Investors Real Estate Trust Properties v. Terra Pacific Midwest

20030363 Investors Real Estate Trust
Properties, Inc., a/k/a IRET, Plaintiff and Appellant
v.
Terra Pacific Midwest, Inc.,
d/b/a Terra Pacific, Defendant and Appellee
---------
I-Rock, Inc.; MDU Resources Group,
Inc., d/b/a Montana Dakota Utilities;
and Gary J. Plante, d/b/a Plante's
Painting and Drywall, Defendants

Appeal from: District Court, Southeast Judicial District, Stutsman County
Judge Ronald E. Goodman
Nature of Action: Torts (Negligence, Liab., Nuis.)
Counsel:
Appellant: Olson & Burns P.C.
Appellee: #Smith Bakke Oppegard Porsborg Wolf
Term: 05/2004   Argument: 05/11/2004  2:45pm
ND cite: 2004 ND 167
NW cite: 686 N.W.2d 140

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
1. Whether the Trial Court erred in its determination that the obligation to procure the builder's risk insurance policy was transferred from Terra Pacific to IRET in direct contract to the clear language of the Construction Agreement?
2. Whether the Trial Court erred in granting Defendant Terra Pacific's Motion for Summary Judgment on the negligence issue when the material facts upon which the Court based its decision were in dispute and competent evidence was presented contrary to the Court's decision?
3. Whether the doctrine of res ipsa loquitor is applicable in a case where a fire occurred and the general contractor has agreed to be solely responsible for the maintenance, security, and quality of construction during the project?

Appellee's Statement of the Issues:
1. Whether the district court correctly ruled that Terra Pacific was an implied co-insured under the Republic Western builder's risk policy procured and paid for by IRET as required by the terms of the construction agreement and that Republic Western could not pursue seek subrogation from Terra Pacific in the name of IRET?
2. Whether the district court correctly ruled that summary judgment was appropriate on the merits of IRET's claims when no competent, admissible evidence was presented as to the cause and origin of the fire and a jury would be compelled to speculate as to the cause?
3. Whether the district court correctly ruled that the doctrine of res ipsa loquitur did not apply where the instrumentality that caused the fire was undetermined?
4. Whether the district court correctly concluded that the indemnity provision in the construction agreement did not apply to this loss?

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Docket entries:
112/17/2003 NOTICE OF APPEAL: 12/11/2003
201/09/2004 RECORD ON APPEAL (3 vols.) & Partial Transcript (NOT REC'D: Exhibits 98,99,100,&101--Drawings)
301/13/2004 MOTION FOR REMAND on issue of taxation of costs (sua sponte)
401/13/2004 ACTION BY CHIEF JUSTICE (remand). Granted
501/13/2004 ORDER OF REMAND
602/19/2004 Copy of letter dated 2-17-04 from Judge Goodman, w/copy of Order Granting Statement and
702/19/2004 Taxation of Costs dated 2-17-04
802/19/2004 MOT. EXT/TIME APPELLANT BRIEF (no MAT)
902/19/2004 ACTION BY CLERK (due date for ATB; sua sponte). Granted: 03/05/2004
1002/23/2004 Supplemental Clerk's Certificate dated 2-19-04 (Entry Nos. 155-158)
1103/03/2004 APPELLANT BRIEF
1203/03/2004 APPELLANT APPENDIX (2 Vol.)
1303/04/2004 DISK - ATB
1404/05/2004 APPELLEE BRIEF (Terra Pacific Midwest, Inc., d/b/a Terra Pacific)
1504/05/2004 APPELLEE APPENDIX
1604/05/2004 DISK (e-mailed) - AEB (Terra Pacific Midwest, Inc.)
1704/19/2004 REPLY BRIEF
1804/19/2004 DISK - RYB (e-mailed)
1905/11/2004 APPEARANCES: Dean A. Frantsvog; Troy A. Wolf
2005/11/2004 ARGUED: Frantsvog; Wolf (Vol. Y; Page 239)
2105/11/2004 ORAL ARGUMENT WEBCAST
2208/31/2004 DISPOSITION: AFFIRMED
2308/31/2004 UNANIMOUS OPINION: Maring, Mary Muehlen
2408/31/2004 Costs on appeal awarded in favor of the Appellee
2509/01/2004 Order/Judgment Mailed to Parties
2609/27/2004 MANDATE
2710/13/2004 Corrected Opinion Page 3
2810/01/2004 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
2905/20/2011 EXPUNGED - Nonpermanent record items destroyed

Generated from Supreme Court Docket on 12/19/2014