Borsheim v. O & J PROPERTIES

60(a), clerical mistake can court’s NDRCivP regard the trial Giving due on remand. credibility of be corrected to assess opportunity witnesses, a definite not left with we are title judgment quieting We affirm court the trial firm conviction and property, and partitioning and pre- finding mistake made a for for the award mand reconsideration gift not rebutted. We sumption of profits. rents and the trial court’s conclude that therefore clearly findings erroneous. are not ERICKSTAD, C.J., and and LEVINE WALLE, JJ., and R. VANDE VERNON decree and Pursuant divorce PEDERSON, Surrogate Judge. Terri and quit claim deeds between PEDERSON, Surrogate R. VERNON Lowell, the cou one-half of Terri obtained sitting resignation due to the Judge, of land. The the two tracts ple’s interest III. Honorable H.F. GIERKE in the their interest two Nelsons obtained quit later claimed tracts Lowell when on that

remaining to them. Based interest title, err in trial court did not

chain of

determining Terri and the Nelsons as tenants in common the two tracts

owned partitioning the land.

and that the Nelsons also contend and Violet O. BORSHEIM Terri rents and granting erred in trial court Borsheim, R. Plaintiffs and Terri of Section 23. profits SEV4 Appellees, accounting for one-half the rents profits presented from land PROPERTIES, partnership, con- O & J in the that cash rentals area evidence Jacobsen, Owan, sisting of R.E. Charles per acre. The court $17 $30 between Owan, Jr., Owan and Mitchell Vernon “$9,600.00 cash rent Terri due awarded Jacobsen, partners, individual- and R.E. for the per acre 160 acres ... $15 Owan, Jr., individually, ly, Charles Ver- years 1990.” crop Owan, individually, and Mitchell non deed indicates that Carmie The contract for individually, Defendants $6,009.72 and interest paid principal on Appellants. 23 after the divorce the SEVi Section January decree was entered No. 910258. Civ. suggest a down These circumstances Supreme Dakota Court of North adjustment in favor of the Nelsons ward appropriate, at least one-half of Feb. payments of the contract the amount 19, 1992. As Corrected March Terri and the Nel after the divorce when in com the tracts as tenants sons owned However, court did not ad

mon. the trial profits to

just its rents and ac award of payments made after

count for the contract decree, court nor did trial

the divorce why adjustment not neces

explain recon

sary. Accordingly, we remand for prof rents and of the award for

sideration

its. too, note, errone-

ously awarded to describes the SWA of Section 23 rather than

Terri 23. Pursuant

the SEVi of Section Neff, Rathert,

Bjella, Eiken, PC, Wahl & Williston, plaintiffs appellees; ar- gued by L. Charles Neff. Firm, Bismarck,

Wheeler Wolf Law appellants; argued defendants and by Orell Schmitz, D. appearance by Joseph Cichy. J. ERICKSTAD, Chief Justice. Jacobsen, Owan, Jr., R.E. Charles Ver- Owan, non individually and Mitchell (here- partners Properties and as of 0 & J Owans) appeal after County the District Court for Williams granting Violet and Borsheim (hereafter Borsheims) summary judgment, rescinding agreement par- between the part, modify ties. We affirm in remand. April

