Articles Posted in North Dakota Supreme Court

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Ewing Construction Co., Inc., appeals from a judgment denying its N.D.R.Civ.P. 60(b) motion to vacate a $951,191.62 default judgment entered in favor of Key Energy Services, LLC. Ewing began serving as the designer of and general contractor for Key's construction of the P3 Service Center project in Williston. Ewing voluntarily canceled its North Dakota contractor license in October 2014. In January 2015, Key sued Ewing and 22 others to invalidate construction liens filed against its property and claiming Ewing failed to pay numerous subcontractors for their work on the project in violation of its contractual obligations. After Ewing failed to answer the complaint, Key moved in June 2016 for a default judgment against Ewing. The district court granted the motion and entered default judgment against Ewing, awarding Key $951,191.62. The default judgment was entered on June 24, 2016, and Key served notice of entry of judgment on June 27, 2016. On May 12, 2017, after attempts were made to enforce the default judgment in Texas, Ewing brought a N.D.R.Civ.P. 60(b) motion to vacate the default judgment "because of insufficient service of process, and excusable neglect." Key responded by filing a corrected return of service which the district court accepted and considered. The corrected return of service was notarized and identified the documents served. On July 28, 2017, the court denied the N.D.R.Civ.P. 60(b) motion, concluding service of process was sufficient, the motion was untimely, and Ewing failed to establish excusable neglect. Because the district court did not err in ruling service of process was proper and did not abuse its discretion in denying the motion to vacate, the North Dakota Supreme Court affirmed. View "Key Energy Services, LLC v. Ewing Construction Co., Inc., et. al." on Justia Law

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Rocky Mountain Steel Foundations, Inc. appealed a judgment invalidating its oil and gas construction liens and awarding attorney fees to Mitchell's Oil Field Services, Inc., also known as Wood Group, and Travelers Casualty and Surety Company of America (collectively "Mitchell's"). Mitchell's, as general contractor, entered into a contract with Brockett Company, LLC, as subcontractor, and Amber Brockett, as personal guarantor (collectively "Brockett"), to purchase construction materials for installation on certain oil wells. Brockett purchased materials from Rocky Mountain to fulfill Brockett's contract with Mitchell's. Mitchell's paid Brockett in full. Rocky Mountain delivered the materials, and Mitchell's installed the materials. Rocky Mountain thereafter recorded two oil and gas well liens against the wells because Brockett had not paid Rocky Mountain. Mitchell's recorded lien release bonds, with the liens attached to the bonds. Mitchell's received payment in full, then Rocky Mountain filed to foreclose on the liens. The parties agreed Mitchell's paid Brockett in full before Rocky Mountain delivered the materials to the wells and before Mitchell's or the leaseholders received notice of the liens. The parties agreed Rocky Mountain timely and properly satisfied all statutory and other requirements to create, perfect, and foreclose on the liens. Rocky Mountain recorded the liens on well leaseholds by ConocoPhillips Company and Burlington Resources Oil & Gas Co. (the "owners"). Brockett did not answer or appear at any hearings and admitted to nonpayment, but asserted it has no assets with which to pay. The district court granted summary judgment in favor of Rocky Mountain for its breach of contract claim against Brockett. The parties submitted their remaining claims to the district court solely on interpretation of the oil and gas construction liens provided by N.D.C.C. ch. 35-24. The court found N.D.C.C. 35-24-04 invalidated Rocky Mountain's liens after the owners paid Mitchell's. The primary issue before the North Dakota Supreme Court was whether N.D.C.C. 35-24-04 permitted a subcontractor's oil and gas construction lien when an owner fully paid the general contractor. Rocky Mountain argued the district court erred in finding Rocky Mountain's liens were invalidated when the owners fully paid Mitchell's. The Supreme Court agreed: Section 35-24-02, N.D.C.C., allowed contractors to file liens for unpaid materials furnished or services rendered "in the drilling or operating of any oil or gas well upon such leasehold." The district court erred in interpreting N.D.C.C. sections 35-24-04 and -07 to invalidate Rocky Mountain's liens, and also erred in awarding attorney fees to Mitchell's. View "Rocky Mountain Steel Foundations, Inc. v. Brockett Company, LLC" on Justia Law

