Brandt v. Somerville
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| 20040112 |
David W. Brandt, John A. Brandt,
and Roy Brandt, Plaintiffs, Appellants
and Cross-Appellees
v.
Dean S. Somerville, Margaret D.
Somerville, and Posilock Puller, Inc., Defendants, Appellees
and Cross-Appellants
|
| Appeal from: |
District Court,
Southeast Judicial District,
Griggs County
Judge John E. Greenwood |
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Nature of Action: |
Corporations
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| Counsel: |
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| Term: |
11/2004 Argument: 11/15/2004 01:30pm
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| ND cite: |
2005 ND 35
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| NW cite: |
692 N.W.2d 144
Listen to recording of oral argument
using RealPlayer Basic,© a free download.
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| Issues: |
Appellant's Statement of the Issues:
1. Did the trial court err by failing to address the Somervilles' breaches of their fiduciary duty of good faith to the Brandts?
2. Did the trial court err by refusing to separately award damages because of the Somervilles' breaches of their fiduciary duty of good faith to the Brandts?
3. Did the trial court err by failing to address the actual fraud by the Somervilles perpetrated against the USDA, Sheyenne Valley REC and the Brandts by arranging the $450,000 no interest loan in the name of Posilock which was immediately diverted
to Dynamics 360, a corporation in which the Brandts have no interest?
4. Did the trial court err by finding that the Stock Transfer Agreement was binding?
5. Did the trial court err by refusing to award damages for the difference between what the Stock Transfer Agreement would allow the Brandts for their Posilock stock and the amount to which they would be entitled based on the fair market value of
that stock and the stock of the Somerville related family corporations?
6. Did the trial court err by failing to award the Brandts the "fair value" of their stock?
7. Did the trial court err by failing to award the Brandts 50% of the "fair value" of Dynamics 360?
8. Did the trial court err by failing to award the Brandts anything for Dynamics Marketing, Inc.?
9. Did the trial court err by refusing to allow additional discovery concerning Dynamics Marketing, Inc.?
10. Did the trial court err by finding that, although the Somervilles acted in a manner unfairly prejudicial to the Brandts and used the financial assets of Posilock to obtain the $450,000 no interest loan, the Somervilles did not act fraudulently
or illegally toward the Brandts or in bad faith?
11. Did the trial court err by refusing to allow the Brandts to amend their Complaint to seek punitive damages?
12. Did the trial court err by refusing to compel Dean Somerville to produce his personal financial statement?
13. Did the trial court err by reducing the judgment rate of interest?
14. Did the trial court err by failing to equitably consolidate Posilock, Dynamics 360 and DMI?
Appellee's Statement of the Issues:
I. The district court erred as a matter of law in concluding PL MFG was a "corporate advantage" belonging to Posilock.
II. Alternatively, the district court erred in computing the value of PL MFG to be added back to Posilock to determine the book value of shares.
A. Erroneous Reference to Dynamics 360.
B. The Erroneous Calculation.
C. Book Value of PL MFG.
D. Corrected Calculation.
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| 1 | | 04/26/2004 | |
NOTICE OF APPEAL: 04/21/2004 |
| 2 | | 04/26/2004 | |
