Choice Financial Group v. Schellpfeffer

20040204 Choice Financial Group, Plaintiff and Appellee
v.
Donald A. Schellpfeffer, Defendant and Appellant
and
The R & D Group, LLC, Defendant

Appeal from: District Court, East Central Judicial District, Cass County
Judge Douglas R. Herman
Nature of Action: Contracts
Counsel:
Appellee: Anderson, Bottrell, Sanden & Thompson
Appellant: Lawyer not licensed in N.D.
Appellant: Lawyer not licensed in N.D.
Appellant: Nilles, Plambeck, Selbo & Harrie, Ltd.
Term: 01/2005   Argument: 01/11/2005  1:30pm
ND cite: 2005 ND 90
NW cite: 696 N.W.2d 504

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
I. Whether the District Court improvidently granted Rule 54(b) certification and improperly ordered entry of judgment so that Choice Financial Group could begin collection activities (which Choice aggressively pursued); and
II. If the first question is answered in the negative, whether the District Court's Order for Partial Summary Judgment must be reversed and Judgment vacated because genuine issues of material fact preclude summary judgment against Donald Schellpfeffer.

Appellee's Statement of the Issues:
I. Whether the trial court properly granted Rule 54(b) certification by entering judgment when the money judgments entered by the trial court are substantial and only a small sum remains in dispute that will not change or alter the judgment.
II. If Rule 54(b) certification was properly granted, whether the trial court properly ordered partial summary judgment against Schellpfeffer, holding that Schellpfeffer failed to set forth particular facts establishing genuine issues of material fact to support a claim of fraudulent inducement, that Schellpfeffer's personal guaranty is enforceable and that his defense of fraudulent inducement has been waived.

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Docket entries:
107/26/2004 NOTICE OF APPEAL: 07/23/2004
208/26/2004 RECORD ON APPEAL & Transcript dated 6-17-04 (Not rec'd: #59--tape)
308/31/2004 Referred by Clerk's Office--Appealability
408/31/2004 ACTION BY CHIEF JUSTICE (MCL). Granted
508/31/2004 ORDER OF REMAND
608/31/2004 Order Mailed to Parties, trial court, clerk
709/27/2004 MOTION FOR Approval of Letter of Credit as Supersedeas and Staying execution of Judgment & Brief
809/27/2004 REFILED RECORD ON APPEAL AFTER REMAND (2 Vols.) & TRA dated 6-17-04 (Not rec'd: #'s 59 & 74-Tapes)
909/28/2004 Objection to Motion for Approval of Letter of Credit as Supersedeas and Stay (fax)
1009/29/2004 Original Response Objecting to Schellpfeffer's Motion for Approval of Letter of Credit & Stay
1109/30/2004 ACTION BY SUPREME COURT (Motion for approval of letter of credit). Denied
1209/30/2004 Order Mailed to Parties, trial court, clerk
1309/30/2004 Reset briefing schedule after Remand
1409/30/2004 ACTION BY CLERK. Granted: 11/01/2004
1510/12/2004 Supplemental Clerk's Certificate dated 10-12-04 (Entry Nos. 34, 36, and 88 through 94)
1611/01/2004 APPELLANT BRIEF (e-filed)
1711/01/2004 E-FILED BRIEF (ATB) (e-mailed as a pdf)
1811/01/2004 APPELLANT APPENDIX
1911/02/2004 Affidavits of Service of Briefs & Appendices (both by e-mail & US mail)
2011/02/2004 Updated Affidavits of Good Standing of Timothy K. Dolan and Michael S. Degan (faxed)
2111/05/2004 Surcharge for EFB-ATB (Receipt #15848)
2211/10/2004 Copies of Appellant's Brief from Central Duplicating
2312/01/2004 APPELLEE BRIEF (e-filed)
2412/01/2004 E-FILED BRIEF (AEB) (e-mailed as a pdf)
2512/01/2004 APPELLEE APPENDIX
2612/02/2004 $25 surcharge for AEB (Receipt #15876)
2712/07/2004 Copies of AEB from Central Duplicating
2812/15/2004 REPLY BRIEF (e-filed)
2912/15/2004 E-FILED BRIEF (RYB) (e-mailed as a pdf)
3001/11/2005 APPEARANCES: Daniel J. Crothers; Lowell P. Bottrell, Kyle L. Carlson
3101/11/2005 ARGUED: Crothers; Bottrell (Vol. Z; Page 74)
3201/11/2005 ORAL ARGUMENT WEBCAST
3305/17/2005 DISPOSITION: DISMISSED
3405/17/2005 UNANIMOUS OPINION: Kapsner, Carol Ronning
3505/17/2005 Costs on appeal taxed in favor of Appellee
3605/19/2005 Judgment Mailed to Parties
3705/25/2005 MOTION to amend judgment to allow appellant to tax costs and disbursements of appeal
3805/25/2005 E-FILED MOTION to amend judgment (via facsimile)
3905/26/2005 Choice Financial Group's Response objecting to Schellpfeffer's Motion to amend judgment
4005/26/2005 E-FILED Response objecting to motion to amend judgment (via facsimile)
4106/01/2005 ACTION BY SUPREME COURT (however, judgment will be amended to award no costs). Denied
4206/01/2005 Amended Judgment: no costs taxed on this appeal
4306/01/2005 Order & Amended Judgment Mailed to Parties
4406/02/2005 Donald Schellpfeffer's Reply to Choice Financial's Objection to Motion to Amend Judgment to Tax
4506/02/2005 Costs and Disbursements on Appeal w/ attachments
4606/10/2005 MANDATE
4706/14/2005 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
4810/05/2011 EXPUNGED - Nonpermanent record items destroyed

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