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Dickinson Elks Building, LLC, appealed a judgment awarding Rick and Janan Snider, doing business as RJ Snider Construction ("RJ Snider"), $198,255.08 for unjust enrichment and quantum meruit claims. In 2011, RJ Snider contracted with Granville Brinkman to furnish materials and labor for construction work on real property owned by Dickinson Elks. RJ Snider's principal place of business was located in Washington. In 2012, RJ Snider applied for a contractor license from the North Dakota Secretary of State, and the license was issued on in February 2012. RJ Snider provided services and materials for Dickinson Elks' property from December 26, 2011, to November 30, 2012. Dickinson Elks paid RJ Snider for all of the services and materials it provided between December 26, 2011, and February 1, 2012. RJ Snider billed Dickinson Elks $174,642.10 for the services and materials it provided from March 15, 2012, until November 30, 2012. Dickinson Elks did not pay any of this amount. In January 2013, RJ Snider recorded a construction lien against Dickinson Elks' property. In May 2014, Dickinson Elks served RJ Snider with a demand to start a lawsuit to enforce the lien and record a lis pendens within 30 days of the demand. RJ Snider sued Dickinson Elks in June 2014, seeking foreclosure of the construction lien and a money judgment. RJ Snider recorded a notice of lis pendens on July 28, 2014. Dickinson Elks moved for summary judgment, arguing RJ Snider's complaint should be dismissed under N.D.C.C. 43-07-02 because RJ Snider was not a licensed contractor when it started work on the property. Dickinson Elks also argued RJ Snider did not have a valid construction lien, because RJ Snider did not record a lis pendens within 30 days of receiving the demand to enforce the lien. The district court partially granted the motion and entered a judgment forfeiting RJ Snider's construction lien because RJ Snider did not record a lis pendens within 30 days of receiving Dickinson Elks' demand to enforce the lien as required under N.D.C.C. 35-27-25. The court concluded RJ Snider's claims were not precluded under N.D.C.C. 43-07-02. RJ Snider amended its complaint, claiming it was entitled to a money judgment against Dickinson Elks under the principles of quantum meruit and unjust enrichment. The North Dakota Supreme Court concluded RJ Snider was not precluded from maintaining its claims; however, the Court reversed and remanded for the district court to determine whether any of the damages awarded were for services and materials provided before RJ Snider was licensed. View "Snider v. Dickinson Elks Building, LLC" on Justia Law

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A district court has broad discretion on evidentiary matters and its decision to admit or exclude evidence will not be overturned unless it abused its discretion. Issues not raised before the district court will not be considered for the first time on appeal. Brian Linstrom and Leisa Bennett (collectively referred to as the "Linstroms") hired Mike Normile to complete a remodeling of their home for a price of $107,000.00. The Linstroms paid Normile the contract price plus an additional $30,000.00 for certain changes made during the remodel. Normile believed the Linstroms owed more money for the work that was completed. After failing to receive additional payment, Normile put a mechanic's lien on the home. The Linstroms commenced a breach of contract action against Normile after they were unsatisfied with the work completed on their home. The Linstroms' complaint also requested the lien on their home be discharged. Mike Normile appealed after a jury found him liable for breach of contract and awarded damages to the Linstroms. Because the North Dakota Supreme Court concluded each issue raised was either waived or was not error, it affirmed the judgment. View "Linstrom v. Normile" on Justia Law

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Eagle Rigid Spans, Inc., ("ERS") appealed an order denying its motion for new trial and an amended judgment entered after a jury found in favor of Brandon and Constance Jalbert and awarding them $650,000 plus interest, and costs and disbursements. ERS also appealed from the district court's order overruling its objections to costs and disbursements. ERS contracted to build a multi-purpose building for the Jalberts. During and after the construction of the building the Jalberts discovered problems with the structure. The Jalberts brought suit alleging breach of contract and breach of warranty. ERS argued irregularities in the proceeding of the jury trial prevented them from having a fair trial, the jury awarded excessive damages because of the influence of passion or prejudice, sufficient evidence did not exist to justify the verdict and the trial court erred in failing to reduce the Jalbert's expert witness fees. Finding no reversible error, the Supreme Court affirmed. View "Jalbert v. Eagle Rigid Spans, Inc." on Justia Law

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Rick Snider and Janan Snider, doing business as RJ Snider Construction ("Snider"), appealed the grant of summary judgment, forfeiting a construction lien against the property that formerly housed the Dickinson Elks Lodge later owned by private investors, the Dickinson Elks Building, LLC ("DEB"), and prohibiting Snider from recording additional liens against the property without performing additional work. The North Dakota Supreme Court was not convinced that perfecting a lien amounted to creating a lien, as argued by the Sniders. As such, the Court concluded that when a Court declares a lien is deemed forfeited or satisfied, the right to the lien for the construction services or materials provided is deemed forfeited, not just the document recording the lien and establishing its priority. The district court correctly interpreted N.D.C.C. 35-27-25 in concluding the statute barred Snider from recording another construction lien against DEB's property for the same work. The district court also correctly concluded Snider forfeited its construction lien created and attached as a matter of law under N.D.C.C. sections 35-27-02 and 35-27-03 when it failed to comply with DEB's demand to enforce the lien. View "Snider v. Dickinson Elks Building, LLC" on Justia Law

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Twalker Development, LLC appealed a judgment granting KLE Construction LLC's claim for unjust enrichment and ordering Twalker to pay $87,958.74 in damages. KLE and Twalker engaged in negotiations for KLE to provide construction services to Twalker in exchange for four lots located in Twalker's development. KLE and Twalker never executed a written contract finalizing the terms of an agreement. KLE began performing construction services on the property, including preliminary dirt work related to clearing and scraping the property. KLE also hired an engineering firm to create plans to subdivide the property for future sales. KLE and Twalker disagreed about certain aspects of the project, and Twalker terminated KLE's services. Twalker continued to develop the property and did not compensate KLE for the services it provided. KLE sued Twalker for breach of contract, unjust enrichment, and forbearance. After a bench trial, the district court dismissed KLE's breach of contract claim, finding KLE failed to establish the existence of a contract. The court dismissed KLE's forbearance claim, stating forbearance was not a separate and distinct claim. The court granted KLE's unjust enrichment claim and found KLE was entitled to $90,857 in damages. The court ordered each party pay the other party's costs and disbursements. A judgment was entered in favor of KLE for $87,958.74. After review, the Supreme Court concluded the district court did not err in granting KLE's unjust enrichment claim and awarding damages. View "KLE Construction, LLC v. Twalker Development, LLC" on Justia Law

