filed in the office of the clerk of supreme court june …
TRANSCRIPT
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IN THE SUPREME COURT
STATE OF NORTH DAKOTA
Howard F. Fettig,
Plaintiff/Appellee,
vs.
Estate of Anton L. Fettig;; Gerald A.
Cullen as Conservator for S.F.F.; Charles
E. Fettig; Morgen J. Fettig; Gabriel W.
Fettig; all other persons known and
unknown having or claiming any right,
title, estate or interest in or lien or
encumbrance upon the real property
described in the complaint, whether as
heirs, devisees, legatees or Personal
Representatives of the aforementioned
parties or as holding any claim adverse to
Plaintiffs’ ownership or any cloud upon
Plaintiffs’ title thereto,
Defendants,
Anton Jacob Fettig,
Defendant/Appellant
AND
__________________________________
Morgen J. Fettig.
Plaintiff/Appellee
vs.
Estate of Anton L. Fettig;; Gerald A.
Cullen as Conservator for S.F.F.; Charles
E. Fettig; Morgen J. Fettig; Gabriel W.
Fettig; all other persons known and
unknown having or claiming any right,
title, estate or interest in or lien or
encumbrance upon the real property
described in the complaint, whether as
heirs, devisees, legatees or Personal
Representatives of the aforementioned
parties or as holding any claim adverse to
Plaintiffs’ ownership or any cloud upon
Plaintiffs’ title thereto,
Defendants,
Anton Jacob Fettig,
Defendant/Appellant
SUPREME COURT NO. 20190102
Civil No. 27-2018-CV-00372
__________________________________
SUPREME COURT NO. 20190103
Civil No. 27-2018-CV-00375
20190102 & 20190103
FILED IN THE OFFICE OF THE
CLERK OF SUPREME COURT JUNE 25, 2019
STATE OF NORTH DAKOTA
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__________________________________________
APPELLANT’S REPLY BRIEF
__________________________________________
Appeal from Summary Judgment
dated February 11, 2019,
District Court of McKenzie County
Northwest Judicial District
The Honorable Robin Schmidt
Civil Case No. 27-2018-CV-00372
__________________________________________
Nathan M. Bouray, Lawyer #06311
EBELTOFT . SICKLER . LAWYERS . PLLC
Lawyers for the Appellant
2272 Eighth Street West
Dickinson, North Dakota 58601
Telephone No.: 701.225.5297
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TABLE OF CONTENTS
Page Table of Authorities ................................................................................................. 4
Paragraph Law and Argument .................................................................................................... 1
I. THE 2001 DEED WAS NOT VOID ….…………………………………
II. RES JUDICATA DID NOT PREVENT THE DISTRICT COURT
FROM CONSIDERING WHETHER THE 2001 DEED WAS VOID.
1
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Conclusion .................................................................................................. 8
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TABLE OF AUTHORITIES
Cases Paragraph
CUNA Mortgage v. Aafedt, 459 N.W.2d 801, 804 (N.D. 1990). 3
Dinius v. Dinius, 448 N.W.2d 210, 216 (N.D. 1989). …………………………….3
Eide v. Tveter, 143 F.Supp. 665 (D.C. N.D. 1956). ………………………………. 4
Keefe v. Fitzgerald, 69 N.D. 481, 288 N.W. 213, 214……..……………………… 4
Mo. Breaks, LLC v. Burns, 2010 ND 221, ¶12, 791 N.W.2d 33. ………………… 9
Riverwood Commer. Park, LLC. v. Std. Oil Co., 2007 ND 36, ¶14,
729 N.W.2d 101, 107………………………………………………………………. 15
Statutes
N.D.C.C. Ch. 47-24.1………………………………………………………………. 7
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LAW AND ARGUMENT
I. THE 2001 DEED WAS NOT VOID DUE TO THE AGE OF THE GRANTEES
[1] The Plaintiffs Howard Fettig and Morgen Fettig (“Howard and Morgen”) continue to
argue that a minor’s inability to be bound by legal contracts is the controlling issue in this
case. This is simply a red herring. There is no claim that any minor attempted to enter in to
any contract regarding the real property at issue. The conveyance in question was very clearly
a gift from Anton Fettig to his two children.
[2] Howard and Morgen claim that for purposes of establishing a legal gift, the
necessary elements are an intent to give, delivery of the gift, and acceptance by the donee.
(Appellee Brief, ¶28). They go on to claim that the delivery in this case was insufficient
because the recording of the 2001 deed allegedly “did not divest Anton of all dominion over
the Howard Property and Morg[e]n Property because he continued to make decisions
regarding the Property after the 2001 Deed.” Id.
[3] Recording a deed conveying real property creates a rebuttable presumption of both
delivery by the grantor and acceptance by the grantee. CUNA Mortgage v. Aafedt, 459
N.W.2d 801, 804 (N.D. 1990), Dinius v. Dinius, 448 N.W.2d 210, 216 (N.D. 1989).
[4] The intent of a grantor to deliver a gift of real property may also be determined through
the intent of the grantor. Keefe v. Fitzgerald, 69 N.D. 481, 288 N.W. 213, 214, Eide v. Tveter,
143 F.Supp. 665 (D.C. N.D. 1956).
[5] In this case, the 2001 Deed was recorded in the office of the McKenzie County
Recorder. (Appellant Appendix #17). In addition, the email involving the USDA attorney,
shows that the attorney was given a copy of the recorded 2001 deed presumably for the
purpose of showing the Grantees named therein to be the owners of the property. (Appellant
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App. #21). Sending the USDA Attorney a copy of the recorded deed shows that Anton Fettig
intended for the grantees to be the owners of the property.
