Forster v. West Dakota Veterinary Clinic

20040061 Alissa Forster, VMD, Plaintiff, Appellee
and Cross-Appellant
v.
West Dakota Veterinary Clinic,
Inc., and Kim Brummond, D.V.M., Defendants, Appellants
and Cross-Appellees

Appeal from: District Court, South Central Judicial District, Morton County
Judge Bruce A. Romanick
Nature of Action: Contracts
Counsel:
Appellant: Lawyer not licensed in N.D.
Appellant: Lawyer not licensed in N.D.
Appellant: Kelsch, Kelsch, Ruff & Kranda
Appellee: Zuger Kirmis & Smith
Term: 09/2004   Argument: 09/22/2004  9:30am
ND cite: 2004 ND 207
NW cite: 689 N.W.2d 366

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
I. Whether Defendants West Dakota and Dr. Brummond are Entitled to Judgment as a Matter of Law because Plaintiff Offered No Evidence that Defendants "Published" any Defamatory Communications Concerning Plaintiff
II. Whether Defendants West Dakota and Dr. Brummond are Entitled to Judgment as a Matter of Law because Plaintiff Failed to Meet her Burden of Proving Damages
III. Whether Defendants West Dakota and Dr. Brummond are Entitled to a New Trial because the Jury's Verdict is not Supported by the Evidence
IV. Whether Defendants West Dakota and Dr. Brummond are Entitled to a New Trial because the Trial Court Erroneously Instructed the Jury on the Qualified Privilege Defense and Plaintiff's Duty to Mitigate Damages
V. Whether Defendants West Dakota and Dr. Brummond are Entitled to a New Trial due to the Trial Court's Erroneous and Prejudicial Evidentiary Rulings
A. The Trial Court Improperly Excluded Evidence of Plaintiff's Reputation and Character
B. The Trial Court Improperly Excluded a Toxicological Laboratory Report Proffered by Defendants West Dakota and Dr. Brummond
C. The Trial Court Erred by Admitting the "Expert" Testimony of Marvin Heinert including his Curriculum Vitae and Report
D. Whether Defendants West Dakota and Dr. Brummond are Entitled to a New Trial because the Jury's Award of Attorney Fees is Irreconcilably Inconsistent with its Finding of no Actual Malice

Reply Brief Issues:
I. Whether the Trial Court Correctly Determined that Defendant West Dakota Veterinary Clinic, Inc. Employed Plaintiff "at-will" after April 2000.
II. Whether Plaintiff's Contract Claim is Moot Because any Damages Awarded would Constitute an Impermissible "Double-Recovery" of Damages Previously Considered and Awarded by the Jury in Alissa Forster VMD v. West Dakota Veterinary Clinic, Inc. and Kim Brummond, DVM.

Appellee's Statement of the Issues:
I. Did the Trial Court err as a matter of law in concluding Dr. Forster's employment was at-will?
II. Did the Trial Court err as a matter of law in determining the written contract was not extended for a year?

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Docket entries:
103/08/2004 NOTICE OF APPEAL: 03/05/2004
203/08/2004 ORDER FOR TRANSCRIPT: 03/05/2004
303/11/2004 UPDATED AFFIDAVIT OF KATHERINE C. BLOOMQUIST IN SUPPORT OF CONTINUED PRO HAC VICE/APPEARANCE OF
403/11/2004 NON-RESIDENT ATTORNEY (faxed)
503/11/2004 E-FILED MOTION (Bloomquist)
603/11/2004 ACTION BY CLERK (Ms. Bloomquist's appearance is authorized). Granted
703/11/2004 UPDATED AFFIDAVIT OF J. MATTHEW BERNER IN SUPPORT OF CONTINUED PRO HAC VICE/APPEARANCE OF NON-
803/11/2004 RESIDENT ATTORNEY (faxed)
903/11/2004 E-FILED MOTION (Berner)
1003/11/2004 ACTION BY CLERK (Mr. Berner's appearance is authorized). Granted
1103/11/2004 NOTICE OF CROSS APPEAL (Alissa Forster) filed in trial court on March 9, 2004
1203/11/2004 ANNOUNCED DISQUALIFICATION: Maring, Mary Muehlen
1303/12/2004 RETENTION OF RECORD ON APPEAL: 04/24/2004
1403/16/2004 Hard copies of Updated Affidavits of J.Matthew Berner and Katherine C. Bloomquist
1504/16/2004 TRANSCRIPTS DATED October 21-23,2003 (3 vols. & Master index) & October 28, 2003
1604/16/2004 DISKs of tras dated October 21-23, 2003, & October 28, 2004
1704/16/2004 RECORD ON APPEAL (5 volumes, including transcript, partial transcripts, and exhibits)
1805/26/2004 APPELLANT BRIEF
1905/26/2004 APPELLANT APPENDIX
2005/26/2004 DISK of ATB
2106/04/2004 Letter from Katherine C. Bloomquist & J. Matthew Berner RE: new address
2206/22/2004 MOT. EXT/TIME APPELLEE BRIEF (letter dated 6-21-04 from Rebecca S. Thiem)
2306/22/2004 ACTION BY CLERK (MAE). Granted: 06/30/2004
2407/01/2004 MOT. EXT/TIME APPELLEE BRIEF (letter dated 7-01-04 from Rebecca S. Thiem)
2507/01/2004 ACTION BY CLERK (MAE). Granted: 07/01/2004
2607/01/2004 APPELLEE BRIEF
2707/01/2004 APPELLEE APPENDIX
2807/02/2004 DISK - AEB
2907/28/2004 REPLY BRIEF of Appellants
3007/28/2004 DISK - ryb
3108/05/2004 REPLY BRIEF of Cross-Appellant
3208/06/2004 DISK - RYB of cross-appellant (e-mailed)
3308/19/2004 SITTING WITH THE COURT: Nelson, David W.
3409/22/2004 APPEARANCES: J, Matthew Berner, Katherine C. Bloomquist, & Todd D. Kranda; Rebecca S. Thiem and
3509/22/2004 Tracy Vigness Kolb
3609/22/2004 ARGUED: Berner; Thiem (Vol. Z, p. 26)
3709/22/2004 ORAL ARGUMENT WEBCAST
3811/04/2004 DISPOSITION: AFFIRMED
3911/04/2004 UNANIMOUS OPINION: Sandstrom, Dale V.
4011/04/2004 Costs on appeal are taxed in favor of Appellee
4111/05/2004 Corrected Opinion Page 8
4211/08/2004 Judgment Mailed to Parties
4312/06/2004 MANDATE
4412/08/2004 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
4505/31/2011 EXPUNGED - Nonpermanent record items destroyed

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