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Brian Welken appealed after a jury returned a verdict in favor of Eugene Taszarek, Marlys Taszarek, Trina Schilling, Steven Taszarek, and Michael Taszarek ("Taszareks") and against Lakeview Excavating, Inc., ("Lakeview") and Welken. Lakeview was a corporation primarily involved in flood control projects, and Welken was Lakeview's president and sole shareholder. In the spring of 2012, German Township in Dickey County solicited bids for road construction projects to repair and raise the grade of a road near the Taszareks' property. Lakeview, acting through Welken, successfully bid and was selected as the contractor for the road projects. Lakeview obtained most of its field rock for the project from area farmers and ranchers with rock piles on their properties. Lakeview arranged with landowners to harvest rocks from their fields and reclaim the ground so it could again be farmed, and landowners allowed Lakeview to remove rock piles. Herb Buerkley owned land adjacent to land owned by the Taszareks, and Buerkley permitted Lakeview to enter his family's property to harvest field rock. While harvesting the rock piles from Buerkley's land, Lakeview's employees crossed into the Taszareks' land and harvested field rock. The Taszareks brought an action against both Lakeview and Welken, asserting claims of intentional trespass, conversion, and unjust enrichment arising from Lakeview's work on the German Township road-raising project. The district court held a jury trial on the Taszareks' trespass and conversion claims against Lakeview and Welken. During trial, the Taszareks' attorney asked the court to instruct the jury on the theory that Lakeview was the "alter ego" of Welken and that Welken should therefore be personally liable for any judgment. Over the objection of Welken's attorney, the court gave an instruction regarding the alter ego doctrine. After review, the Supreme Court concluded Welken failed to preserve whether the district court misapplied the law by allowing the jury to resolve whether Lakeview was the alter ego of Welken. Furthermore, the Court concluded that the trial court erred as a matter of law in inadequately instructing the jury regarding the alter ego doctrine. The Court therefore reversed the judgment and remanded for a new trial. View "Taszarek v. Welken" on Justia Law

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Dickinson Elks Building, LLC, appealed after the district court forfeited a construction lien filed by Rick and Janan Snider, doing business as RJ Snider Construction, and awarded the Dickinson Elks attorney's fees. In December 2011, Snider contracted with Beaver Brinkman to perform work on real property owned by the Dickinson Elks. Snider recorded a construction lien in January 2013 against the property after it did not get paid for all of its work. In May 2014, the Dickinson Elks served Snider with a demand to start a lawsuit to enforce the lien and record a lis pendens within 30 days of the demand. Snider sued the Dickinson Elks in June 2014, seeking foreclosure of the construction lien and a money judgment. Snider recorded a notice of lis pendens in July 2014. The Dickinson Elks moved for summary judgment, arguing Snider's complaint should have been dismissed because Snider was not a licensed contractor when it started the work on the property. The Dickinson Elks also argued Snider did not have a valid construction lien, because Snider did not record a lis pendens within 30 days of receiving the demand to enforce the lien. The district court granted the motion in part and entered a judgment forfeiting Snider's construction lien because Snider did not record a lis pendens within 30 days of receiving the Dickinson Elks' demand to enforce the lien. After review, the Supreme Court concluded it did not have jurisdiction and dismissed the appeal. View "Snider v. Dickinson Elks Building, LLC" on Justia Law

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Linh Duc Duong, doing business as Classy Nails, appealed after a bench trial awarded Welch Construction & Excavating, LLC, $30,825, plus interest, for the balance due on a construction contract. Welch Construction sued Duong, alleging the parties contracted for Welch Construction to remodel a vacant retail space in Kirkwood Mall into a Classy Nails salon for $92,225. Welch Construction alleged it completed the work and Duong failed to pay the balance of $30,825 due under the contract. Duong answered and counterclaimed, denying he owed an outstanding balance under the contract and alleging Welch Construction breached the contract by failing to remodel the retail space in a timely and workmanlike manner according to his specifications. Duong claimed he was entitled to a setoff against any balance owed under the contract for his damages caused by Welch Construction's failure to complete the work before Thanksgiving 2013 and failure to construct the salon according to his specifications. Duong sought lost profits and damages for repairing the work according to his specifications. After review, the Supreme Court concluded the district court did not clearly err in finding: (1) the parties did not orally contract for a specific completion date for the construction project; (2) Welch Construction did not unreasonably delay completion of the project; and (3) Duong failed to establish his damages for costs to repair and lost profits for Welch Construction's claimed failure to complete the project according to his specifications. View "Welch Construction & Excavating, LLC v. Duong" on Justia Law