Investors Real Estate Trust Properties v. Terra Pacific Midwest
Investors Real Estate Trust
Properties, Inc., a/k/a IRET, Plaintiff and Appellant
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
Southeast Judicial District,
Judge Ronald E. Goodman
|Nature of Action:||Torts (Negligence, Liab., Nuis.)|
|Term:||05/2004  Argument: 05/11/2004|
|ND cite:||2004 ND 167|
686 N.W.2d 140
Listen to recording of oral argument in MP3 format
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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|1||12/17/2003 NOTICE OF APPEAL: 12/11/2003|
|2||01/09/2004 RECORD ON APPEAL (3 vols.) & Partial Transcript (NOT REC'D: Exhibits 98,99,100,&101--Drawings)|
|3||01/13/2004 MOTION FOR REMAND on issue of taxation of costs (sua sponte)|
|4||01/13/2004 ACTION BY CHIEF JUSTICE (remand). Granted|
|5||01/13/2004 ORDER OF REMAND|
|6||02/19/2004 Copy of letter dated 2-17-04 from Judge Goodman, w/copy of Order Granting Statement and|
|7||02/19/2004 Taxation of Costs dated 2-17-04|
|8||02/19/2004 MOT. EXT/TIME APPELLANT BRIEF (no MAT)|
|9||02/19/2004 ACTION BY CLERK (due date for ATB; sua sponte). Granted: 03/05/2004|
|10||02/23/2004 Supplemental Clerk's Certificate dated 2-19-04 (Entry Nos. 155-158)|
|11||03/03/2004 APPELLANT BRIEF|
|12||03/03/2004 APPELLANT APPENDIX (2 Vol.)|
|13||03/04/2004 DISK - ATB|
|14||04/05/2004 APPELLEE BRIEF (Terra Pacific Midwest, Inc., d/b/a Terra Pacific)|
|15||04/05/2004 APPELLEE APPENDIX|
|16||04/05/2004 DISK (e-mailed) - AEB (Terra Pacific Midwest, Inc.)|
|17||04/19/2004 REPLY BRIEF|
|18||04/19/2004 DISK - RYB (e-mailed)|
|19||05/11/2004 APPEARANCES: Dean A. Frantsvog; Troy A. Wolf|
|20||05/11/2004 ARGUED: Frantsvog; Wolf (Vol. Y; Page 239)|
|21||05/11/2004 ORAL ARGUMENT WEBCAST|
|22||08/31/2004 DISPOSITION: AFFIRMED|
|23||08/31/2004 UNANIMOUS OPINION: Maring, Mary Muehlen|
|24||08/31/2004 Costs on appeal awarded in favor of the Appellee|
|25||09/01/2004 Order/Judgment Mailed to Parties|
|27||10/13/2004 Corrected Opinion Page 3|
|28||10/01/2004 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE|
|29||05/20/2011 EXPUNGED - Nonpermanent record items destroyed|