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 1:30pm|
|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?
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|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)|
|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|
|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)|
|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|