Citizens State Bank-Midwest v. Symington

occasion, 25, single acts on a the district “To establish obvi a sufficient determining N.D.R.Crim.P. did not err (1) error, must show: the defendant accept ous factual existed to Fickert’s basis (3) (2) error; plain; and affects guilty plea. Demarais, 2009 ND rights.”

substantial (quoting Kruck 770 N.W.2d 246 IV. enberg, 2008 We hold Fickert failed to estab- 427). “Our to notice obvious error power lish the district court committed obvious cautiously only excep is exercised error, correctly and the district court de- has tional situations where defendant a sufficient factual basis existed termined Bethke, injustice.” at 25 suffered serious guilty plea. Fickert’s af- support We 168). Smuda) (quoting firm. Fickert failed to estab- [¶ 14] We hold by determining the district court erred lish WALLE, GERALD VANDE W. accept a sufficient factual basis existed to C.J., SANDSTROM, DALE V. DANIEL guilty plea. The State’s factual basis CROTHERS, J. and MARY MUEHLEN alleged Fickert committed acts constitut- MARING, JJ., concur. felony A ing gross imposition. class sexual attorney juvenile

The state’s vic- said police finger

tim told Fickert inserted his vagina,

into her and Fickert took her hand penis

and made her rub his over his addition,

clothes. the district court did by determining

not err Fickert admitted to committing alleged criminal acts. 2010 ND 56 Fickert stated he did not commit When BANK-MIDWEST, CITIZENS STATE Forks, the acts in the district court Grand Appellee Plaintiff and explained reported the victim the acts to police Grand Forks and told them he had committed the acts Williston. After Myron SYMINGTON, Defendant receiving explanation, Fickert indicat- Appellant ed he understood. Fickert also told the only happened court “it one time.” Fickert this statement in apparent made Rodney Lee and Michael Co attorney contrast to the state’s claim that rey Symington, My Trustees Fickert made sexual contact on sepa- “two Trust, ron Irrevocable De

rate occasions that occurred on the same fendant. charged As Fickert date.” with a No. 20090216. single gross imposition, count of sexual by determining district court did not err Supreme of North Dakota. Court factual sufficient basis existed because he April acts, committing proscribed admitted to only if “it happened even one time.” Be- alleged

cause the State Fickert committed statutory meeting requirements

acts felony gross imposition,

for class sexual committing

and Fickert admitted to

Tracy Ann Kennedy (argued) and Brad- ley Wayne (appeared), Parrish Grand N.D., Forks, for plaintiff appellee. Bismarck, N.D., A. Dopson, Lawrence for appellant. defendants and KAPSNER, Justice. Myron Symington appeals from a

partial summary judgment requiring him to pay $213,225.94, Citizens State Bank interest, plus on a guaranty for of a debt son, business owned Barry Syming- his ton. holdWe the district court did not abuse its discretion in certifying the final 54(b), N.D.R.Civ.P. we but hold the court granting erred in summary judgment. We reverse and remand.

