Brandt v. Somerville

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
Nature of Action: Corporations
Counsel:
Appellant: Serkland Law Firm
Appellee: Ohnstad Twichell, P.C.
Term: 11/2004   Argument: 11/15/2004  1:30pm
ND cite: 2005 ND 35
NW cite: 692 N.W.2d 144

Listen to recording of oral argument in MP3 format

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.

Add Docket 20040112 RSS Add Docket 20040112 RSS

Docket entries:
104/26/2004 NOTICE OF APPEAL: 04/21/2004
204/26/2004 ORDER FOR TRANSCRIPT (Arnold E. Strand): 04/21/2004
304/26/2004 RETENTION OF RECORD ON APPEAL (Mr. Minch filed request pursuant to Rule 11(c), N.D.R.App.P.): 09/17/2004
404/26/2004 (above date is approx. AEB due date)
504/26/2004 MOTION FOR PROCEDURAL ORDER OF REMAND; NOTICE OF MOTION; AFFIDAVIT OF COUNSEL (Robert Hoy)
604/26/2004 ORDER OF TEMPORARY REMAND
704/26/2004 ACTION BY CLERK (for limited purpose of the trial ct.'s consideration of post-judgment motions)
806/07/2004 TRANSCRIPTS DATED 12-7-01; 4-24-02 through 5-1-02; 9-3-02;4-15&16-04; & 5-13-04 (7 vols.)
906/07/2004 DISKS (4) (TRA)(12-7-01; 4-15&16-04; & 5-13-04)
1006/18/2004 DISK - TRA April 24 thru May 1, 2002(3 Disks)
1107/09/2004 MOT. EXT/TIME APPELLANT BRIEF (faxed)
1207/09/2004 ACTION BY CLERK (MAT). Granted: 08/18/2004
1307/13/2004 FAXED NOTICE OF CROSS-APPEAL (D. Somerville, M. Somerville, and Posilock Puller, Inc.)
1407/13/2004 Order for Transcript of 5-13-04 hearing on Defendant's Post-Judgment Motion
1507/13/2004 Roger J. Minch's request for retention of ROA pursuant to Rule 11(c) (NOTE: previously requested)
1607/26/2004 MOTION TO DISMISS DEFENDANTS' CROSS-APPEAL W/ATTACHED EXHIBITS A-H. RspDue: 08/05/2004
1708/03/2004 Defendant's Response in Opposition to Motion to Dismiss
1808/11/2004 NO ACTION TAKEN ON Motion to Dismiss Defendants' Cross-Appeal
1908/18/2004 APPELLANT BRIEF
2008/18/2004 Attached 7 page addendum to Appellants Brief
2108/18/2004 APPELLANT APPENDIX (3 volumes)
2208/19/2004 DISK - ATB
2309/20/2004 APPELLEE BRIEF
2409/20/2004 ADDENDUM TO APPELLEE BRIEF (attached to AEB)
2509/21/2004 MOTION FOR PROCEDURAL ORDER EXTENDING PERMISSIBLE LENGTH OF BRIEF (AEB)
2609/21/2004 ACTION BY ACTING CHIEF JUSTICE. Granted
2709/24/2004 Corrected TOA & pages 14 & 15 for ATB
2809/24/2004 DISK - aeb (e-mailed)
2909/29/2004 RECORD ON APPEAL - includes exhibits and depositions, not rec'd were entry nos. 116 & 117
3009/28/2004 MOTION FOR PROCEDURAL ORDER EXTENDING PERMISSIBLE LENGTH OF BRIEF (RYB)
3109/30/2004 ACTION BY CHIEF JUSTICE. Granted
3210/04/2004 MOT. EXT/TIME REPLY BRIEF (electronic letter & memo dated 10-4-04)
3310/04/2004 E-FILED MOT. Ext/Time/RYB
3410/04/2004 ACTION BY CHIEF JUSTICE. Granted: 10/15/2004
3510/15/2004 REPLY BRIEF of Appellant
3610/26/2004 DISK - RYB of Appellants and Cross-Appellees
3710/29/2004 REPLY BRIEF - of Appellees & Cross-Appellants
3810/29/2004 DISK - RYB of Appellees & Cross-Appellants (emailed)
3911/11/2004 "Highlighted Short Form Appendix of Appellants"
4011/15/2004 APPEARANCES: Roger J. Minch, David W. Brandt, John A. Brandt; Robert G. Hoy
4111/15/2004 ARGUED: Minch; Hoy (Vol. Z; page 54)
4211/15/2004 ORAL ARGUMENT WEBCAST
4302/16/2005 DISPOSITION: AFFIRMED
4402/16/2005 UNANIMOUS OPINION: Kapsner, Carol Ronning
4502/16/2005 Costs on appeal awarded in favor of Appellees
4602/18/2005 Judgment Mailed to Parties
4703/11/2005 MANDATE
4803/16/2005 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
4906/17/2011 EXPUNGED - Nonpermanent record items destroyed

Generated from Supreme Court Docket on 09/17/2014