Great Plains Supply Co., Div. of Harvest States Cooperatives v. Erickson, s. 11220

• Decision Date: 18 December 1986
• Docket Number: Nos. 11220,11147,s. 11220
• Citation: 398 N.W.2d 732
• Parties: GREAT PLAINS SUPPLY COMPANY, a DIVISION OF HARVEST STATES COOPERATIVES, Plaintiff and Appellee, v. Clifford ERICKSON and Carol R. Erickson, his wife, Defendants and Appellants, and The United States of America, by and through the Internal Revenue Service, Defendant. GREAT PLAINS SUPPLY COMPANY, a DIVISION OF HARVEST STATES COOPERATIVES, Plaintiff and Appellee, v. Douglas BJORNSON and Roberta Bjornson, his wife, Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 732

398 N.W.2d 732

GREAT PLAINS SUPPLY COMPANY, a DIVISION OF HARVEST STATES

COOPERATIVES, Plaintiff and Appellee, v. Clifford ERICKSON and Carol R. Erickson, his wife, Defendants and Appellants, and The United States of America, by and through the Internal

Revenue Service, Defendant.

GREAT PLAINS SUPPLY COMPANY, a DIVISION OF HARVEST STATES

COOPERATIVES, Plaintiff and Appellee, v. Douglas BJORNSON and Roberta Bjornson, his wife, Defendants

and Appellants.

Civ. Nos. 11220, 11147.

Supreme Court of North Dakota.

Dec. 18, 1986.

Pringle and Herigstad, Minot, for plaintiff and appellee; argued by James E. Nostdahl.

E. Jean Bartlett, Georgetown, Minn., for defendants and appellants.

GIERKE, Justice.

This is a consolidated appeal by Clifford and Carol Erickson from a district court judgment in favor of Great Plains Supply Company and by Douglas and Roberta Bjornson from a summary judgment in favor of Great Plains. We affirm the Erickson judgment and reverse the Bjornson judgment.

In 1972 Clifford and Douglas formed Tri-Quality Construction, a partnership engaged in residential and commercial construction. Carol and Roberta were not partners in Tri-Quality. Both Clifford and Douglas had been employees of Great Plains, and, after they formed the partnership, Great Plains supplied construction materials to Tri-Quality on an unsecured open account.

In 1979 and 1980 Tri-Quality experienced financial difficulties and became delinquent on its open account with Great Plains. On February 26, 1982, Clifford and Carol executed a promissory note to Great Plains for $20,000 secured by a second mortgage on their homestead and, on April 26, 1982, Douglas and Roberta executed a separate promissory note to Great Plains for $20,000 secured by a second mortgage on their homestead. On July 7, 1982, Clifford and Douglas executed a promissory note to Great Plains for $29,500 secured by a mortgage on three garages built by Tri-Quality and two lots. All three notes were due one year after they were executed.

The notes were not paid when they came due, and the parties entered into negotiations regarding their payment plus charges made on the open account subsequent to the execution of the notes. The parties executed a renewal note evidencing a principal balance of $95,084.56 as of July 1, 1983, and requiring monthly payments of $1,000 beginning on July 1, 1983, with a balloon payment due on July 1, 1984. Two monthly payments were made on the note, and, when the remaining payments were not made and the parties were unable to reach an agreement on the payment of the notes, Great Plains commenced separate proceedings against the Ericksons and the Bjornsons. The Ericksons and the Bjornsons separately answered, generally denying the allegations in the complaint, and alleged in counterclaims that the execution of the promissory notes and the mortgages was induced by Great Plains' false representations of the amount due on their account.

The Erickson case proceeded to trial, and, after each side had presented their evidence, Great Plains moved for leave to take the deposition of one of its former employees, Melvin Jerstad. The trial court granted Great Plains' motion and Jerstad's deposition was taken and submitted to the court. Thereafter, the trial court ordered judgment in the amount of $28,972.60 plus interest against the Ericksons and declared that Great Plains' mortgage was valid. The trial court found that Great Plains did not induce the execution of the note and mortgage by misrepresenting the amount owed by the Ericksons or misrepresenting or misleading the Ericksons regarding their legal rights. Thereafter, in the Bjornson case, the district court granted Great Plains' motion for summary judgment.