I Barry operated a busi- doors, ness that manufactured hardwood LLC, Manufacturing, Westwood and fi- operation nanced of the business with Citi- zens According Barry Sym- State Bank. ington, initially financing he obtained Westwood Jon Duncan at Citizens mortgage house. At that to have to a of short-term Bank with series State in- security understanding a it my secured time was that what that were loans Barry $20,000 purchase assets. a terest Westwood’s needed was Bank and was left Duncan load of lumber from the mill and that he Jeremy Sym- Hughes. Barry replaced by wanted borrow that amount from the Hughes he and discussed ington claimed I [Hughes] help Bank. that I told would outstanding short-term consolidating the Barry buy load lumber. loans, overdue, into which were not then document, [Hughes] pulled then out loan, they sepa- also discussed a one actually pages which was number purchase rate line of credit Westwood’s very print ready small that he had materials, repaid which would be of raw it, signed get that if I it said would processed materials were when the raw Barry. of for I load lumber Before Barry and sold. into hardwood doors said, doing I I signed paper “All am $165,040 promissory Symington signed buy to a load of lumber.” help notes for the consolidated short-term note said, “Yes, [Hughes] that is all arewe line $50,040 promissory note for the and a had doing”. [Hughes] said his father for the purchase credit to raw materials him. thing this same for done kind $165,040 to a The note refers business. conversation, trusting on that and Based security that security for agreement as [Hughes], signed I the document I was guaranty. not mention a note but does reading it. After given carefully without $50,040 security to a The note refers I signed paper leaving I and was security for guaranty and a as agreement said, “Now, doing I all I’m recall were promissory serves this long standing policy Court’s agreement; and Bank was entitled to against piecemeal appeals. Union State late fees under the respective terms (N.D. Woell, 234, v. Bank 357 N.W.2d 237 said, court in light notes. The of its deci- 1984). 54(b) Rule a authorizes district sion, Myron Symington’s motion to amend entry court to judgment direct of a final appear answer “would moot.” The adjudicating claims, than fewer all the or court did decide Citizens Bank’s rights and liabilities of fewer than all claim contingent convey- a fraudulent parties, “an upon express determi- against Rodney Symington ance and Mi- just nation there is no reason for chael Myron as trustees of the delay upon express an direction for trust, Symington irrevocable and that entry of judgment.” In the absence of claim pending is still in the district court. 54(b) certification, a Rule any order or The court summary judgment certified the decision, other designated, however on Citizens State Bank’s claim adjudicates than all fewer of the claims or against Myron Symington as final under rights or liabilities of than fewer all of 54(b), stayed N.D.R.Civ.P. enforcement or parties does terminate action collection that judgment pending appeal, any as to parties the claims or and the and granted Myron Symington’s motion subject order or decision revision at amend his answer in the event Court any time entry adjudi- before of judgment reversed the summary judgment on the cating all rights the claims and the guaranty claim. parties.

liabilities all the Striegel See v. Hills, Inc., 785, Dakota 343 N.W.2d 787 II (N.D.1984) (stating proper absence aof [¶ Bank argues 6] Citizens State precludes certification execution district court abused its discretion in cer- or order that does not dis- tifying summary judgment claims). pose of all of the 54(b), N.D.R.Civ.P. because the certifica- tion could lead to piecemeal litigation [¶ We review a 8] district and because Symington failed to court’s Rule certification under the unusual, demonstrate exceptional, or abuse-of-discretion standard. Brummund

681 ¶ “(1) 5, Brummund, 224, relationship adjudi- ND 758 between the 2008 v. (2) claims; 735; unadjudicated cated and Group Schellp v. Choice Fin. N.W.2d ¶ 504; possibility that the need for review 7, 90, 696 N.W.2d feffer, 2005 might might or not be mooted future v. Wimbledon Public Comm’n Service court; (3) ¶ developments in the district 104, Co., 7, 663 N.W.2d 2003 ND Grain reviewing that the possibility ¶ Scott, 101, 186; 8, v. 2002 ND Hansen might obliged be to consider the same 223; v. Walle Mut. 645 N.W.2d (4) time; presence issue a second or Co., 93, 400; Ins. 1997 563 of a claim or counterclaim absence Prods., Krank v. A.O. Smith Harvestore against which could result setoff (N.D.1990); Inc., 125, n. final; (5) to be judgment sought made Farmers Union Janavaras v. National delay, such miscellaneous factors eco- Co., 578, Prop. & Cas. considerations, solvency nomic and shor- (N.D.1989). A court abuses its trial, frivolity of tening the time of com- unreasonable, in an if it acts discretion claims, peting expense, and the like.” manner, if arbitrary, or unconscionable Woell, (quoting at 238 Allis-Chalmers product is not the rational decision Co., Corp. Elec. Philadelphia F.2d leading mental to reasoned deci process Cir.1975)). (3rd sion, misapplies misinterprets or if it ¶ Brummund, 5; at recognized Choice Fin. law. We have that Rule Grain, 7; at 7. Group, appropriate Wimbledon judgment completely

