Livinggood v. Balsdon

20050149 Danny R. Livinggood, Plaintiff and Appellant
Aaron Balsdon, Defendant and Appellee

Appeal from: District Court, Northeast Judicial District, Cavalier County
Judge Laurie A. Fontaine
Nature of Action: Real Property
Appellant: Cameron D. Sillers, PC
Appellee: Fleming, DuBois & Fleming, PLLP
Term: 11/2005   Argument: 11/07/2005
ND cite: 2006 ND 11
NW cite: 709 N.W.2d 723

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
1)Did the trial court err in not granting Livinggood the right to exercise his leasehold rights for the full term of the lease?
˙Duane Balsdon entered into a 5-year farm lease with Danny Livinggood. (Pl.Ex. #1, Tr.6)
˙Livinggood farmed under the lease for one year. (Tr. 7)
˙Thereafter, Duane Balsdon sold the farm land to Aaron Balsdon. (Pl.Ex. #2)
˙Aaron Baldson had knowledge of the lease at the time of the purchase. (Trial Court's Finding VII)
˙Duane Balsdon received an advance lease payment prior to the sale for the crop year 2004. (Tr. 8 & 17)
˙Duane Balsdon delivered this advance payment to Aaron Balsdon at the time of the sale. (Tr. 22)
˙Aaron Balsdon forcibly evicted Livinggood from the land and refused to let him exercise his leasehold rights for crops 2004 and following. (Tr. 33, 34, 59 & 80)
˙Livinggood petitioned the court for injunctive relief to prohibit Aaron Balsdon from interfering with his leasehold rights. (Petition for Temp. Injunction)
˙The trial court denied the relief sought and left Aaron Balsdon in possession of the premises. (Tr. Ct. Ruling on Injunctive Relief)
˙In a resulting action Livinggood sued Aaron Balsdon for damages for the year he was denied the leasehold estate. (Pl. Complaint)
˙In addition to monetary damages, Livinggood requested treble damages for his unlawful exclusion from real property. (Pl. Complaint)
˙Livinggood also asked for restoration to the premises for the remainder of the lease term. (Pl. Complaint)
˙The trial court did not restore Livinggood to his leasehold estate. (Tr. Ct. Order)
2)Did the trial court err in not granting Livinggood damages of $2,500 for each year of the remaining term of the lease?
˙The trial court found there was a valid and existing lease held by Livinggood. (Tr. Ct. Finding #11)
˙The lease provided that Livinggood would have the right to sublet the premises if he chose. (Pl.Ex. #1)
˙The rental price of the property was established at trial to $2,500 per year. (Pl.Ex. #1)
3)Did the trial court err in not granting treble damages for the forcible eviction of Livinggood?
˙Livinggood's prayer for judgment request treble damages. (Pl. Complaint)
˙The trial court granted damages for one year in the amount of $14,863.95. (Tr. Ct. Judgment)
˙The trial court did not grant treble damages. (Tr. Ct. Findings of Fact, Conclusions of Law)
˙The trial court's findigs are silent as to why treble damages were not awarded. (Tr. Ct. Order for Judgment)

Appellee's Statement of the Issues:
1. The trial court did not abuse its discretion when it refused to order specific performance of the remainder of the purported contract.
2. The trial court was under no obligation to assess damages for removing the future years of the contract, unless there is evidence Livinggood would be harmed.
3. The trial court did not err in refusing to award damages to Livinggood for being "forceably removed" from the property, when Balsdon's conduct did not rise to the necessary level to trigger the statutory penalty.

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Docket entries:
105/03/2005 NOTICE OF APPEAL: 04/28/2005
205/03/2005 ORDER FOR TRANSCRIPT: 04/28/2005
305/25/2005 RECORD ON APPEAL (w/exhibits (separate))
406/16/2005 TRANSCRIPT DATED 11-04-04
506/17/2005 DISK (e-mailed) - corrected TRA dated 11-04-04
606/20/2005 Corrected cover for TRA dated 11-04-04
908/02/2005 Corrected Table of Authorities and pages 10, 11, 12 for ATB (inserted)
1008/02/2005 DISK - corrected ATB
1208/24/2005 E-FILED MOTION - MAE
1308/24/2005 ACTION BY CLERK. Granted: 09/06/2005
1409/02/2005 APPELLEE BRIEF
1509/14/2005 DISK - AEB
1609/19/2005 REPLY BRIEF
1709/21/2005 DISK - RYB
1809/28/2005 Corrected covers for RYB
1911/07/2005 APPEARANCES: Cameron D. Sillers; Neil W. Fleming
2011/07/2005 ARGUED: Sillers; Fleming
2201/31/2006 DISPOSITION (and Remanded): AFFIRMED/PT, REVERSED/PT
2301/31/2006 UNANIMOUS OPINION: VandeWalle, Gerald W.
2401/31/2006 No costs taxed on this appeal
2502/01/2006 Judgment Mailed to Parties
2602/22/2006 MANDATE
2810/07/2014 EXPUNGED - Nonpermanent record items destroyed

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