Investors Title Insurance Co. v. Herzig

20100108 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: 10/2010   Argument: 10/05/2010  9:30am
ND cite: 2011 ND 7
NW cite: 793 N.W.2d 371

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
A 1) Did the lower court act in excess of its powers when it failed to follow the procedural guidelines to make the ruling that it made?
A2) Was the lower court divested of Jurisdiction by the prior appeals and did the appeals toll the running of the judgment?
B) Did David Herzig incorrectly urge application of North Carolina law on his Motion to Purge the Judgement, and did David Herzig consent to his mother being part of the action which extends the judgments life?
C) Does Sheldon Smith have standing to join in on the motion to purge the judgment?

Appellee's Statement of the Issues:
[1] The issues on appeal are:
1. Whether the district court acted within its authority when it declared the judgment unenforceable?
2. Whether the district court had jurisdiction to decide the enforceability of the judgment despite the appeals that were pending before this Court in this action at the time of the district court's decision?
3. Whether the pending appeals tolled the running of the period of enforceability of the judgment?
4. Whether the district court erred in declaring the judgment unenforceable?
5. Whether the joining of Alphild Herzig as a party defendant to this action extended the period of enforceability of the judgment?
6. Whether Sheldon Smith, as a named defendant in the action, had standing to support David Herzig's motion to purge the judgment?

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Docket entries:
104/06/2010 NOTICE OF APPEAL: 04/05/2010
204/06/2010 ORDER FOR TRANSCRIPT: 04/05/2010
304/26/2010 TRANSCRIPT DATED February 19, 2010 & C.O.S.
404/26/2010 DISK - TRA (e-mailed)
505/10/2010 APPELLANT BRIEF
605/10/2010 APPELLANT APPENDIX
705/17/2010 Corrected pages iii, iv, & 34 for ATB
805/17/2010 DISK - atb
906/14/2010 MOT. EXT/TIME APPELLEE BRIEF
1006/14/2010 ACTION BY SUPREME COURT (Motion to extend Appellee's Brief). Granted: 06/28/2010
1106/28/2010 MOT. EXT/TIME APPELLEE BRIEF (e-filed)
1206/28/2010 E-FILED MOTION (MAE)
1306/28/2010 ACTION BY CLERK (MAE). Granted: 07/06/2010
1407/06/2010 MOT. EXT/TIME APPELLEE BRIEF (e-filed)
1507/06/2010 E-FILED MOTION (MAE)
1607/07/2010 ACTION BY CHIEF JUSTICE (MAE). Granted: 07/20/2010
1707/20/2010 MOT. EXT/TIME APPELLEE BRIEF
1807/20/2010 E-FILED MOTION
1907/21/2010 ACTION BY CHIEF JUSTICE. Granted: 07/21/2010
2007/21/2010 APPELLEE JOINT BRIEF (e-filed)
2107/21/2010 E-FILED BRIEF (AEB)
2207/28/2010 Received $25 surcharge for AEB (Receipt #19739)
2307/29/2010 Received 7 copies of AEB from CSD
2408/05/2010 REPLY BRIEF
2509/20/2010 NOTICE OF ORAL ARGUMENT SENT
2609/21/2010 RECORD ON APPEAL & Supplementals (4): in Supreme Court No. 20090213
2710/05/2010 APPEARANCES: Robert S. Rau, Arnold V. Fleck, Daniel Oster
2810/05/2010 ARGUED: Robert S. Rau, Arnold V. Fleck
2910/05/2010 ORAL ARGUMENT WEBCAST
3009/24/2010 Supplemental Clerk's Certificate dated 9-24-10 (Entry Nos. 260-272) (Also in 20090213)
3101/12/2011 DISPOSITION: AFFIRMED
3201/12/2011 UNANIMOUS OPINION: Maring, Mary Muehlen
3301/12/2011 COSTS ON APPEAL TAXED IN FAVOR OF APPELLEE.
3412/13/2010 Judgment E-mailed and mailed to Parties
3501/26/2011 Mot. Ext/Time Petition for Rehearing (Letter from Robert S. Rau dated 1-25-11)
3601/26/2011 ACTION BY CLERK (MPR). Granted: 02/11/2011
3702/11/2011 Letter dated 2/10/11 from Mr. Rau indicating no petition for rehearing will be filed.
3802/28/2011 MANDATE
3903/11/2011 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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