The Borsheims filed this action on 22, 1991, seeking agree- rescission of an prior judg- ment and reinstatement of a pursuant agreement. released Each of the named defendants answered 15, 1991, May separately. On the Bor- summary judg- sheims filed a motion for 21, 1991, May ment. On defendant change filed a demand for Vernon Owan judge. assigned After the case was to the 22, 1991, May Bert Honorable Wilson the defendant Mitchell Owan made a de- change judge, seeking mand for to dis- 29, 1991, May qualify Judge Wilson. On filed a motion for an exten- the defendants sion of time in which to file a brief response Borsheims’ motion for sum- 24, 1991, mary On June Owans resisted the Borsheims’ motion Because the for sum- costs summary judgment $968.00. and moved a lien on all the Owans’ real July On constituted mary judgment in their favor. property, Bor- the Owans ruled that the trial court whereby summary judgment the Borsheims entitled to sheims were parties The agreement along of would be released. subse- the and where, agreement into an judgment. quently of entered reinstatement the exchange releasing for accordingly July in the Borsheims Judgment entered on was 17, judgment, the Owans executed a appeal This followed. their 1991.1 part by in mort- promissory note secured precipitating The this action arose facts covering real gage property, certain a con- the out of a contract for deed between tinuing guaranty signed by of general each The and Owans. Owans Borsheims the whereby they jointly defendants and the the for deed and the defaulted on contract severally payment guaranteed of the note obtained, for, judg- and Borsheims sued $10,000.2 and, presumably, payment of holding jointly and ment each defendant foregoing ostensibly severally specific performance. The was accom- liable for $47,646.00 plished through in- the execution of what judgment plus The for was $25,120.38 and for the Borsheims termed master terest in the amount counsel Specifically, judgment the includ- one hundred thirteen and ($113.64); dollars trial court’s 64/100 and further ed relevant as follows: “ORDERED, ADJUDGED AND DECREED "ORDERED, ADJUDGED AND DECREED 1, 1987, agreement June that the master dated judgment against plaintiffs that dants, have defen- $65,952.88 promissory the June note dated them, equitable for the and each 1, 1987, 4, mortgage September the dated reinstating judgment dat- relief of that certain 1987, general continuing guaranty dated the 12, No. ed December 1986 entered Civil 4, September judg- 1987 and the release of Court, 17315, District docketed in the 10, August ment dated are all declared Dakota, voiding County, and Williams North void, parties null that are to be and such the August judgment that dated certain release positions they placed in the same were in 12, 1987 which released the December 12, 1986, judgment December the date was judgment Civil such that No. 17315, just as that entered in Civil No. judgment the have December shall judgment had never been released and the against any priority attach a lien and shall as parties agreement for the never defendants, by and owned and all judgment. release of that them, 12, 1986, each the as December legal equitable “Let execution of the and 17315; judgment date Civil was entered in No. accordingly." relief issue and it is further Adjudged "ordered, and decreed agreement the Bor- which counsel the judgment entered Civil the No. agreement, we sheims described as the master Court, docketed in the District Williams Coun- following language: find the 3, 1989, August ty, North Dakota on wherein "(5) mortgage parties agree Judgment plaintiffs foreclosed on a real estate The and Credi- $10,- acknowledge receipt plaintiffs sum had taken as tors defendants security paid by Judg- partial releasing the December 000.00 which has hereto been $10,000.00 is, paid judgment, things, said in all vacated and ment Debtors. That was void; by Judgment proceeds out null and and it is further Debtors from declared “ORDERED, the ADJUDGED AND DECREED the sale of Rose Owan house and the Judgment acknowledge they plaintiffs mortgage release fore- Creditors will judgment judgment partial No. have executed a release of closed entered Civil releasing judgment sum lien the lien of as to and will return defendants the said ($10,- property.” said of ten thousand and dollars no/100 summary hearing 000.00) paid plaintiffs as At the before the which defendants court, releasing judg- partial for the Borsheims stated consideration for trial counsel $10,000 paid defendants was December 1986 Civil No. entered Court, agreement. judgment prior applied the District Williams 17315 docketed in Court, Dakota; argument County, At oral in this counsel for North and it further $10,000 "ORDERED, paid said and ADJUDGED AND DECREED Borsheims agree- pursuant Dakota Rules of deducted from ment, to the North incorporated payment was plaintiffs but such into Civil Procedure against shall them, defendants, agreement. significance each entire of this plaintiffs' standpoint jointly severally, from of Borsheims is that there- for all of costs they they fore assert that did not need to offer incurred in disbursements Court, $10,000. by the in the sum of to restore the taxed and allowed (N.D.1991), parties’ forth the in- N.W.2d 95 agreement which set affirmed the dis- dismissal, negotiate holding a release of trict court’s tent to “that ‘be- Although public so-called master policy against cause of the deficien- 1, 1987, apparently it was cy judgments, dated June procedural rights grant- Sep- signed by the individual defendants on mortgagors ed and vendees under the anti- 4, 1987, the Borsheims on tember deficiency judgment law cannot be contrac- ” parties’ statement August 1987. Both tually waived advance of default.’ Borsheim’s affidavit to of facts (quoting Scarlett, at 98 Brunsoman v. on or June the trial court state that about (N.D.1991)). Subsequent- 1, 1987, signed the Owans and delivered to ly, brought the Borsheims this action for $65,- promissory note for the Borsheims a rescission. However, 952.88. we note that there is no 9-09-04, through Sections 9-09-01 promissory note in the separately executed N.D.C.C., provide par for when and how a general continuing record before us. The ty a can rescind contract.3 “These rules guaranty signed by Sep- the Owans on was largely are codifications of the common-law 4, mortgage signed The tember was rules, upon elementary and are founded 4, 1987, September by the Owans on principles justice.” Swan v. Great register filed in the office of the Co., 258, Ry. Northern 40 N.D. 168 N.W. 10, September deeds on 1987. The release 657, (1918). 9-09-04, Under section signed by the Bor- N.D.C.C., person must use reasonable August sheims on diligence promptly to rescind and to re default, Upon the Borsheims initiated store, party or offer to restore to the other actions, seeking separate two to fore- everything of he or value she has received mortgage and the other to close from him or her under the contract.4 Gen personal guarantees. In the enforce the erally, “[rjestoration preceding sta mortgage, action to foreclose the the Bor- quo requirement tus is a for rescission.” pursue deficiency judg- sheims did not Carlson, v. 454 N.W.2d West provided by A ment as statute. final de- (N.D.1990). requirement This is founded cree of foreclosure was entered in this ac- upon equitable principle he who 3,1989. However, August tion on or about equity equity. seeks must do Blair v. apparently a sheriff’s sale has not been (N.D.1984). Boulger, 358 N.W.2d pending the of this held outcome action. As the Court in Northern Swan Great personal guar- In the action to enforce the Co., quoting Howard, Ry. Home Ins. Co. v. antees, continuing guaranty provided (1887), put 111 Ind. 13 N.E. 103 it: guarantor “specifically that each waives “One who has been led into a contract right rely upon and releases his or seek upon something he has received protection against deficiency judgment contract, ignore value how- Supreme cannot virtue of statutes or Court induced, proceed ever in a court of decisions.” The district court dismissed parties personal guaran- to enforce the law as if the relations of the the action cannot, and, wholly thereby. tees in Borsheim v. unaffected He 9-09-04, N.D.C.C., promptly upon 3. Sections 9-09-01 1. He shall rescind discover- requirements rescind, set forth the scission, unilateral entitle him to the facts which pais.” duress, menace, also called "rescission he is ence, undue influ- free from Schaff (N.D.1953); Kennelly, 61 N.W.2d 546-57 disability right to or and is aware of his Koford, Comment, see also Rescission at Law rescind; and (1948). Equity, 36 Cal.L.Rev. 606 party every- 2. He shall restore to the other thing of value which he has received from 9-09-04, N.D.C.C., 4. Section reads: offer to re- him under the contract or must governing Rules rescission. Re- “9-09-04. party that such store the same condition scission, pur- when not effected consent or likewise, do unless the latter is unable shall 9-08-09, suant to sections can be 9-08-08 positively refuses to do so.” use, accomplished only by part on the rescinding, diligence of reasonable comply following with the rules: contract, object benefits, whether the of a suit and thus af- of a retaining its while law, contract, though governed is it as it or an action at firming treat Heinsohn v. good it Wil- equitable principles.” treat exist. ‘He cannot did not Inc., Clairmont, part, affirm but must 364 N.W.2d liam void ” 9-09-04, (N.D.1985). Although as whole.’ or avoid section N.D.C.C., expressly apply adju- does omitted). Also, (citation at N.W. 32-04-21, section dicated rescission {see is not allowed “[a] N.D.C.C.), “must com- have said it on his restoration place conditions plied compliance necessary with if such except as restoration ... offer to make Volk, Volk v. equity.” N.W.2d 9-09-04, to do N.D.C.C.” permitted by Section (N.D.1963). Also, see 523; we have said Boulger, 358 N.W.2d Blair Alton’s, compliance statutory these rules Long, Inc. v. also said “com maintenance precedent We have a condition pliance equity. rules is condition with these action to rescind in of an of an precedent maintenance person interpret this mean Owans Boulger, rescind.” Blair restore, to, restore, offer must at 524.5 of, commencing action. or at the time case, light of resolution of this we In our 32-04-21, N.D.C.C., forth sets

