Investors Title Insurance Co. v. Herzig

20090213 Investors Title
Insurance Company, Plaintiff
v.

David F. Herzig, Southeastern
Shelter Corporation, and
Sheldon Smith, Personal
Representative of the Estate
of Alphild Herzig, substituted
for Alphild Herzig, Deceased, Defendants
-----
On Appeal

Southeastern Shelter
Corporation, Plaintiff and Appellant

v.

David F. Herzig; and Sheldon
Smith, in his capacity as
Personal Representative of
the Estate of Alphild Herzig,
substituted for Alphild
Herzig, Deceased, Defendants and Appellees

Appeal from: District Court, Northwest Judicial District, Ward County
Judge David W. Nelson
Nature of Action: Contracts
Counsel:
Appellant: Robert S. Rau
Appellee: Arnold V. Fleck
Appellee: Daniel Harry Oster
Term: 11/2009   Argument: 11/04/2009  2:45pm
ND cite: 2010 ND 169
NW cite: 788 N.W.2d 312

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Issues: Appellant's Statement of the Issues:
1)Can the assets of the revocable trust be used to satisfy a judgment creditor's claim and against a beneficiary therein and when the statute permits the attachment of both present and future interests?
2)Did the trial court err in not appointing a Receiver as the statute requires and directs?
3)Did the Court err in cancelling the Lis Pendens, when it lacked jurisdiction to do so and when the facts support the entitlement of Southeastern Shelter to the same?
4)Should the Discovery by way of a Subpoena, been allowed and did the trial court err in not ordering the same and when it would have satisfied the concerns and deficiency that it said existed as to the claim of Southeastern Shelter to Attach the Res of the Trust?

Appellee's Statement of the Issues:
1. Whether the order appealed from is an appealable order?
2. Whether the district court erred by denying Southeastern's motion to attach trust property?
3. Whether the district court erred by not appointing a receiver?
4. Whether the district court erred by canceling the Lis Pendens?
5. Whether the district court erred by denying Southeastern's motion to compel production of documents?

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Docket entries:
107/16/2009 NOTICE OF APPEAL: 07/13/2009
207/22/2009 Letter from Atty. Rau
307/30/2009 Letter from Atty. Rau dated 7-28-09
407/16/2009 RECORD ON APPEAL (filed in 20090051)
508/11/2009 Supplemental Clerk's Cert. dated 8-10-09 (Entry Nos. 171-229) (also filed in 20090051)
608/24/2009 APPELLANT BRIEF
708/24/2009 APPELLANT APPENDIX
808/28/2009 Received corrected Cover Pages for ATB & ATA and Page 193 for ATA
908/28/2009 DISK - ATB corrected
1009/23/2009 MOT. EXT/TIME APPELLEE BRIEF (e-filed)
1109/23/2009 E-FILED MOTION (MAE)
1209/23/2009 ACTION BY CHIEF DEPUTY CLERK (MAE). Granted: 09/30/2009
1309/30/2009 SECOND MOT. EXT/TIME APPELLEE JOINT BRIEF (E-FILED)
1409/30/2009 E-FILED MOTION (Mot/Ext/AEB)
1509/30/2009 ACTION BY CHIEF DEPUTY CLERK (MAE). Granted: 10/05/2009
1610/05/2009 APPELLEE BRIEF
1710/05/2009 E-FILED BRIEF - AEB
1810/06/2009 Received $25 filing fee for AEB (Receipt #19025)
1910/12/2009 Received 7 copies of AEB from CSD
2010/20/2009 NOTICE OF ORAL ARGUMENT SENT
2110/22/2009 REPLY BRIEF & addendum
2210/22/2009 DISK - Reply Brief
2311/04/2009 APPEARANCES: Robert S. Rau/Arnold V. Fleck & Daniel H. Oster
2411/04/2009 ARGUED: Rau/Fleck
2511/04/2009 ORAL ARGUMENT WEBCAST
2603/15/2010 2nd Supplemental Clerk's Certificate dated 3/12/10 (Entry Nos. 230-248) (Also in 20090051)
2703/30/2010 3rd Supplemental Clerk's Certificate dated 3-29-10 (Entry Nos. 249-251) (Also in 20090051)
2805/03/2010 MOTION (Notice of Potentially Moot Issues and Motion for Stay of Appeal). RspDue: 05/17/2010
2905/03/2010 E-FILED MOTION
3005/11/2010 4th Supplemental Clerk's Cert. dated 5-10-10 (Entry Nos. 252-259)(Also in 20090051)
3105/13/2010 Response Filed (Joint response with 20090051 & 52)
3208/31/2010 NO ACTION TAKEN (Notice of Potentially Moot Issues)
3308/31/2010 DISPOSITION: AFFIRMED
3408/31/2010 UNANIMOUS OPINION: VandeWalle, Gerald W.
3508/31/2010 COSTS ON APPEAL TAXED IN FAVOR OF APPELLEES
3609/01/2010 Corrected Opinion Page 8
3709/01/2010 Judgment Sent to Parties
3809/14/2010 Mot. Ext/Time Petition for Rehearing
3909/14/2010 ACTION BY SUPREME COURT (Motion for extension of Petition for Rehearing). Granted: 09/28/2010
4009/27/2010 PETITION FOR REHEARING
4109/28/2010 DISK-PER
4209/28/2010 5th Supplemental Clerk's Certificate dated 9-24-10 (Entry Nos. 260-272)(also in 20100108)
4310/19/2010 ACTION BY SUPREME COURT (PER). Denied
4411/01/2010 MANDATE
4511/02/2010 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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