Investors Title Insurance Co. v. Herzig

20090051 Investors Title
Insurance Company, Plaintiff
v.
David F. Herzig,
Southeastern Shelter
Corporation, Alphild Herzig, Defendants
-----
On Appeal

Southeastern Shelter
Corporation, Plaintiff, Appellee
and Cross-Appellant
v.
Sheldon Smith, Personal
Representative of the Estate
of Alphild Herzig,
substituted for Alphild
Herzig, Deceased, Defendant, Appellant
and Cross-Appellee

Appeal from: District Court, Northwest Judicial District, Ward County
Judge David W. Nelson
Nature of Action: Contracts
Counsel:
Appellant: Arnold V. Fleck
Appellee: Robert S. Rau
Term: 09/2009   Argument: 09/02/2009  10:30am
ND cite: 2010 ND 138
NW cite: 785 N.W.2d 863

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
1. Whether this Court should exercise its supervisory jurisdiction to reverse the July 2, 2004, Order on Rule 19(a) Joinder of Party in the 1998 action, dismiss Alphild Herzig as a party defendant in the 1998 action, invalidate all orders in the 1998 action which were entered against Ms. Herzig and her Personal Representative (PR) after entry of the joinder order, and dismiss the 2008 action on the grounds the claims for relief raised in that action are without legal basis?
2. Whether the district court erred by failing to dismiss Alphild Herzig as a defendant in the 1998 action and dismiss the 2008 action against Ms. Herzig on the grounds the contempt proceedings against Ms. Herzig in the 1998 action abated or were extinguished by the death of Ms. Herzig?
3. Whether the district court lacked subject matter jurisdiction in the 1998 action to join Ms. Herzig as a defendant in the action, which renders the contempt proceedings against Ms. Herzig in that action void and renders the claims for relief sought in the 2008 action without legal basis?
4. Whether the district court erred by failing to dismiss the 2008 action on the grounds Southeastern failed to state a claim upon which relief can be granted, because there was no actual controversy before the court, as Southeastern's claim is not ripe for adjudication in an action separate and apart from the 1998 action, because no final judgment/order has yet been entered in the 1998 action, which adjudicates all of the claims, rights and liabilities of the parties in that action?
5. Whether the orders substituting the PR as a defendant for Ms. Herzig in both the 1998 and 2008 actions are appealable orders?
6. If this Court should overrule the holding in Missouri Slope Livestock Auction, Inc. v. Wachter, 113 N.W.2d 222 (N.D. 1962), that an order reviving an action, under Rule 25(a)(1), N.D.R.Civ.P., after the death of a party, is immediately appealable, should the decision only be applied prospectively?
7. If this Court decides to remand either or both of these actions, without instructions to dismiss the claims brought against Mr. Herzig and the PR in the action, should the remand include instructions to the district court to provide the PR additional and reasonable time for filing an amended answer in the action and any motions the PR may deem appropriate in his defense of Southeastern's claims?

Appellee's Statement of the Issues:
1.Is this case appealable at this time.
2.Should the Appeal of the Estate be dismissed as this court is unable to make a proper and adequate review of the lower court's decision, because a complete transcript of all proceedings dealing with the order to produce, contempt sanctions, reconsideration requests were not secured.
3.Does the cause of action continue and when the law does not authorize its abatement on account of the death of Alphild Herzig.
4.Does the Court have jurisdiction over Ms. Herzig.
5.Is there a proper case or controversy before the Court and when the time to appeal expired years ago
6.Are the Contempt Sanctions proper in this case.
7.Should Sheldon Smith be denied appointed as successor for the late Ms Herzig and on account of conflict among other reasons.
8.Should the Court exercise its supervisory powers in this matter, when the application is procedurally defective and no adequate showing has been made of its necessity and when the lower courts order against Alphild was jurisdictionally based on contempt proceedings. Should the Court dismiss other assertions raised by the Estate as they were not raised in the court below.

