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
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| Counsel: |
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| Term: |
10/2007 Argument: 10/22/2007 10:00am
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| ND cite: |
2008 ND 40
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| NW cite: |
745 N.W.2d 649
Listen to recording of oral argument
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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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| 1 | | 02/22/2007 | |
NOTICE OF APPEAL: 02/20/2007 |
| 2 | | 02/22/2007 | |
ORDER FOR TRANSCRIPT: 02/20/2007 |
| 3 | | 02/22/2007 | |
ANNOUNCED DISQUALIFICATION: Crothers, Daniel John |
| 4 | | 03/05/2007 | |
NOTICE OF CROSS APPEAL (filed in trial court on 3-2-07) |
| 5 | | 03/15/2007 | |
RETENTION OF RECORD ON APPEAL: 04/11/2007 |
| 6 | | 04/04/2007 | |
MOT. EXT/TIME TRANSCRIPT |
| 7 | | 04/04/2007 | |
ACTION BY TRIAL COURT (MTR). Granted: 05/11/2007 |
| 8 | | 04/17/2007 | |
TRANSCRIPTS DATED JULY 18 & JULY 19, 2006. |
| 9 | | 04/19/2007 | |
RECORD ON APPEAL & separates 34 (deposition of Lyle Bartholomay), 35 (deposition of Kelly Thompson) |
| 10 | | 04/19/2007 | |
and 76 (letter from Jonathan Garaas w/attachments). Not rec'd: #20, 31, 32, 33, 51, and 97 (Tapes) |
| 11 | | 04/20/2007 | |
DISK-tra(July 18, 2006 & July 19, 2006) electronic |
| 12 | | 04/20/2007 | |
Clerk's Certificate of Service of Transcripts (7/18/06 & 7/19/06) |
| 13 | | 05/29/2007 | |
APPELLANT BRIEF (e-filed) |
| 14 | | 05/29/2007 | |
E-FILED BRIEF (ATB) |
| 15 | | 05/29/2007 | |
APPELLANT APPENDIX (e-filed) |
| 16 | | 05/29/2007 | |
E-FILED APPENDIX (ATA) |
| 17 | | 05/30/3007 | |
Received $100.00 surcharge for ATB & ATA (Receipt #17399) |
| 18 | | 06/01/2007 | |
Received 7 copies of ATB from Central Duplicating |
| 19 | | 06/01/2007 | |
Received 6 copies of ATA from Central Duplicating |
| 20 | | 06/01/2007 | |
Received additional $3.50 efiling surcharge for ATB & ATA; receipt no. 17561 |
| 21 | | 07/02/2007 | |
APPELLEE BRIEF |
| 22 | | 07/02/2007 | |
APPELLEE APPENDIX |
| 23 | | 07/03/2007 | |
Affidavit of Mailing of AEB & AEA dated 7-2-07 |
| 24 | | 07/03/2007 | |
DISK - aeb |
| 25 | | 07/18/2007 | |
REPLY BRIEF (e-filed) |
| 26 | | 07/18/2007 | |
E-FILED BRIEF (RYB) |
| 27 | | 07/24/2007 | |
Seven copies of RYB received from Central Duplicating |
| 28 | | 07/30/2007 | |
RULE 43 MOTION FOR SUBSTITUTION OF PARTY (E-FILED) |
| 29 | | 07/30/2007 | |
E-FILED MOTION (RULE 43 SUBSTITUTION OF PARTY) |
| 30 | | 08/02/2007 | |
Letters Testamentary in the Estate of Josephine I. Pender, deceased |
| 31 | | 08/02/2007 | |
ACTION BY CHIEF JUSTICE (Rule 43 substitution of party). Granted |
| 32 | | 08/06/2007 | |
No opposition to Rule 43 Motion to Substitute Party from Jonathan Garaas |
| 33 | | 08/08/2007 | |
ANNOUNCED DISQUALIFICATION: Kapsner, Carol Ronning |
| 34 | | 08/08/2007 | |
MOTION TO RECONSIDER & BRIEF IN SUPPORT |
| 35 | | 08/15/2007 | |
ACTION BY SUPREME COURT (Mot/Reconsideration; previous action on Rule 43 substitution vacated and. Granted |
| 36 | | 08/15/2007 | |
this matter is remanded to the trial court |
| 37 | | 09/20/2007 | |
SITTING WITH THE COURT: Leclerc, Lawrence A. |
| 38 | | 09/20/2007 | |
SITTING WITH THE COURT: Olson, Everett Nels |
| 39 | | 10/05/2007 | |
CLERK'S SUPPLEMENTAL CERTIFICATE OF APPEAL dated October 4, 2007(Entries 123 thru 125) |
| 40 | | 10/11/2007 | |
CLERK'S SUPPLEMENTAL CERTIFICATE OF APPEAL dated October 10, 2007 (Entries 115 thru 122) |
| 41 | | 10/22/2007 | |
APPEARANCES: Joel M. Fremstad; Jonathan T. Garaas |
| 42 | | 10/22/2007 | |
ARGUED: Fremstad; Garaas |
| 43 | | 10/22/2007 | |
ORAL ARGUMENT WEBCAST |
| 44 | | 02/29/2008 | |
DISPOSITION: AFFIRMED |
| 45 | | 02/29/2008 | |
UNANIMOUS OPINION: VandeWalle, Gerald W. |
| 46 | | 02/29/2008 | |
At the direction of the Court, no costs are taxed on this appeal |
| 47 | | 03/14/2008 | |
PETITION FOR REHEARING |
| 48 | | 03/14/2008 | |
E-FILED BRIEF (Pet/Rehearing) |
| 49 | | 03/14/2008 | |
Affidavit of Mailing of Pet/Rehearing |
| 50 | | 03/17/2008 | |
Made 7 copies of Pet/Rehearing |
| 51 | | 04/14/2008 | |
ACTION BY SUPREME COURT (PER). Denied |
| 52 | | 04/24/2008 | |
MANDATE |
| 53 | | 04/28/2008 | |
RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE |