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Dennis Bakken and Evangeline Bakken v. John A. Duchscher

February 26, 2013

DENNIS BAKKEN AND EVANGELINE BAKKEN,
PLAINTIFFS AND APPELLANTS
v.
JOHN A. DUCHSCHER, BERNADINE R. DUCHSCHER, JOHN A. DUCHSCHER, JR., AND ANN DUCHSCHER,
DEFENDANTS AND APPELLEES



Appeal from the District Court of Pierce County, Northeast Judicial District, the Honorable John C. McClintock, Judge.

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

N.D. Supreme CourtBakken v. Duchscher, 2013 ND 33

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

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REVERSED AND REMANDED.

Opinion of the Court by Maring, Justice.

[¶1] Dennis Bakken and Evangeline Bakken appeal from a judgment declaring the Bakkens no longer have an option to repurchase Pierce County property Paul and Evangeline Bakken sold to John and Bernadine Duchscher in 1991, and which the Duchschers later transferred to John Duchscher, Jr., and Ann Duchscher. We reverse and remand, concluding the district court erred as a matter of law in ruling that the Bakkens' option to repurchase the property has expired.

I

[¶2] Paul and Evangeline Bakken owned and operated a small farm located in parts of Benson and Pierce counties. Dennis Bakken is their only child. John and Bernadine Duchscher are the Bakkens' neighbors. John Duchscher, Jr., is the Duchschers' son, and Ann Duchscher is his wife.

[¶3] In 1991, the Bakkens were faced with substantial medical bills incurred for Paul Bakken's care. The Bakkens visited with attorney Charles Orvik about attempting to protect the farm from medical creditors and assisting them in obtaining a bank loan. Orvik called John and Bernadine Duchscher and inquired whether they would be interested in purchasing the Bakkens' land. After the Bakkens and Duchschers met in the law office, Orvik prepared an earnest money contract of sale for two parcels of the Bakkens' farmland, one located in Benson County and referred to in this case as parcel A, and the other located in Pierce County and referred to as parcel B. The unsold farmland is referred to as parcel C. The earnest money contract listed the purchase price as $70,000, which was approximately $135 per acre, and provided:

It is agreed between the parties that the Seller shall have the option to purchase the land hereby sold or any part thereof at the election of the Seller. Such price to be at One Hundred Thirty-five and no/100 dollars ($135.00) per acre. It is also agreed that John A. Duchscher and Bernadine R. Duchscher shall have the first right of refusal to purchase the unsold land at the same price.

[¶4] In late 1991, warranty deeds were executed and recorded for parcels A and B. Each deed provided:

This Deed is given subject to an option to re-purchase the land hereby sold or any part thereof at the election of the Grantor(s). Such price to be at One Hundred Thirty-five and no/100 Dollars ($135.00) per acre. Neither the earnest money contract nor the warranty deeds listed a termination date for exercising the options to repurchase.

[ΒΆ5] In 1992, the Bakkens and the Duchschers entered into another agreement which related only to parcel B located in Pierce County. The ...


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