Holbach v. Holbach
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| 20090319 |
Larry J. Holbach, Plaintiff and Appellee
v.
Randolph S. Holbach, Mitchell D. Holbach,
Cynthia E. Strong, Christopher S.
Holbach, and all persons
unknown, claiming any estate or
interest in or lien or encumbrance
upon the real estate described
in the Complaint, Defendants
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Randolph S. Holbach, Appellant
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| Appeal from: |
District Court,
Northwest Judicial District,
Ward County
Judge Donald L. Jorgensen |
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Nature of Action: |
Real Property
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| Counsel: |
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| Term: |
03/2010 Argument: 03/23/2010 09:30am
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| ND cite: |
2010 ND 116
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| NW cite: |
784 N.W.2d 472
Listen to recording of oral argument
using RealPlayer Basic,© a free download.
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| Issues: |
Appellant's Statement of the Issues:
Randolph S. Hobach's Issues
1. Did the Stipulation of Property Settlement signed by Larry Holbach and Judy Holbach in 1983 constitute a valid contract which obligated Larry Holbach to devise two quarters of land in Section 133, Township 155, Range 83 West, in Ward County,
North Dakota, to his four children upon his death?
2. Should a constructive trust be imposed on Larry Holbach with regard to the two quarters of land and an appropriate equitable remedy be enforced to protect the interests of his four children?
3. Was a resulting trust created by the actions of Larry and Judy Holbach between 1983 and 2002, preventing title to the two quarters of land from being quieted in Larry Holbach and requiring that Larry Holbach act as a trustee in a fiduciary
relation to his four children so as to ensure that the property is conveyed to them upon his death?
Appellee's Statement of the Issues:
Whether this Court can address the three issues which Randy Holbach presents in this appeal where all three arguments rely upon the 1983 Stipulation of Property Settlement and where this Court denied Randy Holbach's motion for judicial notice of that
Stipulation.
Whether this Court can address any of the three issues which Randy Holbach presents in this appeal where he did not adequately raise any of the three issues in the trial court with sufficient supporting argument so as to allow the trial court to
intelligently rule in his favor.
Assuming, arguendo, that this Court can address the three issues presented in this appeal, whether
A. A contract to devise was ever created where no separate agreement was made;
B. The Judgment or Stipulation contains an enforceable agreement to agree, absent any separate agreement, where Larry Holbach and Judy Slorby retained, at all times, the ability to sell the subject property without making provision for their
children;
C. Randy Holbach has established that a constructive trust should be imposed where he has not shown either a confidential relationship or unjust enrichment by clear and convincing evidence;
D. Randy Holbach has established that a resulting trust should be imposed where the parties actions subsequent to the Judgment demonstrate that Larry Holbach and Judy Slorby intended to hold the property as joint tenants with the option of making a
contract to devise in the future.
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| 1 | | 10/23/2009 | |
NOTICE OF APPEAL (Mitchell D. Holbach): 10/22/2009 |
| 2 | | 10/23/2009 | |
Petition In Forma Pauperis |
| 3 | | 10/26/2009 | |
ACTION BY CHIEF DEPUTY CLERK (Pet/In Forma/Pauperis). Granted |
| 4 | | 11/30/2009 | |
MOT. EXT/TIME APPELLANT BRIEF (handwritten letter from Mr. Holbach) |
| 5 | | 11/30/2009 | |
ACTION BY Chief Deputy CLERK (Mot/Ext/ATB). Granted: 12/31/2009 |
| 6 | | 12/01/2009 | |
