Citizens State Bank v. Symington

20090216 Citizens State Bank - Midwest, Plaintiff and Appellee
v.
Myron Symington, Defendant and Appellant
and
Rodney Lee Symington and
Michael Corey Symington,
as Trustees of the Myron
Symington Irrevocable Trust, Defendants

Appeal from: District Court, Northeast Judicial District, Pembina County
Judge Laurie A. Fontaine
Nature of Action: Contracts
Counsel:
Appellant: Lawrence A. Dopson
Appellee: Tracy Ann Kennedy
Appellee: Bradley Wayne Parrish
Term: 12/2009   Argument: 12/03/2009  10:45am
ND cite: 2010 ND 56
NW cite: 780 N.W.2d 676

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
1. Did the trial court err in applying the parol evidence rule to preclude consideration of any extrinsic evidence?
2. Does the absence of consideration bar recovery under the guaranty of the $165,040 note?
3. Is the Bank entitled to charge a late fee on the entire balance owed on the $75,040 line of credit?

Appellee's Statement of the Issues:
1. The trial court erred in certifying this case for appellate review under Rule 54(b) of the North Dakota Rules of Civil Procedure.
2. The trial court properly refused to consider extrinsic evidence in interpreting the Guaranty because the Guaranty is clear and unambiguous.
3. The affirmative defenses put forth by Myron Symington are not properly before this Court because he failed to raise those defenses in his Answer and the trial court did not grant him leave to amend his Answer to plead those defenses.
4. The trial court properly granted summary judgment in favor of CSB because Myron Symington failed to raise a genuine issue of material fact as to the affirmative defenses he attempted to interpose.
a. Myron Symington freely and voluntarily executed the Guaranty.
b. The Guaranty was supported by adequate consideration.
5. The trial court properly held Citizens State Bank - Midwest is entitled to recover late fees.

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Docket entries:
107/22/2009 NOTICE OF APPEAL: 07/20/2009
208/19/2009 RECORD ON APPEAL
308/25/2009 MOT. EXT/TIME APPELLANT BRIEF (e-filed)
408/25/2009 E-FILED MOTION (MAT)
508/25/2009 ACTION BY CHIEF DEPUTY CLERK (MAT). Granted: 09/04/2009
609/03/2009 MOT. EXT/TIME APPELLANT BRIEF - letter form (e-filed)
709/03/2009 E-FILED MOTION (MAT)
809/03/2009 ACTION BY CLERK (MAT). Granted: 09/11/2009
909/08/2009 Supplemental Clerk's Certificate dated September 3, 2009 (Entry Nos. 72-77)
1009/11/2009 APPELLANT BRIEF
1109/11/2009 APPELLANT APPENDIX
1209/21/2009 DISK - ATB
1309/21/2009 Corrected cover pages for ATB & ATA and corrected electronic copy of ATB.
1410/05/2009 MOT. EXT/TIME APPELLEE BRIEF (e-filed)
1510/05/2009 E-FILED MOTION (MAE)
1610/06/2009 ACTION BY CLERK (MAE). Granted: 10/28/2009
1710/28/2009 APPELLEE BRIEF (e-filed)
1810/28/2009 E-FILED BRIEF (AEB)
1910/28/2009 APPELLEE APPENDIX (e-filed)
2010/28/2009 E-FILED APPENDIX (AEA)
2110/29/2009 Received $25.00 surcharge for AEB (Receipt No. 19208)
2211/05/2009 Received copies of AEB from Central Duplicating
2311/05/2009 Received copies of AEA from CSD
2411/16/2009 NOTICE OF ORAL ARGUMENT SENT
2511/16/2009 REPLY BRIEF
2611/16/2009 DISK - RYB (e-mailed)
2712/03/2009 APPEARANCES: Lawrence A. Dopson/Tracy A. Kennedy & Bradley W. Parrish
2812/03/2009 ARGUED: Dopson/Kennedy
2912/03/2009 ORAL ARGUMENT WEBCAST
3004/06/2010 DISPOSITION: REVERSED AND REMANDED
3104/06/2010 SPLIT OPINION: Kapsner, Carol Ronning
3204/06/2010 (CONCURRING SPECIALLY): Crothers, Daniel John: CONCUR
3304/06/2010 (JOINED CONCURRING SPECIALLY): Maring, Mary Muehlen: JN/CON
3404/06/2010 (DISSENTING): Sandstrom, Dale V.: DISSENT
3504/06/2010 Costs on appeal taxed in favor of appellant
3604/07/2010 Judgment Sent to Parties
3705/13/2010 MANDATE
3805/18/2010 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
3905/24/2010 Corrected Opinion Pages (Citation change at Para Nos. 8, 9, 10, 11, 13 & 15).

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