Cavendish Farms v. Mathiason Farms
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| 20090380 |
Cavendish Farms, Inc., Plaintiff, Appellant
and Cross-Appellee
v.
Mathiason Farms, Inc., Defendant, Appellee
and Cross-Appellant
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| Appeal from: |
District Court,
Southeast Judicial District,
Stutsman County
Judge John E. Greenwood |
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Nature of Action: |
Contracts
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| Counsel: |
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| Term: |
09/2010 Argument: 09/02/2010 02:45pm
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| ND cite: |
2010 ND 236
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| NW cite: |
792 N.W.2d 500
Listen to recording of oral argument
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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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| 1 | | 12/15/2009 | |
NOTICE OF APPEAL: 12/11/2009 |
| 2 | | 12/15/2009 | |
ORDER FOR TRANSCRIPT: 12/11/2009 |
| 3 | | 12/15/2009 | |
ANNOUNCED DISQUALIFICATION: Kapsner, Carol Ronning |
| 4 | | 12/18/2009 | |
Acknowledgment of OTR. |
| 5 | | 12/28/2009 | |
Substitution of Counsel |
| 6 | | 12/28/2009 | |
ANNOUNCED DISQUALIFICATION: Sandstrom, Dale V. |
| 7 | | 01/06/2010 | |
TRANSCRIPT DATED April 8, 2009 & C.O.S. |
| 8 | | 01/06/2010 | |
DISK - tra (4-8-09) |
| 9 | | 01/07/2010 | |
Record on Appeal (not rec'd entry no. 19) |
| 10 | | 01/25/2010 | |
STIPULATION FOR REMAND & CONTINUANCE OF BRIEFING SCHEDULE |
| 11 | | 01/25/2010 | |
E-FILED MOTION (Stip. for Remand & Continuance of Briefing Schedule) |
| 12 | | 01/28/2010 | |
ACTION BY CHIEF JUSTICE. Granted |
| 13 | | 01/28/2010 | |
ORDER OF TEMPORARY REMAND (returned record) |
| 14 | | 01/28/2010 | |
Stay of Briefing Schedule for 60 days after Temporary Remand |
| 15 | | 01/28/2010 | |
Stay of Briefing Schedule for 60 days after Temporary Remand. Granted: 03/29/2010 |
| 16 | | 02/01/2010 | |
RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE |
| 17 | | 03/25/2010 | |
MOT. EXT/TIME ATB, entitled "Stipulation for Remand and Continuance of Briefing Schedule" (e-filed) |
| 18 | | 03/25/2010 | |
E-FILED MOTION (Mot/Ext/Time/ATB) |
| 19 | | 03/25/2010 | |
ACTION BY CHIEF JUSTICE (Mot/Ext/ATB). Granted: 06/01/2010 |
| 20 | | 04/23/2010 | |
NOTICE OF CROSS APPEAL (filed 1/5/10 in trial court) |
| 21 | | 05/07/2010 | |
Affidavit of Good Standing of Michael J. Keaton |
| 22 | | 05/07/2010 | |
Stipulation to Consolidate this matter with 20100123 |
| 23 | | 05/13/2010 | |
ACTION BY CHIEF JUSTICE. Granted |
| 24 | | 05/13/2010 | |
This case is consolidated w/ 20100123 make all further entries in this case. |
| 25 | | 05/13/2010 | |
Electronic RECORD ON APPEAL filed after remand (entries 1 - 59) |
| 26 | | 05/18/2010 | |
NOTICE OF CROSS APPEAL of Valley View Farms in 20100123 |
| 27 | | 06/01/2010 | |
APPELLANT BRIEF (e-filed) PDF |
| 28 | | 06/01/2010 | |
E-FILED BRIEF (ATB) PDF |
| 29 | | 06/01/2010 | |
APPELLANT APPENDIX (e-filed) PDF |
| 30 | | 06/01/2010 | |
E-FILED APPENDIX (ATA) PDF |
| 31 | | 06/09/2010 | |
Receieved $25 e-filing surcharge for ATB & $7.50 for ATA (Receipt #19667). |
| 32 | | 06/10/2010 | |
RECEIVED 7 COPIES OF ATB FROM CENTRAL DUPLICATING. |
| 33 | | 06/10/2010 | |
RECEIVED 6 COPIES OF ATA FROM CENTRAL DUPLICATING. |
| 34 | | 06/10/2010 | |
RECEIVED $2 ADDITIONAL SURCHARGE FOR ATA (RECEIPT # 19670). |
| 35 | | 07/08/2010 | |
MOT. EXT/TIME APPELLEE BRIEF (sua sponte) |
| 36 | | 07/08/2010 | |
ACTION BY CLERK (MAE) sua sponte. Granted: 07/08/2010 |
| 37 | | 07/08/2010 | |
APPELLEE BRIEF |
| 38 | | 07/08/2010 | |
DISK-AEB (CD-ROM) |
| 39 | | 07/22/2010 | |
STIPULATION AND ORDER |
| 40 | | 07/22/2010 | |
ACTION BY CLERK (MRY). Granted: 08/06/2010 |
| 41 | | 07/28/2010 | |
NOTICE OF ORAL ARGUMENT SENT |
| 42 | | 08/06/2010 | |
REPLY BRIEF (e-filed) PDF |
| 43 | | 08/06/2010 | |
E-FILED BRIEF (RYB) PDF |
| 44 | | 08/06/2010 | |
REPLY BRIEF APPENDIX (E-FILED) PDF |
| 45 | | 08/06/2010 | |
E-FILED APPENDIX (RYB APPENDIX) PDF |
| 46 | | 08/11/2010 | |
Received 7 copies of RYB from Central Duplicating. |
| 47 | | 08/11/2010 | |
Received 6 copies of RYB Appendix from Central Duplicating. |
| 48 | | 08/16/2010 | |
SITTING WITH THE COURT: Foughty, Donovan John |
| 49 | | 08/16/2010 | |
SITTING WITH THE COURT: Hagar, Richard L. |
| 50 | | 08/19/2010 | |
REPLY BRIEF (Appellee / Cross-Appellant) hand-delivered |
| 51 | | 08/19/2010 | |
DISK - (AEB RYB) CD |
| 52 | | 09/02/2010 | |
APPEARANCES: Michael J. Keaton & Joseph F. Larson II; Michael S. Raum & Christopher E. Rausch |
| 53 | | 09/02/2010 | |
ARGUED: Keaton; Raum |
| 54 | | 09/02/2010 | |
ORAL ARGUMENT WEBCAST |
| 55 | | 12/14/2010 | |
DISPOSITION: AFFIRMED |
| 56 | | 12/14/2010 | |
UNANIMOUS OPINION: Crothers, Daniel John |
| 57 | | 12/14/2010 | |
Neither party have and recover costs and disbursements in this appeal. |
| 58 | | 12/15/2010 | |
Judgments Sent to Parties |
| 59 | | 12/28/2010 | |
PETITION FOR REHEARING (e-filed) |
| 60 | | 12/28/2010 | |
E-FILED BRIEF (PER) |
| 61 | | 01/05/2011 | |
Received 7 copies of PER from CSD |
| 62 | | 01/18/2011 | |
ACTION BY SUPREME COURT (PER). Denied |
| 63 | | 02/01/2011 | |
MANDATE |
| 64 | | 02/22/2011 | |
RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE |