Sanders v. Gravel Products, Inc.

20080001 Terry Sanders, Plaintiff and Appellant
v.
Gravel Products, Inc., Defendant and Appellee

Appeal from: District Court, Northwest Judicial District, Ward County
Judge David W. Nelson
Nature of Action: Contracts
Counsel:
Appellant: Larson Law Firm, P.C.
Appellee: Zuger Kirmis & Smith
Term: 06/2008   Argument: 06/17/2008  10:45am
ND cite: 2008 ND 161
NW cite: 755 N.W.2d 826

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
1.Did the District Court err in granting a partial summary judgment by which Plaintiff's ERISA claims were dismissed with prejudice?
2.Did the District Court err in its holding that time was not of the essence with regard to Gravel Products' exercise of the option to assign an insurance policy to Sanders within 30 days of his termination on October 30, 2003?
3.Did the District Court err in its determination that even if time was of the essence, Gravel Products' delayed performance under the contract was caused by Sanders and therefore Sanders is estopped from asserting a breach of contract?

Appellee's Statement of the Issues:
1. Was the district court's factual finding that Gravel Products did not breach its contract with Sanders clearly erroneous?
2. Did the district court appropriately grant summary judgment dismissing the plaintiff's ERISA claim in a state court action where the plaintiff was asserting a breach of contract claim?

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Docket entries:
101/02/2008 NOTICE OF APPEAL: 12/28/2007
201/07/2008 ORDER FOR TRANSCRIPT (confirmed w/ trial court clerk's office): 01/07/2008
301/30/2008 RECORD ON APPEAL (3 vols.), Exhibits, Depositions (2), & Transcript (1)
402/06/2008 Amended Notice of Appeal (filed in trial court 2-5-08)
502/06/2008 Supplemental Clerk's Certificate dated 2-5-08 (Entry Nos. 180-12)
602/13/2008 TRANSCRIPT DATED MAY 2, 2007
702/13/2008 DISK-TRA (ELECTRONIC)
802/14/2008 CERTIFICATE OF SERVICE OF COPIES OF TRANSCRIPTS
903/20/2008 MOT. EXT/TIME APPELLANT BRIEF (faxed letter from Mark V. Larson)
1003/20/2008 E-FILED MOTION (MAT) (FAXED)
1103/20/2008 ACTION BY CLERK (MAT). Granted: 03/31/2008
1203/31/2008 APPELLANT BRIEF
1303/31/2008 APPELLANT APPENDIX
1404/04/2008 Copies of Covers for ATB and ATA received
1504/07/2008 DISK - ATB e-mailed
1604/30/2008 APPELLEE BRIEF
1705/01/2008 Affidavit of Mailing of AEB
1805/01/2008 DISK - aeb (CD-ROM)
1905/13/2008 REPLY BRIEF
2005/15/2008 Original and 6 copies of corrected page 2 of Appellant's Reply Brief
2105/15/2008 DISK - RYB
2205/19/2008 Additional copy of corrected page 2 of the Appellant's Reply Brief and Affidavit of Service
2306/03/2008 Supplemental Clerk's Certificate dated 5-30-08 (Entry Nos. 183-186, includes Trans. dated 11-14-06)
2406/10/2008 ANNOUNCED DISQUALIFICATION: Kapsner, Carol Ronning
2506/11/2008 SITTING WITH THE COURT: Graff, Benny A.
2606/17/2008 APPEARANCES: Mark V. Larson; Lawrence E. King
2706/17/2008 ARGUED: Larson; King
2806/17/2008 ORAL ARGUMENT WEBCAST
2909/02/2008 DISPOSITION (AND REMANDED): AFFIRMED/PT, REVERSED/PT
3009/02/2008 UNANIMOUS OPINION: Maring, Mary Muehlen
3109/02/2008 Costs on appeal taxed in favor of appellant
3209/02/2008 Judgment e-mailed to Parties
3309/24/2008 MANDATE
3409/26/2008 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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