LeFevre Sales, Inc. v. Bill Rippley Const., Inc., 9188

• Decision Date: 12 February 1976
• Docket Number: No. 9188,9188
• Citation: 238 N.W.2d 673
• Parties: LeFEVRE SALES, INC., a corporation, Plaintiff and Appellee, v. BILL RIPPLEY CONSTRUCTION, INC., a corporation, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 673

238 N.W.2d 673

LeFEVRE SALES, INC., a corporation, Plaintiff and Appellee, v. BILL RIPPLEY CONSTRUCTION, INC., a corporation, Defendant and Appellant.

Civ. No. 9188.

Supreme Court of North Dakota.

Feb. 12, 1976.

Syllabus by the Court

Because it is important to reach the merits whenever reasonably possible; because it does not appear that the movant will be prejudiced if the opposing party is permitted to file the record with Supreme Court and serve its brief on appeal at this late date; because opposing party's counsel has demonstrated a basis for confusion over the need for proceeding with the appeal and his assertion that he is prepared to move expeditiously; the motion for dismissal, which was based upon the opposing party's failure to comply with Rule 11, N.D.R.App.P., is denied.

Hjellum, Weiss, Nerison, Jukkala & Vinje, Jamestown, for plaintiff and appellee; argued by R. G. Nerison, Jamestown.

Lundberg, Nodland & Schulz, Bismarck, for defendant and appellant; argued by Robert H. Lundberg, Bismarck.

ERICKSTAD, Chief Justice.

In this case LeFevre Sales, Inc., a corporation, has filed a motion in our court asking for the dismissal of the appeal taken by Bill Rippley Construction, Inc., a corporation, from a judgment rendered against the construction company in the District Court of Stutsman County.

The basis of the motion is that the construction company failed to cause timely transmission of the record in accordance with Rule 12(c) of the North Dakota Rules of Appellate Procedure.

The pertinent part of Rule 12(c) reads:

'(c) Dismissal for failure of appellant to cause timely transmission or to docket appeal. If the appellant shall fail to cause timely transmission of the record or to pay the docket fee if a docket fee is required, any appellee may file a motion in the supreme court to dismiss the appeal. The motion shall be supported by a certificate of the clerk of the trial court showing the date and substance of the judgment or order from which the appeal was taken, the date on which the notice of appeal was filed, the expiration date of any order extending the time for transmitting the record, and by proof of service. The appellant may respond within 14 days of such service. * * * ' Rule 12(c), N.D.R.App.P.

In the return to the motion, counsel for Rippley Construction asserts that counsel's law firm was asked by the bonding company for Rippley Construction to take an appeal from the judgment and that counsel was informed that pending the appeal the bonding company would attempt to negotiate a settlement of the case through its counsel in South Dakota. An affidavit filed by counsel for LeFevre Sales in resposne to the return to the motion asserts that no negotiations were ever entered into by anyone on behalf of Rippley Construction with counsel for LeFevre Sales.

Counsel for Rippley Construction seems to concede that negotiations may never have been entered into but nevertheless asserts that in light of the confusion which resulted from multiple counsel that this court should consider the matter as excusable neglect and permit an extension of time for the transmission of the record under such limitations and upon the assessment of such costs as this court may determine appropriate.

The pertinent part of Rule 11(d) reads:

'(d) * * * The trial court for cause shown may extend the time for transmitting the record. A request for extension must be made within the time originally prescribed or within an extension previously granted, and the trial court shall not extend the time to a day more than 90 days from the date of filing of the first notice of appeal. If the trial court is without authority to grant the relief sought or has denied a request therefor, the supreme court may on motion for cause shown extend the time for transmitting the record or may permit the record to be transmitted and filed after the expiration of the time allowed or fixed. * * * ' Rule 11(d), N.D.R.App.P. Notice of appeal was filed in this case on August 11, 1975, and upon application of counsel for Rippley Construction Company, an extension of time for transmitting the record to the Supreme Court was executed by the trial court on September 18, 1975, which provided 'such extension to be fifteen (15) days following the filing of the transcript by the Court Reporter herein.'

That order was apparently contrary to the intent of Rule 11(d) which seems to permit the trial court to extend the time for transmitting the record no more than 90 days from the date of the filing of the first notice of appeal.

In any event, the court reporter apparently delivered the transcript to the attorney for Rippley Construction on October 23, 1975, but failed to file a certificate evidencing the date of delivery of said transcript with the clerk of the trial court and the clerk of the Supreme Court as required by Rule 10(b) of the North Dakota Rules of Appellate Procedure.

Incidentally, according to the court reporter's certificate acknowledging receipt of the order for the transcript, the order was not received until August 29, 1975. In failing to order the transcript within 10 days after filing the notice of appeal, counsel for Rippley Construction violated Rule 10(b), N.D.R.App.P. Unless the time within which the transcript is to be furnished is to be reduced because of counsel's delay, the court reporter had 60 days from the receipt of the order within which to furnish the transcript and furnished it well within that time.

Counsel for Rippley Construction asserts that it will deliver a copy of the transcript to counsel for LeFevre Sales as soon as permitted to do so by this court and that it will thereafter prepare and serve upon LeFevre Sales or its counsel an appellate brief within a reasonable time if permitted to do so by this court.

What we have in effect is about a two-month delay in the appellate process which has been precipitated by Rippley Construction, its bonding company, and its counsel. Under Rules 11(d) and 3(a) we have the discretion to permit the record to be transmitted and filed after the expiration of the time allowed or fixed by the Rules of...