Pender v. Waldenmayer
In what is the third appellate proceeding in this action arising out of the alleged breach of an agreement to make certain improvements on a private road, Gisele Pender appeals a judgment entered in favor of defendants Johannes Karl Notthoff, Norbert Waldenmayer, Harold and Margie Andersen, Harold Andersen, Jr., Georgeanne Andersen, Alan Shada and San Clemente Nurseries (collectively, the Developers) after the court denied her request to have the agreement specifically enforced against them. Pender contends that the trial court (1) erred in concluding that she was not entitled to have a jury empanelled at the trial of her breach of contract claim seeking specific performance to decide an issue of the parties' intent underlying certain contractual language; (2) violated the law of the case as established by the prior decisions of this court; (3) erred in finding that she had not met her burden of establishing her interpretation of the agreement because that finding was not supported by substantial evidence; and (4) erred in ruling on her additional claims for breach of contract and breach of the implied covenant of good faith and fair dealing. The Developers respond that Pender's arguments are without merit and that we should affirm the judgment and remand the matter to permit them to seek recovery of their attorney fees incurred on this appeal. Court find Pender's arguments unavailing and affirm the judgment.
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