Section not an offer to need not decide whether or statutory of writ- rescission the basis prior in all occur to the Hovden restore must cases See adjudication.6 ten contract Lind, an to commencement of action rescind v. 301 377 N.W.2d in equity.7 in or whether be based law “This court has often stated preju- Kennedy, public 3.When the interest will be 5. v. this Court said: In Schaff by permitting it to stand." diced party to "A elects rescind contract... who may procedures. He has a further choice Alton's, Long, v. 7.The defendants cite Inc. 352 setting bring equity his an in forth action Volk, (N.D.1984), 121 and Volk to and ask the court to de- N.W.2d election rescind contract; may (N.D.1963), support he as- clare a termination the or in of their bring prior an at law based his election action to must that an offer restore occur sertion restoration, of, his or offer to to, to rescind and restore, commencing an to or at the time action required NDRC Section 9-0904 Alton's, Long, although Inc. we rescind. In to In case the vendee has chosen 1943. this prior to noted that an offer not been re- the latter course. He undertook to take the to re- the we concluded that offer resorting equity a court scind without to in it failed to store was defective to offer brings theory action the on everything of received the restore value under accomplished. A scission has been discussion contract, upon be- and that it was conditioned action to of the distinction between an at law words, damages. plaintiff paid In other the money on a been recover contract has seeking equity willing not to do aid equity to rescinded and an action in obtain Likewise, Volk, equity. in Volkv. we concluded Philpott found rescission of the contract is in “the contract to be rescinded [was] Court, Superior 1 Cal.2d 36 P.2d required] restoration in order to [which not (1934) ], A.L.R. and an annotation [ equity." at 706. In neither of the cases do case, following that 95 A.L.R. 1000.” determining or not were we faced with whether (N.D.1953). Although or offer to restore must an actual restoration equity merged and law North courts of are in prior commencement of suit. occur to Dakota, the the distinction above demonstrates Thus, adopted although has been made between actions law the lan- Court accomplish cases, equity in to a rescission and actions guage from California that restoration old accompanying benefits. See abo 95 A.L.R. precedent offer restore was a condition or an to equity, in the maintenance an action any defendants have not referred us North 32-04-21, N.D.C.C., reads: Section failure restore Dakota cases which hold that ad- "32-04-21. When rescbsion contract prior commencing an ac- or offer restore judged. a written contract rescission of —The equity, in bars such a suit. tion may adjudged application mind, quote part foregoing in in we With aggrieved: party (Second) § of Contracts from Restatement 1. In of the cases mentioned in section (1979): b 9-09-02; comment party Necessity return. "b. If contract unlawful for causes 2. When the of offer he restitution offers to return what apparent upon par- its and when the face fault; received, may his condi- equally he make offer or has ties of one many excep- there be a severance note that Additionally, we contract, partial must restore or that one which event a to the rule tions an one can maintain restore before in the offer to rescission is sometimes allowed developed. See Restate- (3) at law have justice; plain- interests where (1932); Re- (First) of Contracts § entitled to receive the considera- tiff was (Second) of Contracts § statement got irrespective tion of the assent its et (1979); 17A Am.Jur.2d Contracts § delivery to him.” Presumably, exceptions (1991). these seq. Thus, 168 N.W. at 660. even were we to significance an even more would accept the Owans’ characterization of our general where action based or offer to stated rule that restoration or offer that no restoration rule was precedent is a condition restore 12A necessary. C.J.S. to restore rescission, maintenance of an action for (1980) Instruments Cancellation § might conclude that the Borsheims’ failure of, rule, restoration (“[a]s general to have done so this case well be restore, consideration or bene- offer However, we rest our decision excused. precedent fits is not a condition grounds. upon other or cancel- of a suit for rescission institution Oil, Westgard v. Farstad Inc. instrument”). early In the lation of (N.D.1989), we reiterated the Co., Ry. Northern case of Swan Great equitable rule that “where an instrument following: noted the this Court discharged, or an has been surrendered courts, recognizing the “Some while (sic) charge has satis- incumbrance that, in general rule correctness of mistake, making party fied rescission, rescinding to effect order origi- replaced is entitled to be same sta- place must other only credi- position, provided nal that other tendering by returning or a re- quo tus induced the action of tors have not been he has consideration turn of whatever change plaintiff petitioner their agreement, and the received under position any not lost substantial and have compromises of this rule to applicability such action.” at rights material and releases, recognized cer- also and have Fee, 36 N.D. 59, 524, Strehlow quoting exceptions to the rule. tain 719, (1917). equitable 720 This 161 N.W. “Thus, the consid- it has been held that neces- principle especially is favored where returned in order to need not be eration prevent unjust enrichment. We sary to de- and entitle the effect a rescission case, conclude, party a similarly in this upon party an action frauded to maintain mistake, judgment a who releases (1) a tender claim: Where fraud, of the consideration useless, failure where would have been release,8 to have the worthless; (2) is entitled thing utterly is where may, proper. judgment A court being To al will made to him. tional on restitution costs, any end, awarding of failure gives he take account the law him a lien what 380(3). equity, the oth- party In his restitution to afford See § has received. adequate opportunity make before com- to make such an offer er failure mencing preclude did not of le- a suit for rescission without the commencement restitution appropriate particularly be made conditional gal process. The decree could is relief. This law, however, mistake, cases, impractica- an offer was offer. At on an traditionally regarded such as mutual pur- condition of the bility performance as a of or frustration of right way based on re- to commence an action no pose, the other is in in which merger law and of [Emphasis scission. added.]” fault. procedural reforms have made modern Instruments also 12A C.J.S. Cancellation See of undesirable, and the rule stated in (1980) (general distinction that no rule was 52 and 55 §§ increasing criticism of reflects the this Section or offer to restore prior or restoration notice power to the court has the equity). the rule at law. necessary institute an action If required in connection with return assure 617, (N.D. Wolfe, N.W.2d 619 necessary 391 grants, it is not Wolfe relief 1986), authority to make “a court’s we said that prior return or been a there have offer just equitable distribution money, is If all that is to be returned return. 14-05-24, N.D.C.C., does not allow larger § in resti- under against sum allowed credit separation a valid written court to rewrite a condition- suffice. In other cases tution will 596 Huso v. Bismarck (1936); N.W. necessary if to avoid 269 46