the certified decides Brummund, have said the district 9] We an entire claim. must be measured court’s discretion Choice Fin. ¶ 9, 90, judicial ad 2005 ND N.W.2d 504. against Group, the “interest sound 696 ¶ Hansen, 101, 9, that district 2002 ND We have held a court ministration.” in a granting does not abuse its discretion Curtiss-Wright 223 (quoting 54(b) Rule Co., 1, certification the issues raised 10, Corp. 446 U.S. v. General Elec. in will be (1980)). appeal the not mooted future 1460, 100 64 L.Ed.2d 1 See S.Ct. developments in the district court. Wim- Woell, 4 (stating N.W.2d at 237 n. 357 “ Grain, 104, 12, ND bledon 2003 663 accurately harsh case’ reflects ‘infrequent 186; Hansen, 101, 15, 54(b) carry the stated intent of Rule to out 93, ND Symington, 1997 policy against piecemeal appeals the while N.W.2d 400. remedy litigants excep in the affording a appellate tional case where immediate re Hansen, we considered a view be in the ‘interest of sound 54(b) would in the context of Rule ”). 54(b) Rule judicial administration’ wrongful two death and surviv- daughters’ routinely grant not be Lawrence, certification should orship against claims Robert involving death, ed and for cases un is reserved daughters’ wrongful surviv- and the usual circumstances where failure allow § 1983 claims and 42 U.S.C. orship, would appeal an immediate create dem against employees Depart- Texas hardship. Brum prejudice onstrated in an action stem- ment of Criminal Justice mund, daughters’ N.W.2d 735. ming from the murders of the a non-inclusive list of parents by We have described Brian Erickstad Lawrence. ¶¶ court to consider 645 N.W.2d 223. factors for 54(b) daughters’ ruled the al- assessing request for Rule certifi The district court did legations against the Texas defendants cation: subject regarding coverage not those defendants to tort liabili- and his insurer ty, daugh- but the court did not resolve the property policy. a farm insured al- The against granted ters’ claims Lawrence and leged provided the insurer’s farm policy daughters’ request certi- coverage and, alternatively, for a loss if the disposition regarding fication of their did policy provide coverage, agent against claims the Texas Id. defendants. negligently procure failed to coverage had ¶at 5. held We did not abuse its had misrepresented coverage that had in granting discretion the certification: provided. Id. been The district court appeal presently postured, As this granted partial summary judgment for the the trial court has ruled that Texas insurer, concluding the policy pro- did not duty daugh- defendants had no to the coverage vide loss. Id. at insured’s ters, daughters’ allegations that ¶ 4. The court certified sum- against the Texas defendants do mary judgment on against the claim subject them liability. to tort Texas insurer under Rule without deciding defendants therefore cannot be said claim against agent. Id. We con- injury” have “contributed to the within cluded the court did not abuse discre- meaning § of N.D.C.C. 32-03.2-02 in granting tion a Rule certification: upon based the trial court’s ruling duty. Although issue of Lawrence agree We with the trial court that [the be entitled to an “empty raise chair” remaining against insured’s] claims [the against Eriekstad, Brian defense agent], although contingent upon a de- posture Lawrence empty cannot raise an pol- [the insurer’s] termination that farm against chair defense the Texas defen- icy did not provide coverage to in- [the Any dants. evidence about the Texas sured], separate are and distinct from potential defendants’ liability would be coverage. issue of [The insured’s] irrelevant, and the trial court would not against claims agent] allege negli- [the required jury to instruct the deter- gent procure failure to coverage and a percentage mine of fault attributable misrepresentation coverage had Texas pos- defendants. In this provided. been No matter how those ture, no allocation of fault to the Texas remaining contingent against claims [the occur, defendants could and a determi- decided, are agent] coverage the issues Lawrence, nation that or Lawrence and in appeal always raised will need to Eriekstad, Brian percent were 100 at be resolved will never be mooted fault without a po- consideration of the future developments trial court. the tential fault of the Texas defendants Instead, the converse is true. deci- would not render moot issues about the on remaining sion [the insured’s] contin- potential Texas defendants’ fault. Un- circumstances, gent any against agent] der those claims will personal [the be jurisdiction stemming issues from reso- unnecessary coverage if there is duty lution of the Texas defendants’ will policy. posture, In this [the insurer’s] present regardless of the of outcome appellate our of coverage resolution the against the claims Lawrence and will not issue now will not result in an advisory be mooted or advisory by made future Woell, opinion. Under the framework developments in trial the court. we conclude trial court did not abuse ¶ Hansen, at 15. in granting its discretion Rule cer- ¶93, 3, appellate tification Symington, In 1997 to allow determina- ND insured an agent N.W.2d sued his coverage tion issue before further contingent tion from the lit- on claims proceedings igation of count two of com- agent]. against [the plaint. omitted). ¶ (citations at 8 Id. Myron Symington In is 10. the event “A in our common thread prevails on appeal successful is reviewing Rule certifications cases on the merits the count one is- piecemeal ap strong policy against our sues, simply obtains reversal rendering advi our aversion

