Cavendish Farms v. Mathiason Farms

20090380 Cavendish Farms, Inc., Plaintiff, Appellant
and Cross-Appellee
v.
Mathiason Farms, Inc., Defendant, Appellee
and Cross-Appellant

Appeal from: District Court, Southeast Judicial District, Stutsman County
Judge John E. Greenwood
Nature of Action: Contracts
Counsel:
Appellant: Lawyer not licensed in N.D.
Appellee: Michael Stuart Raum
Appellee: Christopher Eric Rausch
Appellant: Joseph F. Larson II
Term: 09/2010   Argument: 09/02/2010  2:45pm
ND cite: 2010 ND 236
NW cite: 792 N.W.2d 500

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Issues: Appellant's Statement of the Issues:
I.Is it error to resurrect and revive a dismissed claim after trial without notice to the parties and opportunity to be heard?
II.Is it error to award damages for an independent claim for breach of covenant of "good faith and fair dealing" when North Dakota does not recognize that cause of action in relation to contracts other than insurance contracts?
III.Is it error to "second guess" the parties' expression of intent in a written contract and deem rejection "late" when it took place prior to the agreed contract deadline?
IV.Is it error to ignore the evidence on the condition of the potatoes in storage and ignore the failure to produce the best evidence available and award damages based on pure speculation?
V.Did the trial court abuse its discretion in not finding Cavendish the prevailing party when it was successful on its main claim and defeated all counterclaims related to the parties' 2005 potato contract?

Appellee's Statement of the Issues:
I.The trial court did not err when it entered judgment for the Growers on the issue of breach of the covenant of good faith and fair dealing. A.At summary judgment, the trial court dismissed the good faith argument only as it pertained to good faith based in tort, but the covenant of good faith and fair dealing is inherent in contractual relationships, and breach of contract was clearly pleaded and trial. B.In the alternative, the issue of breach of contract based on the duty of good faith and fair dealing in contract was tried by implication. C.The trial court's finding that Cavendish breached the covenant of good faith and fair dealing was not clearly erroneous.
II.The trial court did not err in its award of damages to the Growers, as the court in its discretion gave weight to the evidence presented by both parties on damages and was presented with no evidence to the contrary by Cavendish.
III.The trial court did not err when it found there was no prevailing party for the purpose of awarding costs and attorneys fees based on the state of the proceedings at the time of the court's determination.
IV.The trial court erred when it found the Growers breached the 2005 contract with Cavendish.
A.The Growers' performance was excused due to the contract's requirement that Cavendish accept less than the full contracted amount of potatoes when the Growers exhausted reasonable remedies in improving the condition of potatoes and when Cavendish did in fact accept one truckload of potatoes. B.The Growers could not have breached the contract, as Cavendish did not actually call for delivery for the potatoes. V.The trial court erred when it found Cavendish was entitled to recover its advance payments.
VI.If this Court reverses the trial court's decision as it pertains to sections IV and V of this brief, the Growers are the prevailing party in the underlying litigation.

