Holbach v. Holbach

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
----------------
Randolph S. Holbach, Appellant

Appeal from: District Court, Northwest Judicial District, Ward County
Judge Donald L. Jorgensen
Nature of Action: Real Property
Counsel:
Appellant: Mark Vincent Larson
Appellee: Thomas Myron Jackson
Appellee: Samuel Gregory Larson
Appellant: Leo F J Wilking
Term: 03/2010   Argument: 03/23/2010  9:30am
ND cite: 2010 ND 116
NW cite: 784 N.W.2d 472

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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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Docket entries:
110/23/2009 NOTICE OF APPEAL (Mitchell D. Holbach): 10/22/2009
210/23/2009 Petition In Forma Pauperis
310/26/2009 ACTION BY CHIEF DEPUTY CLERK (Pet/In Forma/Pauperis). Granted
411/30/2009 MOT. EXT/TIME APPELLANT BRIEF (handwritten letter from Mr. Holbach)
511/30/2009 ACTION BY Chief Deputy CLERK (Mot/Ext/ATB). Granted: 12/31/2009
612/01/2009 Appellant's Brief of Mitchell Holbach (withdrawn on 1-21-10)
712/03/2009 Clerk did not accept for filing the Request for Correction of the Record, it must be filed with the
812/03/2009 district court under N.D.R.App.P. 10(h)
912/04/2009 Notice of Appeal (Randolph S. Holbach) filed in the trial court on December 3, 2009
1012/04/2009 MOT. EXT/TIME APPELLANT BRIEF (sua sponte)
1112/04/2009 ACTION BY SUPREME COURT (MAT sua sponte). Granted: 01/12/2010
1211/23/2009 RECORD ON APPEAL (2 volumes)
1312/30/2009 Supplemental Clerk's Certificate of Record dated December 29, 2009. Entry Nos. 79-88.
1401/12/2010 APPELLANT BRIEF & Addendum (e-filed)(Randolph Holbach)
1501/12/2010 E-FILED BRIEF (ATB of Randolph Holbach)
1601/12/2010 APPELLANT APPENDIX (e-filed) (Randolph Holbach)
1701/12/2010 E-FILED APPENDIX (ATA) (Randolph Holbach)
1801/14/2010 Received surcharges for ATB & ATA (Receipt Nos. 19301 & 19302)
1901/19/2010 Letter from Mark V. Larson dated 1-14-10 re: Addendum to Randolph Holbach's Brief)
2001/21/2010 Brief of Appellant Mitchell Holbach was withdrawn 01-21-10
2101/12/2010 Received 7 copies of ATB from Central Duplicating.
2201/22/2010 Received 6 copies of ATA from Central Duplicating.
2301/22/2010 MOTION REQUESTING S.C. TO TAKE JUDICIAL NOTICE OF STIPULATION OF PROPERTY SETTLEMENT.(e-filed). RspDue: 02/02/2010
2401/22/2010 E-FILED MOTION (Mot. requesting S.C. to take Judicial Notice of Stip. of Property Settlement).
2501/25/2010 Received Certificate of Service for Mot. Requesting S.Ct. to Take Judicial Notice
2602/02/2010 Response Filed (Larry Holbach's Response to Motion for Judicial Notice)
2702/02/2010 EFILED RESPONSE
2802/02/2010 MOTION TO DISMISS RANDOLPH HOLBACH'S APPELLATE BRIEF. RspDue: 02/16/2010
2902/02/2010 E-FILED MOTION
3002/09/2010 Response Filed (Randolph Holbach's Response to Motion to Dismiss)
3102/09/2010 EFILED RESPONSE
3202/17/2010 ACTION BY SUPREME COURT (Motion to take judicial notice). Denied
3302/17/2010 ACTION BY SUPREME COURT (Motion to dismiss). Denied
3402/17/2010 S.Ct. Not. of Dismissal/Failure to Proceed (Mitchell Holbach only)
3502/17/2010 ACTION BY SUPREME COURT (MSN Mitchell Holbach Only). Granted
3602/18/2010 Order Sent to Parties (Motion to dismiss & judicial notice)
3702/18/2010 MOT. EXT/TIME APPELLEE BRIEF (sua sponte). Granted
3802/18/2010 ACTION BY CLERK (mae). Granted: 03/04/2010
3902/19/2010 NOTICE OF ORAL ARGUMENT SENT
4003/01/2010 Received Notice of Appearance of Leo F.J. Wilking for Appellant
4103/04/2010 APPELLEE BRIEF
4203/04/2010 E-FILED BRIEF - AEB
4303/05/2010 Received $25 surcharge for AEB (Receipt No. 19384)
4403/19/2010 REPLY BRIEF (e-filed)
4503/19/2010 E-FILED BRIEF (RYB)
4603/19/2010 The Chief Justice authorized the late filing of the Appellant's Reply Brief.
4703/19/2010 Received 7 copies of RYB from Central Duplicating.
4803/23/2010 APPEARANCES: Leo F.J. Wilking/Samuel G. Larson
4903/23/2010 ARGUED: Wilking/Larson
5003/23/2010 ORAL ARGUMENT WEBCAST
5106/30/2010 DISPOSITION: REVERSED
5206/30/2010 SPLIT OPINION: Kapsner, Carol Ronning
5306/30/2010 (DISSENTING): Sandstrom, Dale V.: DISSENT
5406/30/2010 (JOINED THE DISSENT): Crothers, Daniel John: JN/DIS
5507/01/2010 Judgment Sent to Parties
5608/03/2010 MANDATE
5708/04/2010 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
5808/30/2010 Corrected/Substitute Opinion Page

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