Latendresse v. Latendresse

• Decision Date: 20 June 1980
• Docket Number: No. 9583,9583
• Citation: Latendresse v. Latendresse, 294 N.W.2d 742 (N.D. 1980)
• Parties: Albert LATENDRESSE, Plaintiff and Appellee, v. Orville LATENDRESSE, a.k.a. Orville J. Latendresse, and Ruth Latendresse, Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 742

294 N.W.2d 742

Albert LATENDRESSE, Plaintiff and Appellee, v.Orville LATENDRESSE, a.k.a. Orville J. Latendresse, and Ruth Latendresse, Defendants and Appellants.

Civ. No. 9583.

Supreme Court of North Dakota.

June 20, 1980.

Michael S. McIntee, Towner, for plaintiff and appellee.

Charles D. Orvik Law Office, Rugby, by Gene A. Nygaard, for defendants and appellants, on brief only.

Orville Latendresse, pro se, on oral argument.

SAND, Justice(on reassignment).

This appeal by Orville and Ruth Latendresse from a summary judgment is a sequel to Latendresse v. Latendresse, 283 N.W.2d 70(N.D.1979), wherein we declined to dismiss the appeal filed by Orville and Ruth Latendresse and permitted them to correct the defects in the appeal within fifteen days.In this case, except for the brief filed by an attorney, Orville acted pro se, but in 283 N.W.2d 70 Orville and Ruth were represented by counsel.

The facts leading to the summary judgment are succinctly stated in 283 N.W.2d 70:

"Albert commenced an action against Orville and Ruth for the sum of $4,000, together with interest thereon as evidenced by a promissory note dated February 9, 1963.The summons and complaint were served upon Orville and Ruth on June 13, 1978, by the sheriff of McHenry County.Orville and Ruth interposed an answer and a counterclaim on their own behalf, admitting the execution of the note but denying that demand for payment had been made or that they have refused to pay; together with a counterclaim for a promissory note executed by Albert due in 1955, for the wintering of cattle, for damages to their home caused by a fire in Albert's trailer, for loss of records to substantiate a $400,000 U.S.A. Wildlife depredation suit, for a $300,000 Pioneer State Bank breach-of-contract fund, and for other miscellaneous claims.

"Albert interposed a timely reply to the counterclaim.

"Albert's attorney served a request for admission, pursuant to Rule 36 of the North Dakota Rules of Civil Procedure, upon Orville and Ruth on August 2, 1978.

"Albert's attorney served a motion for summary judgment, pursuant to Rule 56, N.D.R.Civ.P., on Orville and Ruth on September 29, 1978.The motion was based upon two grounds: (1) that Orville and Ruth have failed to answer requests for admission as required by rule 36, N.D.R.Civ.P.; therefore, they have admitted all the material allegations of the complaint; and (2) that the allegations of the counterclaim not otherwise explained, do not constitute a claim upon which relief can be granted."

The answers to Albert's request for admissions were made and served upon Albert's counsel on 10 Oct. 1978.The hearing on the motion ¹ for summary judgment was held on 11 Oct. 1978.

The request for admissions and the answers thereto are as follows:

(REQUEST FOR ADMISSIONS AND)"ANSWER TO PLAINTIFF'S REQUEST

FOR ADMISSIONS

"COMES Now the Defendants, Orville Latendresse and Ruth Latendresse, and for their answers to Plaintiff, Albert Latendresse's, REQUEST FOR ADMISSIONS REPLY AS FOLLOW:

"Request number (1).'That your names are Orville Latendresse and Ruth Latendresse and that you are husband and wife and live in the vicinity of Upham, North Dakota?'

"Answer.Yes.

"Request number (2).'That you have made no payments whatsoever on the four thousand dollars ($4000.00) note given by you to PlaintiffAlbert Latendresse dated February 9, 1963?'

"Answer.False.Defendant's Counterclaim of Seven hundred seventy nine thousand eight hundred fifty three dollars ($779,853.00) is more than adequate to cover Plaintiff's Complaint.

"Request number three (3).'That the fire as you claim that damaged your home actually was two separate fires?'

"Answer.False.When the Defendants were awaken by the light coming through their bedroom window from the second mobile home fire, their house had not as yet caught fire, but by the time the Fire Departments arrived on the scene the shingles and siding of Defendant's home nearest to Plaintiff's mobile home and grass in between was aflame.

"Request number (4).'That the DefendantOrville Latendresse entered the home after the first fire and used electrical appliances in the home to see if they would work?'

"Answer (4).False.The Defendant made periodic inspections for new fire outbreaks or 'hot spots' with a water hose and 'trouble light' connected from Defendant's home and plugged the freezer in from Defendants home.When Plaintiff returned from Fargo he took that freezer out of the mobile home and put it in a granary.Defendant was never in plaintiff's home after Plaintiff reoccupied it.