ORDER FOR TRANSCRIPT (Arnold E. Strand): 04/21/2004 |
| 3 | | 04/26/2004 | |
RETENTION OF RECORD ON APPEAL (Mr. Minch filed request pursuant to Rule 11(c), N.D.R.App.P.): 09/17/2004 |
| 4 | | 04/26/2004 | |
(above date is approx. AEB due date) |
| 5 | | 04/26/2004 | |
MOTION FOR PROCEDURAL ORDER OF REMAND; NOTICE OF MOTION; AFFIDAVIT OF COUNSEL (Robert Hoy) |
| 6 | | 04/26/2004 | |
ORDER OF TEMPORARY REMAND |
| 7 | | 04/26/2004 | |
ACTION BY CLERK (for limited purpose of the trial ct.'s consideration of post-judgment motions) |
| 8 | | 06/07/2004 | |
TRANSCRIPTS DATED 12-7-01; 4-24-02 through 5-1-02; 9-3-02;4-15&16-04; & 5-13-04 (7 vols.) |
| 9 | | 06/07/2004 | |
DISKS (4) (TRA)(12-7-01; 4-15&16-04; & 5-13-04) |
| 10 | | 06/18/2004 | |
DISK - TRA April 24 thru May 1, 2002(3 Disks) |
| 11 | | 07/09/2004 | |
MOT. EXT/TIME APPELLANT BRIEF (faxed) |
| 12 | | 07/09/2004 | |
ACTION BY CLERK (MAT). Granted: 08/18/2004 |
| 13 | | 07/13/2004 | |
FAXED NOTICE OF CROSS-APPEAL (D. Somerville, M. Somerville, and Posilock Puller, Inc.) |
| 14 | | 07/13/2004 | |
Order for Transcript of 5-13-04 hearing on Defendant's Post-Judgment Motion |
| 15 | | 07/13/2004 | |
Roger J. Minch's request for retention of ROA pursuant to Rule 11(c) (NOTE: previously requested) |
| 16 | | 07/26/2004 | |
MOTION TO DISMISS DEFENDANTS' CROSS-APPEAL W/ATTACHED EXHIBITS A-H. RspDue: 08/05/2004 |
| 17 | | 08/03/2004 | |
Defendant's Response in Opposition to Motion to Dismiss |
| 18 | | 08/11/2004 | |
NO ACTION TAKEN ON Motion to Dismiss Defendants' Cross-Appeal |
| 19 | | 08/18/2004 | |
APPELLANT BRIEF |
| 20 | | 08/18/2004 | |
Attached 7 page addendum to Appellants Brief |
| 21 | | 08/18/2004 | |
APPELLANT APPENDIX (3 volumes) |
| 22 | | 08/19/2004 | |
DISK - ATB |
| 23 | | 09/20/2004 | |
APPELLEE BRIEF |
| 24 | | 09/20/2004 | |
ADDENDUM TO APPELLEE BRIEF (attached to AEB) |
| 25 | | 09/21/2004 | |
MOTION FOR PROCEDURAL ORDER EXTENDING PERMISSIBLE LENGTH OF BRIEF (AEB) |
| 26 | | 09/21/2004 | |
ACTION BY ACTING CHIEF JUSTICE. Granted |
| 27 | | 09/24/2004 | |
Corrected TOA & pages 14 & 15 for ATB |
| 28 | | 09/24/2004 | |
DISK - aeb (e-mailed) |
| 29 | | 09/29/2004 | |
RECORD ON APPEAL - includes exhibits and depositions, not rec'd were entry nos. 116 & 117 |
| 30 | | 09/28/2004 | |
MOTION FOR PROCEDURAL ORDER EXTENDING PERMISSIBLE LENGTH OF BRIEF (RYB) |
| 31 | | 09/30/2004 | |
ACTION BY CHIEF JUSTICE. Granted |
| 32 | | 10/04/2004 | |
MOT. EXT/TIME REPLY BRIEF (electronic letter & memo dated 10-4-04) |
| 33 | | 10/04/2004 | |
E-FILED MOT. Ext/Time/RYB |
| 34 | | 10/04/2004 | |
ACTION BY CHIEF JUSTICE. Granted: 10/15/2004 |
| 35 | | 10/15/2004 | |
REPLY BRIEF of Appellant |
| 36 | | 10/26/2004 | |
DISK - RYB of Appellants and Cross-Appellees |
| 37 | | 10/29/2004 | |
REPLY BRIEF - of Appellees & Cross-Appellants |
| 38 | | 10/29/2004 | |
DISK - RYB of Appellees & Cross-Appellants (emailed) |
| 39 | | 11/11/2004 | |
"Highlighted Short Form Appendix of Appellants" |
| 40 | | 11/15/2004 | |
APPEARANCES: Roger J. Minch, David W. Brandt, John A. Brandt; Robert G. Hoy |
| 41 | | 11/15/2004 | |
ARGUED: Minch; Hoy (Vol. Z; page 54) |
| 42 | | 11/15/2004 | |
ORAL ARGUMENT WEBCAST |
| 43 | | 02/16/2005 | |
DISPOSITION: AFFIRMED |
| 44 | | 02/16/2005 | |
UNANIMOUS OPINION: Kapsner, Carol Ronning |
| 45 | | 02/16/2005 | |
Costs on appeal awarded in favor of Appellees |
| 46 | | 02/18/2005 | |
Judgment Mailed to Parties |
| 47 | | 03/11/2005 | |
MANDATE |
| 48 | | 03/16/2005 | |
RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE |
| 49 | | 06/17/2011 | |
EXPUNGED - Nonpermanent record items destroyed |