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

Listen to recording of oral argument in MP3 format

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?

Add Docket 20110320 RSS Add Docket 20110320 RSS

Docket entries:
111/07/2011 NOTICE OF APPEAL: 11/04/2011
212/09/2011 MOT. EXT/TIME APPELLANT BRIEF (e-filed)
312/09/2011 E-FILED BRIEF (MAT)
412/09/2011 ACTION BY CLERK (MAT). Granted: 01/13/2012
512/22/2011 Electronic RECORD ON APPEAL (Entry Nos. 1 - 198) (Per clerk, Entry No. 185 is no longer a
612/22/2011 docketable entry)
701/13/2012 APPELLANT BRIEF
801/13/2012 E-FILED BRIEF
901/13/2012 APPELLANT APPENDIX
1001/13/2012 E-FILED APPENDIX
1101/19/2012 Received $25 e-filing surcharge for ATB (Receipt #20834).
1201/23/2012 Received 7 copies of ATB from Central Duplicating.
1301/23/2012 Received 6 copies of ATA from Central Duplicating.
1402/14/2012 NOTICE OF ORAL ARGUMENT SENT
1502/13/2012 APPELLEE BRIEF
1602/13/2012 E-FILED BRIEF
1702/13/2012 APPELLEE APPENDIX
1802/13/2012 E-FILED APPENDIX (AEA)
1902/15/2012 Received $25 surcharge for AEB (Receipt #20872)
2002/17/2012 Received 7 copies of AEB from CSD
2102/17/2012 Received 6 copies of AEA from CSD
2202/29/2012 MOT. EXT/TIME REPLY BRIEF
2302/29/2012 E-FILED MOTION
2402/29/2012 ACTION BY CHIEF DEPUTY CLERK. Granted: 03/12/2012
2503/12/2012 REPLY BRIEF
2603/12/2012 E-FILED BRIEF
2703/15/2012 Received 7 copies of RYB from CSD
2803/26/2012 APPEARANCES: John J. Gosbee; Scott J. Landa; Sara R. Heilman
2903/26/2012 ARGUED: John J. Gosbee; Scott J. Landa
3003/26/2012 ORAL ARGUMENT WEBCAST
3107/12/2012 DISPOSITION: AFFIRMED
3207/12/2012 UNANIMOUS OPINION: Maring, Mary Muehlen
3307/12/2012 Costs on appeal taxed in favor of appellee
3407/13/2012 Judgment Sent to Parties
3507/16/2012 Mot. Ext/Time Petition for Rehearing
3607/16/2012 E-FILED MOTION
3707/16/2012 ACTION BY SUPREME COURT. Granted: 08/06/2012
3808/06/2012 PETITION FOR REHEARING
3908/06/2012 E-FILED BRIEF
4008/07/2012 Rec'd 7 copies of PER from CSD
4108/16/2012 ACTION BY SUPREME COURT. denied
4208/28/2012 MANDATE

Generated from Supreme Court Docket on 10/24/2014