peals, and granting partial on of the sum- opinions in cases where future devel sory mary judgment, this court would may trial court moot opments in the grant the Motion File appellate review.” Han issues raised If this court Amended Answer. 101, 10, sen, 223. 2002 ND would have denied the Mo- [Bank’s] piecemeal appeals policy against That Summary Judg- tion for Partial judgment when the certified be satisfied ment, it would have allowed Brum an entire claim. See fully decides 735; mund, filing of the amended answer. N.W.2d ¶90, 9, more request could discov- Group, [Bank] Choice Fin. Hansen, 15; ery Symington, necessary at time so amend- ¶93, 8, 563 400. prejudice ed answer would not [Bank]. Here, the district court 11. the event State Bank’s completely decided Citizens ultimately on appeal successful against Myron Symington guaranty claim prevails on merits count contingent fraudulent deciding without issues, certification will result one against the trustees conveyance claim judicial in a savings administra- trust. The thereafter his irrevocable on com- tive time as count two 54(b) certification, explain Rule granted a plaint to be consid- will need ing: In the ered and will be moot. delay just no reason to 8. There judg- event a final on the entry of ruling motion is reversed ment Granting Partial Court’s Order Sum- filed, trial the amended answer mon- Judgment granting ... mary to include potentially would need ey plaintiff judgment in favor [Myron Symington’s] evidence Bank-Midwest any trial. affirmative defenses Myron Sym- against the defendant request This Certifi- ington. the purpose not done for cation is could Prejudice hardship and undue of delay. Myron if certifi- Symington to result statement The district court’s as, Myron is unless cation denied of State Bank authority the about appeal is to file able an rep assets levy Myron Symington’s on to stay money the en- judgment fi the regarding a misstatement resents ap- pending in this matter an tered a Rule nality guaranty of claim without the will be peal, Bank] [Citizens Striegel, certification. See levy Myron Symington’s on able to (stating proper of at absence N.W.2d assets, final before a determination execu precludes judg- of entitlement to the [Bank’s] not or order that does ment, judgment tion on will also allow the [Bank] claims). Nevertheless, the of dispose all personal financial informa- obtain remaining explanation court’s Ill district the basis its sufficient understand argues the supports decision and certification. The in granting summary erred guaranty on the He relationship Citizen claim. ar- between State Bank’s in gues refusing court erred to consid- against Myron Symington claim guaranty er extrinsic evidence. He claims the cir- contingent and the Bank’s fraudulent con agreements cumstances of loan and the veyance claim against trustees his guaranty ambiguity, create an he in- not from irrevocable trust does arise by Hughes’ sign duced statements “same of transactions and occur series guaranty, and record supports find- rences,” “logically legally is not related ing of fraud or mistake. He asserts the factually,” “closely and is inter unrefuted in evidence the affidavits sub- Janavaras, twined.” See agreement mitted him establish that his Rather, sepa 581. claims two involve with the Bank guaranteeing was limited to only rate transactions that are related be $20,000 for one load of raw materials for contingent convey cause the fraudulent ambiguities Westwood and there were in ance claim be an aid in collection the Bank’s own files and the factual back- guaranty against Myron Syming claim ground for the two loans. Citizens State ton. guaran See N.D.R.Civ.P. The responds Myron Symington’s Bank ty appeal always issues raised in this will claims are affirmative and are defenses Court, properly need be resolved will never be before because he failed to raise those defenses in his answer developments mooted future in the dis grant district court did not his regarding trict court con fraudulent motion to plead amend answer to those Hansen, veyance claim. See defenses. Bank argues The the dis- ¶ 15, 223; Symington, properly trict court refused to consider Sym- As in extrinsic evidence because guaranty ington, the converse is true: a on decision unambiguous. clear and Bank claims remaining contingent claim for a Myron Symington must ambiguity show an conveyance will unnecessary fraudulent within the four corners guaranty of the guar prevails on the rather than the loan circumstances and he anty claim and appellate immediate resolu rely cannot on claimed oral statements tion guaranty claim will not result merely guar- because he failed to read an advisory opinion. See Symington, at anty. ¶ 8. developments Future district court 17] The district court My- discussed conveyance fraudulent claim will not Symington’s ron claimed defenses in its moot the need for guaranty review the granting summary decision judgment and claim, require will not this Court to review said in light ruling then “the Motion guaranty again, claim and will not to Amend the Answer would appear moot.” result setoff against 54(b) certification, In granting the Rule claim. Those factors militate in favor of the district court also said the “Motion to judi certification in the interest of sound File the Amended Answer is GRANTED cial administration and the framework Supreme in the event” the Court reverses Woell, and we the conclude district court summary judgment. the The district did not its in granting abuse discretion the effectively decided the issues raised allow immediate by answer, Symington’s amended appellate guaranty review of the claim. we properly and conclude those issues are

