Breckheimer v. Jacobsen et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Tricia Breckheimer,
Plaintiff,
vs.
Trevor Jacobsen; Elizabeth Jacobsen;
Jacobsen Farms, Partnership; Bank
Forward; and Commodity Credit
Corporation,
Defendants.
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Case No. 3:23-cv-188
REPORT AND RECOMMENDATION
Plaintiff Tricia Breckheimer (Tricia) seeks partition of certain farmland pursuant
to North Dakota law. Tricia and defendant Trevor Jacobsen (Trevor) are siblings who
inherited the subject farmland after the death of their parents. At some point after their
parents’ death, the two siblings’ spouses obtained ownership interests in the farmland;
Tricia, her spouse Thomas Breckheimer (Thomas), Trevor, and his spouse Elizabeth
Jacobsen (Elizabeth) then each held a 25% interest in the farmland. Thomas died in
January 2023, and Tricia inherited his 25% interest in the farmland.
From 2007 until Thomas died, each of the four owners held a 25% interest in
Jacobsen Farms, Partnership (the Partnership). For many years, the four owners leased
the jointly-owned land to the Partnership, though there was no written lease agreement.
The Partnership owned the farming equipment, collected profits, and paid rent to the
owners based on tax and mortgage liabilities in March following each crop year. The
Partnership continued to farm the subject property during the 2023 crop year. After
Thomas died, Tricia—who had inherited Thomas’ interest in the partnership—sold her
50% interest in the Partnership to Trevor and Elizabeth.
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In addition to seeking partition of her interest in the farmland from that of
Trevor and Elizabeth, Tricia’s complaint seeks payment of fair rental value of her
interest in the property for the 2023 crop year. In a pending motion, she seeks to amend
her complaint to include “the fair market cash rent for the 2024 and any subsequent
farm years.” (Doc. 42, p. 1).
North Dakota law provides for appointment of three referees in a partition action,
though with the consent of the parties, the court may appoint one referee rather than
three referees. Although the parties agreed to appointment of a single referee during a
March 15, 2024 status conference, they did not agree on a person to be appointed. The
court has appointed Chris Griffin—an attorney who is also a licensed real estate
salesperson—as referee.
The Jacobsens (Trevor, Elizabeth, and the Partnership) move for a “temporary
lease” of the subject property to the Partnership for the 2024 crop year. Specifically, the
Jacobsens request the Court “temporarily extend the existing lease of the subject lands
. . . to the Jacobsen Farms, Partnership for the upcoming 2024 farming season,
pending resolution of the present partition action.” (Doc. 21, p. 1). The planting
season is underway, and the Jacobsens request an order on their motion as soon as
possible.
Tricia does not object to the Partnership farming the land in 2024 but asks that
the Partnership be allowed to do so only “upon immediate payment of a 2023 fair
market value cash rent payment plus interest as determined by the court or the
immediate payment of a fair market value 2024 cash rent payment as determined by the
court on the condition that the Jacobsen Defendants not cause any damage to the land
or to the improvements on the land including the fencing and that the land be farmed
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and maintained in the 2024 farm year in the same or better condition than it currently
is along with the fall work being appropriately completed.” (Doc. 35, p. 18). Tricia
disputes the premise that there is an “existing lease.” Id. at 12. The Jacobsens contend it
is improper for Tricia to request relief in her favor in her response to the motion, rather
than to initiate a motion.
Defendant Commodity Credit Corporation supports the Jacobsens’ motion,
asserting it would be “equitable to continue the status quo by allowing the Jacobsen
Farms, Partnership, to lease and operate the farmland at issue in 2024.” (Doc. 34).
Law and Discussion
Before addressing merits of the motion, the court must consider whether it has
authority to provide the relief the Jacobsens seek. North Dakota law governing partition
actions does not address rental of the subject property while a partition action is
pending. See N.D. Cent. Code chapter 32-16. The parties have cited no authority
addressing a motion for relief such as that the Jacobsens request.
In their motion, the Jacobsens seek an order to “maintain the status quo” until
the March 2025 trial. (Doc. 22, p. 1). The court views the request as one for preliminary
relief—preliminary because it would occur “before the trial.” See Bagley v. Yale Univ.,
No. 3:13-CV-1890, 2014 WL 7370021, at *5 (D. Conn. Dec. 29, 2014). A court’s grant of
preliminary relief is typically injunctive—either mandatory1 or prohibitory. “A
mandatory injunction orders a responsible party to take action, while a prohibitory
1 An injunction that orders a party to take affirmative action is called a
“mandatory injunction” and is “cautiously viewed and sparingly issued.” Money v.
