Pifer v. McDermott

20130027 Kevin Pifer, Plaintiff and Appellee
v.
Barbara McDermott, Defendant and Appellant

Appeal from: District Court, Northeast Central Judicial District, Grand Forks County
Judge Lawrence E. Jahnke
Nature of Action: Real Property
Counsel:
Appellee: Roger James Minch
Appellant: Zachary Evan Pelham
Appellant: Meredith Leigh Vukelic
Appellant: Lawyer not licensed in N.D.
Term: 06/2013   Argument: 06/17/2013  9:00am
ND cite: 2013 ND 153
NW cite: 836 N.W.2d 432

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Issues: Appellant's Statement of the Issues:
I. Whether District Court erred in granting partial summary judgment on the issue of whether the purchase option is valid and enforceable.
A. Whether the purchase option was a gift of property.
B. Whether an option is a property right or interest that may be the subject of gift or that may be freely transferred or given like any other property.
C. Whether District Court erred in deciding donative intent.
II. Whether District Court erred in allowing trial to proceed on improper theories of law and then denying Defendant's Motion for Judgment as a Matter of Law under Rule 50 of the North Dakota Rules of Civil Procedure.
A. The issue of damages was not ripe because until judgment is final Defendant possesses all rights to the land.
B. Plaintiff did not Properly Plead his Claim of Unlawful Interference with Business.
C. Plaintiff's Claim for Interference with Business Fails as a Matter of Law.
III. Whether District Court erred in granting a Temporary Restraining Order that granted plaintiff use and possession of the land before final determination has been made that the land rightfully belongs to plaintiff without weighing the factors necessary to determine whether an injunction was an appropriate remedy.
A. Whether the Court Abused its Discretion in Failing to Weigh Factors Necessary to Determine whether or not Injunctive Relief was Appropriate.
B. Whether the lower court abused its discretion in granting Pifer the right to enter upon and use land that has not yet been made his in a final determination on validity of the purchase option.

Appellee's Statement of the Issues:
In a free society, is it legally possible for a person of sound mind who has the capacity to outright give the fee title to real property to hire an attorney to give a purchase option in the real property to a natural object of her affections where the optionee had no advance knowledge of, let alone involvement with the purchase option?
Did the district court make a clearly erroneous finding of fact that the purchase option was intended to be a gift?
Is one holding a power of attorney always automatically disqualified from receiving any gift or devise from the one giving the power of attorney, no matter the circumstances?
Did the district court properly grant summary judgment for the optionee where there was absolutely no evidence whatsoever in the record that anything but a gift of the purchase option was intended and where there was absolutely no evidence whatsoever in the record of any prior knowledge of the purchase option by the optionee, let alone any type of overreaching?
Did the jury properly award damages for unlawful interference with business based on a pattern jury instruction requested by both parties, based on clear recent North Dakota Supreme Court precedent and never later objected to by McDermott?

