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Desert Partners IV, L.P. v. Benson

Supreme Court of North Dakota

October 28, 2014

Desert Partners IV, L.P., and Family Tree Corporation, Plaintiffs
v.
Thomas H. Benson, Leatrice Benson, John Benson, Brian Benson, Ann P. Kemske, Jon Kemske; and all other persons unknown claiming any estate or interest in, or lien or encumbrance upon, the property described in the Complaint, Defendants, John Benson Appellant

Appeal from the District Court of McKenzie County, Northwest Judicial District, the Honorable Robin Ann Schmidt, Judge.

John Benson, self-represented, Minnetonka, MN, defendant and appellant.

Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. Opinion of the Court by McEvers, Justice.

OPINION

Page 609

McEvers, Justice.

[¶1] John Benson appeals from a district court summary judgment quieting title to disputed mineral interests in favor of Desert Partners. Desert Partners moves to dismiss Benson's appeal as untimely. We deny Desert Partners' motion to dismiss. Further, we reverse the district court's grant of summary judgment against John Benson and remand for a hearing on the motions, concluding the district court did not properly notice the hearing it held.

Page 610

I

[¶2] Desert Partners IV, L.P., and Family Tree Corporation (" Desert Partners" ) sued to quiet title to certain mineral interests in McKenzie county to Desert Partners. Numerous parties were included in the action. John Benson and Brian Benson, self-represented litigants, answered counterclaiming ownership of the disputed mineral interests. Desert Partners and Benson both moved for summary judgment.[1] No other parties responded to the motions for summary judgment. Desert Partners did not request a hearing on its motion. Benson requested a hearing on the summary judgment motions and then filed a notice of hearing. Benson's notice of hearing stated oral arguments would be heard " on October 30, 2013 at 10:00 am, or as soon as counsel may be heard." On December 3, 2013, the district court ordered summary judgment in favor of Desert Partners, noting there was no dispute as to material facts and no one had appeared for the hearing on November 1, 2013. The record reflects notice of entry of judgment on December 5, 2013.

[¶3] Benson emailed an unsigned notice of appeal and faxed a signed notice of appeal on February 3, 2014. On February 4, 2014, the clerk of district court sent Benson an email stating the clerks' offices are unable to file documents submitted by email or fax. Further, the email stated the original documents could be mailed to the office. Benson mailed the notice of appeal on February 4, 2014. According to documentation submitted by Benson, the clerk of district court received the mailed noticed of appeal on February 7, 2014, and recorded the notice of appeal as filed on February 12, 2014.

[¶4] Upon receiving the notice of appeal from the district court, the Chief Deputy Clerk of the Supreme Court emailed Benson informing him the timeliness of his appeal was in question, as the deadline for filing was February 6, 2014. Further, the Chief Deputy Clerk advised Benson he may seek an extension of time from the district court to file the notice of appeal under N.D.R.App.P. 4(a)(4), if he could show excusable neglect or good cause. Benson did not move for an extension to file the notice of appeal. Desert Partners moved this Court to dismiss the appeal as untimely and Benson responded. In his response, Benson argues his appeal should be treated as timely. He contends he did not move for an extension because he filed a timely notice of appeal.

[¶5] On appeal, Benson argues summary judgment was improperly granted because he requested a hearing on the motions for summary judgment, but did not receive one. Desert Partners did not file a brief in response.

II

[¶6] Before we consider the merits of an appeal, we must have jurisdiction. Dietz v. Kautzman,2004 ND 164, ¶ 6, 686 N.W.2d 110. The time limit for filing a notice of appeal is jurisdictional, and we dismiss an appeal if we conclude we do not have jurisdiction. Stat ...


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