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James A. Van Berkom and Betty L. Van Berkom v. Marilyn E. Cordonnier

December 13, 2011

JAMES A. VAN BERKOM AND BETTY L. VAN BERKOM,
PLAINTIFFS AND APPELLEES
v.
MARILYN E. CORDONNIER, BRENDA K. KLITZKE, DARWIN C. VAN BERKOM, BRADLEY K. VAN BERKOM, MARK BARENTHSEN AND KATHRYN BARENTHSEN, DEFENDANTS AND APPELLANTS



Appeal from the District Court of Burke County, Northwest Judicial District, the Honorable Todd L. Cresap, Judge.

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

N.D. Supreme Court

Van Berkom v. Cordonnier,

2011 ND 239

This opinion is subject to petition for rehearing. [Go to Documents]

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AFFIRMED.

Opinion of the Court by Maring, Justice.

[¶1] Marilyn Cordonnier, Brenda Klitzke, Darwin Van Berkom, Bradley Van Berkom, Mark Barenthsen, and Kathryn Barenthsen (collectively "Cordonniers")

Appeal from the trial court's judgment quieting title of an undivided one-half interest of the disputed mineral rights in favor of James and Betty Van Berkom. We hold the trial court's finding that the Cordonniers did not prove the presence of a mutual mistake justifying reformation by clear, satisfactory, specific, and convincing evidence is not clearly erroneous, and we affirm.

I

[¶2] In 1979, James and Betty Van Berkom executed a contract for deed for the purchase of certain real estate from Arlo and Garoldine Van Berkom, James Van Berkom's uncle and aunt. The contract for deed contained a mineral reservation clause. During the probate proceedings following Arlo Van Berkom's death, half of the mineral acres underlying the real estate subject to the 1979 contract for deed were devised to a trust created by Arlo Van Berkom's last will and testament, and the other half passed to Garoldine Van Berkom. After the completion of payments under the contract for deed, Garoldine Van Berkom, in 1995, executed a warranty deed conveying the subject real estate to James and Betty Van Berkom. The warranty deed did not contain a mineral reservation clause. Garoldine Van Berkom died in 2002. Her last will and testament gave Mark Barenthsen an option to purchase any part or all of her farmland and any mineral rights she owned. Mark Barenthsen exercised this option purchasing, among others, the mineral rights in question. Only the undivided one-half interest in the mineral rights allegedly sold to James and Betty Van Berkom and Mark and Kathryn Barenthsen by Garoldine Van Berkom are at issue in this case.

[¶3] The discrepancy in title was brought to the parties' attention in 2008 when both James and Betty Van Berkom and Mark and Kathryn Barenthsen sought to simultaneously lease the disputed mineral acres. The Van Berkoms commenced this action to quiet title to the mineral rights they claimed under the 1995 warranty deed. The Cordonniers responded, alleging the warranty deed suffered from a mutual mistake and seeking to reform the warranty deed to conform to the 1979 contract for deed.

[ΒΆ4] At trial, the Van Berkoms presented testimony demonstrating Arlo and Garoldine Van Berkom intended to transfer the mineral rights, along with the surface rights, when the payments under the contract for deed were completed and the warranty deed was delivered. James Van Berkom testified that, at the time the contract for deed was executed, it was Arlo Van Berkom's intention for James Van Berkom to receive the minerals underlying the real estate once the contract for deed was fully paid. The Van Berkoms also submitted the deposition of Larry Van Berkom, Arlo Van Berkom's brother and James Van Berkom's other uncle, which was read into the record. Larry Van Berkom testified he discussed this sale with Arlo Van Berkom, and it was his understanding Arlo Van Berkom intended James Van Berkom to receive the minerals underlying the real estate once the contract for deed was satisfied. Further, Larry Van Berkom explained it was Arlo and ...


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