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Minto Grain, LLC v. Tibert

December 17, 2009

MINTO GRAIN, LLC, A NORTH DAKOTA LIMITED LIABILITY COMPANY, AND WILLIAM SLOMINSKI AND KATHERINE SLOMINSKI, INDIVIDUALLY, AND AS SOLE SHAREHOLDERS OF MINTO GRAIN, LLC, PLAINTIFFS AND APPELLEES
v.
MARK L. TIBERT, MELVIN J. TIBERT, SUE VOTAVA TIBERT AKA SUZI TIBERT, WILLIAM "BILL" TIBERT, DEFENDANTS AND APPELLANTS



Appeal from the District Court of Walsh County, Northeast Judicial District, the Honorable Karen Kosanda Braaten, Judge.

The opinion of the court was delivered by: VandeWalle, Chief Justice.

AFFIRMED.

[¶1] Mark Tibert, Melvin Tibert, Suzi Tibert, and William "Bill" Tibert ("Tiberts") appealed from a district court judgment entered after a jury verdict in favor of Minto Grain, LLC, William Slominski, and Katherine Slominski (collectively "Minto Grain") and against Tiberts jointly and severally in the amount of $455,000. Judgment against William "Bill" Tibert was limited to $305,000. We conclude the court did not err in denying Tiberts' post-trial motions for judgment as a matter of law and for a new trial, and we affirm.

I.

[¶2] The parties acknowledge that Minto Grain and the Tiberts have been engaged in extensive litigation over the years, relating to expansion of a roadway known as "Kilowatt Drive" and boundary disputes. See Tibert v. City of Minto, 2006 ND 189, 720 N.W.2d 921; Tibert v. Slominski, 2005 ND 34, 692 N.W.2d 133; Tibert v. Minto Grain, LLC, 2004 ND 133, 682 N.W.2d 294; Minto Grain, LLC v. Tibert, 2004 ND 107, 681 N.W.2d 70; Tibert v. City of Minto, 2004 ND 97, 679 N.W.2d 440; see also Nowling v. BNSF Ry., 2002 ND 104, 646 N.W.2d 719. Melvin Tibert, Cathy Tibert, Mark Tibert, and Suzi Tibert own homes on neighboring lots in Minto, North Dakota, and purchased their homes in 1987. Slominski, 2005 ND 34, ¶ 2, 692 N.W.2d 133. Minto Grain owns and operates a grain elevator on property adjacent to the Tiberts. Id.

[¶3] In 1999, Minto Grain was formed by William Slominski and Katherine Slominski to purchase, expand, and operate the Minto Farmers Elevator, intending to expand the facility to a 110-car unit train load-out facility. William Slominski and Katherine Slominski are the only members of Minto Grain and subsequently purchased the elevator, which had been in operation since 1881 under various owners and names. Although disputed by Tiberts at trial, Minto Grain asserts it contracted with Burlington Northern Santa Fe ("BNSF") to assist in financing the unit train load-out facility. Further, Minto Grain obtained title through a quit-claim deed to a portion of BNSF's right-of-way in 2001 to facilitate the expansion of the facilities. Tiberts objected to the expansion of the Minto elevator and the use of the right-of-way which Minto Grain had acquired from BNSF.

[¶4] In 2004, Minto Grain commenced this action against the Tiberts, alleging various claims arising from the Tiberts efforts to prevent the expansion of Minto Grain's facility to a 110-railcar load-out facility. Minto Grain's claims against the Tiberts included civil conspiracy, wrongful interference with business, tortious interference with contract, nuisance, trespass, and abuse of process. In December 2007, the district court granted partial summary judgment to Tiberts, dismissing Minto Grain's claims of civil conspiracy and abuse of process. In January 2008, the district court conducted a three-week jury trial on Minto Grain's remaining claims against Tiberts for wrongful interference with business, tortious interference with contract, nuisance, and trespass.