judgment reinstated Board, 219 Ford generally See Public School 100 unjust enrichment.9 Simmons, 421 Company Motor Credit (“Every (Fla.App.1982) court So.2d that, However, argue the Owans power possesses equitable inherent lawof seek action and the action the foreclosure judgments, its to control own sufficient personal guarantees, to enforce the power to set aside a satisfac- such includes case, this action barred because judgments.”); its own tion judicata. judicata res Res judgments are Knecht, Indemnity Amer- v. First Inc. often used to such doc a term describe Company, ica Insurance 583 A.2d bar, merger, estop- trines as collateral (holding that court (Del.Super.1990) or the more modem terms of claim pel, “jurisdiction to set aside a satisfaction judi- preclusion. and issue Res preclusion failure of judgment upon absence or means is conclusive cata “that DeConcini, consideration”); Romero v. put only as all matters in issue but Brammer, Ariz.App. McDonald & which, mies, as to all claims under the also (court (1976) aside a P.2d set put prior might have issue in the judgment made without con- satisfaction of Knudson, trial.” Perdue Conelly W.F. balance); sideration as to (N.D.1970). Generally, “[cjourts Concrete, Harvey v. L. Co. Construction permit litigant try will Inc., (App.1989); 162 Ariz. P.2d then, disappointed he is case and Judgments (1947) (court C.J.S. § day another outcome of the satisfaction order cancellation simply by alleging court claims or new execution is- “direct[ ] relief, making a demand for when he new sue so much see also Service Business could have such demand in the unpaid”); mains Id. “The Bureau v. Yegen, Collection purpose the doctrine 67 N.D. action.” however, concluded, indepen- statutory grounds judgment, for re- that an absent 9-09, Chapter required. Conelly Con- scission under N.D.C.C.” also dent action was not W.F. N.D.C.C., 32-04-21, Concrete, Inc., incorporates Harvey 9-§ § struction Co. v. L. 09-02, N.D.C.C., by reference. We need not (App.1989). The Ariz. P.2d 96-97 noted, decide or not such a limitation on a “ordinarily application whether Arizona court power respect equitable court’s agreements exists with original in to set aside is motion action judgment. a In to release valid cancelling entry of for an order or return case, a failure of consideration would meet one directing satisfaction and execution to issue statutory requirements for unilateral re- of judgment unpaid.” of as as much remains 9-09-02, § scission in N.D.C.C. contained (emphasis original), quot- Id. 785 P.2d at 97 in Judgments § 49 C.J.S. 584 at 1069. there has been some discussion note that Although jurisdictions have held that some jurisdictions applicability other as to of in vacating judgment entry an of satisfaction of N.D.R.Civ.P, 60(b), rules our Rule similar to through original can be made action, a motion in the judgment. aside a satisfaction of a actions to set following we in 49 note the discussion Supreme The Court of Montana concluded that 584(c)(3) (1947): Judgments C.J.S. § 60(b) appropri- type a Rule motion was not the entry “A motion to vacate an of satisfaction relief, but, rather, obtaining ate vehicle for may be or heard and determined on affidavits independent proper equity an action was the depositions, court in of its if the the exercise vacating judgment. a satisfaction of vehicle for however, Where, do so. discretion chooses to Northern, Inc., Burlington 179 Mont. McGee v. conflicting material the evidence is on the (1978). Other 585 P.2d 1297-98 courts motion, arising questions on of fact judg- from of have held that relief a satisfaction party seeking to an relief should be remitted 60(b) type ment motion. be action, equity.” or to a court of Simmons, Company Credit See Ford Motor Thus, we not decide whether or not a need (holding (Fla.App.1982) So.2d 60(b) type be vacate a Rule motion used to equitable powers could be court’s inherent in- We con satisfaction and reinstate action voked motion either that, case, given unique set of action); Knecht, clude independent by maintaining an surrounding independent an Indemnity facts Inc. v. America Insurance First of appropriate. generally action in is Company, (Del.Super.1990). A.2d 658 Hamilton, (N.D. noting 410 N.W.2d 508 Appeals, Hamilton v. while Arizona Court 1987) (discussion requirements 60(b) proce- maintain type did Rule motion not afford ing independent equity). remedy actions in dural for relief from a satisfaction of litiga- vacate the satisfaction of the require a definite termination dat- is to waste, multiplicity, August 10, prevent the ed tion and to if would result harassment which Lastly, although the Borsheims compel adversary to re- party could proper have stated a claim to have a satis at issue litigate previously matters raised faction vacated which is not Municipal Air- and determined.” Oakes must, judicata, barred res notwith Wiese, 265 N.W.2d Authority v.

