VND, LLC v. Leevers

20030091 VND, LLC, a North Dakota Limited
Liability Company, Plaintiff and Appellant
v.
Leevers Foods, Inc. d/b/a Leevers
County Market, a North Dakota
Business Corporation, Defendant and Appellee

Appeal from: District Court, Southeast Judicial District, Stutsman County
Judge John T. Paulson
Nature of Action: Landlord/Tenant
Counsel:
Appellant: Schneider & Schneider
Appellee: Traynor Law Firm, PC
Term: 09/2003   Argument: 09/04/2003  2:45pm
ND cite: 2003 ND 198
NW cite: 672 N.W.2d 445

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
1. Does the trial court's finding that, "There has been no material breach of the written lease agreement by the Defendant . . ." have any support in the evidence and was it induced by an erroneous view of the law?
2. Did the trial court err, as a matter of law, in concluding that, "The Defendant is entitled to equitable relief from the termination of the lease because of [its] substantial investment in the leased property"?

Appellee's Statement of the Issues:
I. Whether summary eviction under chapter 33-06, N.D.C.C., permits the raising of counterclaims or affirmative defenses when such defenses relate directly to the issue of possession.
II. Whether Leevers breached the lease agreement when Leevers applied an acknowledged credit due to CAM charges and engaged in a reasonable interpretation of the lease agreement regarding the payment of liability insurance premiums.
A. The Lease Agreement and Course of Performance permit Leevers' application of an acknowledged credit due in CAM charges.
B. Leevers did not breach the Lease Agreement when it notified VND of the decision to discontinue paying a pro-rata share of VND's liability insurance based on a reasonable interpretation.
III. Whether the trial court's findings of fact that, if any breaches of the lease occurred, they were "petty" and "simply not material" should be affirmed where the record fully supports the court's findings.
IV. Whether the summary eviction sought by VND should be permitted in light of the substantial hardship it would work upon Leevers.
V. Whether Leevers may be held to have materially breached the agreement and be evicted from the leasehold where the trial court found VND already committed more serious, material breaches of the Lease Agreement.

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Docket entries:
104/01/2003 NOTICE OF APPEAL: 03/31/2003
204/01/2003 ORDER FOR TRANSCRIPT: 03/31/2003
304/02/2003 TRANSCRIPT DATED October 24, 2002
404/02/2003 DISK - TRA (10/24/02)
504/03/2003 Acknowledgement of Order for Transcript
604/03/2003 April 1, 2003 letter from Thomas E. Rutten that Daniel M. Trynor will handle the appeal
704/08/2003 MOT. EXT/TIME APPELLANT BRIEF and Affidavit of Good Cause
804/08/2003 ACTION BY CLERK (MAT). Granted: 06/12/2003
904/30/2003 RECORD ON APPEAL and Separates #23 (Exhibits), #24 (Exhibits) and #43 (Correspondence)
1006/10/2003 APPELLANT BRIEF
1106/10/2003 Attachment A, B, and C for Appellant's Brief
1206/10/2003 APPELLANT APPENDIX
1306/11/2003 DISK - ATB
1406/17/2003 Letter dated June 16, 2003 from Mark Schneider that there is no page 40; page 41 is misnumbered
1506/26/2003 MOT. EXT/TIME APPELLEE BRIEF; AFFIDAVIT OF GOOD CAUSE
1606/27/2003 ACTION BY CLERK (MAE, w/understanding OA will be heard in Sept.). Granted: 08/11/2003
1708/07/2003 APPELLEE BRIEF
1808/07/2003 with attached addendum
1908/07/2003 APPELLEE APPENDIX
2008/11/2003 Corrected pages 13 & 34 for AEB
2108/11/2003 DISK - AEB (e-mailed)
2208/20/2003 REPLY BRIEF of Appellant
2308/21/2003 DISK - ryb
2408/22/2003 MOTION TO FILE A RESPONSE TO REQUEST FOR SANCTIONS IN REPLY BRIEF (see letter dated 8-22-03)
2508/22/2003 E-FILED MOTION
2608/25/2003 ACTION BY SUPREME COURT (Response due by noon, September 2, 2003). Granted
2708/29/2003 Response of Appellee Leevers Foods, Inc. to Reply Brief of Appellant (e-filed)
2808/29/2003 E-FILED Response of Appellee Leevers Foods to Reply Brief
2909/02/2003 Original Response of Appellee Leevers Foods, Inc. (same as e-filed Response filed 8-29-03)
3009/02/2003 Request for Radio/TV Coverage - AP (e-mail dated 9-02-03 from Dale Wetzel) (AUTHORIZED)
3109/04/2003 APPEARANCES: Mark G. Schneider; Daniel M. Traynor, Thomas E. Rutten
3209/04/2003 ARGUED: Schneider; Traynor (Vol. Y; Page 134)
3309/04/2003 ORAL ARGUMENT WEBCAST
3412/19/2003 DISPOSITION: AFFIRMED
3512/19/2003 UNANIMOUS OPINION: Sandstrom, Dale V.
3612/19/2003 Costs on appeal taxed in favor of Appellee
3712/23/2003 PETITION FOR REHEARING
3812/24/2003 DISK - per
3901/14/2004 ACTION BY SUPREME COURT (PER). Denied
4001/22/2004 MANDATE
4101/26/2004 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
4203/05/2010 EXPUNGED - Nonpermanent record items destroyed

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