[6] Howard and Morgen argue that Anton did not deliver the property, because later, after
the recording of the deed, and being told by the USDA Attorney that the deed was void and
ineffective, he “continued to make decisions regarding the Property.” (Appellee Brief ¶29).
However, his actions several years after the deed was recorded show little, if any, indication
as to his intent at the time of the conveyance, which is the only relevant time to gauge his
intent. This is especially true considering he had been told that the 2001 Deed was void due
to the age of the grantees. Whether or not he thought that he still owned the property because
he was told the 2001 Deed was void, does not negate his donative intent at the time of the
2001 Deed.
[7] Howard and Morgen also mention the North Dakota Century Code section on the
Uniform Transfers to Minors Act. N.D.C.C. Ch. 47-24.1, Appellee Brief, ¶30. This act does
appear to allow for a custodian’s appointment to manage property owned by a minor, but it
notably lacks any requirement that transfers to minors be made in compliance with the act.
While a custodian would need to be appointed to enter in to any contract concerning the
property after it becomes owned by a minor, it does not prohibit a transfer directly to a minor,
such as the one here.
II. RES JUDICATA DID NOT PREVENT THE DISTRICT COURT FROM
CONSIDERING WHETHER THE 2001 DEED WAS VOID
[8] Howard and Morgen claim that the District Court was barred from even considering
the validity of the 2001 Deed due to the decision in an earlier proceeding due to the application
of res judicata.
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[9] The elements of res judicata include:
1. A final decision on the merits in the first action by a court of competent
jurisdiction;
2. The second action involves the same parties, or their privies, as the first;
3. The second action raises an issue actually litigated or which should have been
litigated in the first action; and
4. An identity of the causes of action.
Mo. Breaks, LLC v. Burns, 2010 ND 221, ¶12, 791 N.W.2d 33.
[10] Howard and Morgen claim that the ruling in McKenzie County case #27-2016-cv-24
(the “2016 action”) settled the issue raised in this case, and that res judicata mandates a ruling
in their favor in the current case.
[11] As applied to this case, the 2016 action was rendered by a court of competent
jurisdiction, but the remaining elements have not been established.
[12] The 2016 action that Howard and Morgen are trying to have applied here, was a quiet
title action involving real estate other than that involved in the two cases currently before the
Court. (Appellant App. 86-89). The Plaintiff, Charles E. Fettig, was not involved in either of
the two current cases, either as Plaintiff or Defendant. Howard and Morgen were named as
Defendants in the 2016 action, but it is unclear why they were named. The Complaint does
not mention Howard and Morgen, nor does it state any cause of action involving them. Id. A
review of the 2016 action docket indicates that Howard and Morgen were not represented by
counsel in that action, and it does not appear that they made any appearance or participated in
the litigation. Id. So the parties involved are not identical because Charles E. Fettig was not
involved in the current cases, and Howard and Morgen were only nominally, if at all, involved
in the earlier action, but certainly weren’t Plaintiffs.
[13] The current cases do not raise an issue actually litigated, or that should have been
brought in the first case, and the causes of action are not identical. The 2016 action cleared
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title to a tract of land in Section 5, Township 149 North, Range 94 West, in McKenzie County,
North Dakota. The current actions involve settling any issues as to certain tracts in Section
17, and 22, Township 149 North, Range 94 West, McKenzie County, North Dakota.
[14] Howard and Morgen compare the current situation to an action for declaratory
judgment. While that does appear to be how Howard and Morgen are requesting the judgment
from the 2016 action to be interpreted, it is not what was requested or plead in any of the
lawsuits.
[15] The doctrine of res judicata is to be applied “as fairness and justice require and should
not be applied so rigidly as to defeat the ends of justice or to work an injustice.” Riverwood
Commer. Park, LLC. v. Std. Oil Co., 2007 ND 36, ¶14, 729 N.W.2d 101, 107.
[16] It is hardly fair or just for Howard and Morgen to be able to use the judgment from a
quiet title action involving just one particular parcel of real property, and to retroactively
construe that quiet title judgment as a declaratory judgment against the Defendant, without
pleading the claim as a declaratory judgment, thereby putting the Defendants on notice of the
claim.
CONCLUSION
[17] For the reasons presented above, we respectfully request the District Court’s Order
granting Summary Judgment be reversed.
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Dated this 25th day of June 2019.
Ebeltoft . Sickler . Lawyers . PLLC
Lawyers for the Appellees
2272 Eighth Street West
Dickinson, North Dakota 58601
701.225.LAWS (5297)
701.225.9650 fax
By: /s/ Nathan M. Bouray
Nathan M. Bouray, Lawyer #06311
CERTIFICATE OF COMPLIANCE
The undersigned does hereby certify that the foregoing brief complies with the page
limit of N.D.R.App.P. 32(a)(8). The brief contains a total of 9 pages.
Dated this 25th day of June 2019.
Ebeltoft . Sickler . Lawyers . PLLC
Lawyers for the Appellees
2272 Eighth Street West
Dickinson, North Dakota 58601
701.225.LAWS (5297)
701.225.9650 fax
By: /s/ Nathan M. Bouray
Nathan M. Bouray, Lawyer #06311
