 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Swenson v. Raumin8/18/1998
rely on to support rescission were known or should have been known to Peter Swenson either at the time he signed the settlement agreement or shortly afterward. There is simply no explanation given by the Swensons for waiting nearly six years to bring the rescission action.
[ ] We conclude the trial court did not err in ruling, as a matter of law, the Swensons did not meet the reasonable diligence requirements in bringing this rescission action.
III.
[ ] We have considered the other arguments made by the Swensons and deem them to be without merit. The summary judgment is affirmed.
[ ] Dale V. Sandstrom William A. Neumann Mary Muehlen Maring Gerald W. VandeWalle, C.J.
Meschke, Justice, Dissenting.
[ ] Because I would reverse the summary judgment dismissing Peter Swenson's claim, I respectfully Dissent.
[ ] Paragraph VIII. of Peter Swenson's complaint alleged:
That on April 11, 1986, Peter Swenson signed a "Release of All Claims" which should be declared null and void and cancelled for the following reasons:
(1) Peter Swenson had only a sixth grade education and did not understand the meaning of the document;
(2) He had no attorney's advice before signing;
(3) There was a mutual mistake of fact in that the spinal fracture had not been discovered on April 11, 1986, and was not discovered until after May 1, 1986; and
(4) The release is unconscionable on the face of it, reciting $2,400 as consideration, while the medical bills alone are in excess of $28,000.
These facts, if proved, state a claim to set aside the release.
[ ] No evidence to dispute Peter's allegations was tendered by Raumins with their motion for summary judgment. Raumin's motion was no better than one to dismiss for failure to state a claim. The affidavit by Raumin's attorney did not meet the Rule 56(d) requirements of admissible evidence for summary judgment, as the majority opinion recognizes. Nor did it proffer any evidence to show Peter had not continued "under disability" to the time of suit. I would not sift the record for evidence to support Raumin's motions, and I do not think we should encourage trial Judges to do so.
[ ] Peter's failure to file a responsive affidavit did not aid Raumins. Rule 56 does not authorize the entry of a summary judgment when the adverse party fails to respond by filing proof in opposition unless it is appropriate to do so. Adams v. Canterra Petroleum, Inc., 439 N.W.2d 540, 543 (N.D. 1989)(citing Rice v. Chrysler Motors Corp., 198 N.W.2d 247, 252 (N.D. 1972)).
Failure of the adverse party in a summary judgment proceeding to respond by filing affidavits or other proof as required by Rule 56(e), N.D.R.Civ.P., does not authorize the entry of summary judgment against him when the proof submitted in support of the motion by the moving party indicates the presence of a genuine issue of material fact.
Luithle v. Taverna, 214 N.W.2d 117, 124 (N.D. 1973)(quoting Rice v. Chrysler Motors Corp., 198 N.W.2d 247 (N.D. 1972), at syllabus paragraph 1). Since Raumins did not present any evidence, "by affidavit or otherwise," to negate Peter Swenson's allegations of unconscionably and continuing disability, Raumins were not entitled to summary judgment.
[ ] Sally Swenson's affidavit, (obviously based on her personal knowledge), opposing summary judgment offered some admissible evidence for Peter's claim. She swore that " y husband lacks the education to understand the Release document; he completed only the first six elementary grades in school," as well as "his lack of understanding of t
Page 1 2 3 4 5 6 North Dakota Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|