port standing, determine whether or not sum (N.D.1978). Additionally, said in as is mary judgment appropriate. (1969), Judgments 46 Am.Jur.2d § judicata may said doctrine of res be “[t]he 56, N.D.R.Civ.P., Under Rule legal systems as rule to adhere summary judgment when, appropriate the doctrine ... is to justice ... [and] viewing light after the evidence in a most fair- applied particular situations as opposing party, genuine favorable no require, and that it is not justice ness and fact, any conflicting material issues applied rigidly so as to defeat to be reasonably inferences which can be drawn justice injus- so as to work an ends of facts, remain. Matter Estate tice.” Stanton, (N.D. 472 N.W.2d Anderson, In 422 N.W.2d v.Wolf 1991); Enterprises Dog N’Cat Miller (N.D.1988), judg we concluded Centers, (N.D.1989). Pet 447 N.W.2d 639 seeking specific per in a action Furthermore, summary judgment appro judicata res formance of a contract was priate disputes even when there are factual seeking damages on subsequent to a disputes the resolution of such factual However, Wolf, the same contract. change will the outcome. Stensrud and forms asserted bases for both actions Mayville College, 368 State present the time com of relief were (N.D.1985). Although the burden is on Thus, mencement of the first action. alter summary judgment movant establish inconsistent, though native claims even fact, the absence of material issues of pleaded. could have the case be opposing party rely allega on the cannot us, (i.e., failure fore the basis of consid but, pleadings, tions or denials of his or her eration) vacating the satisfaction and rather, present competent must admissible reinstating did not occur until demonstrating evidence the existence of a continuing guarantees this Court found the genuine material issue of fact. Binstock v. unenforceable in Borsheim v. Tschider, (N.D.1985); 374 N.W.2d (N.D.1991). Thus, although the Hettinger First Bank National judicata may require party of res doctrine Clark, plead in the alternative with inconsistent Bank Mi- Biby v. Union National against split comply claims to with the rule not, (N.D.1968), we said: not, 162 N.W.2d 370 ting causes of it should fair abandoned, justice are not to be ness parties have “The mere fact that both anticipate a require cause of summary judgment does not moved or claim which does not exist at the action material issue that there is no establish time of the commencement the action party may A determined. fact to be claim.10 genuine no issue of concede that there is fact, adopt theory his if the court should existing in Recognizing this distinction as law, same time maintain Anderson, of the but at the and in the inter- this case from of fact to be deter- that there is an issue justice, prior we conclude that the ests of adopt legal mined if the court should the judicata so judgments are not res opponent.” case theories of foreclose the claim this however, caution, generally judicata subsequent actions. this does not Blackwood, every Cal.Rptr. time this Court announces a mean 15 Cal.3d Slater law, adjudicated (1975); rule of that a Burleigh new P.2d 593 Small different outcome under the have a County, newly principle and res announced is not final omitted). it innocent third (citations that as affect at 373 purchasers for value. rule, the defendants upon Based the above of the the resolution argue that whatever opinion, the reasons stated in this For issues, of fact remain. legal material issues the court is af- the district mistake, part, part, every firmed in modified re- note that not Initially, we breach, manded. consideration can war- or failure sought this case. type rant the of relief MESCHKE, J., and ALLAN Only things which are material those SCHMALENBERGER, Judge, District relief. Addition- transaction warrant such concur. guarantees ally, personal we note the WALLE, J., in the part larger of a concurs in this were but a VANDE case Thus, arrangement. prop- issue more sult. the the erly or not consider- framed is whether SCHMALENBERGER, ALLAN District release the had ation for the sitting Judge, with the Court due the part material and whether failed in resignation of Honorable H.F. GIERKE accom- not reinstatement III, as of November

