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Pizza Corner, Inc v. C.F.L. Transport

December 21, 2010

PIZZA CORNER, INC., PLAINTIFF AND APPELLEE
v.
C.F.L. TRANSPORT, INC., DEFENDANT AND APPELLANT



Appeal from the District Court of Barnes County, Southeast Judicial District, the Honorable Mikal Simonson, Judge.

The opinion of the court was delivered by: Crothers, Justice.

N.D. Supreme CourtPizza Corner v. C.F.L. Transport

2010 ND 243

This opinion is subject to petition for rehearing. [Go to Documents]Filed Dec. 21, 2010 [Download as WordPerfect] Dissent filed.

AFFIRMED.

Opinion of the Court by

Pizza Corner, Inc. v. C.F.L. Transport, Inc.No. 20100084

Crothers, Justice.

[¶1] C.F.L. Transport, Inc. appeals the district court's judgment granting Pizza Corner, Inc. damages of $12,903.17, interest of $2,434.36, and costs and disbursements. We affirm.

I

[¶2] A.A. Pizza Corner in Anchorage, Alaska, ordered frozen pizzas, meat, and pizza ovens from Pizza Corner, Inc. C.F.L. was hired to transport the goods from Valley City, North Dakota, to Tacoma, Washington. C.F.L.'s driver, Theodore Bruesch, arrived on July 14, 2006 to pick up the products, and the temperature in the truck's refrigeration unit was 39 degrees Fahrenheit. Bruesch told Pizza Corner, Inc. owner David Zubrod he would adjust the refrigeration unit's temperature to ship the pizzas, and the pizzas were loaded at approximately eleven p.m. when the temperature of the refrigeration unit was 4 degrees Fahrenheit.

[¶3] The truck arrived at American Fast Freight's dock in Tacoma on July 18, 2006. Bruesch was instructed to back up to the dock and to open the door on the refrigeration unit. Bruesch turned off the refrigeration unit because the door was open, and he waited forty-five minutes before a forklift arrived to unload the pallets. After the truck was unloaded, Bruesch was handed a bill of lading with "Temp.0" written on it. Bruesch asked if there was a problem and was told there was not. The pizzas were transported to Anchorage, Alaska, and arrived on July 28, 2006. A.A. Pizza Corner owner Daniel Aasmundstad rejected the pizzas on July 30, 2006 because the pizzas were gelled and did not look right. The pizzas were shipped back to Pizza Corner, Inc. in Valley City.

[¶4] On June 10, 2009, Pizza Corner, Inc. filed a complaint against C.F.L., alleging the frozen pizzas arrived in Tacoma at a temperature of 41 degrees Fahrenheit and were damaged. C.F.L. answered the complaint, and a bench trial was held on October 26, 2009. At trial, the district court admitted the entire bill of lading into evidence over C.F.L.'s foundation and hearsay objections. The district court ruled the entire bill of lading was admissible under N.D.R.Ev. 803(6) as a record of regularly conducted business activity.

[ΒΆ5] The district court found the pizzas were damaged while under the dominion and control of C.F.L. and concluded Pizza Corner, Inc. was entitled to "$12,903.17 plus interest at the rate of 6% from September 1, 2006, to October 26, 2009, in the amount of ...


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