Silbernagel v. Silbernagel

20060037 John M. Silbernagel and
Tom Silbernagel, Plaintiffs and Appellants
v.
Stephen Silbernagel a/k/a
Steve Silbernagel and Jane
Silbernagel a/k/a Jane V.
Silbernagel, Defendants and Appellees

Appeal from: District Court, South Central Judicial District, Logan County
Judge John E. Greenwood
Nature of Action: Contracts
Counsel:
Appellant: Donavin L. Grenz
Appellee: Joseph J. Cichy, P.C.
Term: 04/2007   Argument: 04/17/2007  9:30am
ND cite: 2007 ND 124
NW cite: 736 N.W.2d 441

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
1. Did the trial court commit reversible error by refusing to permit the introduction of parol evidence to clarify those portions of an oral agreement which were not recited into the court record, such as when the $150,000.00 was to be paid, and when and if interest was to accrue on the obligation to pay the $150,000.00?
2. Did the trial court commit reversible error by refusing to clarify and specify facts upon which it concluded that John M. Silbernagel and Tom Silbernagel had not performed their part of the settlement agreement to entitle them to recover damages from Steve and Jane Silbernagel, for their breach of the settlement agreement?

Appellee's Statement of the Issues:
I. Whether the trial court issued sufficient findings and whether its determination that interest payments were not part of the settlement agreement were proper.
II. Whether counsel for Appellants violated N.D.R.App.P. 30 by including materials in Appellants' appendix and brief that were not part of the record.

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Docket entries:
102/06/2006 NOTICE OF APPEAL: 02/03/2006
202/06/2006 ORDER FOR TRANSCRIPT: 02/03/2006
302/08/2006 MOTION to Withdraw as Counsel (William D. Schmidt)
402/08/2006 ACTION BY CLERK. Granted
502/08/2006 Order on Mot/Withdraw Mailed to Parties
602/14/2006 NOTICE OF APPEARANCE (Joseph J. Cichy represents Appellees)
703/01/2006 RECORD ON APPEAL not sent w/the record was No. 18 (Shorthand Notes)
803/02/2006 TRANSCRIPT DATED October 19, 2004
903/03/2006 DISK - TRA (10-19-04)
1004/04/2006 MOT. EXT/TIME/TRA/8-10-05 & AFF/SUPPORT
1104/04/2006 ACTION BY CLERK. Granted: 05/24/2006
1204/04/2006 Reset ATB due date to 14 days after the filing of the TRA dated 8-10-05
1304/04/2006 ACTION BY CLERK (ATB due 14 days after the filing of the 8-10-05 transcript). Granted: 06/02/2006
1405/19/2006 TRANSCRIPT DATED 8-10-05
1505/22/2006 DISK - tra (8-10-05)
1606/02/2006 Appellant's Brief (ATB Replaced on 1-8-07)
1706/02/2006 Appellant's Appendix (ATA replaced on 1-13-07)
1806/06/2006 DISK of ATB - e-mailed (replaced by disk of ATB filed 1-16-07)
1906/07/2006 Table of authorities and corrected page for Appellant's Brief
2006/28/2006 MOTION TO STRIKE PORTIONS OF APPELLANT'S APPENDIX AND BRIEF; FOR SANCTIONS; AND FOR AN. RspDue: 07/10/2006
2106/28/2006 EXTENSION OF TIME
2206/28/2006 MOT. EXT/TIME APPELLEE BRIEF
2306/28/2006 E-FILED MOTION - MAE
2406/28/2006 ACTION BY CLERK (time for filing Appellee's Brief stayed until further order). Granted
2507/05/2006 Response to Motion to Strike Filed
2607/12/2006 Action Granted in part (Motion to Strike Portions of Appellants' Appendix)
2707/12/2006 RETURN OF ROA TO DIST. CT.: 07/31/2006
2807/12/2006 Order Mailed to Parties
2909/13/2006 RECORD ON APPEAL (Logan Co.05-C-106 w/Separate-Entry No. 75;Not Rec'd-Shorthand Notes,Entry No.18);
3009/13/2006 Record (Logan Co. 02-P-105 w/Separate-Entry no. 52, Not Rec'd-Subpoena, Entry No.31
3109/13/2006 Record (Logan Co. 03-P-107, Not Rec'd-Entry Nos. 198-210), Record (Logan Co. No. 03-C-101)
3209/20/2006 Copy of Motion for Clarification of Order under N.D.R.App.P. 10(h)
3311/14/2006 Clerk's Supplemental Certificate dated 11/13/2006 (Entry Nos. 198-210 & 214-216)
3412/19/2006 Copy of trial court Order of Clarification regarding record.
3512/19/2006 ACTION BY SUPREME COURT (MOT/Strike; AT must file corrected Brief). Granted
3612/21/2006 MOT. EXT/TIME APPELLANT CORRECTED BRIEF
3712/21/2006 E-FILED MOTION (extension to file corrected ATB)
3812/21/2006 ACTION BY ACTING CHIEF JUSTICE (MAT for corrected ATB). Granted: 01/06/2007
3901/08/2007 APPELLANT BRIEF (Corrected)(replaces ATB filed 6-2-06)
4001/08/2007 Supplemental Clerk's Certificate dated 1-5-07 (Entry Nos. 79-86)
4101/13/2007 Corrected Appellant's Appendix (replaced ATA filed 6-2-06)
4201/16/2007 Corrected pages 1,2,3,4,6,7,10,12,13,&14 for ATB
4301/16/2007 DISK - Corrected ATB (replaced by disk of ATB filed 1/30/07)
4401/18/2007 Faxed Ltr. from Mr. Cichy dated 1-18-07, regarding AT Appendix documents
4501/22/2007 Clerk's Supplemental Certificate (Logan Co. 03-P-107) dated 1/19/07 (Entry Nos. 217-226)
4601/26/2007 Corrected Table of Contents & pages 11-17 of ATB. Corrected page ii of ATA.
4701/30/2007 Corrected Table of Authorities and Affidavit of Service
4801/30/2007 DISK - Corrected ATB (e-mailed)
4902/07/2007 Reset due date of Appellee's Brief due to corrections to pages 11-17 of ATB
5002/07/2007 ACTION BY CLERK (reset due date for AEB). Granted: 02/26/2007
5102/22/2007 APPELLEE BRIEF
5202/22/2007 APPELLEE APPENDIX
5302/23/2007 DISK - aeb (e-mailed)
5404/17/2007 APPEARANCES: Donavin L. Grenz; Joseph J. Cichy
5504/17/2007 ARGUED: Grenz; Cichy
5604/17/2007 ORAL ARGUMENT WEBCAST
5707/25/2007 DISPOSITION: AFFIRMED
5807/25/2007 UNANIMOUS OPINION: Sandstrom, Dale V.
5907/25/2007 Double costs are assessed against John M. and Tom Silbernagel, and attorney fees in the amount of
6007/25/2007 $300 are assessed against their attorney Donavin L. Grenz, as sanctions under N.D.R.App.P. 13
6107/25/2007 violation of N.D.R.App.P. 30.
6207/26/2007 Judgment e-mailed to Parties
6308/20/2007 MANDATE
6408/22/2007 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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