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Docket entries:
101/30/2013 NOTICE OF APPEAL: 01/25/2013
201/30/2013 ORDER FOR TRANSCRIPT: 01/25/2013
302/08/2013 Motion for Expedited Review of Appeal from Order for Temporary Injunction
402/08/2013 E-FILED MOTION
502/13/2013 ACTION BY SUPREME COURT. Denied
602/07/2013 AMENDED ORDER FOR TRANSCRIPT FILED 1/29/2013 IN THE TRIAL COURT
702/22/2013 ELEC. RECORD ON APPEAL DATED February 21, 2013 (ENTRY NOS. 1-490)
803/05/2013 AMENDED ELEC. RECORD ON APPEAL DATED March 4, 2013 (ENTRY NOS. 1-485 & 487-491)
903/13/2013 TRANSCRIPTS DATED NOVEMBER 13, 2012 AND NOVEMBER 14, 2012 & C.O.S.
1003/13/2013 DISK-Transcripts dated November 13 & 14, 2012(e-mailed)
1104/19/2013 Second Notice of Appeal filed in District Court April 19, 2013
1204/22/2013 ELEC. SUPP. RECORD ON APPEAL DATED APRIL 19, 2013 (ENTRY NOS. 1-495) ITEMS NOT SENT 486
1304/22/2013 APPELLANT BRIEF
1404/22/2013 E-FILED APPENDIX
1504/22/2013 APPELLANT APPENDIX
1604/22/2013 E-FILED APPENDIX
1704/23/2013 AMENDED ELEC. SUPP. RECORD ON APPEAL DATED APRIL 23, 2013 (ENTRY NOS.1-485 & 487-496)
1804/23/2013 (ITEMS DELETED 486)
1904/23/2013 Rec'd $25 surcharge for ATB & ATA (receipt #21816)
2004/26/2013 Rec'd 7 copies of the ATB & 6 copies of the ATA from Central Duplicating
2105/16/2013 NOTICE OF ORAL ARGUMENT SENT
2205/21/2013 APPELLEE BRIEF
2305/21/2013 E-FILED BRIEF
2405/21/2013 APPELLEE APPENDIX
2505/21/2013 E-FILED APPENDIX
2605/24/2013 received 7 copies of AEB and 6 copies of ATA from CSD
2705/24/2013 received $57 surcharge for AEB and Appendix (receipt #21872)
2806/04/2013 REPLY BRIEF (PDF)
2906/04/2013 E-FILED BRIEF (PDF)
3006/06/2013 Rcv'd 7 copies of RYB from CSD
3106/17/2013 APPEARANCES: DeWayne A. Johnston; Jacey L. Johnston; Roger J. Minch
3206/17/2013 ARGUED: DeWayne A. Johnston; Roger J. Minch
3306/17/2013 ORAL ARGUMENT WEBCAST
3408/29/2013 DISPOSITION: AFFIRMED
3508/29/2013 UNANIMOUS OPINION: Crothers, Daniel John
3608/29/2013 Costs on appeal taxed in favor of Appellee
3708/30/2013 Judgment Sent to Parties
3809/06/2013 Mot. Ext/Time Petition for Rehearing
3909/06/2013 E-FILED MOTION
4009/06/2013 ACTION BY CLERK. Granted: 09/17/2013
4109/10/2013 MOTION FOR Leave to Withdraw as Counsel of Record
4209/10/2013 Mot. Ext/Time Petition for Rehearing (by Appellant, acting pro se)
4309/11/2013 ACTION BY CHIEF JUSTICE (ext. PER). Granted: 10/14/2013
4409/11/2013 ACTION BY CHIEF JUSTICE (withdraw counsel). Granted
4510/08/2013 Corrected Opinion Page (NW Citation change in paragraph No.31, line 9)
4610/08/2013 Notice of Appearance by Zachary Pelham and Meredith Vukelic as Appellant's counsel
4710/08/2013 Mot. Ext/Time Petition for Rehearing
4810/08/2013 E-FILED MOTION
4910/09/2013 ACTION BY CHIEF JUSTICE. Granted: 10/28/2013
5010/09/2013 No further extensions for a Petition for Rehearing are to be granted
5110/11/2013 2nd ELEC. SUPP. RECORD ON APPEAL DATED 10/10/2013 (ENTRY NOS.497-499 )
5210/28/2013 MOTION FOR ADMISSION JOHN V. SISKOPOULOS PRO HAC VICE
5310/28/2013 Affidavit of John V. Siskopoulos in Support of Admission to Practice Pro Hac Vice
5410/28/2013 ACTION BY CLERK. Granted
5510/28/2013 PETITION FOR REHEARING
5610/28/2013 CD-ROM (hand delivered)
5711/08/2013 Emergency Motion for an Order to Hold Execution of the Judgment in Abeyance
5811/08/2013 ACTION BY ACTING CHIEF JUSTICE MARING. Granted
5911/13/2013 RESPONSE to Emergency Motion
6011/19/2013 REPLY to Response
6111/21/2013 ACTION BY SUPREME COURT. Denied
6211/21/2013 MANDATE
6311/25/2013 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
6412/06/2013 MOTION FOR Stay to File Petition to U.S. Supreme Court
6512/06/2013 NO ACTION TAKEN
6602/28/2014 Notice of filing Petition for Writ of Certiorari to U.S. Supreme Court February 21, 2014
6705/01/2014 LETTER FROM U.S. SUPREME COURT DENYING PETITION FOR WRIT OF CERTIORARI

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