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|
|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|
|4||02/08/2013 E-FILED MOTION|
|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|
|13||04/22/2013 APPELLANT BRIEF|
|14||04/22/2013 E-FILED APPENDIX|
|15||04/22/2013 APPELLANT APPENDIX|
|16||04/22/2013 E-FILED APPENDIX|
|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|
|22||05/21/2013 APPELLEE BRIEF|
|23||05/21/2013 E-FILED BRIEF|
|24||05/21/2013 APPELLEE APPENDIX|
|25||05/21/2013 E-FILED APPENDIX|
|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|
|34||08/29/2013 DISPOSITION: AFFIRMED|
|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|
|39||09/06/2013 E-FILED MOTION|
|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|
|48||10/08/2013 E-FILED MOTION|
|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|