Kuperus v. Willson

20050114 Randi J. Kuperus, Plaintiff and Appellant
Bonita K. Willson, individually,
and as the Personal Representative
of the Estate of Daniel Kent
Willson, Deceased, Defendants and Appellees

Appeal from: District Court, South Central Judicial District, Burleigh County
Judge Bruce A. Romanick
Nature of Action: Torts (Negligence, Liab., Nuis.)
Appellant: Fleck Law Office
Appellee: Coles Law Firm, PC
Term: 10/2005   Argument: 10/26/2005  2:45pm
ND cite: 2006 ND 12
NW cite: 709 N.W.2d 726

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Issues: Appellant's Statement of the Issues:
[1] The primary question on appeal is whether the trial court erred in concluding Kuperus waived her right to recover under the terms of the settlement agreement by her acceptance of a $3,000 payment, when at the time of presentment of the payment more than $14,000 was owed to her under the terms of the agreement and the payment was presented without any conditions. In resolving this question In resolving this question Kuperus raises the following issues on appeal:
1. Whether the trial court's finding that the settlement agreement was only presented to the trial court on August 16, 2004, after Kuperus' receipt of the $3,000 payment on August 11, 2004, is supported by the undisputed facts and inferences that may be drawn from those facts?
2. Whether the settlement agreement is unambiguous regarding the rights and obligations of the parties that existed upon Willson's failure to make a $3,000 payment by the August 9, 2004, deadline; and
a. If this Court determines the settlement agreement is unambiguous, whether the trial court's determination Kuperus waived her rights under the agreement by accepting a $3,000 payment after the deadline is contrary to the law?
b. If this Court determines the settlement agreement is ambiguous, whether the trial court erred by making its determination without first holding an evidentiary hearing on the factual issues raised by the ambiguity?

Appellee's Statement of the Issues:
Did the trial Court abuse its discretion in dismissing the proceedings before the trial Court based upon the stipulation of the parties to the action?

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Docket entries:
104/04/2005 NOTICE OF APPEAL: 04/01/2005
205/04/2005 ORDER FOR TRANSCRIPT: 04/04/2005
305/04/2005 TRANSCRIPT DATED March 14, 2005
405/04/2005 DISK - tra (3-14-05)
505/04/2005 RECORD ON APPEAL (Not rec'd: #75-Ct. Rptr Notes)
806/13/2005 E-FILED BRIEF (ATB)
906/13/2005 E-FILED APPENDIX (ATA)
1006/15/2005 Received $28.50 surcharge for ATB - Receipt #16207
1106/20/2005 Received 7 copies of Appellant's Brief from central duplicating
1206/20/2005 Received 7 copies of AT Appendix from central duplicating
1307/12/2005 APPELLEE BRIEF
1407/12/2005 DISK - AEB (e-mailed)
1507/28/2005 REPLY BRIEF
1607/28/2005 E-FILED BRIEF (RYB)
1710/26/2005 APPEARANCES: Arnold V. Fleck; James J. Coles
1810/26/2005 ARGUED: Fleck; Coles
2101/31/2006 UNANIMOUS OPINION: VandeWalle, Gerald W.
2201/31/2006 Costs taxed in favor of Randi J. Kuperus
2302/01/2006 Corrected Opinion Page 4
2402/01/2006 Judgment Mailed to Parties
2503/01/2006 MANDATE
2711/02/2012 EXPUNGED - Nonpermanent record items destroyed

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