Pifer v. McDermott
Kevin Pifer, Plaintiff and Appellee
Barbara McDermott, Defendant and Appellant
Northeast Central Judicial District,
Grand Forks County
Judge Lawrence E. Jahnke
|Nature of Action:||Real Property|
|Term:||06/2013  Argument: 06/17/2013 9:00am|
|ND cite:||2013 ND 153|
836 N.W.2d 432
Listen to recording of oral argument in MP3 format
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?
|Add Docket 20130027 RSS|
|1||01/30/2013||NOTICE OF APPEAL: 01/25/2013|
|2||01/30/2013||ORDER FOR TRANSCRIPT: 01/25/2013|
|3||02/08/2013||Motion for Expedited Review of Appeal from Order for Temporary Injunction|
|5||02/13/2013||ACTION BY SUPREME COURT. Denied|
|6||02/07/2013||AMENDED ORDER FOR TRANSCRIPT FILED 1/29/2013 IN THE TRIAL COURT|
|7||02/22/2013||ELEC. RECORD ON APPEAL DATED February 21, 2013 (ENTRY NOS. 1-490)|
|8||03/05/2013||AMENDED ELEC. RECORD ON APPEAL DATED March 4, 2013 (ENTRY NOS. 1-485 & 487-491)|
|9||03/13/2013||TRANSCRIPTS DATED NOVEMBER 13, 2012 AND NOVEMBER 14, 2012 & C.O.S.|
|10||03/13/2013||DISK-Transcripts dated November 13 & 14, 2012(e-mailed)|
|11||04/19/2013||Second Notice of Appeal filed in District Court April 19, 2013|
|12||04/22/2013||ELEC. SUPP. RECORD ON APPEAL DATED APRIL 19, 2013 (ENTRY NOS. 1-495) ITEMS NOT SENT 486|
|17||04/23/2013||AMENDED ELEC. SUPP. RECORD ON APPEAL DATED APRIL 23, 2013 (ENTRY NOS.1-485 & 487-496)|
|18||04/23/2013||(ITEMS DELETED 486)|
|19||04/23/2013||Rec'd $25 surcharge for ATB & ATA (receipt #21816)|
|20||04/26/2013||Rec'd 7 copies of the ATB & 6 copies of the ATA from Central Duplicating|
|21||05/16/2013||NOTICE OF ORAL ARGUMENT SENT|
|26||05/24/2013||received 7 copies of AEB and 6 copies of ATA from CSD|
|27||05/24/2013||received $57 surcharge for AEB and Appendix (receipt #21872)|
|28||06/04/2013||REPLY BRIEF (PDF)|
|29||06/04/2013||E-FILED BRIEF (PDF)|
|30||06/06/2013||Rcv'd 7 copies of RYB from CSD|
|31||06/17/2013||APPEARANCES: DeWayne A. Johnston; Jacey L. Johnston; Roger J. Minch|
|32||06/17/2013||ARGUED: DeWayne A. Johnston; Roger J. Minch|
|33||06/17/2013||ORAL ARGUMENT WEBCAST|
|35||08/29/2013||UNANIMOUS OPINION: Crothers, Daniel John|
|36||08/29/2013||Costs on appeal taxed in favor of Appellee|
|37||08/30/2013||Judgment Sent to Parties|
|38||09/06/2013||Mot. Ext/Time Petition for Rehearing|
|40||09/06/2013||ACTION BY CLERK. Granted: 09/17/2013|
|41||09/10/2013||MOTION FOR Leave to Withdraw as Counsel of Record|
|42||09/10/2013||Mot. Ext/Time Petition for Rehearing (by Appellant, acting pro se)|
|43||09/11/2013||ACTION BY CHIEF JUSTICE (ext. PER). Granted: 10/14/2013|
|44||09/11/2013||ACTION BY CHIEF JUSTICE (withdraw counsel). Granted|
|45||10/08/2013||Corrected Opinion Page (NW Citation change in paragraph No.31, line 9)|
|46||10/08/2013||Notice of Appearance by Zachary Pelham and Meredith Vukelic as Appellant's counsel|
|47||10/08/2013||Mot. Ext/Time Petition for Rehearing|
|49||10/09/2013||ACTION BY CHIEF JUSTICE. Granted: 10/28/2013|
|50||10/09/2013||No further extensions for a Petition for Rehearing are to be granted|
|51||10/11/2013||2nd ELEC. SUPP. RECORD ON APPEAL DATED 10/10/2013 (ENTRY NOS.497-499 )|
|52||10/28/2013||MOTION FOR ADMISSION JOHN V. SISKOPOULOS PRO HAC VICE|
|53||10/28/2013||Affidavit of John V. Siskopoulos in Support of Admission to Practice Pro Hac Vice|
|54||10/28/2013||ACTION BY CLERK. Granted|
|55||10/28/2013||PETITION FOR REHEARING|
|56||10/28/2013||CD-ROM (hand delivered)|
|57||11/08/2013||Emergency Motion for an Order to Hold Execution of the Judgment in Abeyance|
|58||11/08/2013||ACTION BY ACTING CHIEF JUSTICE MARING. Granted|
|59||11/13/2013||RESPONSE to Emergency Motion|
|60||11/19/2013||REPLY to Response|
|61||11/21/2013||ACTION BY SUPREME COURT. Denied|
|63||11/25/2013||RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE|
|64||12/06/2013||MOTION FOR Stay to File Petition to U.S. Supreme Court|
|65||12/06/2013||NO ACTION TAKEN|
|66||02/28/2014||Notice of filing Petition for Writ of Certiorari to U.S. Supreme Court February 21, 2014|
|67||05/01/2014||LETTER FROM U.S. SUPREME COURT DENYING PETITION FOR WRIT OF CERTIORARI|