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Kevin Pifer, Plaintiff and Appellee v. Barbara Mcdermott

May 4, 2012

KEVIN PIFER, PLAINTIFF AND APPELLEE
v.
BARBARA MCDERMOTT, DEFENDANT AND APPELLANT



Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Lawrence E. Jahnke, Judge.

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

N.D. Supreme Court

Pifer v. McDermott,

2012 ND 90

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

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DISMISSED.

Opinion of the Court by Sandstrom, Justice.

[¶1] Barbara McDermott appeals from a partial summary judgment after the district court concluded her mother, Dorothy Bevan, validly gifted Kevin Pifer an option to purchase land. We dismiss McDermott's appeal, concluding the district court abused its discretion in directing entry of a final judgment under N.D.R.Civ.P. 54(b).

I

[¶2] On January 17, 2001, Bevan executed a durable power of attorney in favor of Pifer, a distant relative. Thereafter, Pifer assisted Bevan with managing her farmland and performing other miscellaneous tasks. On February 16, 2004, Bevan executed a purchase option agreement, granting Pifer the option to purchase a tract of land for $107,569, exercisable by Pifer "at any time within two years following [Bevan's] death." Bevan's attorney drafted the agreement. The purchase option price was less than fair market value at the time the parties executed the agreement in 2004, and it provided, "[T]his agreement is binding upon the parties, their heirs and estates, and successors." Pifer recorded the purchase option on February 18, 2004.

[¶3] On October 22, 2009, Bevan executed a warranty deed to the same property, creating a joint tenancy with the right of survivorship with McDermott. On June 24, 2010, Bevan died. On July 27, 2010, Pifer recorded a notice of intent to exercise his purchase option. On September 8, 2010, Pifer's attorney sent a letter to McDermott's attorney, explaining Pifer's intention to exercise the purchase option and enclosing a cashier's check for the purchase amount. McDermott rejected the cashier's check, questioning Bevan's capacity to execute the purchase option agreement in 2004 and seeking verification that the purchase option had been conveyed with consideration.

[¶4] Pifer sued McDermott, seeking specific performance of the purchase option. Pifer also claimed intentional interference with economic advantage as a result of McDermott's rejection of his attempt to exercise the purchase option. McDermott counterclaimed, alleging the purchase option was void for lack of consideration or voidable because its terms were unconscionable. She also alleged that Bevan's death resulted in a material alteration of the purchase option agreement and that Pifer, acting in his capacity as Bevan's power of attorney, obtained the purchase option by undue influence, coercion, misrepresentation, fraud, breach of trust, breach of fiduciary duty or self-dealing, and theft.

[ΒΆ5] McDermott moved for summary judgment, arguing the purchase option agreement did not constitute a valid and enforceable contract, because it lacked consideration, it was merely a revocable offer, and it was voidable because Pifer had a durable power of attorney from Bevan at the time of its execution. Pifer also moved for summary judgment, arguing the purchase option agreement was valid and enforceable. The district court granted Pifer partial summary judgment, concluding the purchase option agreement was valid and enforceable. In its judgment, the district court stated, "This Judgment shall be final for appeal purposes, and there is no just ...


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