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Jon Kohanowski v. Jessica B. Burkhardt

September 25, 2012

JON KOHANOWSKI, PLAINTIFF AND APPELLEE
v.
JESSICA B. BURKHARDT, DEFENDANT AND APPELLANT



Appeal from the District Court of Cass County, East Central Judicial District, the Honorable John Charles Irby, Judge.

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

N.D. Supreme CourtKohanowski v. Burkhardt, 2012 ND 199

This opinion is subject to petition for rehearing. [Go to Documents]

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REVERSED.

Opinion of the Court by Sandstrom, Justice.

[¶1] Jessica Burkhardt appealed from a district court judgment awarding damages to Jon Kohanowski for the unpaid balance of a loan and ordering Burkhardt to pay costs and attorney fees. We reverse, concluding the alleged oral loan agreement was barred by the statute of frauds.

I

[¶2] Burkhardt was engaged to marry Shaun Kohanowski, Jon Kohanowski's brother. In 2006, Shaun Kohanowski and Burkhardt were planning to purchase a home. Shaun Kohanowski contacted Jon Kohanowski, who agreed to lend $10,000 to assist in the purchase of the home. Jon Kohanowski alleged that Burkhardt was in the room and overheard Shaun Kohanowski's side of the telephone conversation during which the brothers discussed the loan.

[¶3] Jon Kohanowski contends the terms of the loan required Burkhardt and Shaun Kohanowski to repay the $10,000 in 36 monthly payments over a period of three years with interest at the rate of 7.5 percent per annum. Jon Kohanowski testified the monthly payments would be smaller the first year and would increase by $100 each year:

It was over 3 years and so it was--the payments were smaller to begin with and then gradually got bigger.

The payments of 12, 12, 12; $215.00 one year, 315 a month the next year and 415. It was very straightforward.

[¶4] Jon Kohanowski wired $675 to Shaun Kohanowski's and Burkhardt's bank to start the appraisal process and sent a check for $9,325 payable to Shaun Kohanowski and Burkhardt. Only Shaun Kohanowski endorsed the check, and he deposited the proceeds into a joint checking account he shared with Burkhardt. In early 2007, Burkhardt signed two checks for $215 each drawn on the joint account and payable to Jon Kohanowski. Burkhardt and Shaun Kohanowski subsequently called off their engagement, and no further payments were made on the loan. In September 2010, Shaun Kohanowski e-mailed a "Letter of Intent" to Jon Kohanowski acknowledging the debt, promising to pay one-half of the remaining debt with interest, and promising to assist Jon Kohanowski in collecting the remaining one-half of the debt from Burkhardt.

[ΒΆ5] In October 2010, Jon Kohanowski sued Burkhardt in small claims court for one-half of the remaining debt and a portion of the travel costs he had allegedly incurred attempting to collect the debt. Burkhardt removed the action to district court and demanded a jury trial. After a trial, the jury awarded Jon Kohanowski $6,641.29, one-half of the remaining debt plus interest. Burkhardt moved for judgment as a matter of law, a new trial, or relief from the judgment. The district court impliedly denied Burkhardt's motions, instead entering an order awarding Jon Kohanowski ...


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