Tibert v. Slominski
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
Judge Laurie A. Fontaine
| Appellant: | David C. Thompson, P.C. | |
| Appellee: | Zenas Baer Law Office |
Listen to recording of oral argument
using RealPlayer Basic,© a free download.
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