Owan v. Kindel, 10531

• Citation: 347 N.W.2d 577
• Decision Date: 24 April 1984
• Docket Number: No. 10531,10531
• Parties: Abe OWAN, Plaintiff and Appellee, v. Floyd KINDEL, Defendant and Appellant. Civ.
• Court: United States State Supreme Court of North Dakota

Page 577

347 N.W.2d 577

Abe OWAN, Plaintiff and Appellee, v. Floyd KINDEL, Defendant and Appellant.

Civ. No. 10531.

Supreme Court of North Dakota.

April 24, 1984.

Anseth & Zander, Williston, submitted brief for plaintiff and appellee.

Floyd Kindel, Williston, submitted brief pro se.

SAND, Justice.

Floyd Kindel appealed from a judgment ¹ against himself, Delores Kindel and Howard Kindel, in the sum of $4,229.68, plus interest in the sum of $596.02, in favor of Abe Owan.

Owan brought an action against Kindels alleging that on 25 March 1981 they entered into a contract with him for the purchase of land with a building located thereon for the sum of $81,588.00. Owan alleged that Kindels tendered $75,283.32, leaving a balance of $6,304.68. Owan demanded judgment for that amount.

Kindels answered and counterclaimed alleging that the contract price was $75,283.32 and that Owan had changed the selling price to $81,588.00. Kindels claimed that they tendered $75,283.32 to Owan with the oral agreement that they would pay $6,304.68 when the building was completed and certain maintenance matters were performed. Kindels further alleged that three months after the contract had been signed nothing further had been done. Kindels subsequently told Owan that he was not entitled to any further payment. Kindels prayed for $6,700.00 in compensatory damages for work not completed and $500,000.00 in punitive damages for attempting to defraud Kindels of money not due and owing, and for damaging their reputation.

The court, sitting without a jury, and after hearing the evidence, together with exhibits, made the following findings of fact:

"I.

"That the Plaintiff and Defendant entered into a contract for the sale of property in the sum of Eighty-one Thousand Five Hundred Eighty-eight and no/hundreths ($81,588.00) Dollars. That the Defendants on or about the 25th day of March 1981, paid the Plaintiff Seventy-five Thousand Two Hundred Eighty-three and thirty-two hundredths ($75,283.32) Dollars, leaving a balance due and owing of Six Thousand Three Four [sic] and sixty-eight/hundreths ($6,304.68) Dollars.

"II.

"That the Defendants are entitled to an off-set of One Thousand Six Hundred Seventy-five and no/hundredths ($1,675.00) Dollars, which is the reasonable cost of the heating system that was to be supplied by the Defendant.

"III.

"That the Defendants are entitled to a further off-set of Four Hundred and no/hundredths ($400.00) Dollars for the cancellation of a public sale, because of power failure caused by the plaintiff.

"IV.

"That there is no showing of any misrepresentation on the part of Abe Owan, or [sic ] was there any conduct on the part of Abe Owan which was improper which would cause the Defendants or induce the Defendants to sign any contract.

"V.

"That there was no duress, menace, undue influence, misconduct, lack of consent, failure to perform, estoppel, coercion, and recision between the Plaintiff and Defendants in this action."

The court concluded that Owan was entitled to judgment against the Kindels in the sum of $4,229.68 plus interest, and ordered judgment accordingly. Only Floyd Kindel appealed.

This is a case in which Rule 52(a), North Dakota Rules of Civil Procedure, is controlling. Our Court on numerous occasions has stated that the appellant has the burden to establish and give reasons why the findings of fact are clearly erroneous. Rule 52(a), NDRCivP, provides in part:

"Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses."

A trial court's findings of fact are clearly erroneous when, although there is some evidence to support them, the reviewing court from the entire evidence is left with a definite and firm conviction that a mistake has been made. American Mutual Life Insurance Company v. Jordan 315 N.W.2d 290, 294-95 (N.D.1982). The mere fact that the appellate court might have viewed the facts differently if it had been the initial trier of the case does not entitle it to reverse the lower court. Ibid. A choice between two permissible views of the weight of the evidence is not clearly erroneous. Id.

Owan noted that Kindel failed to file the required bond on appeal and cited Community Hospital v. Olson, 246 N.W.2d 91 (N.D.1976), for the proposition that Kindel's failure constitutes grounds for such action as this Court deems appropriate, including dismissal. Owan also noted that Kindel failed to transmit the trial transcript as required under Rule 10, North Dakota Rules of Appellate Procedure, and that...