685 required by governing the in the context the dence law or this Court before ” that grant summary (quoting he did not.’ Id Estate v. court’s decision Stanton, (N.D.1991)). judgment. A contract to answer for- review the district 18] We writing the debt of another must be in and on Bank’s court's decision Citizens State signed the by party charged. to the the claim under standards for 9-06-04(2). § N.D.C.C. Under N.D.C.C. “is summary judgment, procedural which 9-06-07, § in “[t]he execution of contract resolving a controver promptly device for supersedes ... all writing negotia the oral a trial if there sy on the merits without are stipulations concerning tions or matter material fact or genuine no issues of infer preceded accompanied or the execu reasonably that can be drawn from ences 9-06-07, tion of the instrument.” Section facts, resolving undisputed or factual N.D.C.C., in part, parol the codifies evi the disputes will not alter result.” Tar rule, Bratcher, 221 Gajewski dence see v. Rankin, 149, 7, navsky v. (N.D.1974), which “a the district court N.W.2d 578. Whether precludes rule of substantive law and use granted judgment is a properly negotiations of evidence of oral and prior law we review de novo on question of that agreements to vary expressed terms moving Id for sum party the record. Valley a written contract.” Lacs Des mary there are judgment must establish ¶17, 7, Corp. Herzig, Land material fact and the genuine no issues of explained N.W.2d 860. This Court has judgment as a mat appropriate case is parol evidence rule: determining ter of law. Id In whether “ ‘“ parties, any ‘Where without summary judgment appropriate, we mistake, deliberately or have light fraud evidence in the most favor view the their put engagements writing, motion, party opposing to the able only to be not writing law declares the all favor giving party that the benefit of best, only, but evidence of reasonably can able inferences which preliminary ... agreement:’ their ‘all ¶¶ 7, drawn from record. Id 8. negotiations, conversations verbal However, if the its initial movant meets merged agreements super- are in and showing genu the absence of burden by subsequent written con- seded fact, opposing ine issue of material accident, ... fraud, tract and “unless allegations mere party may not rest on averred, writing or mistake be pleadings, present but must denials in agreement between the constitutes competent admissible evidence affidavit parties, and its terms cannot be add- comparable or other means to show the by parol to nor subtracted ed from genuine of a issue of material existence ””” evidence.” ¶ A fact. Id at 8. “court must consid evidentiary er the substantive standard parol evidence rule is founded ruling when on a motion sum

