Doeden v. Stubstad

20070322 Karen Doeden d/b/a High Impact Sign
Company, a/k/a A High Impact Sign, Plaintiff and Appellant
v.
Curtis Stubstad, Defendant and Appellee

Appeal from: District Court, East Central Judicial District, Cass County
Judge Cynthia Rothe-Seeger
Nature of Action: Contracts
Counsel:
Appellant: Garaas Law Firm
Appellee: Nilles, Plambeck, Selbo & Harrie, Ltd.
Term: 05/2008   Argument: 05/05/2008  1:30pm
ND cite: 2008 ND 165
NW cite: 755 N.W.2d 859

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
1.Did the Trial Court fail to honor the vested property rights of the owner of gifted property?
2.Did the Trial Court err in concluding that Doeden did not have an ownership interest in the gifted property?
3.In a claim and delivery action alleging conversion, does the converter have the legal right to assert lack of ownership of the property converted after participating in the forcible entry of the property owner's warehouse site, followed by the removal and secreting of the subject personal property owned by another?
4. At the implied request of a converter that is not a party to the contract, does the Trial Court have jurisdiction to alter the terms of an unqualified transfer of ownership in a business when (a) the contract evidencing prior ownership is not the subject of the action, (b) the Trial Court has no jurisdiction over one of the parties to said contract, and (c) the conversion action did not involve interpreting said contract?
5.Did the Trial Court err by allowing the converter to assert ownership in a third party when the newly-identified third party (a) denies such gift took place, and (b) provided testimony that the converted property was actually owned by Plaintiff/Appellant Doeden?
6.Did the Trial Court err in not awarding Doeden damages for conversion, including attorney fees for frivolous pleadings/presentation?
7.Can a District Court Judge take away a statutory right to interest from the date of conversion?

reply Brief Issues
It is rare for three (3) consecutive sentences to epitomize flaw, yet the error of Appellee Stubstad's position is displayed by (i) his description of the issue() and (ii) his initial view of the case [Brief of Appellee Curtis Stubstad {"Stubstad Brief"}, s 1 & 2]:
"1. Whether the district court abused its discretion by finding for defendant curtis stubstad on plaintiff Karen Doeden's claims."
2. Defendant/Appellee Curtis Stubstad purchased mobile signs, and letters used on the signs, from Stanley Knecht. Plaintiff/Appellant Karen Doeden claims that Knecht gave the signs, free of charge, to her before Knecht sold the signs/letters to Stubstad."
When Appellee Stubstad indicates the sole issue revolves around the exercise of a District Court's "discretion" [ 1, above], he voices a flawed perception of the basic purpose of a trial, which has been described by the United States Supreme Court as being "the determination of truth .." Tehan v. United States, 382 U.S. 406, 416 (1966). The District Court Judge does not exercise any discretion, but rather, decides the facts [becomes the actual fact finder] in a bench trial. Indeed, N.D.R.Civ.P. 52(a) mandates such role for the judge.
Stubstad's second and third sentence [ 2, above] pronounce an impossible sequence of events rendering his position(s) untenable. Stubstad's initial identified order of events in these appellate proceedings is even different than his original trial presentation, and incredibly, another version appears in his subsequent appellate presentation which implicitly recognizes Stubstad's conversion of Doeden's property.


Appellee's Statement of the Issues:
1. Whether the district court abused its discretion by finding for defendant Curtis Stubstad on plaintiff Karen Doeden's claims.

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Docket entries:
110/31/2007 NOTICE OF APPEAL: 10/30/2007
210/31/2007 ORDER FOR TRANSCRIPT: 10/30/2007
310/31/2007 ANNOUNCED DISQUALIFICATION: Crothers, Daniel John
412/20/2007 MOT. EXT/TIME TRANSCRIPT
512/20/2007 ACTION BY TRIAL COURT (MTR). Granted: 01/28/2008
601/28/2008 TRANSCRIPTS DATED October 9, 2006, July 18, 2007 & July 19, 2007
701/28/2008 DISK - TRA of 10-9=06, 7-18-07 & 7-19-07
801/30/2008 RECORD ON APPEAL & Exhibits (Not rec'd: 15 & 36--Tapes and 81--Steno Notes)
901/30/2008 Supplemental Clerk's Certificate dated 1-29-08 (Entry Nos. 104, 105, & 108)
1003/10/2008 APPELLANT BRIEF
1103/10/2008 APPELLANT APPENDIX
1203/12/2008 DISK-ATB
1304/01/2008 MOT. EXT/TIME APPELLEE BRIEF & Affidavit in Support and Affidavit of Service
1404/01/2008 ACTION BY CLERK (with understanding oral argument in May). Granted: 04/23/2008
1504/01/2008 E-FILED MOTION (MAT)
1604/22/2008 APPELLEE BRIEF
1704/22/2008 E-FILED BRIEF - AEB
1804/23/2008 $25 surcharge received for AEB (Receipt 18086)
1904/28/2008 Received 7 copies of AEB from Central Duplicating.
2004/25/2008 SITTING WITH THE COURT: Bohlman, Bruce E.
2104/30/2008 REPLY BRIEF of Appellant
2205/01/2008 Affidavit of Service of RYB
2305/01/2008 DISK - ryb
2405/05/2008 APPEARANCES: Jonathan T. Garaas; Mark R. Hanson
2505/05/2008 ARGUED: Garaas; Hanson
2605/05/2008 ORAL ARGUMENT WEBCAST
2709/04/2008 DISPOSITION: AFFIRMED
2809/04/2008 UNANIMOUS OPINION: Maring, Mary Muehlen
2909/04/2008 Costs on appeal taxed in favor of appellee
3009/04/2008 Judgment e-mailed to Parties
3109/17/2008 PETITION FOR REHEARING
3209/18/2008 DISK - PER
3311/10/2008 ACTION BY SUPREME COURT (PER). Denied
3411/25/2008 MANDATE
3512/02/2008 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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