Minto Grain v. Tibert

20080300 Minto Grain, LLC, a North Dakota
limited liability company, and
William Slominski and Katherine
Slominski, individually, and as sole
shareholders of Minto Grain, LLC, Plaintiffs and Appellees
v.
Mark L. Tibert, Melvin J. Tibert,
Sue Votava Tibert aka Suzi Tibert,
William "Bill" Tibert, Defendants and Appellants

Appeal from: District Court, Northeast Judicial District, Walsh County
Judge Karen Kosanda Braaten
Nature of Action: Real Property
Counsel:
Appellant: David C. Thompson
Appellee: Zenas Baer
Term: 06/2009   Argument: 06/30/2009  10:45am
ND cite: 2009 ND 213
NW cite: 776 N.W.2d 549

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
A.The District Court committed error by denying the Tibert defendants' Rule 59(b)(2) Motion for a New Trial on the Basis of Jury Misconduct - and by denying the defendants' alternative request that the Court conduct an evidentiary hearing into sworn allegations of serious and prejudicial jury misconduct in this case.
i. A new trial is required in this case, because the Tibert defendants were denied their right to trial by a fair and impartial jury in this case.
B. The District Court committed reversible error by denying the Tibert defendants' original and renewed Rule 50 motions for judgment of dismissal as a matter of law.
C. The Minto Grain/Slominski plaintiffs failed to present sufficient evidence at trial to support their claims of tortious interference with business, and the District Court thus committed reversible error by its failure to grant the Tibert defendants' Rule 50 motions for judgment of dismissal as a matter of law.
D. The Minto Grain/Slominski plaintiffs failed to present sufficient evidence at trial to support their claims of tortious interference with contractual relations, and the District Court thus committed reversible error by failing to grant the Tibert defendants' Rule 50 motions for judgment of dismissal as a matter of law.
E. The District Court committed independent reversible errors by: (1) admitting Plaintiffs' Exhibit 132 - a self-serving, factually-incorrect hearsay document authored by plaintiffs' counsel entitled "Civil Litigation Summaries"; and (2) denying admission of evidence offered by Tibert defendants of actual court documents which revealed legitimacy of their actions.
F. The District Court committed reversible error by: (1) failing to grant the Tibert defendants' Rule 50 motion for Judgment of Dismissal as a Matter of Law Upon"Noerr-Pennington Doctrine" "Petition Immunity" Grounds; and/or (2) by refusing to give the defendants' requested jury instructions incorporating Noerr-Pennington Doctrine/Petition Immunity - and by thus permitting the jury to assign liability to the Tibert defendants in violation of the Petition Immunity to which they were lawfully entitled.
G. The Slominski/Minto Grain plaintiffs failed to present any competent evidence that any action by individual defendant William Tibert proximately caused any financial injury or damage to the plaintiffs - thereby making the jury's award of $305,000.00 worth of damages against William Tibert to be a verdict which no reasonable jury would have had a legally sufficient basis to return.

Appellee's Statement of the Issues:
Where an Appellant brings a Motion for a judgment as a matter of law combined with a Motion for a new trial which states only one issue as a basis for a new trial and a subsequent appeal is taken from the denial of the Motion as a matter of law and a Motion for a new trial, the scope of review is limited to a determination of whether the evidence, when viewed in the light most favorable to the party against whom the Motion is made, leads to but one conclusion as to the verdict and the assignments of error in the new trial Motion.

