John T. Jones Construction Co. v. City of Grand Forks
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| 20020195 |
John T. Jones Construction Co., Plaintiff, Appellant
and Cross-Appellee
v.
City of Grand Forks, North Dakota, Defendant, Appellee
and Cross-Appellant
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| Appeal from: |
District Court,
Northeast Central Judicial District,
Grand Forks County
Judge Lawrence E. Jahnke |
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Nature of Action: |
Contracts
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| Counsel: |
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| Term: |
03/2003 Argument: 03/31/2003 02:45pm
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| ND cite: |
2003 ND 109
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| NW cite: |
665 N.W.2d 698
Listen to recording of oral argument
using RealPlayer Basic,© a free download.
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| Issues: |
Appellant's Statement of the Issues:
1. In addressing the Type II differing site conditions claim, did the Arbitrator err as a matter of law by holding that John T. Jones Construction Company could not establish that it encountered a differing site condition based upon the Arbitrator's
determination that the unanticipated behavior of a known material does not give rise to a Type II differing site condition?
2. Did the Arbitrator err as a matter of law by holding that John T. Jones Construction Company did not provide evidence sufficient to prove a Type II differing site condition?
Appellee's Statement of the Issues:
1. Whether the Arbitrator's finding that the plaintiff/appellant-cross appellee John T. Jones Construction Company ("JTJ") had not met its "heavy burden" of establishing a Type II differing site condition claim is clearly erroneous.
2. Whether JTJ's differing site condition claim is precluded by JTJ's breach of contract with the defendant/appellee-cross appellant City of Grand Forks ("City") by failing to obtain and implement an OSHA evacuation plan prepared by a professional
engineer.
3. Whether JTJ's differing site condition claim is precluded by JTJ's breach of contract with the City by failure to present its claim within the time frame and in the manner required by the contract.
4. Whether the City is entitled to recover its costs, expenses, engineer's fees and attorney's fees incurred as a result of JTJ's breach of contract.
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| 1 | | 07/30/2002 | |
NOTICE OF APPEAL: 07/26/2002 |
| 2 | | 07/30/2002 | |
ORDER FOR TRANSCRIPT: 07/26/2002 |
| 3 | | 08/05/2002 | |
NOTICE OF CROSS APPEAL (filed in trial court on 8-2-02) |
| 4 | | 08/14/2002 | |
RECORD ON APPEAL (Not rec'd: Entry Nos. 55-66 -- 12 Arbitration Hearing Video Tapes) |
| 5 | | 09/11/2002 | |
SUPPLEMENTAL CLERK'S CERTIFICATE OF RECORD (ENTRIES 71 THRU 77) |
| 6 | | 09/12/2002 | |
MOT. EXT/TIME TRANSCRIPT |
| 7 | | 09/12/2002 | |
ACTION BY TRIAL COURT (MTR). Granted: 10/25/2002 |
| 8 | | 10/25/2002 | |
Transcripts dated 11-26-01, 11-27-01, 11-28-01, 11-29-01, 11-30-01, & 12-3-01 (6 vols.) |
| 9 | | 10/25/2002 | |
Supplemental Clerk's Certificate dated 10-24-02 (Entry Nos. 78-145A) |
| 10 | | 10/28/2002 | |
DISK - (TRA) (11-26-01, 11-27-01, 11-28-01, 11-29-01, 11-30-01, & 12-03-01)(3 disks) |
| 11 | | 10/28/2002 | |
TRANSCRIPTs DATED 12-4-01 & 12-5-01 (2 vols.) |
| 12 | | 10/29/2002 | |
DISK (TRA) (12-4-01 & 12-5-01) |
| 13 | | 11/04/2002 | |
MOTION FOR ADMISSION PRO HAC VICE (Affidavit of Thomas R. Olson, w/copy of letter dated 10-31-02) |
| 14 | | 11/04/2002 | |
ACTION BY CLERK (under N.D.R.Ct. 11.1, cont. apperance in this appeal is authorized). Granted |
| 15 | | 11/04/2002 | |
MOTION FOR ADMISSION PRO HAC VICE (Affidavit of Brian J. Wisdorf, w/copy of letter dated 10-31-02) |
| 16 | | 11/04/2002 | |
ACTION BY CLERK (under N.D.R.Ct. 11.1, cont. appearance in this appeal is authorized). Granted |
| 17 | | 11/06/2002 | |
Affidavits of Service for transcripts |
| 18 | | 12/06/2002 | |
APPELLANT BRIEF |
| 19 | | 12/06/2002 | |
APPELLANT APPENDIX |
| 20 | | 12/11/2002 | |
DISK - ATB e-mailed |
| 21 | | 12/27/2002 | |
MOT. EXT/TIME APPELLEE BRIEF & Affidavit in Support |
| 22 | | 12/27/2002 | |
ACTION BY CLERK. Granted: 01/21/2003 |
| 23 | | 01/16/2003 | |
MOTION FOR RELIEF FROM RULE 28(G) N.D.R.APP.P. (WORD LIMITATION) (faxed copy) |
| 24 | | 01/16/2003 | |
ACTION BY CHIEF JUSTICE (3,000 ADDITIONAL WORDS FOR AEB). Granted |
| 25 | | 01/20/2003 | |
Original Motion for Relief from Rule 28(g), N.D.R.App.Proc. (Word Limitation)(same as faxed copy) |
| 26 | | 01/21/2003 | |
APPELLEE BRIEF |
| 27 | | 01/21/2003 | |
Addendum to Appellee's Brief |
| 28 | | 01/21/2003 | |
APPELLEE APPENDIX |
| 29 | | 01/22/2003 | |
DISK - AEB |
| 30 | | 02/07/2003 | |
REPLY BRIEF of Appellant/Cross-Appellee John T. Jones |
| 31 | | 02/09/2003 | |
DISK of RYB (Appellant John T. Jones) |
| 32 | | 02/24/2003 | |
REPLY BRIEF of Appellee-Cross Appellant City of Grand Forks |
| 33 | | 02/24/2003 | |
DISK of RYB (Appellee City of Grand Forks) |
| 34 | | 03/31/2003 | |
APPEARANCES: Thomas R. Olson, Michael F. Daley; Ronald F. Fischer, Howard D. Swanson |
| 35 | | 03/31/2003 | |
ARGUED: Olson; Fischer (Vol. Y; Page 103) |
| 36 | | 03/31/2003 | |
ORAL ARGUMENT WEBCAST |
| 37 | | 07/16/2003 | |
DISPOSITION: AFFIRMED |
| 38 | | 07/16/2003 | |
UNANIMOUS OPINION: Neumann, William A. |
| 39 | | 07/16/2003 | |
No costs will be taxed on this appeal |
| 40 | | 07/17/2003 | |
Order/Judgment Mailed to Parties |
| 41 | | 07/29/2003 | |
PETITION FOR REHEARING |
| 42 | | 07/29/2003 | |
DISK - PER |
| 43 | | 08/20/2003 | |
ACTION BY SUPREME COURT (PER). Denied |
| 44 | | 08/28/2003 | |
MANDATE |
| 45 | | 09/04/2003 | |
RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE |
| 46 | | 09/05/2008 | |
EXPUNGED - Nonpermanent record items destroyed |