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Docket entries:
102/06/2009 NOTICE OF APPEAL: 02/04/2009
202/06/2009 ORDER FOR TRANSCRIPT: 02/04/2009
302/06/2009 THIS CASE IS CONSOLIDATED W/20090052, MAKE ALL ENTRIES EXCEPT DIS AND MAN IN THIS CASE
402/12/2009 NOTICE OF CROSS APPEAL (filed in district court on 2-11-09)
502/19/2009 MOTION to Strike Filed Documents Not Part of the Evidentiary Record Below
602/19/2009 NO ACTION TAKEN (Motion to Strike needs to be made to district court under N.D.R.App.P. 10(h)(1)
702/20/2009 MOTION TO DISMISS APPEAL OR IN THE ALTERNATIVE TO REMAND TO THE DISTRICT COURT.. RspDue: 03/02/2009
803/03/2009 MOTION FOR extension of time for filing the response to the Motion to Dismiss
903/03/2009 E-FILED MOTION
1003/03/2009 ACTION BY CLERK. Granted
1103/03/2009 Response Filed to Motion to Dismiss
1203/03/2009 EFILED RESPONSE
1303/03/2009 Response to Motion to Dismiss contains Appellants' Issues
1403/06/2009 ACTION BY SUPREME COURT (Motion to Dismiss). Denied
1503/09/2009 Order Mailed to Parties
1602/27/2009 RECORD ON APPEAL (4 Vol.) including separates
1703/25/2009 TRANSCRIPT DATED January 12, 2009
1803/25/2009 DISK - tra (1-12-09) (e-mailed)
1905/04/2009 MOT. EXT/TIME APPELLANT BRIEF
2005/04/2009 E-FILED MOTION
2105/04/2009 ACTION BY CLERK. Granted: 05/11/2009
2205/11/2009 APPELLANT BRIEF (EFB)
2305/11/2009 E-FILED BRIEF (ATB)
2405/11/2009 APPELLANT APPENDIX (e-filed)
2505/11/2009 E-FILED APPENDIX (ATA)
2605/13/2009 Received $25 surcharge for ATB (Receipt No. 18843)
2705/15/2009 Received copies of ATB from CSD
2805/15/2009 Received copies of ATA from CSD
2905/27/2009 APPELLEE BRIEF
3006/01/2009 Corrected covers, TOC & TOA for AEB
3106/03/2009 Rec'd corrected pages 31 & 40
3206/03/2009 DISK-AEB
3306/10/2009 MOT. EXT/TIME REPLY BRIEF
3406/10/2009 E-FILED MOTION - MRY
3506/10/2009 ACTION BY CLERK - MRY. Granted: 07/13/2009
3606/12/2009 Objection to Request for Ext/Time/File/Reply Brief
3706/12/2009 ACTION BY CHIEF JUSTICE (Obj/Req/Ext/Time/Reply/Brief). Denied
3807/11/2009 REPLY BRIEF
3907/11/2009 E-FILED BRIEF - RYB
4007/14/2009 Received copies of RYB from Central Duplicating
4107/23/2009 NOTICE OF ORAL ARGUMENT MAILED
4208/11/2009 Supplemental Clerk's Certificate dated 8-10-09 (Entry Nos. 171-229)
4309/02/2009 APPEARANCES: Arnold V. Fleck/Robert S. Rau
4409/02/2009 ARGUED: Fleck/Rau
4509/02/2009 ORAL ARGUMENT WEBCAST
4603/15/2010 2nd Supplemental Clerk's Certificate of Record dated March 12, 2010 (Entry Nos. 230-248).
4703/30/2010 3rd Supplemental Clerk's Certificate dated 3-29-10 (Entry Nos. 249-251)
4805/03/2010 MOTION (Notice of Potentially Moot Issue). RspDue: 05/17/2010
4905/03/2010 E-FILED MOTION
5005/11/2010 4th Supplemental Clerk's Certificate dated May 10, 2010 (entries 252-259)
5105/13/2010 Response Filed (Joint response with 20090213)
5207/13/2010 NO ACTION TAKEN (Notice of Potentially Moot Issue)
5307/13/2010 DISPOSITION: AFFIRMED IN PT AND REMANDED
5407/13/2010 SPLIT OPINION: VandeWalle, Gerald W.
5507/13/2010 concurring in part and dissenting in part: Crothers, Daniel John: CON/DIS
5607/13/2010 At Court's direction, no costs will be taxed in this appeal
5707/15/2010 Judgment Sent to Parties
5807/15/2010 Corrected/Substitute Opinion Page
5907/27/2010 PETITION FOR REHEARING (e-filed)
6007/27/2010 E-FILED PETITION FOR REHEARING
6107/29/2010 Rec'd 7 copies of PER from CSD
6208/17/2010 ACTION BY SUPREME COURT (PER). Denied
6308/27/2010 MANDATE
6408/31/2010 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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