"Request number (5).'That it is true that at no time after the first fire that the Plaintiff, Albert Latendresse, or his agents connected any electrical capabilities to the trailer home but rather removed items and checked them at the power pole?'

"Answer.I, DefendantOrville Latendresse, was not in or around Plaintiff's trailer house from the time Plaintiff returned from Fargo and took charge of that set fire to Defendant's home, but Curtis Latendresse witnessed Plaintiff testing appliances and insists Plaintiff did not take refrigerator out to the pole.A copy of his written testimony is enclosed and he will be available for cross-examination.Even if some of the appliances were removed from the trailer home for testing the fact that they were exposed to severe heat and subsequently a hot electrical circuit and returned to the trailer home they could have retained hot shorts that could have rekindled a new fire just like any other electrical circuit and under such conditions it was only proper for Plaintiff to maintain closer vigilance.Add to this Plaintiff's negligent foresight in setting his trailer home so close to Defendants home as to make it almost impossible to separate or shield one home from the other in case of fire.35 Am.Jur.2d § 27(Conditions of, or combustible materials on, premises).'Liability for damages caused by the spread of fire from defendants premises may be predicated on his negligence in keeping his premises in such a condition that such a result was likely.'The circumstances under which a fire occurs may sometimes be such as to justify the application of the doctrine of res ipsa loquitur and thereby impose upon the defendant the onus of coming forward with evidence to show his freedom from fault.'(35 Am.Jur.2d § 51).The fact that absolute liability for injuries to property by fire may be imposed by statute, as has often been done in the case of a railroads liability, will not prevent the owner of property so injured from proceeding as at common law, basing his right to recover on negligence and not the statute.'35 Am.Jur.2d § 46.'Occupant may recover damages caused by fire.In any action to recover damages under the provisions of this chapter, the person injured by the fire need not allege or prove title to the real property over which the fire has spread.It shall be sufficient in any such action to allege and prove that the person injured was in the occupancy or possession of the ranch, building, improvement, fencing, timber, or other property injured and claims the right to and occupies any such cattle range with cattle.(NDCC 18-08-08).

"Request number (7).'That the only damage done to the defendants home was some minor outside damage and that in fact no interior damage except smoke damage was done to the home?

"Answer.False.The total of bids from the various contractors was $6868.40.The 'minor outside damage' as alleged by the Plaintiff was $3617.12 Hagel Lumber, Towner for shingles and siding and $240 to Northwest Builders Supply for lightning protection repairs.The attic insulation was included in the siding-shingling repair.The rest of the bids were for water damaged ceiling and wall plastering, floor covering, electrical wiring, drapery and clothes, musical instruments and other items damaged from water, fire or being thrown outside.The insurance only covered part of the loss and what's worse they cancelled our insurance because of this fire, which in itself is an even worse loss.If that's a minor loss what would be a 'major loss'.

"Request number (8).'That in fact do documents have been destroyed or harmed owned by the defendants.'

"Answer.Defendant is unable to comprehend what kind of documents are 'do documents'.In any event, there were many people out here that night throwing papers, records and other household furnishings outside and away from the reach of fire and Plaintiff was not one of them so he would be unqualified to appraise what records were lost and or destroyed and which ones weren't.To this date I have been unable to completely reassemble my books for missing vouchers.A $500,000 Counterclaim against Pioneer Credit Company is presently in process of litigation.A $400,000 Inverse Condemnation suit against United States of America is soon to enter court.Both are dependent to a large degree on records for the last fifteen years, past records for a Veterans Administration pension are also required plus an Air Force BAQ allotment.

"Dated this 10th day of October 1978.

"S/ ORVILLE J. LATENDRESSE"

The answers to the request for admissions were transmitted to Albert's counsel by the following letter:

"Upham, North Dakota, 58789

"October 10, 1978

"Mr. Michael S. McIntee

"McIntee Law Firm

"Towner, ND 58788

"Dear Mr McIntee:

"RE: Latendresse-vs-Latendresse

"I am enclosing a copy of Defendant's Reply to Plaintiff's Request for Admission.In Plaintiff's Motion to Summary Judgmenthe alleges that Defendants have failed to answer Plaintiff's Request for Admissions according to Rule 36 of the North Dakota Rules of Civil Procedure.

"Defendants deny those allegations and refer to 93 ALR2d 757-776 time for filing responses to requests for admissions; allowance of additional time § 3 Late filing accepted; generally. p. 759 and § 4.Effect of failure of request to designate time for answer, o. 761.'Since no time limit was requested within...