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Richard Herring of Herring Chiropractic Clinic v. Lisbon Partners Credit Fund

October 23, 2012

RICHARD HERRING OF HERRING CHIROPRACTIC CLINIC,
PLAINTIFF AND APPELLANT
v.
LISBON PARTNERS CREDIT FUND, LTD. PARTNERSHIP AND FIVE STAR SERVICES,
DEFENDANTS AND APPELLEES



Appeal from the District Court of Ransom County, Southeast Judicial District, the Honorable Thomas E. Merrick, Judge.

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

N.D. Supreme CourtHerring v. Lisbon Partners,

2012 ND 226

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

[Download as WordPerfect] Dissent filed.

REVERSED AND REMANDED.

Opinion of the Court by VandeWalle, Chief Justice.

[¶1] Richard Herring appealed from a district court summary judgment dismissing his action against Lisbon Partners Credit Fund, Ltd. Partnership ("Lisbon Partners") and Five Star Services ("Five Star") for nuisance, negligence, and civil trespass. We reverse and remand, concluding the district court erred in finding Lisbon Partners and Five Star owed no duty to Herring to prevent damage caused by encroachment of branches from their tree onto Herring's neighboring property.

I

[¶2] Herring owns a commercial building in Lisbon housing his chiropractic practice. The adjoining property, including an apartment building, is owned by Lisbon Partners and managed by Five Star.

[¶3] Branches from a large tree located on Lisbon Partners' property overhang onto Herring's property and brush against his building. For many years Herring trimmed back the branches and cleaned out the leaves, twigs, and debris that would fall from the encroaching branches and clog his downspouts and gutters. Herring claims that the encroaching branches caused water and ice dams to build up on his roof, and eventually caused water damage to the roof, walls, and fascia of his building. Herring contends that, after he had the damages repaired, he requested compensation from Lisbon Partners and Five Star but they denied responsibility for the damages.

[¶4] Herring sued Lisbon Partners and Five Star for the cost of the repairs to his building, alleging Lisbon Partners and Five Star had committed civil trespass and negligence and had maintained a nuisance by breaching their duty to maintain and trim the tree so that it did not cause damage to his property. The district court granted Lisbon Partners and Five Star's motion for summary judgment dismissing Herring's claims, concluding Lisbon Partners and Five Star had no duty to trim or maintain the tree and Herring's remedy was limited to self-help: He could trim the branches back to the property line at his own expense.

II

[¶5] Before we consider the merits of an appeal, we must determine whether we have jurisdiction. Holbach v. City of Minot, 2012 ND 117, ¶ 5, 817 N.W.2d 340; In re Estate of Hollingsworth, 2012 ND 16, ¶ 7, 809 N.W.2d 328. The right to appeal in this state is purely statutory, and if there is no statutory basis for an appeal we must take notice of the lack of jurisdiction and dismiss the appeal. Holbach, at ¶ 5; Estate of Hollingsworth, at ¶ 7; City of Grand Forks v. Riemers, 2008 ND 153, ¶ 5, 755 N.W.2d 99. Only judgments and decrees which constitute a final judgment of the rights of the parties and certain orders enumerated by statute are appealable. City of Mandan v. Strata Corp., 2012 ND 173, ¶ 5, 819 N.W.2d 557; Brummund v. Brummund, 2008 ND 224, ¶ 5, 758 N.W.2d 735.

[¶6] Herring has attempted to

Appeal from the order granting summary judgment. An order granting summary judgment is not appealable. E.g., Hale v. Ward Cnty., 2012 ND 144, ¶ 11, 818 N.W.2d 697. An attempted appeal from an order granting summary judgment will, however, be treated as an appeal from a subsequently entered consistent judgment, if one exists. Id. A consistent judgment was entered in this case, and we treat the appeal as an

Appeal from the judgment.

III

[ΒΆ7] We have outlined the standards governing our review of a summary judgment ...


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