Pritzker, 453 F. Supp. 3d 1103, 1117 (N.D. Ill. 2020) (citation and internal quotation
marks omitted).
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injunction prohibits a party from taking action and preserves the status quo pending a
final resolution on the merits.” Sassman v. Brown, 73 F. Supp. 3d 1241, 1247 (E.D. Cal.
2014). “A mandatory injunction goes well beyond simply maintaining the status quo and
is particularly disfavored.” Id.
While a prohibitory injunction directs someone to refrain from some action, it
cannot create a contract between two parties. See Kleinheider v. Phillips Pipe Line Co.,
528 F.2d 837, 841 (8th Cir. 1975) (“It is axiomatic that a court cannot create a contract
for the parties when one does not otherwise exist.”). Tricia could, for example, be
prohibited from interfering with the Partnership farming the subject property until the
case is resolved. But she does not intend to interfere, (see Doc. 35, p. 14), so a
prohibitory injunction is not appropriate.
Tricia instead requests an order that the Partnership make an immediate
payment of rent as a prerequisite for leasing the land during the 2024 crop year. See id.
at 18. That too is unavailable as a pretrial remedy. “[A]n injunction to compel the
payment of money past due under a contract, or specific performance of a past due
monetary obligation, was not typically available in equity.” Great-W. Life & Annuity Ins.
Co. v. Knudson, 534 U.S. 204, 210-11 (2002). Any order for monetary relief must wait
until final judgment because a court cannot give “final relief in advance of . . . trial.” See
Sims v. Stuart, 291 F. 707, 707 (S.D.N.Y. 1922); see also United States v. Adler’s
Creamery, 107 F.2d 987, 990 (2d Cir. 1939) (“While [an injunction] may be granted to
restore the status quo ante, it ought not to be used to give final relief before trial.”). That
is how most cases proceed; plaintiffs must endure monetary injuries until a judgment
provides relief. See id.
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Lastly, judicial “extension” of a lease would turn a private agreement into a court
order with violations punishable by contempt. Doing so would interfere with the parties’
ability to contract and embroil courts in the day-to-day execution of a private
agreement. That is why courts do not approve settlement agreements absent special
circumstances. See Gardiner v. A.H. Robins Co., 747 F.2d 1180, 1188-89 (8th Cir. 1984).
Courts “need not and should not get involved” in setting or approving the terms of
settlement agreements. Id. at 1189 (citation omitted). Tricia and the Partnership are free
to enter into a lease for the 2024 crop year, but its terms should not—and cannot—be set
or approved by this Court. See Hancock Shoppes, LLC v. Retained Subsidiary One, LLC,
No. 2:17-cv-364, 2017 WL 11616104, at *3 (M.D. Fla. Oct. 27, 2017) (stating “this Court
is without authority to rewrite [a] lease”); Showplace of Flagler, LLC v. Quest
Diagnostics Clinical Lab’ys, Inc., No. 10-24286-CV, 2012 WL 913252, at *5 n.4 (S.D. Fla.
Mar. 16, 2012) (noting “it is beyond the Court’s authority to rewrite a lease so that it
makes commercial sense”); Cuyler v. Atlantic & N.C.R. Co., 132 F. 568, 569-70 (C.C.N.C.
1904) (concluding the court had “no power to make a lease”).
The Partnership desires to farm the land during the 2024 crop year, and Tricia
does not object to the Partnership doing so but requests the Partnership first pay rent
for the 2023 crop year. That could be accomplished without a court order. But any
court-ordered payments from one party to another must wait until a final judgment, and
this court cannot “hurry [the case] along by granting final relief at the outset.” Sims, 291
F. at 708. Post-trial judgment is likely many months away, but “parties are free to settle
lawsuits” anytime and “the law favors and encourages settlements.” See Hage v. Gen.
Serv. Bureau, 306 F. Supp. 2d 883, 888 (D. Neb. 2003). The Jacobsens’ motion for a
temporary lease, (Doc. 21), should be DENIED.
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The court will schedule a status conference during the week of May 6, 2024.
Dated this 29th day of April, 2024.
/s/Alice R. Senechal 	_____
Alice R. Senechal, Magistrate Judge
United States District Court
NOTICE OF RIGHT TO OBJECT2
Any party may object to this Report and Recommendation by filing with the Clerk
of Court no later than May 3, 2024, a pleading specifically identifying those portions of
the Report and Recommendation to which objection is made and the basis of any
objection. Failure to object or to comply with this procedure may forfeit the right to seek
review in the Court of Appeals.
2 See Fed. R. Civ. P. 72(b); D.N.D. Civ. L.R. 72.1.
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