McCarvel, et al. v. Perhus, et al.
- Kevin McCarvel and Angela McCarvel, Plaintiffs and Appellees
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
Parties' Statement of Issues
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?
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.
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.
(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|
|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)|
|15||06/11/2020||Oral Argument Request by Appellee|
|16||06/15/2020||Rec'd 5 copies of AEB from CSD|
|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|