proof public policy created mary judgment.” experience Heart River Partners v. by necessity, designed give and it is Goetzfried which had certainty to a transaction “In the substantive stan considering by protecting writing proof, dard of the court must consider been reduced veracity reasonably parties against trier fact doubtful whether the ‘could memory the uncertain of interested plaintiff proved find either quantity of witnesses. quality case evi- approved applied fully

We have and law is appeal.” reviewable on 9-06-07, interpretation § rule in Silbernagel, of at 12.

N.D.C.C., and have held: Here, the district court ef written is

“Where a contract com- fectively considered the issues and defens itself, plete unambigu- is clear and Myron es raised in Symington’s amended language ous in mutu- contains guaranty answer concluded the was agreed upon, al contractual covenants unambiguous without considering Myron parts by parol such be changed Symington’s cannot evidence about alleged testimony, nor new terms added sign statements made to induce him to thereto, in the guaranty. absence of clear of language guaranty fraud, showing purports guaranty mistake or acci- “all of obligations” affidavit, however, dent.” My Westwood. his ron he signed claimed the guar Des Laos Valley Corp., (quot- Land at 8 anty Hughes after assured him that all he (citations omitted)). ing Gajewsky at 626 doing Barry was was helping $20,000. buy one load of lumber View court may consider [¶20] ing light that evidence in the most favor parol evidence when a agreement written Symington, able we it conclude ambiguous, when agree or the written a factual raises issue about fraud or mis ment does reflect parties’ intent take and his fraud, signing inducement mistake, because of or accident. guaranty. Although ultimately fraud must 124, Silbernagel Silbernagel, v. 2007 ND 12, convincing established clear evi § N.W.2d See 9- N.D.C.C. dence, (“When see First Union Nat’l Bank v. RPB fraud, mistake, 07-05 2, LLC, ¶ 22, 29, 1, 2004 ND 674 N.W.2d express accident written contract fails to disputed we conclude there are factual is the real such parties, intention in involving sues Myron Symington’s claims regarded tention is to be and the errone granting district court erred in parts ous writing disregarded.”). Citizens State Although a party ignorance cannot claim guaranty Bank’s claim. because of a guaranty, failure read a see Medalen, Pioneer Co. Credit v. IV 717, (N.D.1982); First Nat’l Hart,

Bank & Trust Co. 267 N.W.2d argues there 561, (N.D.1978), parol support evidence ad was guaranty no consideration to $165,040 missible to note, show the inducement for enter for the guaran because the ing a contract. Smith v. ty Michael Kurtz apply was intended to to that note. Co., (N.D. 35, Constr. argues 39-40 He it is guaranty signed clear the 1975). Parol evidence can be used to him was not at the executed same time show mistake or fraud and original for reformation. obligation, awas ¶¶ Anderson v. Selby, loans, series short-term and consider (reformation); 700 N.W.2d 696 Des Lacs ation distinct from that indebtedness was Valley Corp., Land 621 required for a of that debt to be 860 (parol evidence not admissible enforceable. See Union Nat’l Bank v. unambiguous Schimke, (N.D. to contradict grant deed 178-81 1973) fraud, where there no allegation (discussing guaran consideration for accident). mistake, or ty). Myron “The decision to Symington’s argument about parol admit determination evidence is a argument consideration tracks about setting alleged relief aside an fraudulent the facts and the admissibili- his version of conveyance. In view of our reso- ty parol evidence. issue, necessary it

