EVI Columbus, LLC v. Lamb

20110320

EVI Columbus, LLC, Plaintiff and Appellee
v.
Timothy C. Lamb and
Elizabeth Fletcher Lamb,
and any person in possession; and
all persons unknown claiming any
interest in or lien or encumbrance
upon the real estate described in
the Complaint, Defendants and Appellants

Appeal from:

District Court, Northeast Central Judicial District, Grand Forks County
Judge Sonja Clapp

Nature of Action:

Real Property

Counsel:

Appellant:		John J. Gosbee
Appellee:		Scott Jeffery Landa
Appellee:		Sara Rae Behrens

Term:

03/2012 Argument: 03/26/2012 10:45am

ND cite:

2012 ND 141

NW cite:

818 N.W.2d 724

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Issues:

Appellant's Statement of the Issues:
1.If, in an action to cancel a contract for deed, the buyers assert in their answer a counterclaim, mistakenly designated as an affirmative defense, that the brand new home bought from the seller breached an implied warranty of habitability, are the buyers entitled to a hearing on the merits of their counterclaim, however denominated? Put differently, should form be allowed to triumph over substance?
2.In Dobler v. Malloy, 214 N.W.2d 510 (N.D. 1973), North Dakota recognized an implied warranty of fitness for purpose as a residence for a new home in the case of a sale by the builder to the buyer. If a developer is closely linked to the builder, and the developer sells a new home to the buyers, may those buyers rely on Dobler v. Malloy as they could if buying the home directly from the builder?
3.If a complaint expressly waives personal liability for a deficiency, may the District Court enter a judgment of personal liability for costs?

Appellee's Statement of the Issues:
ISSUE A: Did the Trial Court properly grant summary judgment in this matter where no cognizable counterclaim was pending?
ISSUE B: Did Defendants properly assert a cognizable counterclaim for breach of an implied warranty of fitness for purpose?
ISSUE C: Did the Trial Court properly award Plaintiff its costs under N.D.C.C. 28-26-02 and 28-26-06?

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Docket entries:

1	11/07/2011	NOTICE OF APPEAL: 11/04/2011
2	12/09/2011	MOT. EXT/TIME APPELLANT BRIEF (e-filed)
3	12/09/2011	E-FILED BRIEF (MAT)
4	12/09/2011	ACTION BY CLERK (MAT). Granted: 01/13/2012
5	12/22/2011	Electronic RECORD ON APPEAL (Entry Nos. 1 - 198) (Per clerk, Entry No. 185 is no longer a
6	12/22/2011	docketable entry)
7	01/13/2012	APPELLANT BRIEF
8	01/13/2012	E-FILED BRIEF
9	01/13/2012	APPELLANT APPENDIX
10	01/13/2012	E-FILED APPENDIX
11	01/19/2012	Received $25 e-filing surcharge for ATB (Receipt #20834).
12	01/23/2012	Received 7 copies of ATB from Central Duplicating.
13	01/23/2012	Received 6 copies of ATA from Central Duplicating.
14	02/14/2012	NOTICE OF ORAL ARGUMENT SENT
15	02/13/2012	APPELLEE BRIEF
16	02/13/2012	E-FILED BRIEF
17	02/13/2012	APPELLEE APPENDIX
18	02/13/2012	E-FILED APPENDIX (AEA)
19	02/15/2012	Received $25 surcharge for AEB (Receipt #20872)
20	02/17/2012	Received 7 copies of AEB from CSD
21	02/17/2012	Received 6 copies of AEA from CSD
22	02/29/2012	MOT. EXT/TIME REPLY BRIEF
23	02/29/2012	E-FILED MOTION
24	02/29/2012	ACTION BY CHIEF DEPUTY CLERK. Granted: 03/12/2012
25	03/12/2012	REPLY BRIEF
26	03/12/2012	E-FILED BRIEF
27	03/15/2012	Received 7 copies of RYB from CSD
28	03/26/2012	APPEARANCES: John J. Gosbee; Scott J. Landa; Sara R. Heilman
29	03/26/2012	ARGUED: John J. Gosbee; Scott J. Landa
30	03/26/2012	ORAL ARGUMENT WEBCAST
31	07/12/2012	DISPOSITION: AFFIRMED
32	07/12/2012	UNANIMOUS OPINION: Maring, Mary Muehlen
33	07/12/2012	Costs on appeal taxed in favor of appellee
34	07/13/2012	Judgment Sent to Parties
35	07/16/2012	Mot. Ext/Time Petition for Rehearing
36	07/16/2012	E-FILED MOTION
37	07/16/2012	ACTION BY SUPREME COURT. Granted: 08/06/2012
38	08/06/2012	PETITION FOR REHEARING
39	08/06/2012	E-FILED BRIEF
40	08/07/2012	Rec'd 7 copies of PER from CSD
41	08/16/2012	ACTION BY SUPREME COURT. denied
42	08/28/2012	MANDATE

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