Tibert v. Slominski
Melvin Tibert, Cathy Tibert,
Mark Tibert, and Suzi Tibert, Plaintiffs and Appellants
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
Northeast Judicial District,
Judge Laurie A. Fontaine
|Nature of Action:||Real Property|
|Term:||12/2004  Argument: 12/20/2004|
|ND cite:||2005 ND 34|
692 N.W.2d 133
Listen to recording of oral argument in MP3 format
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?
|Add Docket 20040198 RSS|
|1||07/19/2004 NOTICE OF APPEAL: 07/16/2004|
|2||08/12/2004 RECORD ON APPEAL ( 2 vols.)|
|3||08/25/2004 MOT. EXT/TIME APPELLANT BRIEF & Affidavit/Support (faxed)|
|4||08/25/2004 E-FILED MOTION EXT/TIME/ATB|
|5||08/25/2004 ACTION BY CLERK. Granted: 09/17/2004|
|6||09/17/2004 APPELLANT BRIEF (e-filed)|
|7||09/17/2004 E-FILED BRIEF (ATB)|
|8||09/17/2004 APPELLANT APPENDIX|
|9||09/22/2004 Payment of $25 surcharge for electronic filing of ATB (Receipt #15803)|
|10||09/24/2004 Copies of ATB received from Central Duplicating|
|11||10/15/2004 APPELLEE BRIEF|
|12||10/15/2004 APPELLEE APPENDIX|
|13||10/27/2004 Corrected TOA and pages for AEB|
|14||10/27/2004 DISK - AEB (e-mailed)|
|15||10/28/2004 MOT. EXT/TIME REPLY BRIEF|
|16||10/28/2004 ACTION BY CLERK. Granted: 11/08/2004|
|17||10/28/2004 E-FILED MOTION (facsimile transmission)|
|18||11/08/2004 REPLY BRIEF of Appellants (e-filed)|
|19||11/08/2004 E-FILED BRIEF (RYB)|
|20||12/01/2004 Request for Radio/TV Coverage (AP) email dated 12-01-04 from Dale Wetzel (APPROVED)|
|21||12/20/2004 APPEARANCES: David C. Thompson, Melvin Tibert, Mark Tibert; Zenas Baer|
|22||12/20/2004 ARGUED: Thompson; Baer (Vol. Z; Page 65)|
|23||12/20/2004 ORAL ARGUMENT WEBCAST|
|24||01/21/2005 Supplemental Clerk's Certificate dated 1-20-05 (Entry Nos. 86 & 87 - Exhibits 1 & 3 for|
|25||01/21/2005 Affidavit of Sue Ellen Tibert -- Entry No. 36)|
|26||02/16/2005 DISPOSITION: AFFIRMED|
|27||02/16/2005 UNANIMOUS OPINION: Kapsner, Carol Ronning|
|28||02/16/2005 Costs on appeal taxed in favor of appellee|
|29||02/22/2005 Judgment Mailed to Parties|
|30||03/03/2005 Clerk's Supp. Cert. of ROA dated March 2, 2005, with entries 89 & 90 (entry 88-receipt-not rec'd)|
|32||03/16/2005 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE|
|33||10/03/2011 EXPUNGED - Nonpermanent record items destroyed|