[¶5] In January 2008, the jury returned a special verdict in favor of Minto Grain, holding Tiberts jointly and severally liable for damages in the amount of $455,000, but limiting damages against William Tibert to $305,000. In March 2008, judgment was entered in favor of Minto Grain and against the Tiberts. In April 2008, Tiberts filed a "consolidated motion" on behalf of all defendants for a judgment of dismissal as a matter of law under N.D.R.Civ.P. 50(b)(1)(C). Additionally, William Tibert filed an additional "separate motion" for a judgment of dismissal as a matter of law under N.D.R.Civ.P. 50(b)(1)(C). In May 2008, Tiberts filed a "consolidated motion" for a new trial under N.D.R.Civ.P. 59(b)(2), raising a single claim of jury misconduct.

[¶6] In November 2008, the district court denied Tiberts' motion for new trial based on juror misconduct and denied Tiberts' renewed motions for judgment as a matter of law. After the court's denial of Tiberts' post- trial motions under N.D.R.Civ.P. 50(b)(1)(C) and N.D.R.Civ.P. 59(b)(2), Tiberts took this appeal from the district court's final judgment.

II. Standards of Review

[¶7] This Court has explained the standard of review for a motion for judgment as a matter of law under N.D.R.Civ.P. 50:

The trial court's decision on a motion brought under N.D.R.Civ.P. 50 to deny or grant judgment as a matter of law is based upon whether the evidence, when viewed in the light most favorable to the party against whom the motion is made, leads to but one conclusion as to the verdict about which there can be no reasonable difference of opinion. In considering this motion, the trial court must apply a rigorous standard with a view toward preserving a jury verdict, and so must we in our review on appeal. In determining if the evidence is sufficient to create an issue of fact, the trial court must view the evidence in the light most favorable to the non-moving party, and must accept the truth of the evidence presented by the non-moving party and the truth of all reasonable inferences from that evidence which support the verdict. The trial court's decision on a motion for judgment as a matter of law is fully reviewable on appeal.

Amyotte ex rel. Amyotte v. Rolette County Hous. Auth., 2003 ND 48, ¶ 15, 658 N.W.2d 324 (quoting Symington v. Mayo, 1999 ND 48, ¶ 4, 590 N.W.2d 450 (citations omitted)); see also Anderson v. Kroh, 301 N.W.2d 359, 362 (N.D. 1980).

In reviewing a district court ruling on a motion for judgment as a matter of law, we examine the sufficiency of the evidence by viewing the evidence supporting the jury verdict as the truth. This Court then applies the standard for a Rule 50 judgment as a matter of law, which is whether the evidence favoring the verdict is so insufficient, reasonable minds could reach only one conclusion as to the verdict.

Amyotte ex rel. Amyotte v. Rolette County Hous. Auth., 2003 ND 48, ¶ 15, 658 N.W.2d 324 (citation omitted).

[¶8] Under N.D.R.Civ.P. 50(b), if the district court does not grant a motion for judgment as a matter of law at the close of all evidence, the court may later decide the legal questions raised by the motion. The term "judgment as a matter of law" in N.D.R.Civ.P. 50 has replaced the terms "directed verdict" and "judgment notwithstanding the verdict." See id., Explanatory Note. "The standard for determining whether judgment as a matter of law should be granted is the same as that for a directed verdict or judgment notwithstanding the verdict." Wagner v. Squibb, 2003 ND 18, ¶ 4, 656 N.W.2d 674. On appeal the district court's decision on a motion for judgment as a matter of law is fully reviewable. Wagner, at ¶ 3; Howes v. Kelly Servs., Inc., 2002 ND 131, ¶ 7, 649 N.W.2d 218. To determine whether the district court erred in granting a motion for judgment as a matter of law under N.D.R.Civ.P. 50(b), this Court examines the trial record and applies the "same standard" as the district court was required to apply initially. See Okken v. Okken, 325 N.W.2d 264, 267 (N.D. 1982); Riebe v. Riebe, 252 N.W.2d 175, 177 (N.D. 1977).