plishes equity. trial court’s decision LEVINE, Justice, certainly dissenting. that the Bor- reflects conclusion they bargained did not receive what sheims achieved really long I do result for, accomplished by and that damage it majority not does but reinstating the legal principles. I therefore established affidavit, disagreed respectfully dissent. In his Vernon Owan George with the assertion in Borsheim’s sought first to enforce The Borsheims continuing guaranty affidavit that guarantees given defendants. of the master material effort, they ap- they failed in that When upon by the and the document relied main pealed denying the validi- from the decision Rather, parties. Vernon Owan contends protec- ty waiver of the of the defendants’ gave equal parties relied anti-deficiency judgment stat- tion of weight all the settlement documents. Then, having affirmed. at first utes. We disagreed Additionally, Vernon Owan succeeded, time, they again. This tried Borsheim’s affida- assertion of their the Borsheims rescission mortgaged vit that the judg- agreement and reinstatement of case, pending the of this been sold outcome they had released. Success ment which said, no as Owan “because he knows of granted The district court was theirs! entry judg- reason from and after summary judgment and rescission of the preventing ment of the sale foreclosure prior judg- reinstated agreement property.” mortgaged conclusion majority ment. The avoids the granting the district court erred in Ver- We conclude the assertions and decides matter what non affidavit are insufficient Owan’s grounds. But says are different issue material as to genuine raise fact summary conclusion that the inevitable personal guarantees to whether or not the ground no judgment is sustainable under $65,952.88, pay percent with interest at whatsoever. annum, per apparently payable annu- six installments, inducement al were a material operate in a filled with Lawyers milieu Decem- to Borshiems to release contingencies and uncertainties. Because $73,734.38. hazard, judgment of Ob- occupational ordinary ber it is of that viously, cru- personal guarantees practice and often incon- to seek alternate standpoint. litigation in order cial from a consideration remedies in sistent possi- summary thus bases and achieve the best hold cover all prudent a lien It is proper affirm the ble result clients. grant- against primary lawyers take little for and all owned agree I unreason- 12, 1986, except that it ed. While Owans as of December require a expect law to for the able against guard the reversal ROGGENBUCK,

