Smestad v. Harris
Linda A. Smestad, Plaintiff and Appellee
Bruce G. Harris, Defendant and Appellant
South Central Judicial District,
Judge Robert O. Wefald
|Nature of Action:||Debtor/Creditor|
|Term:||02/2011  Argument: 02/28/2011 11:00am|
|ND cite:||2011 ND 91|
796 N.W.2d 662
Listen to recording of oral argument in MP3 format
Appellant's Statement of the Issues:|
I.Did the trial court error in considering the following Findings of Fact, Conclusions of Law, and Order?
A.Allowing Plaintiff's claims under the doctrine of condition precedence while disallowing Defendant's claim for compensation presenting similar evidence from similar sources considered credible for one party and not credible for the other party?
B.Ordering repayment of checks made out to three parties, Cash, OR Linda Smestad, OR to a corporation not a party to these proceedings, in which none of the three parties in question are parties named in the action?
C.When deciding on the credibility of the Plaintiff, based upon conflicting testimony given by Plaintiff, which clearly contradicts previous testimony given, statements made, and discovery provided by Plaintiff?
D.When reviewing and considering the Checks/Savings accounts transactions by Plaintiff relating to Oasis Water Systems, Inc. after the Court clearly stated that items related to the corporation were disallowed and then the Court later permitted them as valid debts in the Order?
E.In the conclusion that use of a debit card for transactions and to obtain draw payments for an officer and director of the corporation is "comingling of funds" and somehow violates North Dakota law or Corporate Law?
F.When the District Court Judge permitted testimony to continue after Defendant's objections to the same, relating to a corporation who was not a party to this action?
G.In determining that the Defendant was unjustly enriched while simultaneously ruling that funds provided by Plaintiff were loans, when the evidence and testimony do not support both conclusions and it was not demonstrated Defendant received compensation for work done for Plaintiff's family estates as acknowledged by both parties?
H.Ruling that oral contracts for compensation mutually agreed upon by both parties and their witnesses that the party receiving substantial estate appreciation is permitted to avoid the contracts after receiving consideration from the performing party, that the Court determined "mutual sharing of burdens without any concern for compensation" contradicts the formation of a contract, and the affirming testimony given?
I.Was adequate consideration and review of the case after the trial in that a.) The Memorandum was ruled on quickly after the trial was held on April 20, 2010 b.) After taking two days off work after the Judge rendered the Memorandum on April 22, 2010 c.) Defendants case is misstated, and in the Defendant's Counterclaim for Defamation, Liable, Slander were seriously neglected after multitudes of evidence and testimony were presented, d.) The Judge did not address the portion of Defendants claim relating to all family estates improved by the Defendant (no mention of two large projects for which witnesses appeared and affirmed work done), the Judge erroneously stated Plaintiff paid for all utilities e.) Judge erroneously stated funds provided for labor and materials for Plaintiff's estates improvements were for "the benefit of Harris" f.) Judge falsely claimed Defendant's corporation was dissolved "after the commencement of this action", g.) "Harris failed to prove measureable damages", h.) Judge Ordered return of "unspecified personal property items" which were clearly specified in Defendant's Exhibits D-113 and D-114, and finally, i.) Judge wrongfully stated that that Defendant "found himself a trusting companion with access to substantial ready funds" is completely untrue as evidenced by the Judges' own examination of the Plaintiff (transcript page 502 line 8 through 503 line 2) which revealed she did not have substantial money (until January or February2008) when they met (May, 2007) but rather, she came into some money long after that (8-9 months later).
II.Has the Plaintiff's counsel, who is both a judge and an attorney, demonstrated disregard for North Dakota Rules of a.) Civil Procedure, b.)Evidence, c.) Discovery and d.) Professional Conduct that the District Court relied on for the decision in this case as outlined below?
A.Did counsel improperly present Plaintiff's Exhibit 8 at trial without providing supportive evidence for the spreadsheet document offered, and denied Defendant and counsel of copies of the same at trial, and in post trial requests?
B.Did Plaintiff's attorney fail to provide supporting evidence, documentation, and foundation as to why the dates in Exhibit 8 do not match the time frames outlined in testimony about renovation periods when Plaintiff's estates were improved, and in the relevant time frames testified to by Plaintiff for work done and paid for by independent contractors to Plaintiff's family estates?
C.Did counsel act deceitful and/or violate Rules of Civil Procedure evading the critical discovery and truthful testimony for which Judgment was relied upon and rendered, specifically by; a.) Submitting three different disarrayed compilations of checks and statements in discovery; b.) Subpoenaing same critical witness as Defendant, Realtor Jeff Moser, and then not calling him; c.) Calling incredible witness Craig Keller while knowing this witness was not creditable by multiple accounts, (lawsuits) which Plaintiff and counsel were aware of (as a legal client), who was not an expert as implied by Plaintiff's counsel, and also a relative of the Plaintiff; and d.) By calling another witness, Mark Krebsbach, implying his expertise knowing the lack thereof, and who was also actually relative of the Plaintiff?
