City of Bismarck v. Mariner Construction, Inc.

20050322 City of Bismarck, North Dakota, Plaintiff and Appellee
v.
Mariner Construction, Inc.,
a North Dakota corporation,
and Great American Insurance
Company, an Ohio corporation, Defendants, Third-Party
Plaintiffs, and Appellants
v.
Koch Materials Company, Third-Party Defendant

Appeal from: District Court, South Central Judicial District, Burleigh County
Judge Gail Hagerty
Nature of Action: Contracts
Counsel:
Appellant: Pearce & Durick
Appellant: Lawyer not licensed in N.D.
Appellant: Lawyer not licensed in N.D.
Appellee: Smith Bakke Porsborg Schweigert & Armstrong
Term: 01/2006   Argument: 01/11/2006  2:45pm
ND cite: 2006 ND 108
NW cite: 714 N.W.2d 484

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Issues: Appellant's Statement of the Issues:
I. Did the trial court err by requiring the jury to interpret the contract?
II. Did the trial court err by allowing the City to present improper and prejudicial evidence to the jury?
III. Did the trial court err by giving the jury instructions that shifted the burden of proof from the City to Mariner?
IV. Was the jury's verdict excessive and without sufficient evidentiary support?

Reply Brief Issues
I. Does the Agreement contain more than one warranty?
II. Did the trial court err by requiring the jury to interpret the contract as a matter of law?
III. Was there sufficient evidentiary support for the jury to conclude that Mariner breached the warranty?

Appellee's Statement of the Issues:
Whether the district court's Order dated and entered July 18, 2005 denying Mariner Construction, Inc.'s post-trial motions for judgment as a matter of law and, in the alternative, for a new trial, was in error.

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Docket entries:
109/19/2005 NOTICE OF APPEAL: 09/15/2005
209/19/2005 ORDER FOR TRANSCRIPT: 09/15/2005
309/19/2005 ANNOUNCED DISQUALIFICATION: Sandstrom, Dale V.
409/21/2005 Acknowledgment of order for transcript (Ronda Colby)
509/21/2005 RETENTION OF RECORD ON APPEAL: 11/04/2005
610/13/2005 TRANSCRIPTS DATED 4-11-05 thru 4-15-05 (Vols. 1-5)
710/13/2005 DISK of tras dtd 4-11-05 thru 4-15-05
810/17/2005 RECORD ON APPEAL (5 Vols., incl. exhibits and 7 depositions) Not rec'd: Clerk's Cert. Nos. 37 &
910/17/2005 137 (Court Reporter Notes)
1010/24/2005 Motion for Admission of Marvin F. Fabyanske Pro Hac Vice & Affidavit (authorized)
1111/18/2005 APPELLANT BRIEF
1211/18/2005 APPELLANT APPENDIX
1311/18/2005 DISK - ATB (e-mailed)
1411/21/2005 Affidavit of Aaron A. Dean (Pro Hac Vice)
1512/15/2005 APPELLEE BRIEF (pdf)
1612/15/2005 E-FILED BRIEF - AEB (E-MAILED PDF)
1712/15/2005 APPELLEE APPENDIX (pdf)
1812/15/2005 E-FILED APPENDIX (AEA)
1912/15/2005 Payment of $74 fee for electronic AEB & Appendix (Receipt 16693)
2012/20/2005 Copies of AEB; 6 copies of AEA received from Central Duplicating
2112/23/2005 SITTING WITH THE COURT: Anderson, Zane
2212/29/2005 REPLY BRIEF of Appellants
2312/29/2005 DISK - ryb (e-mailed)
2401/06/2006 Request for Radio/TV Coverage - AP (e-mail dated 1-06-06 from Dale Wetzel) Authorized
2501/11/2006 APPEARANCES: Marvin T. Fabyanske, B. Timothy Durick; Randall J. Bakke
2601/11/2006 ARGUED: Fabyanske; Bakke
2701/11/2006 ORAL ARGUMENT WEBCAST
2805/16/2006 DISPOSITION: REVERSED AND REMANDED
2905/16/2006 UNANIMOUS OPINION: VandeWalle, Gerald W.
3005/16/2006 Costs on appeal taxed in favor of appellant
3105/19/2006 Judgment Mailed to Parties
3205/24/2006 PETITION FOR REHEARING - Appellee
3305/24/2006 E-FILED BRIEF (PER) (PDF)
3405/26/2006 Made 7 copies of PER
3505/30/2006 PETITION FOR REHEARING - Appellants
3605/30/2006 addendum (Appellant's Petition for Rehearing)
3705/30/2006 DISK of PER of Appellants (e-mailed)
3806/01/2006 MOTION and Brief to Strike and for Sanctions
3906/01/2006 E-FILED MOTION (by email)
4006/05/2006 ACTION BY SUPREME COURT (PER/AT). Denied
4106/05/2006 ACTION BY SUPREME COURT (PER/AE). Denied
4206/05/2006 NO ACTION TAKEN (Motion to Strike and for Sanctions)
4306/14/2006 MANDATE
4406/16/2006 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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