Erickson Appeal

The Ericksons contend that the trial court erred in allowing Great Plains to take Jerstad's post-trial deposition. Great Plains was notified that the Ericksons had subpoenaed Jerstad for trial. However, Great Plains apparently was not notified when the Ericksons subsequently released Jerstad from that subpoena. The Ericksons assert that, rather than relying on their subpoena, Great Plains should have subpoenaed Jerstad for trial.

Generally, if a witness does not show up for trial, a party asserting the deprivation of the right to examine that witness may not rely on the fact that the opposing party subpoenaed the witness. See Employers Mutual Liability Insurance Co. of Wisconsin v. Industrial Comm'n, 15 Ariz.App. 590, 490 P.2d 35 (1971); Hosner v. Brown, 40 Mich.App. 515, 199 N.W.2d 295 (1972). However, the issue in this case is not whether Great Plains could rely on the subpoena issued by the Ericksons, but whether the trial court erred in permitting Great Plains to take Jerstad's deposition.

A trial court is afforded great latitude and discretion in conducting a trial and, absent an abuse of discretion, its decision on matters relating to the conduct of a trial will not be set aside on appeal. E.g., Ward v. Shipp, 340 N.W.2d 14 (N.D.1983). Thus, a trial court has broad discretion to allow additional time for the arrival of a witness [Ward v. Shipp, supra ]; to permit the reopening of a case for clarification of the record [ Leno v. Ehli, 339 N.W.2d 92 (N.D.1983) ]; and to sua sponte order a supplemental hearing for the taking of further evidence. Tom Beuchler Const. v. City of Williston, 392 N.W.2d 403 (N.D.1986). A trial court's discretion must be exercised in a manner which comports with substantial justice because a trial is a search for the truth. Ward v. Shipp, supra. A trial court abuses its discretion when it acts in an unreasonable, arbitrary, or unconscionable manner. Wall v. Pennsylvania Life Insurance Co., 274 N.W.2d 208 (N.D.1979).

After carefully reviewing the record in light of the circumstances involved in this case, we conclude that the trial court did not act unreasonably, arbitrarily, or unconscionably in permitting Great Plains to take Jerstad's deposition and therefore did not abuse its discretion.

The Ericksons contend that the trial court erred in refusing to admit into evidence an exhibit tending to establish a mistake of fact regarding the amount due on the open account when the notes and mortgages were executed in 1982 and 1983. The Ericksons assert that the exhibit tends to establish that, on several occasions, Great Plains had claimed that different amounts were due on the account. The exhibit consisted of letters dated July 7, 1984, and October 18, 1984, in which Great Plains' representatives sought to settle the account for less than the amount due. The trial court ruled that these letters constituted an offer of compromise and, as such, were inadmissible under Rule 408, N.D.R.Evid. No offer of proof was made relating those 1984 letters to an alleged mistake of fact regarding the amount due on the open account when the notes and mortgages were executed in 1982 and 1983. In the absence of a showing of that nexus by an offer of proof we are unable to conclude that the trial court erred in refusing to allow the exhibit into evidence.

The Ericksons contend that the trial court erred in treating their counterclaim as an affirmative defense thereby denying their right to a jury trial. In their counterclaim the Ericksons alleged that Great Plains fraudulently misrepresented the amount due on their account and that this misrepresentation induced them to execute the note and mortgage. Before trial, the district court determined that the Ericksons' counterclaim was actually an affirmative defense and denied their demand and motion for a jury trial.

In Ask, Inc. v. Wegerle, 286 N.W.2d 290, 295 (N.D.1979), we said that a party raising a legal defense in an equitable action is not entitled to have a jury trial on those issues, but that a party raising legal issues in a counterclaim is entitled to a jury trial on those issues. Thus we must consider whether the issues...