Peoples State Bk. of Truman v. Molstad Excavating

20050444 Peoples State Bank
of Truman, Inc., a
Minnesota Corporation, Plaintiff and Appellant
v.
Molstad Excavating, Inc.,
a North Dakota corporation, Defendant
and
FGOH2O, Inc., d/b/a
Fargo Water Equipment, Defendant and Appellee

Appeal from: District Court, Northeast Central Judicial District, Grand Forks County
Judge Debbie Gordon Kleven
Nature of Action: Contracts
Counsel:
Appellant: Lawyer not licensed in N.D.
Appellant: Zimney Foster P.C.
Appellee: Flom Law Office, P.A,
Term: 04/2006   Argument: 04/17/2006  1:30pm
ND cite: 2006 ND 183
NW cite: 721 N.W.2d 43

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
I. Did the district court err by finding FG2O was an intended beneficiary of the Molstad-Haycraft Contract?
Yes. FH2O was not listed in the contract, provided no consideration to the Molstad-Haycraft Contract, was not owed a duty by either part to the Molstad-Haycraft Contract at the time the contract was created and the intent of the parties was not to benefit FH2O.
Most apposite authorities:
First Federal Sav. and Loan Ass'n of Bismarck v. Compass
Investments, Inc., 342 N.W.2d 214 (N.D. 1983);
O'Connell v. Entertainment Enterprises, Inc., 317 N.W.2d 385 (N.D. 1982);
Parlin v. Hall, 2 N.D. 473, 52 N.W. 406 (1892);
Apache Corp. v. MDU Resources Group, Inc., 603 N.W.2d 891 (N.D. 1999).
II. Did the district court err by determining that FH2O had "claims" against Molstad?
Yes. FH2O did not have a contractual claim against Molstad nor did it have a construction bond claim against the Project's construction bond.
Most apposite authorities:
Ziegelmann v. DaimlerChrysler Corp., 649 N.W.2d 556 (N.D. 2002);
Kuchenski v. Kramer Sheet Metal, 377 N.W.2d 133 (N.D. 1985);
Erickson v. Scotsman, Inc., 456 N.W.2d 535 (N.D. 1990);
N.D. Cent. Code  48-02-15 (2002);
N.D. Cent. Code  48-02-17 (2002)
III. Did the district court err by violating the law of the case?
Yes. Judge Braaten's October 5, 2004, Judgment specifically held that the Molstad-Haycraft Contract only allowed Molstad to withhold funds but eventually Molstad had to pay Haycraft or its assigns.
Most apposite authorities:
In re Guardianship and Conservatorship of Onstad, 704 N.W.2d 554 (N.D. 2005).

Appellee's Statement of the Issues:
I. The Appropriate Standard Of Review On A Review Of Summary Judgment Is de novo.
II. Fargo Water Was An Intended Beneficiary To The Contract Between Molstad And Haycraft.
III. The District Court Correctly Determined Fargo Water Had A Claim Against Molstad Because Fargo Water Was Not Required To Exhaust Its Available Remedies Before Collecting On The Contract.
IV. Fargo Water Is Entitled To Collect Because It Had A Claim Consistent With The Law Of The Case.

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Docket entries:
112/23/2005 NOTICE OF APPEAL: 12/22/2005
201/31/2006 Appellant's Brief (corrected ATB filed 2-15-06)
301/31/2006 APPELLANT APPENDIX
402/06/2006 MOTION TO APPEAR WITHOUT ASSOCIATE COUNSEL (faxed)
502/06/2006 ACTION BY CHIEF JUSTICE (John Foster does not need to appear at OA). Granted
602/06/2006 Affidavit of Ryan R. Dreyer
702/06/2006 ACTION BY CLERK (appearance authorized). Granted
802/06/2006 RECORD ON APPEAL, w/exception of Clerk's Cert. Nos. 18 & 33 (Steno Notes), & 62 (Shorthand Notes)
902/15/2006 APPELLANT BRIEF (corrected) (pdf)
1002/15/2006 DISK - atb (corrected ATB) (e-mailed)
1102/16/2006 Corrected TOC for ATA & docket sheet of lower court for ATA
1203/06/2006 APPELLEE BRIEF (FGOH2O, Inc., d/b/a Fargo Water Equipment)
1303/07/2006 DISK - AEB
1404/17/2006 APPEARANCES: Ryan R. Dreyer; Thomas R. Olson
1504/17/2006 ARGUED: Dreyer; Olson
1604/17/2006 ORAL ARGUMENT WEBCAST
1708/24/2006 DISPOSITION: AFFIRMED
1808/24/2006 UNANIMOUS OPINION: VandeWalle, Gerald W.
1908/24/2006 Costs on appeal taxed in favor of Appellee
2008/28/2006 Order/Judgment Mailed to Parties
2109/15/2006 MANDATE
2209/20/2006 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

Generated from Supreme Court Docket on 11/21/2014