lawyer to Appellee, Diane not true precedent, the same is established open question. respect with NORTH DAKOTA WORKERS anti-deficiency validity of a waiver BUREAU, COMPENSATION may have protection judgment statute’s Appellant, undecided, law- many as are issues with, yers but the liveliness deal ignored or question could not have been Julius, Orange Defendant. an an- prospect nor the underestimated unantic- unfavorable to Borsheims swer Civ. No. 910328. unguarded against. First ipated or Supreme Court of Dakota. North Anderson, N.W.2d 90 Bank v. State (N.D.1990) [deficiency judgments are March law and the least favored creatures of them]; policy against accord public there is Bank, Peoples & Enderlin State

Gust (N.D.1989); Dakota Bank

447 N.W.2d Fargo Funfar, Trust Co. & (N.D.1989). me seems clear to that the Borsheims

It requested only that have

should guarantees also

trial court enforce but

that, not, permit rescission for failure consideration, or, majority now as the

holds, enrichment, prevent unjust as- complied

suming that Borsheims rescission, requirements all of the

including offer to consideration restore Alton’s, E.g., Long, Inc. v.

received. (N.D.1984); Boulger, Blair v. (N.D.1984). simple

358 N.W.2d 522 That elementary seeking alter- measure of en- remedies would avoided the

nate relief,

suing splitting morass of claims for

creating multiplicity of trial court actions perpetuating agony of appeals and Anderson, litigation.

endless See Wolf It also would the ma- the rationalization of

have obviated achieve a result that does

jority to recog- application

easily flow legal principles.

nized I, therefore, dissent.

I reverse. would

Case Details

Case Name: Borsheim v. O & J PROPERTIES

Court Name: North Dakota Supreme Court

Date Published: Mar 19, 1992

Citation: 481 N.W.2d 590

Docket Number: Civ. 910258

Court Abbreviation: N.D.