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Berger, et al. v. Sellers, et al.

Docket No. 20220322
Oral Argument: Argument Date & Time is not set.

Docket Info

Title
Darren Berger and Tamara Berger, Plaintiffs, Appellants, and Cross-Appellees
v.
Jason Sellers, Krysta Sellers, The Misty
Waters Owners' Association, Jordan Anderson,
Personally, and Big River Builders, Inc., Defendants, Appellees, and Cross-Appellants
and
Jason Sellers, Krysta Sellers, Jordan
Anderson, Personally, and Big River
Builders, Inc., Third-Party Plaintiffs, Appellees,
and Cross-Appellants
v.
Jeff Carlson, Third-Party Defendant and Appellee

Case Type
CIVIL APPEAL : REAL PROPERTY
Appeal From
Case No. 2021-CV-00134
South Central Judicial District, Burleigh County
Pamela Ann Nesvig

Parties' Statement of Issues

  • Appellant

    [1] Whether the District Court erred as a matter of law by denying Darren and Tamara Bergers’ (the “Bergers”) motion for partial summary judgment and granting Jason and Krysta Sellers (“Sellers”), Big River Builders, Inc. (“Big River”), Jordan Anderson (“Anderson”), and the Misty Waters Owners’ Association’s (“Association”) cross-motions for summary judgment by finding that that the minimum setback from Misty Waters Bay (the “Bay”), established in Planned Unit Development Ordinance No. 5435 (the “PUD”), can be moved by obtaining a Letter of Map Revision-Fill (“LOMR-F”), an interpretation that is contrary to the plain language of the PUD and the City of Bismarck’s ordinances.
    [2] Whether the District Court erred by finding that the “minimum setback from the Bay shall be elevation 1640.3 (NAVD88) as delineated by the contour line described in the approved LOMR” means “any approved LOMR”, resulting in a fluid setback line, despite the fact “the approved LOMR” is the 2005 LOMR-F applicable to Misty Waters Subdivision (the “Development”); it is identified by a surveyed metes-and-bounds legal description; the PUD has not been amended; and the Sellers did not obtain a variance.
    [3] Whether the District Court erred as a matter of law when it dismissed the Bergers’ claim for breach of contract due to its incorrect ruling that the Sellers’ home was constructed in conformance with the PUD and further by finding that the Association and the Sellers did not owe the Bergers any contractual duty.
    [4] Whether the District Court erred as a matter of law in dismissing the Bergers’ claim against the Association for breach of fiduciary duty by failing to find that the existence of a fiduciary duty is a question of fact, failing to find a breach of such duty when it erroneously held the Sellers’ home was constructed in conformance with the PUD, and failing to find that the Bergers produced sufficient evidence of damages caused by such breach.
    [5] Whether the District Court erred as a matter of law in dismissing the Bergers’ claims against the Sellers, Big River, Anderson, and the Association for negligence by failing to view the facts in the light most favorable to the Bergers, failing to find that the breach of a duty is a question of fact, and by finding that the Bergers did not provide sufficient evidence of damages.
    [6] Whether the District Court erred by dismissing the Bergers’ claim for private nuisance when they submitted evidence on every element of this cause of action, the facts viewed in the light most favorable to the Bergers clearly indicated that whether the Sellers’ home constituted a nuisance was a question of fact, and the Bergers submitted sufficient evidence of damages caused by such nuisance.


Briefs

Filing Date Description
02/13/2023 APPELLANT BRIEF View

Counsel

Party Type Name
APPELLANT PRIVATE PRACTICE Bradley John Beehler - 05319
APPELLANT PRIVATE PRACTICE Victoria Anne Vold - 08839
APPELLANT PRIVATE PRACTICE Nicholas C. Grant - 07102
APPELLANT PRIVATE PRACTICE Shea Ashley Miller - 08498
APPELLEE PRIVATE PRACTICE Randall Joseph Bakke - 03898
APPELLEE PRIVATE PRACTICE Shawn Arlin Grinolds - 05407
APPELLEE PRIVATE PRACTICE William P Harrie - 04411
APPELLEE PRIVATE PRACTICE Chris A. Edison - 05362
AMICUS CURIAE PRIVATE PRACTICE Zachary Evan Pelham - 05904
AMICUS CURIAE PRIVATE PRACTICE Matthew R. Keller - 09338
APPELLEE PRIVATE PRACTICE Katie L. Winbauer - 09260