lution of that is joinder can be that argued [¶ It 28] a lack of con- argument about consider his 18(b) permissive under Rule rather than $165,040note. for the sideration mandatory so that State Bank precluded obtaining

should partial from final of its judgment because choice V bring multiplicity and a of claims remedies argues the [¶ 23] However, in one argued action. it can be a Bank not entitled to recover late fee that equal vigor with this Court — $2,553.41 $50,040 on the note. view 18(b) 54(b)— adoption of Civil Rules and raised in this of our resolution issues created the situation at bar and that a not consider issue. appeal, we need party should not be constrained uti- from lizing pro- the available and procedures VI join position I latter ceedings. and summary judg- reverse the 24] We [¶ that, made, suggest if a to be change is for consis- proceedings ment remand change op- that should be removal of the opinion. tent with the tion available Rule WALLE, MARING, W. [¶ 25] GERALD VANDE MARY MUEHLEN [¶ 29] C.J., J., MARY MUEHLEN MARING and concurs. CROTHERS, JJ.,

DANIEL concur. J. SANDSTROM, Justice, dissenting. CROTHERS, Justice, concurring spe- I Because believe N.D.R.Civ.P. [¶ 30] cially. 54(b) improvidently certification was granted, respectfully I dissent. majority opinion agree I with the

[¶ 26] In Bulman v. Hulstrand Con- of this unique due to the characteristics (N.D.1993) struction, 240, 241 503 N.W.2d result, I As a caution type lawsuit. (citations omitted), long- we noted the my in this against reading concurrence piecemeal standing “strong policy against long-stand- decision a retreat from our emphasized appeals” ing jurisprudence Civil Rule and our “extraordinary remedy” certification is an See, piecemeal appeals. e.g., aversion to harsh case” “infrequent reserved for Woell, v. State Bank Union just delay.” “no for when there is reason (N.D.1984); Fin. 236-39 Choice just mootness a potential We held that ¶¶ 6-9, Group Schellpfeffer, v. delay, making Rule certifi- reason for Siewert, Siewert 242. granted. Id. at improvidently cation Dictionary Legal A of Modern N.D.R.Civ.P., 18(b), per- 27] Rule “the fact or Usage mootness as defines joinder specifically mits of remedies having importance.” no quality practical a permits money “a claim for claim Dictionary Leqal Usage Modem conveyance have set fraudulent as aside (2d 1995). ed. having without first ob- plaintiff, summary judgment establishing the claim judgment tained a money given plaintiffs has Bank money.” Citizens State used But, Symington. as the against Myron rule to procedure provided assert plead, My- only concede but damages plaintiffs money both claim for (his improvidently granted, ron is insolvent “liabilities treating ap- it assets”). exceeding plain- propriate certainly Without the will almost result prevailing significant tiffs on the unresolved “fraudu- second with appeal, prospect claim, money judgment appeal. lent transfer” of a third paid. going is not to be I [¶ would dismiss the appeal. 40] 54(b) By ruling the Rule certifi- [¶ 34] DALE [¶ 41] V. SANDSTROM granted, cation was improvidently no result The partial summary harsh follows. money going paid is not to be

