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