D.Did Plaintiff, in Answers to Defendant's Interrogatories and Direct Examination provide non-responsive answers, and by answering unasked questions, confuse and deceive the Judge?
E.Did repeated presentation of irrelevant issues by Plaintiff, after continuing objection of the Defendant, and after being directed by the Court to refrain from doing so, violate the N.D. Rules of Civil Procedure and impair Defendant's rights to a fair trial?
F.Does the misconduct alleged by the Defendant relating to the disregard of Civil Procedure, Rules of Evidence, Rules of Discovery, and Rules of Professional Conduct, and Service of Execution by officers of the District Court to Defendant's detriment merit sanctions or other reprimands available to this court?
III.Did Defense Council breach fiduciary duty by failing to manage and properly present all evidence in the Defendant's case while simultaneously defending two unrelated jury trial cases and additional undisclosed case load during the same time frame while accepting fees to properly defend the Defendant?
By not presenting critical evidence to the trial, did Defense counsel breach fiduciary duty?
By failing to enter Motion in Limine did Defense counsel underutilize Defendant's trust account resources?
At the end of trial, with over two hours left to present, and evidence that had not been presented, did Defense counsel fail to properly defend and fully elaborate upon Defendant's case evidence and testimony?
Does this Court investigate or offer a litigant any relief if his attorney breaches fiduciary duty as outlined above?
Appellee's Statement of the Issues:
1. Did the District Court err in finding that the Defendant is required to pay the Plaintiff the sum of $30,025.00, by reason of personal loans that had not been repaid, and that a van and generator are jointly owned between the parties?
2. Did the District Court err in finding that the Defendant had failed to meet the applicable burden of proof for the causes of action in his Counterclaim?
|Add Docket 20100216 RSS|
|1||07/08/2010||NOTICE OF APPEAL: 07/06/2010|
|2||07/08/2010||ORDER FOR TRANSCRIPT: 07/06/2010|
|3||07/08/2010||MOT. EXT/TIME APPELLANT BRIEF|
|4||07/08/2010||NO ACTION TAKEN (Mot/Ext/ATB)|
|5||07/08/2010||Petition In Forma Pauperis to Waive Filing Fee|
|6||07/13/2010||Additional information regarding the Petition In Forma Pauperis received|
|7||07/22/2010||ACTION BY CLERK (waived filing fee). Granted|
|8||07/28/2010||Notice from Betsy Johnson that preparation of the transcript is suspended for failure to pay|
|9||07/28/2010||Reset due date of Appellant's Brief - Transcript preparation suspended|
|10||08/10/2010||Preparation of Transcript Resumed from Court Reporter Betsy Johnson dated 10-9-10|
|11||08/09/2010||MOT. EXT/TIME TRANSCRIPT|
|12||08/19/2010||ACTION BY TRIAL COURT (MTR). Granted: 10/04/2010|
|13||10/04/2010||TRANSCRIPTS DATED 04-19-10 & 04-20-10 (2 volumes) & C.O.S.|
|14||10/04/2010||DISK - TRA's (e-mail) 04-19-10 & 04-20-10 (2 volumes)|
|15||10/13/2010||RECORD ON APPEAL and separates (nos. 26 & 27)|
|16||10/14/2010||MOT. EXT/TIME APPELLANT BRIEF|
|17||10/15/2010||ACTION BY CLERK. Granted: 12/13/2010|
|19||12/14/2010||DISK - atb (E-MAILED)|
|21||12/15/2010||1st Supplemental Clerk's Certificate of Record (entry nos. 62-65)|
|23||01/12/2011||DISK - aeb (e-mailed)|
|24||01/19/2011||NOTICE OF ORAL ARGUMENT SENT|
|26||01/24/2011||Rec'd 7 copies of RYB.|
|27||01/24/2011||DISK - RYB (e-mail)|
|28||01/25/2011||Rec'd corrected RYB electronic copy. (e-mail)|
|29||01/27/2011||Rec'd RYB corrections.|
|30||02/28/2011||APPEARANCES: Bruce G. Harris; Charles R. Isakson|
|31||02/28/2011||ARGUED: Bruce G. Harris; Charles R. Isakson|
|32||02/28/2011||ORAL ARGUMENT WEBCAST|
|33||05/11/2011||DISPOSITION (and Remanded): AFFIRMED/PT, REVERSED/PT|
|34||05/11/2011||UNANIMOUS OPINION: Crothers, Daniel John|
|35||05/11/2011||At the Court's direction, no costs will be taxed in this appeal|
|36||05/12/2011||Judgment Sent to Parties|
|38||06/17/2011||RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE|
|39||09/12/2011||Copy of Notice of Entry of Judgment & Opinion venued in Morton County|