ND cite: 2004 ND 133
NW cite: 682 N.W.2d 294

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Issues: Appellant's Statement of the Issues:
A. The district court committed reversible error by failing to grant the appropriate deferential and liberalized construction to the complaint in the instant action, particularly because this action is an action in equity.
B. In and of itself, the decision of the North Dakota Supreme Court in Nowling v. BNSF Railway, supra, did not have the consequence of effectively adjudicating all of the issues of title implicated in the instant equitable quiet title action, with Nowling, if anything, having raised substantial question as to whether the defendants possess any title, whatsoever, as a result of the quit-claim deed transaction which took place between BNSF Railway and these defendants in January of 2001.
C. Given the substance of N.D.C.C.  49-09-04.2, the failure by BNSF Railway to first perform the mandatory acts required by this statute, and its procedural companion, N.D.C.C.  49-09-10.2(1), before entering into the quit-claim deed transaction with the defendants in January of 2001, causes this transaction to be void, with the defendants herein being vested with no title, whatsoever, in the real property at issue in the instant litigation.
D. The original grants by which the predecessor of BNSF Railway assumed an original interest in the subject real property, notwithstanding their "warranty deed" language, as a matter of law conveyed only an easement for railroad right-of-way purposes to the BNSF predecessor railroad, with this easement becoming vacated immediately upon a sale of the property.

Appellant's Reply Brief Issue
A. The constrictive pleading standards, which the district court erroneously imposed upon the plaintiffs'/appellants' complaint in the instant "quiet title action" for equitable/declaratory relief, should be rejected.

Appellee's Statement of the Issues:
Issue A: Whether the trial court properly dismissed the Tiberts' claims to the disputed property under the theories of adverse possession and/or possession under the doctrine of acquiescence
Issue B: Whether the trial court properly disallowed the Tiberts' attempts to attack Minto Grain's title to the subject property

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Docket entries:
107/14/2003 NOTICE OF APPEAL: 07/11/2003
208/06/2003 RECORD ON APPEAL & exhibits
308/19/2003 MOT. EXT/TIME APPELLANT BRIEF & Affidavit in Support (faxed copy)
408/19/2003 ACTION BY CLERK (due date only if this case is not consolidated w/20030207). Granted: 09/10/2003
508/19/2003 MOTION FOR CONSOLIDATION w/20030207 & Affidavit in Support (part of Mot/Ext/Time)(faxed)
608/22/2003 Letter dated 8-21-03 from Ron Fischer stating he takes no position w/ respect to motion to
708/22/2003 consolidated appeal and no objection to mot for ext. of time to file Appellants' Brief
808/25/2003 Response of Appellees to Motion by Appellants for Extension of Time for Filing Appellants' Main
908/25/2003 Brief and/or for Consolidation of this Case with S. Ct. #20030208
1008/26/2003 ACTION BY CHIEF JUSTICE (Motion for Consolidation). Denied
1109/03/2003 MOT. EXT/TIME APPELLANT BRIEF (faxed letter from David Thompson dated 9-3-03)
1209/03/2003 E-FILED MOTION/Ext/Time ATB
1309/03/2003 ACTION BY CLERK. Granted: 09/15/2003
1409/15/2003 APPELLANT APPENDIX
1509/18/2003 Apppellant's Brief (replaced on 1/16/04)
1609/18/2003 E-FILED BRIEF (ATB)
1709/19/2003 Payment of $25 fee for filing electronic ATB (Receipt # 15217)
1809/25/2003 Affidavit of Service by Mail of the Appellant's Brief
1910/17/2003 APPELLEE BRIEF
2010/17/2003 E-FILED BRIEF (AEB)
2110/17/2003 APPELLEE APPENDIX
2210/20/2003 Surcharge Fee for e-filed AEB Paid $25 - Receipt 15244
2310/20/2003 Affidavit of Personal Service by Electronic Masil
2410/30/2003 MOT. EXT/TIME REPLY BRIEF & Aff/Support (faxed)
2510/30/2003 ACTION BY CLERK. Granted: 11/14/2003
2610/30/2003 E-FILED MOTION (MRY/via facsimile)
2711/13/2003 MOT. EXT/TIME REPLY BRIEF
2811/13/2003 ACTION BY CLERK. Granted: 11/21/2003
2911/13/2003 E-FILED MOTION (MRY/via facsimile)
3011/20/2003 Reply Brief (replaced 1/16/04)
3111/20/2003 E-FILED BRIEF (RYB)
3211/20/2003 Appellant's Supplement Appendix (Partially Stricken by Order dated 1-7-04)
3311/21/2003 Affidavit of Service of Reply Brief by Electronic Mail
3412/08/2003 MOTION TO STRIKE, APPELLEES MINTO GRAIN, LLC, BILL SLOMINSKI AND KATHY SLOMINSKI & Brief & Affi.. RspDue: 12/22/2003
3512/23/2003 BRIEF OF APPELLANTS IN OPPOSITION TO MOT. BY AE'S MINTO GRAIN, BILL SLOMINSKI & KATHY SLOMINSKI
3601/07/2004 ACTION BY SUPREME COURT (Motion to Strike) (original in 20030207). Granted
3701/16/2004 APPELLANT BRIEF (replacement)
3801/16/2004 E-FILED BRIEF (ATB)
3901/16/2004 REPLY BRIEF (replacement)
4001/16/2004 E-FILED BRIEF (RYB)
4101/20/2004 Clerk's Supp. Cert. of Record on Appeal with entries 60 & 61 attached
4201/21/2004 Affidavit of Service of ATB and RYB
4301/26/2004 APPEARANCES: David C. Thompson, Melvin Tibert, Suzi Tibert; AE submitted on brief due to weather
4401/26/2004 ARGUED: Thompson (Vol. Y; p. 197)
4501/26/2004 ORAL ARGUMENT WEBCAST
4601/26/2004 Faxed request on behalf of Appellees to reschedule argument due to weather conditions (20040207)
4701/26/2004 ACTION BY CHIEF JUSTICE. Denied
4806/30/2004 DISPOSITION: AFFIRMED
4906/30/2004 UNANIMOUS OPINION: Neumann, William A.
5007/01/2004 Judgment Mailed to Parties
5107/23/2004 MANDATE
5207/29/2004 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
5311/04/2010 EXPUNGED - Nonpermanent record items destroyed

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