McColl Farms v. Pflaum

20130053 McColl Farms, LLC, Plaintiff and Appellant
and
Aaron McColl, personally, Plaintiff
v.
Lisa Rae Pflaum,
f/k/a Lisa Rae McColl, Defendant and Appellee

Appeal from: District Court, Northeast Judicial District, Pembina County
Judge M. Richard Geiger
Nature of Action: Other (Civil)
Counsel:
Appellant: DeWayne Alan Johnston
Appellee: Michael Lee Gjesdahl
Appellant: Jacey Layne Johnston
Term: 06/2013   Argument: 06/17/2013  11:00am
ND cite: 2013 ND 169
NW cite: 837 N.W.2d 359

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Issues: Appellant's Statement of the Issues:
I.Whether the District Court erred in continuing to exercise jurisdiction over a deceased party.
A.Whether Rule 25 divests the District Court of Jurisdiction when no motion for substitution is made.
B.Whether by operation of law the deceased dismissed his cause of action by filing the notice of death and not making the motion to substitute a party at the District Court level.
C.Whether the District Court erred in assessing sanctions against the estate of a deceased party when substitution was not ordered by the court or motion by any party.
II.Whether the District Court erred in dismissing McColl Farms complaint and in particular in disposing of dispositive motions based upon its finding that the outcome of a stipulated divorce controls McColl Farms who was not a party to the divorce action.
A.Whether the District Court erred in granting Defendant's Motion under Rule 12(b)(vi) of the North Dakota Rules of Civil Procedure.
B.Whether the District Court erred in granting Defendant's Motion under Rule 56 of the North Dakota Rules of Civil Procedure.
C.Whether the District Court erred in refusing to entertain Plaintiff's Motion under Rule 56 of the North Dakota Rules of Civil Procedure.
D.Whether the District Court erred in its evidentiary rulings regarding submitted Affidavits.
i.The District Court erred in excluding the affidavit of Aaron McColl.
ii.The District Court erred in excluding the entire affidavit of DeWayne Johnston and in particular the attached exhibits.
E.Whether the District Court erred in making factual determinations regarding state of mind of the parties and counsel as well as other determinations left to the fact finder.
III. Whether the District Court erred in assessing sanctions.

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Docket entries:
102/15/2013 NOTICE OF APPEAL: 02/13/2013
203/12/2013 Appellant's attorney clarified he only represents McColl Farms on appeal and that no P.R. has been
303/12/2013 appointed for Aaron McColl
403/18/2013 ELEC. RECORD ON APPEAL DATED MARCH 15, 2013 (ENTRY NOS.1-174)
503/25/2013 MOT. EXT/TIME APPELLANT BRIEF
603/25/2013 E-FILED MOTION
703/26/2013 ACTION BY CLERK. Granted: 04/24/2013
804/22/2013 MOT. EXT/TIME APPELLANT BRIEF
904/22/2013 E-FILED MOTION
1004/22/2013 Opposition to 2nd Motion to Extend Time to File Appellant's Brief
1104/23/2013 ACTION BY CHIEF JUSTICE. Granted: 05/02/2013
1205/02/2013 APPELLANT BRIEF (PDF)
1305/02/2013 E-FILED BRIEF
1405/02/2013 APPELLANT APPENDIX
1505/02/2013 E-FILED APPENDIX
1605/06/2013 Received $25 surcharge for ATB and ATA (Receipt # 21837)
1705/08/2013 Recieved non-substantive corrections to ATB and ATA
1805/14/2013 Recieved 7 ATB and 6 ATA copies from CSD
1905/16/2013 NOTICE OF ORAL ARGUMENT SENT
2005/24/2013 APPELLEE BRIEF
2105/24/2013 DISK (AEB)(e-mailed)
2205/07/2013 REPLY BRIEF (PDF)
2306/07/2013 E-FILED BRIEF (PDF)
2406/11/2013 MOTION TO DISMISS BY APPELLEE
2506/11/2013 E-FILED MOTION
2606/10/2013 TRANSCRIPT DATED April 10, 2012, October 30, 2012 & January 23, 2013 & C.O.S.
2706/10/2013 DISK-Tra (4/10/12, 10/30/12 & 1/23/13) (e-mailed)
2806/12/2013 Response Filed to Motion to Dismiss
2906/12/2013 EFILED RESPONSE
3006/17/2013 APPEARANCES: DeWayne Johnston; Jacey L. Johnston; Michael Gjesdahl
3106/17/2013 ARGUED: DeWayne Johnston; Michael Gjesdahl
3206/17/2013 ORAL ARGUMENT WEBCAST
3309/25/2013 NO ACTION TAKEN (Motion to Dismiss Appeal)
3409/25/2013 DISPOSITION (& REMANDED): AFFIRMED/PT, REVERSED/PT
3509/25/2013 UNANIMOUS OPINION: Maring, Mary Muehlen
3609/25/2013 BY ORDER OF THE COURT, NEITHER PARTY HAVE AND RECOVER COSTS AND DISBURSEMENTS IN THIS APPEAL
3709/26/2013 Judgment Sent to Parties
3810/16/2013 MOTION FOR substitute page 2 of the opinion (sua sponte)
3910/16/2013 ACTION BY SUPREME COURT (substitute page 2 of the opinion)
4010/16/2013 Substitute Opinion Page (Page 2)
4110/17/2013 Order Sent to Parties (NPG)
4210/18/2013 MANDATE

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