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Desert Partners IV, L.P. v. Benson

Supreme Court of North Dakota

January 15, 2019

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

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

          Nicholas C. Grant, Dickinson, ND, for plaintiffs and appellees Desert Partners IV, L.P. and Family Tree Corporation.

          Paul Brutlag, Morris, MN, for defendants and appellees Ann P. Kemske and Jon Kemske; submitted on brief. John Benson, self-represented, Minnetonka, MN, defendant and appellant.

          OPINION

          Jensen, Justice.

         [¶ 1] John Benson appeals a district court judgment in a quiet title action determining Desert Partners IV, L.P. and Family Tree Corporation, Inc. own 32 net mineral acres in McKenzie County. Benson asserts the district court abused its discretion in denying his request for a continuance of the trial and erred in its conclusion that Desert Partners and Family Tree were good-faith purchasers of the minerals. We affirm.

         I

         [¶ 2] In two deeds dated November 16, 1984, and January 1, 1985, John Benson, Edward Benson, Louise Benson, Geri Benson, and Ann Kemske each received an undivided one-fifth mineral interest in 160 acres from their grandparents. On May 4, 1985, the Benson grandchildren executed a power of attorney giving Thomas Benson limited authority to act on their behalf with respect to their mineral interests in Montana and North Dakota. The power of attorney was recorded on December 2, 2015.

         [¶ 3] In 1990, Kemske conveyed her mineral interest to Thomas Benson, but he did not record the deed until April 2012. In 2005, Thomas Benson recorded a statement of claim of mineral interest indicating that he and Leatrice Benson, Edward Benson, Louise Benson, Geri Benson, and Ann Kemske owned the minerals in and under 160 acres in McKenzie County. Thomas Benson executed the statement of claim as power of attorney, presumably under the authority of the 1985 power of attorney.

         [¶ 4] On April 15, 2010, Kemske executed a deed conveying the minerals to Family Tree. Family Tree recorded the deed on May 12, 2010. Family Tree conveyed 24 net mineral acres to Desert Partners on May 12, 2010, and Desert Partners recorded that deed on June 2, 2010. In February 2009, before conveying her mineral interest to Family Tree, Kemske leased the interest to T.S. Dudley Land Company, Inc.

         [¶ 5] Thomas Benson conveyed his interest from Kemske to John and Brian Benson in May 2010. John and Brian Benson recorded their deed on June 3, 2010, and re-recorded their deed on June 4, 2010 to revise the legal description.

         [¶ 6] Desert Partners and Family Tree sued several parties, including John Benson, to judicially determine the ownership of the mineral interest they acquired from Kemske. The dispute, in summary, arises from Kemske's transfer of her interest to Thomas Benson through a deed executed in 1990, but not recorded until 2012, Kemske's transfer of the same interest to Family Tree in April 2010 with the deed being recorded on May 12, 2010, and Family Tree's conveyance to Desert Partners on May 12, 2010 with the deed being recorded on June 2, 2010. Subsequently, on June 3, 2010 and June 4, 2010, John Benson and Brian Benson recorded and re-recorded the deed from Thomas Benson.

         [¶ 7] Family Tree and Desert Partners moved for summary judgment, arguing Family Tree was not aware of the unrecorded deed from Kemske to Thomas Benson and that it purchased the minerals in good faith. The district court granted their motion. In Desert Partners v. Benson, 2016 ND 37, ¶ 15, 875 N.W.2d 510, this Court reversed and remanded, concluding there were disputed issues of material fact involving whether Family Tree and Desert Partners were good-faith purchasers of the disputed minerals.

         [¶ 8] On remand, the bench trial was initially scheduled for November 1, 2016. John Benson informed the district court the morning of trial that he could not participate because he was under the influence of narcotic pain medication. The court rescheduled trial for February 17, 2017. Before the scheduled trial date, Benson again alleged he could not participate at trial due to his health. On March 10, 2017, the court entered a Final Order for Continuance of Trial, which included notification that "the Court will not continue this matter again for [Benson's] health concerns." The court rescheduled trial for October 3, 2017. At 4:58 p.m. on October 2, 2017, a person identifying herself as Benson's "Personal Care Attendant/Power of Attorney/Medical Proxy" emailed the court informing it Benson would not be able to attend the trial due to his health. The court proceeded with the trial on October 3, 2017 without Benson present. At trial, witnesses for Family Tree testified about the ...


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