Rutherford v. BNSF Railway Co.

20080237 Gary Rutherford, d/b/a
Classic Roadsters, Ltd., Plaintiff and Appellant
v.
BNSF Railway Company, Defendant and Appellee

Appeal from: District Court, East Central Judicial District, Cass County
Judge Frank L. Racek
Nature of Action: Real Property
Counsel:
Appellant: Kelsch, Kelsch, Ruff & Kranda
Appellee: Nilles, Plambeck, Selbo & Harrie, Ltd.
Term: 02/2009   Argument: 02/26/2009  9:30am
ND cite: 2009 ND 88
NW cite: 765 N.W.2d 705

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
I. Did the trial court err in failing to find that genuine issues of material fact exist as to whether Rutherford is entitled to economic relief, pursuant to the doctrine of equitable estoppel, for BNSF's taking of his building?
A. There are genuine issues of material fact as to whether BN's and/or BNSF's conduct, intent, and knowledge was sufficient to establish that BNSF should be estopped from taking Rutherford's building without providing just compensation.
B. There are genuine issues of material fact as to whether Rutherford lacked the appropriate knowledge, relied in good faith, and acted, or failed to act, insofar that BNSF should be estopped from taking Rutherford's building without providing just compensation.
C. Rutherford properly pled estoppel before the trial court.
II. Were BNSF's statute of limitation defenses precluded by the doctrine of equitable estoppel?
A. The trial court should have found that BN' and BNSF's statements and conduct regarding the lease agreement precluded BNSF's statute of limitation defense and that such statements and conduct presented genuine issues of material fact for Rutherford's claims arising from the lease.
B. The trial court should have found that BN's and BNSF's statements and conduct regarding the issue of contamination on the property, precluded BNSF's statute of limitations defense and that such statements and conduct presented genuine issues of material fact on Rutherford's claims arising from the presence of contamination on the leased land underlying his building.
III. Is Rutherford's "practice argument" precluded by the parol evidence rule?
IV. Did the trial court err in granting BNSF's Motion for Summary Judgment?

Appellee's Statement of the Issues:
1.Whether Plaintiff/Appellant Gary Rutherford d/b/a Classics Roadsters, Ltd. ("Rutherford") is precluded from raising the doctrine of equitable estoppel for the first time on appeal.
2.Whether, in the event the Court considers equitable estoppel, the doctrine precludes BNSF from enforcing the terms of the lease with Rutherford.
3.Whether, in the event the Court considers equitable estoppel, the doctrine precludes application of the statute of limitations.

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Docket entries:
109/19/2008 NOTICE OF APPEAL: 09/18/2008
209/19/2008 ORDER FOR TRANSCRIPT: 09/18/2008
309/19/2008 ANNOUNCED DISQUALIFICATION: Crothers, Daniel John
410/20/2008 RETENTION OF RECORD ON APPEAL: 11/07/2008
511/06/2008 TRANSCRIPT DATED May 16, 2008
611/06/2008 DISK - transcript (e-mailed)
711/07/2008 Certificate of Service of Copies of the Transcript
811/10/2008 RECORD ON APPEAL & Separate Nos. 48 & 53 (Not rec'd: #40 & 54--tapes)
912/17/2008 APPELLANT BRIEF
1012/17/2008 APPELLANT APPENDIX
1112/23/2008 Corrected TOC, TOA, & pages 1, 2, & 39 for ATB
1212/23/2008 Copies of Trial Court Docket Sheet for ATA
1312/23/2008 DISK - atb (e-mailed)
1401/20/2009 APPELLEE BRIEF (e-filed)
1501/20/2009 E-FILED BRIEF (AEB)
1601/20/2009 APPELLEE APPENDIX (e-filed) PDF
1701/20/2009 E-FILED APPENDIX (AEA) PDF
1801/21/2009 Received $25 e-filing surcharge for AEB (Receipt #18692).
1901/22/2009 SITTING WITH THE COURT: Geiger, M. Richard
2001/23/2009 Copies of AEB from Central Duplicating Services
2101/23/2009 Copies of AEA from Central Duplicating Services
2202/26/2009 APPEARANCES: William J. Delmore, Garrett D. Ludwig, & Gary Rutherford; Mark R. Hanson
2302/26/2009 ARGUED: Delmore; Hanson
2402/26/2009 ORAL ARGUMENT WEBCAST
2505/22/2009 DISPOSITION: AFFIRMED
2605/22/2009 UNANIMOUS OPINION: Kapsner, Carol Ronning
2705/22/2009 Costs on appeal taxed in favor of appellee
2805/22/2009 Judgment e-mailed to Parties
2906/05/2009 PETITION FOR REHEARING (e-filed)
3006/05/2009 E-FILED PETITION FOR REHEARING
3106/10/2009 Received 7 copies of PER from Central Duplicating.
3206/24/2009 ACTION BY SUPREME COURT (Pet/Rehearing). Denied
3307/09/2009 MANDATE
3407/16/2009 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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