Johnson v. Mark

20120343 Steven D. Johnson, Plaintiff and Appellant
v.
Sandra Mark, as Personal
Representative of the
Estate of Jeanne H. Johnson,
Deceased; Sandra Mark; Stuart
Johnson; and Scott Johnson, Defendants
-----------
Sandra Mark, as Personal
Representative of the
Estate of Jeanne H. Johnson,
Deceased; Sandra Mark; Stuart
Johnson Appellees

Appeal from: District Court, East Central Judicial District, Cass County
Judge Steven L. Marquart
Nature of Action: Real Property
Counsel:
Appellant: David Alan Garaas
Appellee: Christopher Michael McShane
Term: 04/2013   Argument: 04/10/2013  10:30am
ND cite: 2013 ND 128
NW cite: 834 N.W.2d 291

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Issues: Appellant's Statement of the Issues:
1.Were the affirmative defenses of "abandonment" or "relinquishment" of the Contract for Deed available to the Personal Representative?
a.Were the affirmative defenses of "abandonment" or "relinquishment" of a Contract for Deed waived by Defendant-Appellees because they were not plead by an answer?
b.Did the parties litigate "abandonment "or "relinquishment" by implied consent?
c.Was there any evidence of "abandonment" or "relinquishment" of the Contract for Deed on the part of either the vendor or the vendee?
2.Did the District Court abuse its discretion making time of payment essential when the contract did not state that "time was of the essence"?
3.Does the parol evidence rule prevent the District Court from determining that the vendee's post-2003 payments are merely rental payments?
4.Should the vendee of a Contract for Deed have been provided his requested remedy of specific performance when he tenders full performance and is willing to accept an inferior title to subject property when equities are adjusted between the parties?
5.Should the District Court have limited the scope of discovery of information relating to the Steven D. Johnson's tax returns and financial records in the hands of Ohnstad Twichell, P.C.?

Appellee's Statement of the Issues:
1. Did the District Court abuse its discretion when it compelled the production of Steven Johnson's tax returns, which ultimately showed Steven Johnson treated payments to his mother as "cash rent"?
2. Did the District Court err as a matter of law when it determined a contract for deed existed between Jeanne Johnson and Steven Johnson for the Southwest Quarter (SW¬) of Section Twenty-six (26), Township One Hundred Forty (140) North, Range Fifty (50) West?
3. Did the District Court abuse its discretion by cancelling of the contract for deed between Jeanne Johnson and Steven Johnson for the Southwest Quarter (SW¬) of Section Twenty-six (26), Township One Hundred Forty (140) North, Range Fifty (50) West?


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Docket entries:
109/10/2012 NOTICE OF APPEAL: 09/06/2012
209/10/2012 ORDER FOR TRANSCRIPT: 09/06/2012
310/05/2012 Transcripts dated 03/30/2012, & 06/11/2012, & C.O.S.
410/05/2012 DISK- Transcripts dated 03/30/2012 & 06/11/2012 (e-mailed)
510/09/2012 NOTICE OF CROSS APPEAL
610/10/2012 ELEC. RECORD ON APPEAL DATED October 10, 2012 (ENTRY NOS.1 - 178)
710/12/2012 1st ELEC. SUPP. RECORD ON APPEAL DATED October 11, 2012 (ENTRY NOS. 179-180)
810/24/2012 MOT. EXT/TIME TRANSCRIPT
910/24/2012 ACTION BY TRIAL COURT. Granted: 12/03/2012
1010/23/2012 2nd ELEC. SUPP. RECORD ON APPEAL DATED 10/22/12 (ENTRY NOS.182-184)
1110/26/2012 AMENDED 2nd ELEC. SUPP. RECORD ON APPEAL DATED 10/25/12 (ENTRY NOS.181-184)
1211/05/2012 3rd ELEC. SUPP. RECORD ON APPEAL DATED November 5, 2012 (ENTRY NOS. 185-189)
1311/08/2012 Response Filed regarding joint notice of appeal
1411/08/2012 EFILED RESPONSE
1511/29/2012 TRANSCRIPT DATED 07/15/2011 & 07/02/2012 & 07/03/2012 & C.O.S.
1612/04/2012 DISK- Transcripts dated 07/15/2011 & 07/02/2012 & 07/03/2012 (e-mailed)
1712/05/2012 AMENDED CERTIFICATE OF SERVICE OF COPIES OF TRANSCRIPTS
1801/08/2013 APPELLANT BRIEF & ADDENDUM
1901/08/2013 APPELLANT APPENDIX
2001/08/2013 DISK-(ATB)
2102/11/2013 APPELLEE BRIEF (pdf)
2202/11/2013 E-FILED BRIEF (pdf)
2302/14/2013 Received $25 e-filing surcharge for AEB (receipt #21695)
2402/19/2013 Received 7 copies of AEB from Central Duplicating
2502/21/2013 Rec'd letter from Mr. Garaas regarding blank pages of the Appellant's Appendix.
2602/25/2013 REPLY BRIEF & ADDENDUM
2702/25/2013 DISK (RYB)
2803/18/2013 NOTICE OF ORAL ARGUMENT SENT
2904/10/2013 APPEARANCES: David A. Garaas; Christopher M. McShane
3004/10/2013 ARGUED: David A. Garaas; Christopher M. McShane
3104/10/2013 ORAL ARGUMENT WEBCAST
3207/18/2013 DISPOSITION: AFFIRMED
3307/18/2013 UNANIMOUS OPINION: Sandstrom, Dale V.
3407/18/2013 Costs on appeal taxed in favor of the Appellees
3507/19/2013 Judgment Sent to Parties
3608/02/2013 PETITION FOR REHEARING
3708/02/2013 DISK-(PER)(U.S.mail)
3808/29/2013 ACTION BY SUPREME COURT (Denied PER). Denied
3909/04/2013 Corrected/Substitute Opinion Page (Change "on" to "in" on Paragraph 4, Line 12)
4009/25/2013 MANDATE
4109/30/2013 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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