Kelsch, et al. v. Pinks, et al.
- Alexander S. Kelsch, Attorney at Law, and his
professional corporation, Alexander S. Kelsch, P.C.,
and the partners of the fictitious name partnership
entity doing business as Kelsch Ruff Kranda Nagle &
Ludwig: Arlen M. Ruff, P.C.; Todd D. Kranda, P.C.;
Daniel J. Nagle, P.C.; and Garrett D. Ludwig, P.C., Defendants and Appellants
Kenneth L. Pinks and Carol A. Pinks, husband and wife, Plaintiffs and Appellees
- Case Type
- CIVIL APPEAL : MALPRACTICE
- Appeal From
Case No. 2021-CV-01742
South Central Judicial District, Burleigh County
Jay A. Schmitz
Parties' Statement of Issues
1. Whether the district court erred in denying Defendants/Appellants’ (collectively “Kelsch”) motion for summary judgment when there was no genuine dispute as to any material fact that Auditor’s Lot A (the former Government Lots 3-4) has bordered the Missouri River since statehood and the State of North Dakota has held record title to such land since 1927.
2. Whether the district court clearly erred in finding that Auditor’s Lot A is the same tract of land as Lots 7, 8, and 9 of Section 29, Township 138 North, Range 80 West in Burleigh County (“Lots 7-9 in Burleigh County”); that Lots 7-9 in Burleigh County encompass 173 acres; and that Lots 7-9 in Burleigh County are bounded by England Street on the west, Anchor Estates on the east, land owned by the State of North Dakota on the north, and the Missouri River on the south, where the Appellees failed to present any survey or competent evidence supporting such a finding.
3. Whether the district court erred, as a matter of law, in finding that James Brown claimed land in Burleigh County by right of indemnity under N.D.C.C. § 47-06-07 where Appellees presented no evidence of an avulsion and where the applicable survey plats clearly establish that the southern border of Lots 1-6 and the northern border of Lots 7-9 in Section 29 have been the Missouri River since statehood.
4. Whether the district court erred, as a matter of law, in applying N.D.C.C. § 47-06-07 absent a finding of avulsion and finding that whether the land arose by accretion or avulsion was not necessary to the application of N.D.C.C. § 47-06-07.
5. Whether the district court erred, as a matter of law, in finding that the State of North Dakota does not have any title or interest in Auditor’s Lot A where the State of North Dakota has owned record title to Government Lots 3-4, which were surveyed and re-platted as Auditor’s Lot A, since March 15, 1927.
6. Whether the district court erred in finding that Burleigh County transferred its interest in Lots 7, 8, and 9 in Burleigh County to George Snyder via a contract for deed, and that his heirs succeeded to that interest by operation of law upon his death in 1946, given George Snyder never acquired Lots 7, 8, and 9 in Burleigh County and Appellees presented no actual contract for deed or deed transferring title from Burleigh County to George Snyder.
7. Whether the district court erred in finding that Kenneth Pinks had, with the consent of George Snyder’s heirs, continuously occupied and openly performed acts of ownership on Auditor’s Lot A.
8. Whether the district court erred in finding that if Kelsch had presented evidence of Plaintiffs/Appellees’ (“the Pinks”) claimed ownership of a 173-acre tract of land located along the Missouri River in Section 29, Township 138N, Range 80W in Burleigh County in the quiet title action brought by the State of North Dakota, the Pinks would have obtained a judgment declaring that their claim to that Tract was prior to and superior to the State’s claim.
9. Whether the district court erred, as a matter of law, in finding that the Pinks have proven the element of causation in their action for professional negligence by the greater weight of the evidence.
(Note: Attachments may not be available for recently filed cases and/or confidential documents.)
|Seq. #||Filing Date||Description||Attachment|
|1||06/01/2023||NOTICE OF APPEAL : 06/01/2023||View|
|2||06/01/2023||ORDER FOR TRANSCRIPT : 06/07/2023||View|
|3||06/01/2023||Rec'd Filing Fee|
|4||06/01/2023||NOT. OF FILING NOT. OF APPEAL AND PROOF OF SERV.||View|
|5||06/01/2023||Notice served on Robert B. Stock, Jack M. Buck and Larry M. Baer|
|6||06/01/2023||ANNOUNCED DISQUALIFICATION : Crothers, Daniel John|
|7||06/01/2023||ANNOUNCED DISQUALIFICATION : Bahr, Douglas Alan|
|8||06/14/2023||MOTION TO DISMISS by Appellees - RspDue : 06/28/2023||View|
|9||06/27/2023||Response Filed To Motion to Dismiss||View|
|10||06/28/2023||Reply Filed to Motion to Dismiss||View|
|11||07/03/2023||ELEC. RECORD ON APPEAL DATED JUNE 30, 2023(ENTRY NOS.1-243)||View|
|12||07/07/2023||Motion to Dismiss To Be Considered With the Merits|
|13||07/25/2023||1ST ELEC. SUPP. RECORD ON APPEAL DATED JULY 24, 2023 (ENTRY NOS. 244-248)||View|
|14||08/03/2023||All Transcripts Filed in Record|
|15||08/07/2023||2ND ELEC. SUPP. RECORD ON APPEAL DATED AUGUST 4, 2023 (ENTRY NOS. 250-252)||View|
|16||08/08/2023||AMENDED 2ND ELEC. SUPP. RECORD ON APPEAL DATED AUGUST 7, 2023(ENTRY NOS. 249-255 )||View|
|18||09/12/2023||Oral Argument Request by Appellant|
|19||09/13/2023||Rec'd corrections to ATB|
|20||09/14/2023||Rec'd 3 copies of ATB back from CD|