Riverwood Commercial Park v. Standard Oil Co.

20100268 Riverwood Commercial Park, LLC,
and Tom S. Freidt, Plaintiffs and Appellants
v.

Standard Oil Company, Inc., a/k/a
BP, Tesoro Refining and Marketing
Company, BNSF Railway Company,
and Marmot Properties, LLC, Defendants
-------------------
Tesoro Refining and Marketing
Company, Appellee

Appeal from: District Court, South Central Judicial District, Morton County
Judge Donald L. Jorgensen
Nature of Action: Real Property
Counsel:
Appellant: Chad Christopher Nodland
Appellee: Michael J. Geiermann
Term: 01/2011   Argument: 01/06/2011  1:30pm
ND cite: 2011 ND 95
NW cite: 797 N.W.2d 770

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
1. Whether it was proper for the court to grant a Rule 12(b)(vi) motion when there are still disputed issues of material fact.
2. Whether the trial court committed error by finding an ambiguity in a document of conveyance, and then determining the ambiguity is a legal and factual issue.
3. Whether the trial court committed error by finding that the revocable, non-transferrable Permit afforded to Standard Oil in 1954 created an easement that was transferred to Tesoro by Standard Oil.
4.Whether the dismissal of all of Appellant's causes of actions was error based upon the Court's erroneous determination that the Permit was an easement.

Appellee's Statement of the Issues:
1.Whether the Permit is ambiguous on the issue of whether it created an easement or a license.
2.Whether summary judgment is the proper procedure for interpreting an ambiguous document when the parties have identified only undisputed extrinsic evidence concerning the meaning of that document.
3.Whether the District Court erred in concluding that the 1953 Irrigation Canal, Drainage Canal, Water Pipe or Sewer Pipe Permit (Permanent) created an easement that encumbers Appellants' real property.

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Docket entries:
108/13/2010 NOTICE OF APPEAL: 08/12/2010
208/13/2010 Chad Nodland's letter to Lois Scharnhorst dated 8-11-10 RE: unsure of ordering TRA
308/13/2010 ANNOUNCED DISQUALIFICATION: Kapsner, Carol Ronning
408/13/2010 ANNOUNCED DISQUALIFICATION: Crothers, Daniel John
509/02/2010 RETENTION OF RECORD ON APPEAL (anticipated delivery date): 09/30/2010
609/09/2010 RECORD ON APPEAL (2 vols.) & Separate Nos. 37, 122 & 129
709/13/2010 TRANSCRIPT DATED June 28, 2010 & C.O.S.
809/13/2010 DISK - tra (6/28/10) (e-mailed)
909/15/2010 MOT. EXT/TIME APPELLANT BRIEF (sua sponte)
1009/15/2010 ACTION BY CLERK (MAT) (sua sponte). Granted: 09/21/2010
1109/20/2010 MOT. EXT/TIME APPELLANT BRIEF
1209/20/2010 E-FILED MOTION
1309/20/2010 ACTION BY CLERK. Granted: 09/28/2010
1409/28/2010 APPELLANT BRIEF (See corrected ATB filed 10-22-10)
1509/28/2010 APPELLANT APPENDIX
1610/22/2010 APPELLANT BRIEF (corrected)
1710/25/2010 MOT. EXT/TIME APPELLEE BRIEF
1810/25/2010 ACTION BY CHIEF DEPUTY CLERK (MAE). Granted: 11/04/2010
1911/04/2010 APPELLEE BRIEF (e-filed)
2011/04/2010 E-FILED BRIEF (AEB)
2111/04/2010 APPELLEE APPENDIX (e-filed) PDF
2211/04/2010 E-FILED APPENDIX (AEA) PDF
2311/05/2010 Received $45.50 e-filing surcharge for AEB & AEA (Receipt #20100268).
2411/08/2010 Received 7 copies of AEB from Central Duplicating.
2511/08/2010 Received 6 copies of AEA from Central Duplicating.
2612/13/2010 NOTICE OF ORAL ARGUMENT SENT
2712/14/2010 SITTING WITH THE COURT: Schmalenberger, Allan L.
2812/17/2010 SITTING WITH THE COURT: Marquart, Steven L.
2901/06/2011 APPEARANCES: Chad C. Nodland; Michael Geiermann
3001/06/2011 ARGUED: Chad C. Nodland; Michael Geiermann
3101/06/2011 ORAL ARGUMENT WEBCAST
3205/20/2011 DISPOSITION: AFFIRMED
3305/20/2011 UNANIMOUS OPINION: VandeWalle, Gerald W.
3405/20/2011 Costs on appeal taxed in favor of Appellee.
3505/20/2011 Judgment E-Mailed to Parties
3606/14/2011 MANDATE
3706/17/2011 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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