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Docket entries:
112/15/2009 NOTICE OF APPEAL: 12/11/2009
212/15/2009 ORDER FOR TRANSCRIPT: 12/11/2009
312/15/2009 ANNOUNCED DISQUALIFICATION: Kapsner, Carol Ronning
412/18/2009 Acknowledgment of OTR.
512/28/2009 Substitution of Counsel
612/28/2009 ANNOUNCED DISQUALIFICATION: Sandstrom, Dale V.
701/06/2010 TRANSCRIPT DATED April 8, 2009 & C.O.S.
801/06/2010 DISK - tra (4-8-09)
901/07/2010 Record on Appeal (not rec'd entry no. 19)
1001/25/2010 STIPULATION FOR REMAND & CONTINUANCE OF BRIEFING SCHEDULE
1101/25/2010 E-FILED MOTION (Stip. for Remand & Continuance of Briefing Schedule)
1201/28/2010 ACTION BY CHIEF JUSTICE. Granted
1301/28/2010 ORDER OF TEMPORARY REMAND (returned record)
1401/28/2010 Stay of Briefing Schedule for 60 days after Temporary Remand
1501/28/2010 Stay of Briefing Schedule for 60 days after Temporary Remand. Granted: 03/29/2010
1602/01/2010 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
1703/25/2010 MOT. EXT/TIME ATB, entitled "Stipulation for Remand and Continuance of Briefing Schedule" (e-filed)
1803/25/2010 E-FILED MOTION (Mot/Ext/Time/ATB)
1903/25/2010 ACTION BY CHIEF JUSTICE (Mot/Ext/ATB). Granted: 06/01/2010
2004/23/2010 NOTICE OF CROSS APPEAL (filed 1/5/10 in trial court)
2105/07/2010 Affidavit of Good Standing of Michael J. Keaton
2205/07/2010 Stipulation to Consolidate this matter with 20100123
2305/13/2010 ACTION BY CHIEF JUSTICE. Granted
2405/13/2010 This case is consolidated w/ 20100123 make all further entries in this case.
2505/13/2010 Electronic RECORD ON APPEAL filed after remand (entries 1 - 59)
2605/18/2010 NOTICE OF CROSS APPEAL of Valley View Farms in 20100123
2706/01/2010 APPELLANT BRIEF (e-filed) PDF
2806/01/2010 E-FILED BRIEF (ATB) PDF
2906/01/2010 APPELLANT APPENDIX (e-filed) PDF
3006/01/2010 E-FILED APPENDIX (ATA) PDF
3106/09/2010 Receieved $25 e-filing surcharge for ATB & $7.50 for ATA (Receipt #19667).
3206/10/2010 RECEIVED 7 COPIES OF ATB FROM CENTRAL DUPLICATING.
3306/10/2010 RECEIVED 6 COPIES OF ATA FROM CENTRAL DUPLICATING.
3406/10/2010 RECEIVED $2 ADDITIONAL SURCHARGE FOR ATA (RECEIPT # 19670).
3507/08/2010 MOT. EXT/TIME APPELLEE BRIEF (sua sponte)
3607/08/2010 ACTION BY CLERK (MAE) sua sponte. Granted: 07/08/2010
3707/08/2010 APPELLEE BRIEF
3807/08/2010 DISK-AEB (CD-ROM)
3907/22/2010 STIPULATION AND ORDER
4007/22/2010 ACTION BY CLERK (MRY). Granted: 08/06/2010
4107/28/2010 NOTICE OF ORAL ARGUMENT SENT
4208/06/2010 REPLY BRIEF (e-filed) PDF
4308/06/2010 E-FILED BRIEF (RYB) PDF
4408/06/2010 REPLY BRIEF APPENDIX (E-FILED) PDF
4508/06/2010 E-FILED APPENDIX (RYB APPENDIX) PDF
4608/11/2010 Received 7 copies of RYB from Central Duplicating.
4708/11/2010 Received 6 copies of RYB Appendix from Central Duplicating.
4808/16/2010 SITTING WITH THE COURT: Foughty, Donovan John
4908/16/2010 SITTING WITH THE COURT: Hagar, Richard L.
5008/19/2010 REPLY BRIEF (Appellee / Cross-Appellant) hand-delivered
5108/19/2010 DISK - (AEB RYB) CD
5209/02/2010 APPEARANCES: Michael J. Keaton & Joseph F. Larson II; Michael S. Raum & Christopher E. Rausch
5309/02/2010 ARGUED: Keaton; Raum
5409/02/2010 ORAL ARGUMENT WEBCAST
5512/14/2010 DISPOSITION: AFFIRMED
5612/14/2010 UNANIMOUS OPINION: Crothers, Daniel John
5712/14/2010 Neither party have and recover costs and disbursements in this appeal.
5812/15/2010 Judgments Sent to Parties
5912/28/2010 PETITION FOR REHEARING (e-filed)
6012/28/2010 E-FILED BRIEF (PER)
6101/05/2011 Received 7 copies of PER from CSD
6201/18/2011 ACTION BY SUPREME COURT (PER). Denied
6302/01/2011 MANDATE
6402/22/2011 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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