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

Seq. # Filing Date Description Attachment
1 11/02/2022 NOTICE OF APPEAL : 11/02/2022 View
2 11/02/2022 ORDER FOR TRANSCRIPT : 11/04/2022 View
3 11/04/2022 Rec'd filing fee
4 11/04/2022 NOT. OF FILING NOT. OF APPEAL AND PROOF OF SERV. View
5 11/04/2022 Notice served on Nicholas C. Grant, Shea A. Miller, Randall J. Bakke, Shawn A. Grinolds,
6 11/04/2022 Bradley N. Wiederholt, William P. Harrie, & Chris A. Edison
7 11/29/2022 ELEC. RECORD ON APPEAL DATED NOVEMBER 28, 2022 (ENTRY NOS. 1-143, 145-277, 279, 462)(NOT SENT: 278) View
8 11/30/2022 NOTICE OF CROSS APPEAL (Jason Sellers, et al.) View
9 12/01/2022 NOT. OF FILING NOT. OF CROSS-APPEAL AND PROOF OF SERV. View
10 12/01/2022 Notice served on Nicholas C. Grant, Shea A. Miller, Randall J. Bakke, Shawn A. Grinolds,
11 12/01/2022 William P. Harrie, & Chris A. Edison
12 12/29/2022 1ST ELEC. SUPP. RECORD ON APPEAL DATED DECEMBER 28, 2022 (ENTRY NOS. 463-468) View
13 01/04/2023 All Transcripts Filed in Record
14 01/04/2023 2ND ELEC. SUPP. RECORD ON APPEAL DATED JANUARY 3, 2023 (ENTRY NOS. 470-472) View
15 01/04/2023 3RD ELEC. SUPP. RECORD ON APPEAL DATED JANUARY 4, 2023 (ENTRY NOS. 473-475) View
16 01/05/2023 4TH ELEC. SUPP. RECORD ON APPEAL DATED JANUARY 4, 2023 (ENTRY NOS. 469, 476, 477) View
17 02/06/2023 JOINT MOTION AND STIPULATION FOR EXTENSION OF PAGE LIMITS AND MODIFICATION OF DEADLINES View
18 02/07/2023 ACTION BY CHIEF JUSTICE (principle briefs allowed 50 pages; reply briefs allowed 20 pages) - Granted
19 02/07/2023 AEBs of Sellers, Big River, & Anderson and Misty Waters Owners Association due 30 days from svc
20 02/07/2023 of ATB. AEB of Carlson and RYB of Berger due 30 days from svc of Sellers, et al. & Misty Waters
21 02/07/2023 RYB of Sellers, et al. due 14 days after svc of Carlson AEB & Bergers' RYB)
22 02/13/2023 ANNOUNCED DISQUALIFICATION : Crothers, Daniel John
23 02/13/2023 MOTION FOR LEAVE TO FILE BRIEF OF AMICAS CURIAE View
24 02/13/2023 ACTION BY CLERK
25 02/13/2023 AMICUS CURIAE BRIEF (Misty Waters L.L.C.) View
26 02/13/2023 APPELLANT BRIEF View
27 02/14/2023 Oral Argument Request by Appellant
28 02/15/2023 Rec'd corrections to ACB (nature of proceedings)
29 02/15/2023 Rec'd 4 copies of ACB from CSD
30 02/15/2023 Rec'd 4 copies of ATB from CSD
31 02/15/2023 MOTION TO ALTER THE BRIEFING SCHEDULE BY SELLERS, ETC. - RspDue : 03/01/2023 View
32 02/15/2023 Response Filed by Bergers
33 03/09/2023 MOT. EXT/TIME APPELLEES' BRIEFS (Sellers, Big River, & Anderson & Misty Waters Owners Association) View
34 03/09/2023 ACTION BY CLERK - Granted : 03/27/2023
35 03/22/2023 Notice of Appearance by Katie L. Winbauer on behalf of Jeff Carlson View