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McCarvel, et al. v. Perhus, et al.

Docket No. 20200051
Oral Argument: Wednesday, September 23, 2020 10:45 AM

Docket Info

Title
Kevin McCarvel and Angela McCarvel, Plaintiffs and Appellees
v.
Kelly Perhus and Debra Perhus, Defendants and Appellants
Case Type
CIVIL APPEAL : REAL PROPERTY
Appeal From
Case No. 2018-CV-01917
East Central Judicial District, Cass County
John Charles Irby
Oral Argument 9/23/2020

Parties' Statement of Issues

  • Appellant

    1. Did the trial court err in failing to honor the statutory presumption against adverse possession set forth in N.D.C.C. § 28-01-07?
    2. Did the trial court err in failing to award damages, including attorney fees, to Defendant-Appellant Debra Perhus for frivolous or untrue pleadings violating standards set in N.D.C.C. § 28-26-01 or N.D.C.C. § 28-26-31?
    3. Did the trial court err in failing to require “clear and convincing evidence” as required by Moody v. Sundley, 2015 ND 204, ¶ 11, 868 N.W.2d 491?
    4. Did the trial court err in failing to require a claim of title based upon a written instrument and passage of twenty (20) years under N.D.C.C. § 28-01-08 [see also, N.D.C.C. § 28-01-09 identifying acts constituting adverse possession based upon a written instrument]?
    5. Did the trial court err in refusing to recognize Defendant-Appellant Kelly Perhus’ ownership interest made public upon recordation of written instruments with the Cass County Recorder, to include a Contract for Deed dated September 15, 2015, and a Warranty Deed dated August 3, 2017?
    6. Did the trial court err in failing to honor N.D.C.C. § 28-01-11 always requiring a substantial enclosure or cultivation when a person claims title not founded upon a written instrument or upon a judgment or decree?
    7. Did the trial court err in failing to award damages, including attorney fees, to Defendant-Appellant Kelly Perhus for frivolous or untrue pleadings violating standards set in N.D.C.C. § 28-26-01 or N.D.C.C. § 28-26-31 with respect to 6 claimed ownership of real property, and the filing of lis pendens?
    8. Did the trial court err in failing to require the statutorily required time of twenty (20) years for adverse possession?
    9. Did the trial court err by allowing tacking without any evidence of adverse possession by Plaintiffs’-Appellees’ predecessors in title, or assignment of such purported claim for adverse possession?
    10. Did the trial court err by requiring a landowner to repeatedly verbally claim ownership of property to protect against loss of ownership by adverse possession?
    11. Did the trial court err by not requiring clear and convincing proof establishing all elements for adverse possession and/or the doctrine of acquiescence?

  • Appellee 1

    1. Whether the trial court’s finding that the McCarvels acquired the Disputed Parcel through adverse possession was clearly erroneous.
    2. Whether the trial court’s finding that the McCarvels acquired the Disputed Parcel under the doctrine of boundary by acquiescence was clearly erroneous.
    3. Whether the Appellants are entitled to an award of damages.


Summary

Following a bench trial, Kelly and Debra Perhus appeal from a judgment quieting title to a piece of real property by adverse possession and boundary by acquiescence.

Kevin and Angela McCarvel brought claims for adverse possession and boundary by acquiescence to a small tract of land in Cass County. Kelly Perhus argued at trial he was the record title owner of the disputed property. The trial court found the McCarvels met the requirements to quiet title to the disputed property through adverse possession and boundary by acquiescence.

On appeal, the Perhuses argue the trial court erred by finding the McCarvels met the requirements for adverse possession and boundary by acquiescence. Additionally, the Perhuses argue Debra Perhus was wrongly named as a party in the lawsuit and is entitled to fees, costs, and attorney’s fees.


Briefs

Filing Date Description
05/12/2020 APPELLANT BRIEF View
06/11/2020 APPELLEE BRIEF View
06/22/2020 REPLY BRIEF View

Counsel

Party Type Name
APPELLANT PRIVATE PRACTICE Jonathan T Garaas - 03080
APPELLEE PRIVATE PRACTICE Asa Keith Burck - 07251

(Note: Attachments may not be available for recently filed cases and/or confidential documents.)

Seq. # Filing Date Description Attachment
1 02/24/2020 NOTICE OF APPEAL : 02/24/2020
2 02/24/2020 ORDER FOR TRANSCRIPT : 02/27/2020
3 02/26/2020 Rec'd $125 filingfee
4 02/26/2020 NOT. OF FILING NOT. OF APPEAL AND PROOF OF SERV.
5 02/26/2020 Notice served on Jonathan T. Garaas and Asa K. Burck
6 03/20/2020 ELEC. RECORD ON APPEAL DATED MARCH 19, 2020 (ENTRY NOS.1-66)
7 04/13/2020 ELECTRONIC TRANSCRIPT DATED SEPTEMBER 9, 2019
8 04/13/2020 Certificate of Service for Transcript
9 05/12/2020 APPELLANT BRIEF View
10 05/12/2020 APPELLANT APPENDIX
11 05/12/2020 Oral Argument Request by Appellant
12 05/14/2020 Rec'd 5 copies of ATB & ATA from CSD
13 05/14/2020 Rec'd $2.50 ATA (page limit) (receipt #27587)
14 06/11/2020 APPELLEE BRIEF View
15 06/11/2020 Oral Argument Request by Appellee
16 06/15/2020 Rec'd 5 copies of AEB from CSD
17 06/22/2020 REPLY BRIEF View
18 06/24/2020 Rec'd copies of RYB from Central Duplicating
19 08/13/2020 NOTICE OF ORAL ARGUMENT SENT
20 09/18/2020 Supplemental citations under N.D.R.App.P. 28k by Appellant View
21 09/23/2020 APPEARANCES: Jonathon T. Garaas; Asa K. Burck
22 09/23/2020 ARGUED: Jonathon T. Garaas; Asa K. Burck
23 09/23/2020 ORAL ARGUMENT WEBCAST