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|
|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.
|Add Docket 20030091 RSS|
|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)|
|10||06/10/2003 APPELLANT BRIEF|
|11||06/10/2003 Attachment A, B, and C for Appellant's Brief|
|12||06/10/2003 APPELLANT APPENDIX|
|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|
|17||08/07/2003 APPELLEE BRIEF|
|18||08/07/2003 with attached addendum|
|19||08/07/2003 APPELLEE APPENDIX|
|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)|
|25||08/22/2003 E-FILED MOTION|
|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|
|34||12/19/2003 DISPOSITION: AFFIRMED|
|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|