Tibert v. Slominski

20040198 Melvin Tibert, Cathy Tibert,
Mark Tibert, and Suzi Tibert, Plaintiffs and Appellants
v.
Bill Slominski & Kathy Slominski,
individually, and as they have done
business as the sole shareholders
of Minto Grain, LLC, a North Dakota
limited liability company, Defendants and Appellees

Appeal from: District Court, Northeast Judicial District, Walsh County
Judge Laurie A. Fontaine
Nature of Action: Real Property
Counsel:
Appellant: David C. Thompson, P.C.
Appellee: Zenas Baer Law Office
Term: 12/2004   Argument: 12/20/2004  1:30pm
ND cite: 2005 ND 34
NW cite: 692 N.W.2d 133

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
A. The district court erred in granting the motion by the Slominski/Minto Grain defendants for summary judgment, as to the Tiberts' claims sounding in nuisance, as the factual record of this case in the district court clearly established genuine issues of material fact, relative to the Tiberts' nuisance claims, and N.D.C.C.  42-01-02 does not immunize the defendants from nuisance liability as a matter of law.
i. The Slominski/Minto Grain parties are clearly not entitled to statutory immunity from liability for the plaintiffs' claims under the tort of nuisance, as the North Dakota Supreme Court has made clear that operations, such as that of the defendants, do not qualify for the immunity of N.D.C.C.  42-04-02, because this operation does not meet the prerequisites of N.D.C.C. Chapter 10-06.1-01, related to corporate or limited liability company farming.
B. The district court erred in granting the motion by the Slominski/Minto Grain defendants for summary judgment, as to the Tiberts' claims sounding in trespass, as the factual record of this case in the district court clearly established genuine issues of material fact, relative to the Tiberts' common law trespass claims.

Appellee's Statement of the Issues:
1. Is Minto Grain, LLC, a limited liability company, and authorized to engage in farming, entitled to the Nuisance Shield Law protection as codified in N.D.C.C. 42-04-02?
2. Does an allegation by the Plaintiffs that their home and property will be affected by dust, diesel exhaust fumes, and other particulate matter caused by the public's use of a roadway rise to the level of a recognized tort of trespass against just one of several businesses situated on an adjacent railroad industrial lot?
3. Does a Plaintiff who alleges an anticipatory nuisance and anticipatory trespass state a cause of action which can survive summary judgment?
4. Are the Plaintiffs' causes of action, nuisance and/or trespass, barred by the doctrine of "coming to the nuisance"?
5. Are the claims of the Plaintiffs barred by the doctrine of collateral estoppel and/or res judicata given the lengthy litigation history involving these same parties?

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Docket entries:
107/19/2004 NOTICE OF APPEAL: 07/16/2004
208/12/2004 RECORD ON APPEAL ( 2 vols.)
308/25/2004 MOT. EXT/TIME APPELLANT BRIEF & Affidavit/Support (faxed)
408/25/2004 E-FILED MOTION EXT/TIME/ATB
508/25/2004 ACTION BY CLERK. Granted: 09/17/2004
609/17/2004 APPELLANT BRIEF (e-filed)
709/17/2004 E-FILED BRIEF (ATB)
809/17/2004 APPELLANT APPENDIX
909/22/2004 Payment of $25 surcharge for electronic filing of ATB (Receipt #15803)
1009/24/2004 Copies of ATB received from Central Duplicating
1110/15/2004 APPELLEE BRIEF
1210/15/2004 APPELLEE APPENDIX
1310/27/2004 Corrected TOA and pages for AEB
1410/27/2004 DISK - AEB (e-mailed)
1510/28/2004 MOT. EXT/TIME REPLY BRIEF
1610/28/2004 ACTION BY CLERK. Granted: 11/08/2004
1710/28/2004 E-FILED MOTION (facsimile transmission)
1811/08/2004 REPLY BRIEF of Appellants (e-filed)
1911/08/2004 E-FILED BRIEF (RYB)
2012/01/2004 Request for Radio/TV Coverage (AP) email dated 12-01-04 from Dale Wetzel (APPROVED)
2112/20/2004 APPEARANCES: David C. Thompson, Melvin Tibert, Mark Tibert; Zenas Baer
2212/20/2004 ARGUED: Thompson; Baer (Vol. Z; Page 65)
2312/20/2004 ORAL ARGUMENT WEBCAST
2401/21/2005 Supplemental Clerk's Certificate dated 1-20-05 (Entry Nos. 86 & 87 - Exhibits 1 & 3 for
2501/21/2005 Affidavit of Sue Ellen Tibert -- Entry No. 36)
2602/16/2005 DISPOSITION: AFFIRMED
2702/16/2005 UNANIMOUS OPINION: Kapsner, Carol Ronning
2802/16/2005 Costs on appeal taxed in favor of appellee
2902/22/2005 Judgment Mailed to Parties
3003/03/2005 Clerk's Supp. Cert. of ROA dated March 2, 2005, with entries 89 & 90 (entry 88-receipt-not rec'd)
3103/10/2005 MANDATE
3203/16/2005 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
3310/03/2011 EXPUNGED - Nonpermanent record items destroyed

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