[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.