Kimball v. Landeis

20020100 Larry Kimball, Jr., Plaintiff and Appellant
v.
Jack Landeis and
Justin Gram, Defendants and Appellees

Appeal from: District Court, Northeast Central Judicial District, Grand Forks County
Judge Lawrence E. Jahnke
Nature of Action: Personal Injury
Counsel:
Appellant: #Omdahl Law Office
Appellee: Swanson & Warcup, Ltd.
Appellee: Pearson Christensen & Clapp, PLLP
Term: 09/2002   Argument: 09/09/2002  2:45pm
ND cite: 2002 ND 162
NW cite: 652 N.W.2d 330

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Issues: Appellant's Statement of the Issues:
I. Did the trial court err in granting defendant gram's motion for summary judgment?
II. Did the trial court err in granting defendant Landeis' motion for summary judgment? A. The doctrine of equitable tolling should have applied B. The defendant, Landeis has actual notice of the complaint and has made a general appearance in the action

Appellee's Statement of the Issues:
Did the District Court err, as a matter of law, when it held that the record before it did not raise an issue of material fact which would allow the Finder of Fact to find in favor of the Appellant and that Appellant's showing did not constitute anything other than conjecture and speculation?

Appellee's Statement of the Issues:
1. Whether a defendant may assert the defenses of insufficiency of process, improper service of process and/or lack of personal jurisdiction in an answer without waiving such defenses?
2. Whether service of process upon a person subject to guardianship must be made upon the guardian?
3. Whether actual knowledge of litigation will substitute for proper service of process upon a defendant?
4. Whether separate defendants in a negligent action are "otherwise united in interest" allowing a plaintiff to obtain service of process over both defendants by only properly serving one under N.D.C.C. Section 28-01-38 when the defendants are severally liable only?
5. Whether an action to recover damages for personal injury suffered from a snowmobile accident occurring more than six years prior to the date of effective service of a summons and complaint is barred by the applicable statute of limitations?
6. Whether the equitable tolling doctrine applies to toll a limitations period when the plaintiff did not pursue an alternative remedy within the statute of limitations and was not precluded from initiating any claim against the defendant by extraordinary circumstances?
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Docket entries:
104/24/2002 NOTICE OF APPEAL (Re Jack Landeis ): 04/23/2002
204/24/2002 NOTICE OF APPEAL (Re Justin Gram): 04/24/2002
305/21/2002 RECORD ON APPEAL
406/03/2002 APPELLANT BRIEF
506/03/2002 APPELLANT APPENDIX
606/10/2002 DISK of ATB
706/10/2002 8 cc each of corrected cover, TOA, and pg. 6 for ATB, & notice of appeal for ATA
807/02/2002 APPELLEE BRIEF of Justin Gram
907/02/2002 APPELLEE BRIEF of Jack Landeis
1007/02/2002 APPELLEE APPENDIX Joint Appendix
1107/02/2002 Motion to File Trans. of Non-Evidentiary Hearing on Mot. for Summary Judgment; Stipulation
1207/03/2002 DISK - AE Gram
1307/03/2002 DISK - AE Landeis
1407/03/2002 ACTION BY CLERK. Granted
1507/03/2002 APPELLEES' REQUEST FOR ADDITIONAL TIME AT ORAL ARGUMENT
1607/03/2002 ACTION BY CHIEF JUSTICE (total of 30 minutes for AE). Granted
1707/11/2002 SUPPLEMENTAL CLERK'S CERTIFICATE DATED 7-10-02 (Entry Nos. 88 & 88a)
1807/23/2002 TRANSCRIPT DATED 12-19-01 (ordered by Mr. Fiedler)
1907/23/2002 DISK - TRA dated 12-19-01
2009/09/2002 APPEARANCES: Thomas V. Omdahl; Jay H. Fiedler; Howard D. Swanson
2109/09/2002 ARGUED: Omdahl; Fiedler; Swanson (Vol. Y; Page 23)
2209/09/2002 ORAL ARGUMENT WEBCAST
2310/15/2002 DISPOSITION (and Remanded): AFFIRMED/PT, REVERSED/PT
2410/15/2002 SPLIT OPINION: Maring, Mary Muehlen
2510/15/2002 (DISSENT): Neumann, William A.: DISSENT
2610/15/2002 (Join DISSENT): Sandstrom, Dale V.: JN/DIS
2710/15/2002 At the direction of the Court no costs will be taxed on this appeal
2810/22/2002 Order/Judgment Mailed to Parties
2910/28/2002 PETITION FOR REHEARING
3010/29/2002 DISK - PER
3111/05/2002 ACTION BY SUPREME COURT (PER). Denied
3211/13/2002 MANDATE
3311/18/2002 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
3407/22/2008 EXPUNGED - Nonpermanent record items destroyed

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