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Baker v. Autos, Inc., et al.

Docket No. 20210202
Oral Argument: Monday, January 24, 2022 10:45 AM

Docket Info

Title
Darilyn Baker, individually, and on behalf
of all persons similarly situated, Plaintiff and Appellant
v.
Autos Inc., a North Dakota Corporation, d/b/a
Global Auto; James Hendershot, an individual,
and Robert Opperude, an individual, Defendants
and
RW Enterprises Inc., a North Dakota Corporation;
Randy Westby, an individual, Defendants and Appellees
Case Type
CIVIL APPEAL : OTHER (Civil)
Appeal From
Case No. 2011-CV-01576
North Central Judicial District, Ward County
Gary H. Lee

Parties' Statement of Issues

  • Appellant

    1. Failing to instruct the jury North Dakota’s prohibition against usurious lending is a strict liability prohibition, requiring no proof of intent to violate the prohibited lending practices.
    2. Failing to instruct the jury, as a matter of law, a Business Purpose Partnership relationship existed between Autos, Inc., and RW Enterprises, Inc., created for the business purpose of extending consumer credit and to share the income to be derived therefrom;
    3. Failing to instruct the jury on the law of agency in a business partnership relationship, including:
    a. every partner to a partnership is an agent of the partnership for all acts conducted within the scope and purpose of the business purposes of the partnership;
    b. each partner shares joint and several liability for the wrongful acts of their partner(s) for acts within the scope of the partnership purposes;
    4. By including the jury instruction “Acting In Concert” to define the means by which the acts of Autos, Inc., and its principals, may be imputed to RW Enterprises, Inc., and its principals, requiring the jury to find, as a condition precedent:
    i. There existed “an express or tacit agreement to commit a wrongful act”;
    ii. There existed a “common plan or design to commit a wrongful act”; and
    iii. Mere knowledge of what the other was doing would be insufficient.

  • Appellee 1

    1. Whether the district court abused its discretion by refusing to give a partnership / joint venture jury instruction that was not requested by Baker until the final day of trial.
    2. Whether the district court abused its discretion by instructing the jury that it must find that RW Enterprises and Randy Westby willfully violated North Dakota’s Retail Installment Sales Act (N.D.C.C. Ch. 51-13).
    3. Whether the district court’s jury instruction on “acting in concert” was an abuse of discretion.


Summary

Darilyn Baker, individually and on behalf of a class, appeals from an order denying a new trial.
In 2011, Baker sued Autos, Inc., d/b/a Global Auto, RW Enterprises, Inc., Randy Westby, James Hendershot, and Robert Opperude for violations of the North Dakota Retail Installment Sales Act and state usury laws. In 2020, the district court approved a settlement between Baker and Autos, Inc., Opperude, and Hendershot. Baker moved to dismiss her Retail Installment Sales Act claims and also moved for summary judgment on her usury claims against RW Enterprises and Westby. The district court denied Baker’s motions and directed the parties to prepare for a jury trial.
The trial took place in February 2021. The jury found Autos, Inc. violated the Retail Installment Sales Act but that RW Enterprises and Westby did not. Baker moved for a new trial arguing the district court provided an improper verdict form and instructions. The district court denied Baker’s motion.
On appeal, Baker argues the district court failed to properly instruct the jury.


Briefs

Filing Date Description
10/27/2021 APPELLANT BRIEF (non-substantive corrections dated November 7, 2021) View
11/24/2021 APPELLEE BRIEF View
12/08/2021 REPLY BRIEF View

Counsel

Party Type Name
APPELLANT PRIVATE PRACTICE Larry Michel Baer - 03284
APPELLEE PRIVATE PRACTICE Bryan Lee Van Grinsven - 05357

(Note: Attachments may not be available for recently filed cases and/or confidential documents.)

Seq. # Filing Date Description Attachment
1 07/19/2021 NOTICE OF APPEAL : 07/19/2021
2 07/26/2021 Received $125 filing fee
3 07/26/2021 NOT. OF FILING NOT. OF APPEAL AND PROOF OF SERV.
4 07/26/2021 Notice served on Larry M. Baer, Robert G. Ackre, Bryan L. Van Grinsven, & Sean F. Marrin
5 08/06/2021 ORDER FOR TRANSCRIPT : 08/06/2021
6 08/13/2021 MOT. EXT/TIME APPELLANT BRIEF
7 08/13/2021 ACTION BY CLERK (28 days from filing of transcripts) - Granted : 11/01/2021
8 08/18/2021 ELEC. RECORD ON APPEAL DATED AUGUST 17, 2021 (ENTRY NOS. 1-111, 114-352, 354-393, 395-495)
9 08/18/2021 (NOT SENT: 112 & 113)
10 10/04/2021 ELECTRONIC TRANSCRIPT DATED FEBRUARY 3, 2021
11 10/04/2021 ELECTRONIC TRANSCRIPT DATED FEBRUARY 4, 2021
12 10/04/2021 Certificate of Service for transcripts
13 10/27/2021 APPELLANT BRIEF (non-substantive corrections dated November 7, 2021) View
14 10/27/2021 APPELLANT APPENDIX
15 10/27/2021 Oral Argument Request by Appellant
16 11/07/2021 Rec'd non-substantive corrections to ATB & ATA
17 11/09/2021 Rec'd e-filing surcharge for ATA (receipt #28279)
18 11/09/2021 Rec'd 3 copies of ATB & 2 copies of ATA from CSD
19 11/24/2021 APPELLEE BRIEF View
20 11/26/2021 Rec'd non-substantive corrections to AEB (toc ref pg #s)
21 11/30/2021 Rec'd 3 copies of AEB from CSD
22 12/08/2021 REPLY BRIEF View
23 12/09/2021 Rec'd non-substantive corrections to RYB
24 12/10/2021 Rec'd 3 copies of RYB from CSD
25 12/21/2021 NOTICE OF ORAL ARGUMENT SENT
26 12/22/2021 Intent to Particpate in Oral Argument by Appellees