Debbie Rooks, Successor Trustee of the Ruby M. Robb Living Trust, Plaintiff and Appellee
David C. Robb, Defendant and Appellant
Appeal from the District Court of Williams County, Northwest Judicial District, the Honorable David W. Nelson, Judge.
Abby T. Siewert, Williston, ND, for plaintiff and appellee; submitted on brief.
David C. Robb, self-represented, San Jose, CA, defendant and appellant; submitted on brief.
Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom. I concur in the result. Gerald W. VandeWalle, C.J.
Carol Ronning Kapsner, Justice.
[¶1] David Robb appeals from a district court judgment denying his motion for summary judgment, partially granting Debbie Rooks' motion for summary judgment, and dismissing the remainder of Rooks' claims without prejudice. Because we conclude the district court erred when it found there was no genuine dispute of material fact, we reverse and remand.
[¶2] Between May 2002 and September 2004, David Robb received multiple loans from his mother, Ruby Robb. On September 13, 2004, Ruby Robb created a living trust identified as the Ruby M. Robb Living Trust (" Trust" ), and she named American State Bank as the trustee. On October 24, 2004, David Robb signed a promissory note made payable to Ruby M. Robb. The amount payable was $121,500.00, and the note did not contain a due date or repayment schedule. David Robb made a number of payments on the note; he made these payments payable to the Trust. However, he stopped making payments after American State Bank ceased administering the Trust. Debbie Rooks, David Robb's sister, became the successor trustee.
[¶3] On January 26, 2013, Rooks, in her capacity as trustee, served a complaint on David Robb to recover the amount due on the note David Robb signed, as well as an additional note tat he did not sign. Rooks ultimately voluntarily dismissed her claim based on the unsigned note. Both parties moved for summary judgment. In support of Rooks' motion, she filed an affidavit made by the vice president and trust manager of American State Bank that alleged the note was assigned to the Trust. She filed this affidavit because the schedule of trust assets had been lost, and there was no record evidencing the assignment of the note to the Trust. At the hearing on the cross-motions for summary judgment, David Robb argued the Trust
did not have standing to sue because Rooks did not present evidence sufficient to show the Trust owned the note. The court found the trust manager's affidavit was sufficient to establish the note had been transferred to the Trust.
[¶4] The court found there were no genuine issues of fact and the note was payable on demand as a matter of law. Robb appeals the district court's order awarding summary judgment in favor of Rooks.
[¶5] Robb raises three issues on appeal. He argues: (1) the district court erred when it granted summary judgment because the court's ruling was based on an affidavit that was conclusory and not made on personal knowledge, (2) there was a genuine issue of material fact regarding whether the note was transferred to the Trust, and (3) the district court's finding that the note was payable on demand was erroneous.
[¶6] " Whether summary judgment was proper is a question of law that we review de novo on the record. . . . On appeal, we view the evidence in the light most favorable to the party opposing the motion." Tarnavsky v. Rankin,2009 ND 149, ...