[¶9] We note that some decisions of this Court have also suggested that a motion for judgment notwithstanding the verdict, now judgment as a matter of law under N.D.R.Civ.P. 50(b), is committed to the district court's sound discretion and is reviewed on appeal for an abuse of discretion. See, e.g., Forster v. West Dakota Veterinary Clinic, Inc., 2004 ND 207, ¶ 17, 689 N.W.2d 366; Diversified Fin. Sys. Inc. v. Binstock, 1998 ND 61, ¶ 10, 575 N.W.2d 677; Suburban Sales & Service, Inc. v. White, 326 N.W.2d 873, 877 (N.D. 1982); Falkenstein v. City of Bismarck, 268 N.W.2d 787, 790 (N.D. 1978). However, the proper standard of review has been discussed in 9B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 3d § 2536 (2008):

In determining whether a motion for a judgment as a matter of law should have been granted, an appellate court applies the same standard under Rule 50(b) as does the trial court in passing on the motion originally made under Rule 50(a). This same-standard principle is an important one and is reflected in innumerable cases . . . .

One court of appeals takes the view that it will not superimpose its judgment on that of the trial court unless it can say that the judge's judgment was "clearly wrong." This is not the proper test. Whether judgment as a matter of law should be granted is a question of law and on questions of that character authority in every federal circuit has pronounced that the litigants are entitled to full review by the appellate court without special deference to the views of the trial court. Thus, a massive amount of case authority . . . makes it clear that the court of appeals reviews the trial court's ruling on a Rule 50 motion for judgment as a matter of law de novo.

[¶10] In Falkenstein, 268 N.W.2d at 790, this Court's analysis appears to combine the standards of review for a motion for judgment notwithstanding the verdict and a motion for new trial, collectively stating both motions are directed to the trial court's sound discretion, and only overturning "unless it is clear that there was a manifest abuse of discretion." The analysis in Falkenstein merged the separate analyses for the motion for judgment notwithstanding the verdict and the motion for new trial and misstated this Court's decision in Dehn v. Otter Tail Power Co., 251 N.W.2d 404, 410-11 (N.D. 1977), which was cited by Falkenstein, at 790.

[¶11] The proper standards of review for each of the motions was articulated in Okken, 325 N.W.2d at 267-69, in which this Court stated that to determine whether the trial court erred in granting a motion for judgment notwithstanding the verdict, this Court examines the trial record and applies "the same standard that the trial court was required to apply initially." To the extent prior cases have suggested that a motion for judgment notwithstanding the verdict, now judgment as a matter of law under N.D.R.Civ.P. 50(b), is committed to the district court's sound discretion and reviewed for an abuse of discretion, we now clarify that this Court applies the "same standard" as the district court initially applied. See Forster, 2004 ND 207, ¶ 17, 689 N.W.2d 366; Binstock, 1998 ND 61, ¶ 10, 575 N.W.2d 677; Suburban Sales & Service, Inc., 326 N.W.2d at 877; Falkenstein, 268 N.W.2d at 790.

[¶12] Motions for new trial in civil cases, on the other hand, are governed by N.D.R.Civ.P. 59. Under N.D.R.Civ.P. 59(b)(2), a party may move for a new trial based upon "[m]isconduct of the jury, and whenever any juror has been induced to ascent to any general or special verdict or to a finding on any question submitted to the jurors by the court by a resort to the determination of chance, the misconduct may be proved by the affidavit of any one of the jurors."

[¶13] This Court will not reverse a district court's denial of a new trial motion based on the grounds of juror misconduct unless the court abused its discretion. See State v. Hidanovic, 2008 ND 66, ¶ 11, 747 N.W.2d 463; State v. Brooks, 520 N.W.2d 796, 798 (N.D. 1994); Keyes v. Amundson, 343 N.W.2d 78, 81 (N.D. 1983). A district court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably, or when its decision is not the product of a rational mental process leading to a reasoned determination. Ritter, Laber & Assocs., Inc. v. Koch Oil, Inc., 2004 ND 117, ¶ 34, 680 N.W.2d 634.