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Docket entries:
111/17/2008 NOTICE OF APPEAL: 11/13/2008
211/17/2008 ORDER FOR TRANSCRIPT: 11/13/2008
311/17/2008 Acknowledgment of Order for Transcript & RETENTION OF RECORD ON APPEAL: 01/02/2009
401/02/2009 TRANSCRIPTS DATED January 8, 2008 (Vol. 1--orig. in the Record); January 9, 2008; January 10, 2008;
501/02/2009 January 11, 2008; January 14, 2008; January 15, 2008; January 16, 2008; January 17, 2008;
601/02/2009 January 18, 2008; January 22, 2008; January 23, 2008; January 24, 2008; January 25, 2008
701/05/2009 Certificate of Service of Copies of Transcript
801/05/2009 DISKs - all transcripts except 1-25-08, which was e-mailed
901/05/2009 RECORD ON APPEAL (9 vol.) and separates including exhibits (2 Vol Pl, 1 Vol. Def. & 5 Vol Def.
1001/05/2009 marked not received) Transcripts and Depos. Not sent were Nos. 217, 276, 300, 301 Steno Notes)
1101/05/2009 There is also a large cardboard flat w/exhibits.
1202/09/2009 MOT. EXT/TIME APPELLANT BRIEF & Affidavit in Support (e-filed)
1302/09/2009 E-FILED MOTION (Mot/Ext/ATB)
1402/09/2009 ACTION BY CLERK (Mot/Ext/ATB). Granted: 03/11/2009
1503/10/2009 MOT. EXT/TIME APPELLANT BRIEF & Brief in Support (e-filed)
1603/10/2009 E-FILED MOTION (Mot/Ext/ATB)
1703/10/2009 ACTION BY CHIEF JUSTICE (Mot/Ext/ATB). Granted: 04/10/2009
1804/08/2009 MOT. EXT/TIME APPELLANT BRIEF
1904/08/2009 E-FILED MOTION
2004/09/2009 ACTION BY CHIEF JUSTICE (Appellants' brief). Granted: 04/30/2009
2104/30/2009 APPELLANT BRIEF (e-filed) (PDF)
2204/30/2009 E-FILED BRIEF (ATB)
2304/30/2009 APPELLANT APPENDIX (e-filed --CDROM)
2404/30/2009 E-FILED APPENDIX (ATA)
2505/04/2009 Received $148.50 Surcharge for ATB & ATA (Receipt #18827)
2605/07/2009 Received 7 copies of ATB from Central Duplicating
2705/07/2009 Received 6 copies of ATA from Central Duplicating
2805/11/2009 ANNOUNCED DISQUALIFICATION: Crothers, Daniel John
2905/26/2009 SITTING WITH THE COURT: Hodny, William F.
3006/02/2009 APPELLEE BRIEF (e-filed)
3106/02/2009 E-FILED BRIEF (AEB)
3206/02/2009 APPELLEE APPENDIX (e-filed) PDF
3306/02/2009 E-FILED APPENDIX (AEA) PDF
3406/03/2009 Received $16.50 surcharge for AEA.
3506/04/2009 Rec'd $26.50 surcharge for AEB & AEA
3606/08/2009 Received copies of AEB from Central Dup.
3706/08/2009 Received copies of AEA from Central Dup.
3806/17/2009 MOT. EXT/TIME REPLY BRIEF (e-filed)
3906/17/2009 E-FILED MOTION (MRY)
4006/17/2009 ACTION BY CLERK (MRY) electronically by 4 p.m. on June 23, 2009.. Granted: 06/23/2009
4106/17/2009 Objection to Motion for extension of time to file reply brief. (e-mailed ltr dated 6/17/09).
4206/17/2009 E-FILED MOTION (objection to extension)
4306/18/2009 ACTION BY SUPREME COURT (objection to continuance). Denied
4406/23/2009 REPLY BRIEF (e-filed) (PDF)
4506/23/2009 E-FILED BRIEF (RYB) (PDF)
4606/24/2009 Made 7 copies of RYB
4706/30/2009 APPEARANCES: David C. Thompson and Appellant, Melvin J. Tibert/Zenas Baer
4806/30/2009 ARGUED: Thompson/Baer
4906/30/2009 ORAL ARGUMENT WEBCAST
5012/17/2009 DISPOSITION: AFFIRMED
5112/17/2009 UNANIMOUS OPINION: VandeWalle, Gerald W.
5212/17/2009 Costs on appeal taxed in favor of Appellees
5312/18/2009 Judgment Sent to Parties
5401/11/2010 MANDATE
5501/13/2010 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
5602/28/2011 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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