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4201 2nd Ave W v. First State Bank & Trust, et al.

Docket No. 20220309
Oral Argument: Monday, February 6, 2023 2:45 PM

Docket Info

Title
4201 2nd Ave. W., LLC, d.b.a. Safari Fuels 105, Plaintiff and Appellant
v.
First State Bank & Trust, Defendant and Appellee
and
First State Bank & Trust, Third-Party Plaintiff
and Appellee
v.
4201 2nd Ave. W., LLC; Third-Party Defendant
and Appellant
and
Safari Fuels Management, LLC; Topped Off Coffee, LLC; Third-Party Defendants
and
City of Williston, Third-Party Defendant
and Appellee
Case Type
CIVIL APPEAL : CONTRACTS
Appeal From
Case No. 2021-CV-00979
Northwest Judicial District, Williams County
Kirsten Marie Sjue
Oral Argument 2/6/2023

Parties' Statement of Issues

  • Appellant

    1. Whether the District Court erred in ruling First State Bank was not barred by application of Section 32-19-06.1 N.D.C.C. from obtaining a deficiency judgment in the subject prior foreclosure action as a matter oflaw. (de novo review)
    2. Whether by application of Rule 60 N.D.R.Civ.P. the District Court erred in ruling First State Bank still held a valid and enforceable lien in and to the subject liquor license and other personal property collateral as a matter oflaw. (de novo review)
    3. Whether the District Court erred in ruling 4201 d.b.a. Safari Fuels, LLC did not have required privity, as assignee of the subject liquor license and personal property, to here in this action maintain First State Bank is now prevented by waiver, collateral estoppel and res judicata to foreclose any lien, in and to, the subject liquor license and personal property collateral as a matter oflaw. (de novo review)
    4. Whether upon remand 4201 is entitled to recover its attorney's fees provided for under the Pledge Agreement as a matter of contract interpretation as a matter of law. ( de novo review)

  • Appellee 1

    [¶1] Whether the district court erred in finding that the Bank continued to hold a valid and enforceable security interest in the liquor license, the coffee kiosk, the walk-in freezer, and the Kohler generator.
    [¶2] Whether the district court erred in finding that the Bank was entitled to foreclose its security interest in the liquor license and other personal property.
    [¶3] Whether the district court erred in finding that the Bank was entitled to its reasonable attorneys’ fees and expenses under the terms of the Third-Party Pledge of Personal Property (Liquor License).

  • Appellee 2

    ¶3. Whether the District Court erred when it determined First State Bank was not from obtaining a deficiency judgment.
    ¶4. Whether the District Court erred when it ruled First State Bank held a valid and enforceable lien in and to the subject liquor license and other personal property collateral as a matter of law.
    ¶5. Whether the District Court erred in ruling 4201, d.b.a Safari Fuels, LLC (4201), when it concluded waiver, collateral estoppel and res judicata to foreclosure against the liquor license did not apply.
    ¶6. Whether upon remand 4201 is entitled to recover its attorney’s fees provided for under the Pledge Agreement as a matter of contract interpretation as a matter of law.

Summary

4201 2nd Ave. W., LLC d/b/a Safari Fuels 105 (“4201”) appeals a district court’s judgment finding First State Bank & Trust had a valid and enforceable security interest in a liquor license and other collateral after 4201 sought a declaratory judgment on the matter. 4201 raises four issues on appeal arguing the district court erred as a matter of law in finding that First State Bank & Trust’s security interest in the liquor license and other collateral was not extinguished in a prior foreclosure action, that a valid and enforceable security interest existed against 4201, that First State Bank & Trust was not barred by res judicata in foreclosing against 4201, and that First State Bank & Trust was entitled to recover reasonable attorney fees and costs.

Briefs

Filing Date Description
12/06/2022 APPELLANT BRIEF View
01/12/2023 APPELLEE BRIEF (FIRST STATE BANK & TRUST) View
01/12/2023 APPELLEE BRIEF (CITY OF WILLISTON) View
01/25/2023 REPLY BRIEF View

Counsel

Party Type Name
APPELLEE PRIVATE PRACTICE Wanda L. Fischer - 05128
APPELLANT PRIVATE PRACTICE Charles L Neff - 04023
APPELLEE PRIVATE PRACTICE Richard P. Olson - 03183
APPELLEE PRIVATE PRACTICE Jessica Lee Klein - 06169
APPELLEE PRIVATE PRACTICE Taylor Dawn Olson - 06963
APPELLEE PRIVATE PRACTICE Jordon Joseph Evert - 06969

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

Seq. # Filing Date Description Attachment
1 10/17/2022 NOTICE OF APPEAL : 10/17/2022 View
2 10/21/2022 Received filing fee
3 10/21/2022 NOT. OF FILING NOT. OF APPEAL AND PROOF OF SERV. View
4 10/21/2022 Notice served on Charles L. Neff, Richard P. Olson, Jessica L. Klein, Taylor D. Olson,
5 10/21/2022 & Jordon J. Evert
6 11/08/2022 MOT. EXT/TIME APPELLANT BRIEF
7 11/08/2022 ACTION BY CLERK - Granted : 12/06/2022
8 11/14/2022 ELEC. RECORD ON APPEAL DATED NOVEMBER 11, 2022 (ENTRY NOS. 1-144) View
9 12/05/2022 1ST ELEC. SUPP. RECORD ON APPEAL DATED DECEMBER 2, 2022(ENTRY NOS. 145-146) View
10 12/06/2022 APPELLANT BRIEF View
11 12/06/2022 Oral Argument Request by Appellant
12 12/08/2022 Rec'd corrections to ATB
13 12/09/2022 Rec'd 3 copies of ATB back from CD
14 12/19/2022 MOT. EXT/TIME APPELLEE BRIEF (First State Bank & Trust) View
15 12/19/2022 ACTION BY CLERK (First State Bank & Trust) - Granted : 01/12/2023
16 12/21/2022 MOT. EXT/TIME APPELLEE BRIEF (City of Williston) View
17 12/21/2022 ACTION BY CLERK (City of Williston) - Granted : 01/12/2023
18 01/12/2023 APPELLEE BRIEF (FIRST STATE BANK & TRUST) View
19 01/12/2023 APPELLEE BRIEF (CITY OF WILLISTON) View
20 01/13/2023 Rec'd 3 copies of AEB (First State Bank & Trust) from CSD
21 01/13/2023 Rec'd corrections for AEB - Williston
22 01/17/2023 Rec'd 3 copies of AEB -First State Bank and Trust from CSD
23 01/23/2023 Rec'd 3 copies of AEB - Williston
24 01/23/2023 Rec'd 3 copies of AEB -First State Bank and Trust from CSD
25 01/24/2023 NOTICE OF ORAL ARGUMENT SENT
26 01/25/2023 Intent to Particpate in Oral Argument by Appellee (First State Bank & Trust) View
27 01/25/2023 REPLY BRIEF View
28 01/26/2023 Rec'd corrections to RYB (bottom margin, toc ref para, convert rather than scan)
29 01/30/2023 Rec'd c.o.s. for corrections to RYB
30 01/30/2023 ANNOUNCED DISQUALIFICATION : Bahr, Douglas Alan
31 01/30/2023 Rec'd 3 copies of RYB from CSD
32 01/30/2023 SITTING WITH THE COURT : Schmalenberger, Allan L.
33 02/06/2023 APPEARANCES: Charles L. Neff; Jessica L. Klein
34 02/06/2023 ARGUED: Charles L. Neff; Jessica L. Klein
35 02/06/2023 ORAL ARGUMENT WEBCAST