Edward H. Schwartz Const. Inc. v. Driessen

20050150 Edward H. Schwartz
Construction, Inc., Plaintiff and Appellee
v.
Garry Driessen d/b/a A & G
Construction Company, Defendant and Appellant

Appeal from: District Court, Northeast Judicial District, McHenry County
Judge John C. McClintock, Jr.
Nature of Action: Contracts
Counsel:
Appellant: Ronald G. Schmidt
Appellee: Ramsey Law Office, P.L.L.C.
Term: 11/2005   Argument: 11/02/2005  10:45am
ND cite: 2006 ND 15
NW cite: 709 N.W.2d 733

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
I. Whether The Trial Court's Findings of Fact are Clearly Erroneous (1) As Without Substantial Evidentiary Support; (2) Induced by an Erroneous View of Law; or, (3) Even if Some Evidence Supports Findings, Upon Review of Entire Evidence this Court Will be Left With the Definite and Firm Conviction That the Trial Court has Made Mistakes?
II. Whether the Trial Court's Conclusions of Law (1) That an Oral Contract was Formed; (2) That, if so, the Contract was Not Conditioned Upon the Plaintiff's Securing a Gravel Pit; (3) that the Contract did not Fail Because of a Lack of Timely Acceptance; and (4) that Defendant Driessen Breached the Contract are Unsupported by the Evidence or Induced by an Erroneous View of the Law or Mistake as a Matter of Law?
Whether the Supreme Court is Bound by the "Clearly Erroneous Rule" Since the Findings and Conclusions Which Rest Primarily Upon Documentary Evidence This Court is as Capable of Reading and Understanding As the Trial Court?

Appellee's Statement of the Issues:
I. Whether the trial court's findings of fact are clearly erroneous (1) as without substantial evidentiary support; (2) induced by an erroneous view of law; or, (3) even if some evidence supports findings, upon review of entire evidence this Court will be left with the definite and firm conviction that the trial court has made mistakes?
II. Whether the trial court's conclusions of law (1) that an oral contract was formed; (2) that, if so, the contract was not conditioned upon the plaintiff's securing a gravel pit; (3) that the contract did not fail because of a lack of timely acceptance; and (4) that defendant Driessen breached the contract are unsupported by the evidence or induced by an erroneous view of the law or mistake as a matter of law?
III. Whether the Supreme Court is bound by the "clearly erroneous rule" since the findings and conclusions which rest primarily upon documentary evidence this Court is as capable of reading and understanding as the trial court?

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Docket entries:
105/04/2005 NOTICE OF APPEAL: 05/02/2005
205/04/2005 ORDER FOR TRANSCRIPT (Deb Martinson, Court Reporter): 05/02/2005
305/06/2005 Letter from Ms. Martinson to Ronald Schmidt dated 5-5-05 RE:Acknowledged OTR & Request/Payment-TRA
405/06/2005 RETENTION OF RECORD ON APPEAL (Ltr from Deb Martinson to clerk of trial court: 06/21/2005
505/10/2005 Copy of Amended Order for Transcript
606/21/2005 TRANSCRIPT DATED 11-15-04
706/23/2005 DISK - TRA dated 11-15-04
806/27/2005 RECORD ON APPEAL & Separates #25 (Deposition of Garry Driessen), #27 (Exhibits), and #28 (Exhibits)
906/27/2005 Not received were separates #21 (Steno Notes), #24 (Steno Notes), and #26 (Exhibits-Not in file)
1007/20/2005 APPELLANT BRIEF
1107/20/2005 APPELLANT APPENDIX
1207/22/2005 DISK of ATB
1308/04/2005 MOT. EXT/TIME APPELLEE BRIEF & Affidavit/Support (e-filed)
1408/04/2005 E-FILED MOTION (MAE & AFF/Support)
1508/04/2005 ACTION BY CLERK (MAE). Granted: 09/09/2005
1609/08/2005 APPELLEE BRIEF
1709/08/2005 E-FILED BRIEF (AEB)
1809/08/2005 APPELLEE APPENDIX
1909/08/2005 E-FILED APPENDIX (AEA)
2009/19/2005 Payment of $25 fee for filing electronic AEB (Receipt #16298)
2109/19/2005 Copies made of e-filed AEB
2209/19/2005 Copies made of e-filed AEA
2309/20/2005 REPLY BRIEF
2409/22/2005 DISK - RYB
2511/02/2005 APPEARANCES: Ronald G. Schmidt; Dann E. Greenwood
2611/02/2005 ARGUED: Schmidt; Greenwood
2711/02/2005 ORAL ARGUMENT WEBCAST
2801/31/2006 DISPOSITION: AFFIRMED
2901/31/2006 UNANIMOUS OPINION: Crothers, Daniel John
3001/31/2006 Costs on appeal taxed in favor of Appellee
3102/01/2006 Judgment Mailed to Parties
3203/01/2006 Corrected Opinion Page 4
3303/03/2006 MANDATE
3403/08/2006 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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