Leno v. K & L Homes

20100347 Neal A. Leno and
Susan A. Leno, Plaintiffs and Appellees
v.
K & L Homes, Inc., a
North Dakota Corporation, Defendant and Appellant

Appeal from: District Court, South Central Judicial District, Burleigh County
Judge Gail Hagerty
Nature of Action: Contracts
Counsel:
Appellant: Chris A. Edison
Appellee: Paul Reginald Sanderson
Appellee: Kara Jean Johnson
Appellant: Larry L. Boschee
Term: 04/2011   Argument: 04/26/2011  9:30am
ND cite: 2011 ND 171
NW cite: 803 N.W.2d 543

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
A. Did the District Court err when it ruled K & Homes, Inc., had not sufficiently raised the defense of the Lenos' fault in its answer?
B. Did the District Court err by failing to instruct the jury on comparative fault as requested by K & L Homes, Inc., where the Lenos alleged breach of warranty as a claim for relief?
C. Did the District Court err by denying K & L Homes, Inc.'s motion for inspection and precluding Kelly Moldenhauer from testifying as to the observations he made during the jury viewing?
D. Did the District Court err by ruling that there was no disclaimer by K & L Homes, Inc., of any implied warranties as a matter of law?

Appellee's Statement of the Issues:
I. Whether the district court properly excluded comparative fault jury instructions in the Lenos' breach of contract and implied warranty of workmanlike construction action.
II. Whether the district court properly exercised its discretion in denying K&L's request for an inspection when the request was made twenty-two days prior to trial well after the discovery deadline had passed and the request was not made pursuant to the requirements of N.D.R.Civ.P. 34.
III. Whether the district court properly exercised its discretion in instructing the jury that K&L's homeowners guide was not a disclaimer of any implied warranty when K&L stipulated prior to trial that it was not a disclaimer of any warranty and it was not part of the basis of the bargain between the parties.

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Docket entries:
110/21/2010 NOTICE OF APPEAL: 10/20/2010
210/21/2010 ORDER FOR TRANSCRIPT: 10/20/2010
310/21/2010 ANNOUNCED DISQUALIFICATION: Sandstrom, Dale V.
411/01/2010 Acknowledgment of OTR & RETENTION OF RECORD ON APPEAL: 12/09/2010
511/24/2010 STIPULATION FOR SUBSTITUTION OF COUNSEL
612/09/2010 TRANSCRIPT DATED 8/24/10, 8/26/10, 8/31/10, 9/1/10 and 9/2/10 & C.O.S.
712/09/2010 DISK-TRA (8/24/10, 8/26/10, 8/31/10, 9/1/10 and 9/2/10) e-mailed
812/10/2010 RECORD ON APPEAL and Separates (entry nos. 39, 62 - 66)
912/15/2010 MOT. EXT/TIME APPELLANT BRIEF
1012/15/2010 ACTION BY CLERK (MAT). Granted: 02/01/2010
1101/25/2011 MOT. EXT/TIME APPELLANT BRIEF (e-filed)
1201/25/2011 E-FILED MOTION (MAT)
1301/26/2011 ACTION BY CLERK (MAT). Granted: 02/14/2011
1402/02/2011 1st Supplemental Clerk's Certificate of Record (entry nos. 95 & 96)
1502/11/2011 APPELLANT BRIEF (e-filed)
1602/11/2011 E-FILED BRIEF (ATB)
1702/11/2011 APPELLANT APPENDIX (e-filed)
1802/11/2011 E-FILED APPENDIX
1902/14/2011 Received $25.00 surcharge for ATB (Receipt #20181)
2002/16/2011 Received 7 copies of ATB from Central Duplicating
2102/16/2011 Received 6 copies of ATA from Central Duplicating
2203/14/2011 APPELLEE BRIEF (e-filed)
2303/14/2011 E-FILED BRIEF (AEB)
2403/15/2011 Received $25 surcharge for AEB (Receipt #20222)
2503/16/2011 Received 7 copies of AEB from CSD
2603/22/2011 NOTICE OF ORAL ARGUMENT SENT
2703/25/2011 SITTING WITH THE COURT: McClintock, Jr., John C.
2803/28/2011 REPLY BRIEF (e-filed)
2903/28/2011 E-FILED BRIEF (RYB)
3003/30/2011 Received 7 copies of RYB from CSD
3104/18/2011 ANNOUNCED DISQUALIFICATION: VandeWalle, Gerald W.
3204/19/2011 SITTING WITH THE COURT: Graff, Benny A.
3304/26/2011 APPEARANCES: Chris A. Edison; Paul R. Sanderson and Kara J. Johnson
3404/26/2011 ARGUED: Edison/Sanderson
3504/26/2011 ORAL ARGUMENT WEBCAST
3609/02/2011 DISPOSITION: AFFIRMED
3709/02/2011 UNANIMOUS OPINION: Kapsner, Carol Ronning
3809/02/2011 Costs on appeal taxed in favor of appellees
3909/02/2011 Judgment Sent to Parties
4009/07/2011 NOTICE & STIPULATION TO SUBSTITUTION OF COUNSEL
4109/19/2011 Stipulation for entry of mandate
4209/20/2011 MANDATE
4311/14/2011 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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