VND, LLC v. Leevers
VND, LLC, a North Dakota Limited
Liability Company, Plaintiff and Appellant
Leevers Foods, Inc. d/b/a Leevers
County Market, a North Dakota
Business Corporation, Defendant and Appellee
Southeast Judicial District,
Judge John T. Paulson
|Nature of Action:||Landlord/Tenant|
|Term:||09/2003  Argument: 09/04/2003 2:45pm|
|ND cite:||2003 ND 198|
672 N.W.2d 445
Listen to recording of oral argument in MP3 format
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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|1||04/01/2003||NOTICE OF APPEAL: 03/31/2003|
|2||04/01/2003||ORDER FOR TRANSCRIPT: 03/31/2003|
|3||04/02/2003||TRANSCRIPT DATED October 24, 2002|
|4||04/02/2003||DISK - TRA (10/24/02)|
|5||04/03/2003||Acknowledgement of Order for Transcript|
|6||04/03/2003||April 1, 2003 letter from Thomas E. Rutten that Daniel M. Trynor will handle the appeal|
|7||04/08/2003||MOT. EXT/TIME APPELLANT BRIEF and Affidavit of Good Cause|
|8||04/08/2003||ACTION BY CLERK (MAT). Granted: 06/12/2003|
|9||04/30/2003||RECORD ON APPEAL and Separates #23 (Exhibits), #24 (Exhibits) and #43 (Correspondence)|
|11||06/10/2003||Attachment A, B, and C for Appellant's Brief|
|13||06/11/2003||DISK - ATB|
|14||06/17/2003||Letter dated June 16, 2003 from Mark Schneider that there is no page 40; page 41 is misnumbered|
|15||06/26/2003||MOT. EXT/TIME APPELLEE BRIEF; AFFIDAVIT OF GOOD CAUSE|
|16||06/27/2003||ACTION BY CLERK (MAE, w/understanding OA will be heard in Sept.). Granted: 08/11/2003|
|18||08/07/2003||with attached addendum|
|20||08/11/2003||Corrected pages 13 & 34 for AEB|
|21||08/11/2003||DISK - AEB (e-mailed)|
|22||08/20/2003||REPLY BRIEF of Appellant|
|23||08/21/2003||DISK - ryb|
|24||08/22/2003||MOTION TO FILE A RESPONSE TO REQUEST FOR SANCTIONS IN REPLY BRIEF (see letter dated 8-22-03)|
|26||08/25/2003||ACTION BY SUPREME COURT (Response due by noon, September 2, 2003). Granted|
|27||08/29/2003||Response of Appellee Leevers Foods, Inc. to Reply Brief of Appellant (e-filed)|
|28||08/29/2003||E-FILED Response of Appellee Leevers Foods to Reply Brief|
|29||09/02/2003||Original Response of Appellee Leevers Foods, Inc. (same as e-filed Response filed 8-29-03)|
|30||09/02/2003||Request for Radio/TV Coverage - AP (e-mail dated 9-02-03 from Dale Wetzel) (AUTHORIZED)|
|31||09/04/2003||APPEARANCES: Mark G. Schneider; Daniel M. Traynor, Thomas E. Rutten|
|32||09/04/2003||ARGUED: Schneider; Traynor (Vol. Y; Page 134)|
|33||09/04/2003||ORAL ARGUMENT WEBCAST|
|35||12/19/2003||UNANIMOUS OPINION: Sandstrom, Dale V.|
|36||12/19/2003||Costs on appeal taxed in favor of Appellee|
|37||12/23/2003||PETITION FOR REHEARING|
|38||12/24/2003||DISK - per|
|39||01/14/2004||ACTION BY SUPREME COURT (PER). Denied|
|41||01/26/2004||RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE|
|42||03/05/2010||EXPUNGED - Nonpermanent record items destroyed|