Edward H. Schwartz Const. Inc. v. Driessen
Edward H. Schwartz
Construction, Inc., Plaintiff and Appellee
Garry Driessen d/b/a A & G
Construction Company, Defendant and Appellant
Northeast Judicial District,
Judge John C. McClintock, Jr.
|Nature of Action:||Contracts|
|Term:||11/2005  Argument: 11/02/2005 10:45am|
|ND cite:||2006 ND 15|
709 N.W.2d 733
Listen to recording of oral argument in MP3 format
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?
|Add Docket 20050150 RSS|
|1||05/04/2005||NOTICE OF APPEAL: 05/02/2005|
|2||05/04/2005||ORDER FOR TRANSCRIPT (Deb Martinson, Court Reporter): 05/02/2005|
|3||05/06/2005||Letter from Ms. Martinson to Ronald Schmidt dated 5-5-05 RE:Acknowledged OTR & Request/Payment-TRA|
|4||05/06/2005||RETENTION OF RECORD ON APPEAL (Ltr from Deb Martinson to clerk of trial court: 06/21/2005|
|5||05/10/2005||Copy of Amended Order for Transcript|
|6||06/21/2005||TRANSCRIPT DATED 11-15-04|
|7||06/23/2005||DISK - TRA dated 11-15-04|
|8||06/27/2005||RECORD ON APPEAL & Separates #25 (Deposition of Garry Driessen), #27 (Exhibits), and #28 (Exhibits)|
|9||06/27/2005||Not received were separates #21 (Steno Notes), #24 (Steno Notes), and #26 (Exhibits-Not in file)|
|12||07/22/2005||DISK of ATB|
|13||08/04/2005||MOT. EXT/TIME APPELLEE BRIEF & Affidavit/Support (e-filed)|
|14||08/04/2005||E-FILED MOTION (MAE & AFF/Support)|
|15||08/04/2005||ACTION BY CLERK (MAE). Granted: 09/09/2005|
|17||09/08/2005||E-FILED BRIEF (AEB)|
|19||09/08/2005||E-FILED APPENDIX (AEA)|
|20||09/19/2005||Payment of $25 fee for filing electronic AEB (Receipt #16298)|
|21||09/19/2005||Copies made of e-filed AEB|
|22||09/19/2005||Copies made of e-filed AEA|
|24||09/22/2005||DISK - RYB|
|25||11/02/2005||APPEARANCES: Ronald G. Schmidt; Dann E. Greenwood|
|26||11/02/2005||ARGUED: Schmidt; Greenwood|
|27||11/02/2005||ORAL ARGUMENT WEBCAST|
|29||01/31/2006||UNANIMOUS OPINION: Crothers, Daniel John|
|30||01/31/2006||Costs on appeal taxed in favor of Appellee|
|31||02/01/2006||Judgment Mailed to Parties|
|32||03/01/2006||Corrected Opinion Page 4|
|34||03/08/2006||RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE|
|35||10/07/2014||EXPUNGED - Nonpermanent record items destroyed|