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|
|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)|
|10||07/20/2005 APPELLANT BRIEF|
|11||07/20/2005 APPELLANT APPENDIX|
|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|
|16||09/08/2005 APPELLEE BRIEF|
|17||09/08/2005 E-FILED BRIEF (AEB)|
|18||09/08/2005 APPELLEE APPENDIX|
|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|
|23||09/20/2005 REPLY BRIEF|
|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|
|28||01/31/2006 DISPOSITION: AFFIRMED|
|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|