Appellant's Brief of Mitchell Holbach (withdrawn on 1-21-10) |
| 7 | | 12/03/2009 | |
Clerk did not accept for filing the Request for Correction of the Record, it must be filed with the |
| 8 | | 12/03/2009 | |
district court under N.D.R.App.P. 10(h) |
| 9 | | 12/04/2009 | |
Notice of Appeal (Randolph S. Holbach) filed in the trial court on December 3, 2009 |
| 10 | | 12/04/2009 | |
MOT. EXT/TIME APPELLANT BRIEF (sua sponte) |
| 11 | | 12/04/2009 | |
ACTION BY SUPREME COURT (MAT sua sponte). Granted: 01/12/2010 |
| 12 | | 11/23/2009 | |
RECORD ON APPEAL (2 volumes) |
| 13 | | 12/30/2009 | |
Supplemental Clerk's Certificate of Record dated December 29, 2009. Entry Nos. 79-88. |
| 14 | | 01/12/2010 | |
APPELLANT BRIEF & Addendum (e-filed)(Randolph Holbach) |
| 15 | | 01/12/2010 | |
E-FILED BRIEF (ATB of Randolph Holbach) |
| 16 | | 01/12/2010 | |
APPELLANT APPENDIX (e-filed) (Randolph Holbach) |
| 17 | | 01/12/2010 | |
E-FILED APPENDIX (ATA) (Randolph Holbach) |
| 18 | | 01/14/2010 | |
Received surcharges for ATB & ATA (Receipt Nos. 19301 & 19302) |
| 19 | | 01/19/2010 | |
Letter from Mark V. Larson dated 1-14-10 re: Addendum to Randolph Holbach's Brief) |
| 20 | | 01/21/2010 | |
Brief of Appellant Mitchell Holbach was withdrawn 01-21-10 |
| 21 | | 01/12/2010 | |
Received 7 copies of ATB from Central Duplicating. |
| 22 | | 01/22/2010 | |
Received 6 copies of ATA from Central Duplicating. |
| 23 | | 01/22/2010 | |
MOTION REQUESTING S.C. TO TAKE JUDICIAL NOTICE OF STIPULATION OF PROPERTY SETTLEMENT.(e-filed). RspDue: 02/02/2010 |
| 24 | | 01/22/2010 | |
E-FILED MOTION (Mot. requesting S.C. to take Judicial Notice of Stip. of Property Settlement). |
| 25 | | 01/25/2010 | |
Received Certificate of Service for Mot. Requesting S.Ct. to Take Judicial Notice |
| 26 | | 02/02/2010 | |
Response Filed (Larry Holbach's Response to Motion for Judicial Notice) |
| 27 | | 02/02/2010 | |
EFILED RESPONSE |
| 28 | | 02/02/2010 | |
MOTION TO DISMISS RANDOLPH HOLBACH'S APPELLATE BRIEF. RspDue: 02/16/2010 |
| 29 | | 02/02/2010 | |
E-FILED MOTION |
| 30 | | 02/09/2010 | |
Response Filed (Randolph Holbach's Response to Motion to Dismiss) |
| 31 | | 02/09/2010 | |
EFILED RESPONSE |
| 32 | | 02/17/2010 | |
ACTION BY SUPREME COURT (Motion to take judicial notice). Denied |
| 33 | | 02/17/2010 | |
ACTION BY SUPREME COURT (Motion to dismiss). Denied |
| 34 | | 02/17/2010 | |
S.Ct. Not. of Dismissal/Failure to Proceed (Mitchell Holbach only) |
| 35 | | 02/17/2010 | |
ACTION BY SUPREME COURT (MSN Mitchell Holbach Only). Granted |
| 36 | | 02/18/2010 | |
Order Sent to Parties (Motion to dismiss & judicial notice) |
| 37 | | 02/18/2010 | |
MOT. EXT/TIME APPELLEE BRIEF (sua sponte). Granted |
| 38 | | 02/18/2010 | |
ACTION BY CLERK (mae). Granted: 03/04/2010 |
| 39 | | 02/19/2010 | |
NOTICE OF ORAL ARGUMENT SENT |
| 40 | | 03/01/2010 | |
Received Notice of Appearance of Leo F.J. Wilking for Appellant |
| 41 | | 03/04/2010 | |
APPELLEE BRIEF |
| 42 | | 03/04/2010 | |
E-FILED BRIEF - AEB |
| 43 | | 03/05/2010 | |
Received $25 surcharge for AEB (Receipt No. 19384) |
| 44 | | 03/19/2010 | |
REPLY BRIEF (e-filed) |
| 45 | | 03/19/2010 | |
E-FILED BRIEF (RYB) |
| 46 | | 03/19/2010 | |
The Chief Justice authorized the late filing of the Appellant's Reply Brief. |
| 47 | | 03/19/2010 | |
Received 7 copies of RYB from Central Duplicating. |
| 48 | | 03/23/2010 | |
APPEARANCES: Leo F.J. Wilking/Samuel G. Larson |
| 49 | | 03/23/2010 | |
ARGUED: Wilking/Larson |
| 50 | | 03/23/2010 | |
ORAL ARGUMENT WEBCAST |
| 51 | | 06/30/2010 | |
DISPOSITION: REVERSED |
| 52 | | 06/30/2010 | |
SPLIT OPINION: Kapsner, Carol Ronning |
| 53 | | 06/30/2010 | |
(DISSENTING): Sandstrom, Dale V.: DISSENT |
| 54 | | 06/30/2010 | |
(JOINED THE DISSENT): Crothers, Daniel John: JN/DIS |
| 55 | | 07/01/2010 | |
Judgment Sent to Parties |
| 56 | | 08/03/2010 | |
MANDATE |
| 57 | | 08/04/2010 | |
RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE |
| 58 | | 08/30/2010 | |
Corrected/Substitute Opinion Page |