Bernabucci v. Huber

20050275 Geraldine Bernabucci, Paul Bernabucci,
Mary Bernabucci MacGrath and John R.
Bernabucci and Geraldine Bernabucci,
as Trustees of the John R. and
Geraldine Bernabucci Charitable
Remainder Trust, and Corey Nyhus, Plaintiffs and Appellants
v.
Harvey Huber and Jan Odin, Defendants and Appellees

Appeal from: District Court, Southeast Judicial District, Stutsman County
Judge Ronald E. Goodman
Nature of Action: Corporations
Counsel:
Appellant: Nilles, Plambeck, Selbo & Harrie, Ltd.
Appellee: Dorsey & Whitney
Term: 12/2005   Argument: 12/12/2005  10:45am
ND cite: 2006 ND 71
NW cite: 712 N.W.2d 323

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
I. Whether the District Court erred in granting a Rule 56 summary judgment motion against the Plaintiffs by:
a. concluding as a matter of law that a Mutual Release provision in a Stock Purchase Agreement barred any and all claims arising out of the rescission of a dividend that was both declared and rescinded after the Stock Purchase Agreement was signed;
b. concluding as a matter of law that the Mutual Release provision, which excluded from its scope any claim unrelated "to the solicitation of offers for, or the negotiation and sale of,North Star," did not extend to a claim arising out of the rescission of a dividend that was both declared and rescinded after the Stock Purchase Agreement was signed; and
c. considering and weighing evidence extrinsic to the contract language in the Mutual Release to make a finding of fact that "the declaration of a dividend was clearly associated with the sale of North Star."
II. Whether the District Court erred in granting a Rule 56 summary judgment motion against Plaintiff by concluding as a matter of law that an offer to purchase stock barred any and all claims arising out of the rescission of a dividend that was both declared and rescinded after the offer to purchase was made.
III. Whether the District Court abused its discretion in denying a timely Rule 15 motion to amend the Complaint that sought to join additional parties and to assert additional claims arising out of the conduct that was the subject of the original Complaint.

Appellee's Statement of the Issues:
I. Did the District Court properly grant summary judgment based upon the plain language of written contracts and North Dakota statutes where the undisputed facts demonstrated that the contractual terms and statutory requirements had been satisfied?
II. Did the District Court properly deny as futile a Rule 15 motion to amend where the proposed claims failed as a matter of law based upon the undisputed facts?

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Docket entries:
108/18/2005 NOTICE OF APPEAL: 08/15/2005
208/18/2005 ANNOUNCED DISQUALIFICATION: Crothers, Daniel John
309/13/2005 RECORD ON APPEAL (not rec'd - 20, 21, 22, 25, 28, 29, & 30)
409/16/2005 Record entries 20(sealed), 21(sealed), 22(sealed), 25(sealed), 28(sealed), 29, 30 (separates)
509/26/2005 APPELLANT BRIEF (e-filed pdf)
609/26/2005 E-FILED BRIEF (Appellant's Brief)
709/26/2005 APPELLANT APPENDIX
809/26/2005 E-FILED APPENDIX (Appellant's Appendix)
909/26/2005 Received $74 surcharge for ATB and ATA
1009/30/2005 Rec'd 7 copies of ATB & ATA from Central Duplicating
1110/03/2005 Corrected page 18 of Appellant's Brief
1210/21/2005 MOT. EXT/TIME APPELLEE BRIEF
1310/21/2005 E-FILED MOTION (MAE)
1410/21/2005 ACTION BY CLERK. Granted: 10/31/2005
1511/01/2005 Due date needs to be extended due to AEB being sent to wrong e-mail address on 10-31-05
1611/01/2005 Due date for aeb extended due to it being sent to the wrong e-mail address(MAE). Granted: 11/01/2005
1711/01/2005 APPELLEE BRIEF (e-filed)
1811/01/2005 E-FILED BRIEF (AEB) (PDF)
1911/01/2005 APPELLEE APPENDIX (e-filed)
2011/01/2005 E-FILED APPENDIX (AEA)
2111/01/2005 Payment of $25 surcharge for AEB (Receipt # 16434)
2211/02/2005 Copies of AEB received from Central Duplicating
2311/02/2005 Copies of AEA received from Central Duplicating
2411/14/2005 REPLY BRIEF (e-filed (pdf))
2511/14/2005 E-FILED BRIEF (RYB (pdf))
2611/15/2005 Copies made of RYB
2711/21/2005 SITTING WITH THE COURT: Bohlman, Bruce E.
2812/12/2005 APPEARANCES: Stephen W. Plambeck, Paul Bernabucci; Todd E. Zimmerman, Harvey Huber, Jan Odin
2912/12/2005 ARGUED: Plambeck; Zimmerman
3012/12/2005 ORAL ARGUMENT WEBCAST
3104/03/2006 DISPOSITION: AFFIRMED
3204/03/2006 UNANIMOUS OPINION: VandeWalle, Gerald W.
3304/03/2006 Costs on appeal taxed in favor of Appellees
3404/04/2006 Judgment Mailed to Parties
3505/09/2006 MANDATE
3605/15/2006 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

Generated from Supreme Court Docket on 10/30/2014