until after the fraudulent-transfer claim is

decided, if at all. By ruling 35] the Rule certifi- appropriate,

cation was no matter which decide, way appeals we more are going to 2010 ND 58 follow. MORTON COUNTY SOCIAL SERVICE assignee Teske, BOARD as If for Jan partial we were to affirm the Teske, K.T., child, by Jan summary judgment, then minor the fraudulent- guardian, Teske, her transfer claim must be Jan resolved Thorson, Ap Jan district court. matter Plaintiffs and way No which n/k/a pellees decides, district court appeal another likely to follow. If we partial [¶ 37] reverse the sum- CRAMER, Jeremiah Defendant (as

mary judgment the majority opinion Appellant. does), goes then the ease back the dis- trict court for If trial. the district court No. 20090185. both together, tries counts no then matter Supreme Court of North Dakota. way goes,

which the trial appeal another likely to follow. April And, if we do reverse summary judgment, the case back goes court, following the rea-

soning of the majori- district court and the

ty opinion, the case well be bifurcated

for trial under N.D.R.Civ.P. Then out, way

whichever trial turns the los-

ing appeal, side will majori- under the

ty’s analysis, and district court’s

certification will be If appropriate. appeal plaintiffs

that second prevail, go

then the case will back for trial on the

fraudulent-transfer claim. No matter way goes, losing second trial

party appeal again. will Although there is no harsh re-

sult from holding Rule Both notes that note. helping buy a of lumber”. to load 2, 2006. dated June “Yes, said, yes, [Hughes] that is again and Barry Symington claimed he doing”. all we are for collateral Hughes discussed additional subsequently defaulted 4] Westwood credit, line note for the promissory promissory notes. on two house including using Barry Symington’s Myron Syming- Bank State sued Citizens Myron security, having Symington or as for guaranty ton under the commercial According Myron co-sign for the note. to $200,000 plus inter- than principal, more want to he did not his son Symington, est, promissory the two notes. due under he house and met with mortgage the separate claim under contingent In a denom- Hughes signed and a document 18(b), Bank State N.D.R.Civ.P. Citizens guaranty,” which inated a “commercial Rodney Symington and Michael also sued and purported June was dated Myron Syming- Symington, as trustees of obligations” “all guaranty to Westwood. trust, alleging Myron ton’s irrevocable he Myron Symington claimed understood fraudulently transferred Symington had $20,000 only a ad- was guaranteeing he him- property to the trust to render real State Bank for one load vance Citizens debts, pay and unable to his self insolvent had for and he of raw materials Westwood including the debt claimed that effect with specific to discussions The guaranty. Bank under State Hughes: summary judg- Bank moved mort- Barry I I didn’t want him to told Myron Sym- claim. guaranty ment on the house, go that I talk gage his and would that and moved ington resisted motion I and Neche [Hughes]. drove lack of consid- plead amend answer Bank and stopped at the Citizens State waiver, con- eration, Barry payment, estoppel, I want [Hughes] told didn’t fraud, compelling structive and actual mistake circumstances necessitating law fact. certification. counters the district court did not abuse its dis- granted The district court Citi- in certifying summary cretion judg- zens Bank on on the guaranty ment claim under Rule claim, guaranty concluding argues He the two claims Citi- was to the on liable Bank complaint represent zens State Bank’s $213,225.94, guaranty plus interest. claims, legally discrete and unrelated guaranty court decided the clear was claim regarding alleged fraudu- unambiguous, precluded consid- conveyance simply lent seeks assistance parol terms; eration of evidence as to its in collecting any judgment entered under guaranty; there was consideration for the separate guaran- claim regarding Myron Symington’s consent to guaran- He ty. the two asserts claims could be ty procured through was not or actual in separate tried trials there would fraud; Myron constructive prejudice hardship and undue to him rely equitable estoppel not entitled to without certification. because he did not lack of ob- means 54(b), N.D.R.Civ.P., 7] Rule pre- taining knowledge about

Case Details

Case Name: Citizens State Bank-Midwest v. Symington

Court Name: North Dakota Supreme Court

Date Published: Apr 6, 2010

Citation: 780 N.W.2d 676

Docket Number: 20090216

Court Abbreviation: N.D.