III. Preservation of Issues

[¶14] Tiberts argue the district court erred in denying their motion for a new trial under N.D.R.Civ.P. 59 on the basis of jury misconduct and in denying their alternative request for an evidentiary hearing. They also argue the district court committed reversible error in denying their original and "renewed" motions for judgment of dismissal as a matter of law under N.D.R.Civ.P. 50, asserting Minto Grain failed to present evidence at trial to support claims of tortious interference with business and failed to present sufficient evidence at trial to support claims of tortious interference with contractual relations. Tiberts argue the district court committed "independent" reversible error by admitting an exhibit entitled "prior litigation summaries" and by denying the admission of actual court documents offered by Tiberts. Tiberts assert the court erred by failing to grant their motion for judgment of dismissal as a matter of law on grounds of "petition immunity," thereby permitting the jury to assign liability to Tiberts in violation of the petition immunity, and that Minto Grain failed to present competent evidence that any action by William Tibert proximately caused any financial injury or damage to Minto Grain.

[¶15] Minto Grain responds that the scope of review on appeal is limited based on Tiberts' new trial motions, that the district court did not abuse its discretion in denying Tiberts' motions for a judgment as a matter of law, and that the court did not abuse its discretion in denying Tiberts' motion to grant a new trial on the basis of juror misconduct.

[¶16] Tiberts made their motion for new trial under N.D.R.Civ.P. 59(b)(2), in which they only argued juror misconduct. In Andrews v. O'Hearn, 387 N.W.2d 716, 728 (N.D. 1986), this Court explained:

"It is well settled that where a motion for a new trial is made in the lower court the party making such a motion is limited on appeal to a review of the grounds presented to the trial court." Zimbelman v. Lah, 61 N.D. 65, 67, 237 N.W. 207, 208 (1931). This restriction of appealable issues applies not only to review of a denial of the motion for a new trial, but also to the review of the appeal from the judgment itself or from a denial of a motion for judgment notwithstanding the verdict . . . .

(Footnote omitted and emphasis added.) See also State v. Zajac, 2009 ND 119, ¶ 8, 767 N.W.2d 825 (holding defendant failed to preserve issues relating to jury instructions and improper closing argument not raised in defendant's new trial motion); Dewey v. Lutz, 462 N.W.2d 435, 439 (N.D. 1990) (concluding appellants waived issue on appeal that trial court abused its discretion in permitting complaint to be amended during trial to allege a claim for deceit, which appellants failed to raise in their motion for judgment notwithstanding the verdict and alternative motion for new trial).

[¶17] This Court has also stated that in challenging a district court's evidentiary rulings, a party is not required to make a new trial motion prior to taking an appeal from the judgment, but when a party makes a new trial motion, that party is limited on appeal to those issues raised in the motion for new trial. Swiontek v. Ryder Truck Rental, Inc., 432 N.W.2d 893, 895-96 (N.D. 1988) (citing Nelson v. Trinity Medical Center, 419 N.W.2d 886, 889 (N.D. 1988); Andrews, 387 N.W.2d at 729); see also State v. Kopp, 419 N.W.2d 169, 172-73 n.2 (N.D. 1988) ("An assertion that the verdict is contrary to the greater weight of the evidence cannot, of course, be raised during the course of the trial. Although such an issue can be raised on appeal from the judgment without making a motion for new trial, where, as here, a motion for new trial was made, the issue must be raised in that motion or it will not be considered on appeal.").

[ΒΆ18] Here, the Tiberts filed three post-trial motions for disposition by the district court. On April 7, 2008, the Tiberts filed a "consolidated motion" by all the defendants for judgment of dismissal as a matter of law under Rule 50(b)(1)(C), N.D.R.Civ.P., and a "separate motion" by William Tibert for judgment of dismissal as a matter of law under Rule 50(b)(1)(C), N.D.R.Civ.P. On May 16, 2008, Tiberts filed a ...


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