Langer v. Bartholomay

20070056 Henry J. Langer, Mary Ann
Weiss, Plaintiffs, Appellants
and Cross-Appellees
and
Josephine I. Pender, Plaintiff
v.
Lyle Bartholomay and Kelly A.
Thompson, d/b/a B&T Farms, Defendants, Appellees
and Cross-Appellants

Appeal from: District Court, East Central Judicial District, Cass County
Judge Georgia Dawson
Nature of Action: Contracts
Counsel:
Appellant: Nilles, Plambeck, Selbo & Harrie, Ltd.
Appellee: Garaas Law Firm
Term: 10/2007   Argument: 10/22/2007  10:00am
ND cite: 2008 ND 40
NW cite: 745 N.W.2d 649

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Issues: Appellant's Statement of the Issues:
I. The District Court erred in concluding that time was of the essence in a written contract between the parties when the written contract did not expressly provide the same and there was no evidence to support such a conclusion.
II. The District Court erred in awarding damages in the amount of $37,081.82 to Defendants when the amount of damages, if any, were so uncertain as to preclude recovery and the measure of damages was unsupported by any evidence.
III. The District Court erred in finding Defendants did not breach the rental agreement and in failing to award Plaintiffs damages for breach of contract.

Appellee's Statement of the Issues:
1.Did the Trial Court err when it reduced the damages by three-fourths?
2.Should the Judgment be also entered against the successor Trustee?
3.Should the appeal of Henry J. Langer and Mary Ann Weiss be dismissed with costs and disbursements, including reasonable attorney fees, be awarded in favor of Lyle Bartholomay and Kelly A. Thompson, d/b/a BT Farms?

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Docket entries:
102/22/2007 NOTICE OF APPEAL: 02/20/2007
202/22/2007 ORDER FOR TRANSCRIPT: 02/20/2007
302/22/2007 ANNOUNCED DISQUALIFICATION: Crothers, Daniel John
403/05/2007 NOTICE OF CROSS APPEAL (filed in trial court on 3-2-07)
503/15/2007 RETENTION OF RECORD ON APPEAL: 04/11/2007
604/04/2007 MOT. EXT/TIME TRANSCRIPT
704/04/2007 ACTION BY TRIAL COURT (MTR). Granted: 05/11/2007
804/17/2007 TRANSCRIPTS DATED JULY 18 & JULY 19, 2006.
904/19/2007 RECORD ON APPEAL & separates 34 (deposition of Lyle Bartholomay), 35 (deposition of Kelly Thompson)
1004/19/2007 and 76 (letter from Jonathan Garaas w/attachments). Not rec'd: #20, 31, 32, 33, 51, and 97 (Tapes)
1104/20/2007 DISK-tra(July 18, 2006 & July 19, 2006) electronic
1204/20/2007 Clerk's Certificate of Service of Transcripts (7/18/06 & 7/19/06)
1305/29/2007 APPELLANT BRIEF (e-filed)
1405/29/2007 E-FILED BRIEF (ATB)
1505/29/2007 APPELLANT APPENDIX (e-filed)
1605/29/2007 E-FILED APPENDIX (ATA)
1705/30/3007 Received $100.00 surcharge for ATB & ATA (Receipt #17399)
1806/01/2007 Received 7 copies of ATB from Central Duplicating
1906/01/2007 Received 6 copies of ATA from Central Duplicating
2006/01/2007 Received additional $3.50 efiling surcharge for ATB & ATA; receipt no. 17561
2107/02/2007 APPELLEE BRIEF
2207/02/2007 APPELLEE APPENDIX
2307/03/2007 Affidavit of Mailing of AEB & AEA dated 7-2-07
2407/03/2007 DISK - aeb
2507/18/2007 REPLY BRIEF (e-filed)
2607/18/2007 E-FILED BRIEF (RYB)
2707/24/2007 Seven copies of RYB received from Central Duplicating
2807/30/2007 RULE 43 MOTION FOR SUBSTITUTION OF PARTY (E-FILED)
2907/30/2007 E-FILED MOTION (RULE 43 SUBSTITUTION OF PARTY)
3008/02/2007 Letters Testamentary in the Estate of Josephine I. Pender, deceased
3108/02/2007 ACTION BY CHIEF JUSTICE (Rule 43 substitution of party). Granted
3208/06/2007 No opposition to Rule 43 Motion to Substitute Party from Jonathan Garaas
3308/08/2007 ANNOUNCED DISQUALIFICATION: Kapsner, Carol Ronning
3408/08/2007 MOTION TO RECONSIDER & BRIEF IN SUPPORT
3508/15/2007 ACTION BY SUPREME COURT (Mot/Reconsideration; previous action on Rule 43 substitution vacated and. Granted
3608/15/2007 this matter is remanded to the trial court
3709/20/2007 SITTING WITH THE COURT: Leclerc, Lawrence A.
3809/20/2007 SITTING WITH THE COURT: Olson, Everett Nels
3910/05/2007 CLERK'S SUPPLEMENTAL CERTIFICATE OF APPEAL dated October 4, 2007(Entries 123 thru 125)
4010/11/2007 CLERK'S SUPPLEMENTAL CERTIFICATE OF APPEAL dated October 10, 2007 (Entries 115 thru 122)
4110/22/2007 APPEARANCES: Joel M. Fremstad; Jonathan T. Garaas
4210/22/2007 ARGUED: Fremstad; Garaas
4310/22/2007 ORAL ARGUMENT WEBCAST
4402/29/2008 DISPOSITION: AFFIRMED
4502/29/2008 UNANIMOUS OPINION: VandeWalle, Gerald W.
4602/29/2008 At the direction of the Court, no costs are taxed on this appeal
4703/14/2008 PETITION FOR REHEARING
4803/14/2008 E-FILED BRIEF (Pet/Rehearing)
4903/14/2008 Affidavit of Mailing of Pet/Rehearing
5003/17/2008 Made 7 copies of Pet/Rehearing
5104/14/2008 ACTION BY SUPREME COURT (PER). Denied
5204/24/2008 MANDATE
5304/28/2008 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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