Nuveen v. Nuveen, 2011 ND 44

Motschman appealed a district court summary judgment dismissing his action seeking a declaration that no valid contract existed or rescission, and appealed from an order denying his post-judgment motion for reconsideration.
Bridgepoint offered to purchase Motschman’s mineral rights in Dunn County for $600 per acre, sent a mineral deed and a sight draft, and a second revised deed; Motschman signed the deed before a notary and Bridgepoint paid the full price by check and recorded the deed.
Motschman later claimed he intended only to lease, not sell, and sent a withdrawal letter denying any transfer of land or mineral rights.
Bridgepoint argued the correspondence and the deed collectively evidenced a valid contract and pointed to the deed’s title as a Mineral Deed; the deed was recorded.
The district court granted summary judgment for Bridgepoint; Motschman moved for reconsideration, raising the statute of frauds for the first time, which the court denied.
The supreme court affirmed, holding Motschman failed to properly raise the statute of frauds in the district court and there was no basis to rescind the contract.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Statute of frauds raised properly?	Motschman contends the deed failed to satisfy the statute of frauds because it did not list the actual purchase price.	Bridgepoint argues the statute was waived and that the deed and related letters together satisfy the writing requirement.	waived; not properly raised
Existence of a valid contract	No valid contract due to lack of consideration since money was not cashed/unpaid.	Documents formed a valid contract and consideration existed.	contract valid; rescission not warranted
Rescission due to failure of consideration	Consideration failed because Bridgepoint did not deliver valid payment as cash.	Tender of payment in check satisfied the contract; form did not void consideration; no objection at time of offer.	no failure of consideration; no rescission

Baldus v. Mattern, 93 N.W.2d 144 (N.D. 1958) (statute of frauds pleading required)
Kadrmas v. Kadrmas, 264 N.W.2d 892 (N.D. 1978) (waiver for not raising statute of frauds)
Dvorak v. Dvorak, 2001 ND 178 (N.D. 2001) (abuse of discretion standard for reconsideration)
Ellingson v. Knudson, 498 N.W.2d 814 (N.D. 1993) (afterthought arguments not proper on reconsideration)
Refrigeration Sales Co., Inc. v. Mitchell-Jackson, Inc., 605 F. Supp. 6 (N.D. Ill. 1983) (reconsideration timing and grounds)
Ugland v. Farmers’ & Merchants’ State Bank of Knox, 137 N.W. 572 (N.D. 1912) (tender of payment admissible unless legal tender demanded)