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Westby v. Schmidt

March 16, 2010


Appeal from the District Court of Mountrail County, Northwest Judicial District, the Honorable Gary H. Lee, Judge.

The opinion of the court was delivered by: Maring, Justice


[¶1] Gary Schmidt and Schmidt Construction of Stanley, Inc. ("appellants") appeal from a district court judgment entered after a jury awarded Randy Westby $239,595.14 in damages in a breach of contract action. We affirm, concluding the district court did not abuse its discretion by allowing expert testimony, there was sufficient evidence to support the jury's verdict, and the court did not err in denying the appellants' motion to dismiss the corporation as a defendant.


[¶2] In early 2006, Westby began talking to Schmidt, a licensed contractor doing business as Schmidt Construction, about his plans to build a house. On June 21, 2006, Westby and Schmidt executed an agreement for the construction of the house. The agreement stated the estimated cost of construction was $435,362.95. The agreement also stated, "[Gary Schmidt/dba Schmidt Construction] agrees to furnish all material and perform all work necessary to complete the [house] . . . according to the plans and specifications (details thereof to be furnished as needed) and to the full satisfaction of [Westby]." Construction on the house began in July 2006.

[¶3] Before the agreement was signed Schmidt began forming a corporation and planned to transfer all of his business to the corporation. The corporation was incorporated on June 5, 2006. Schmidt allowed his contractor's license to lapse and began operating under the corporation's contractor's license.

[¶4] Westby initially received invoices for the work on the house from Schmidt Construction, but by February 2007 the corporation began sending the invoices. Westby testified he paid the invoices he received, including the invoices from the corporation.

[¶5] In May 2007, Westby told Schmidt he was not happy with the work and he wanted Schmidt to stop working on the house. There was evidence Westby had made payments to Schmidt and the corporation of $500,321.46, and the work on the house was approximately sixty percent complete. Westby hired a new general contractor, Mindt Construction, to finish building the house. Westby paid Mindt Construction $219,462.68 to complete the construction of the house and to repair some of the work already completed.

[¶6] Westby sued Schmidt and the corporation for breach of contract, seeking $250,443.34 in damages. Westby claimed Schmidt and the corporation breached the contract by demanding payment in excess of the contract price, failing to complete the work on the house, failing to pay two subcontractors, performing substandard and deficient work, and failing to construct the structure according to the plans and Westby's full satisfaction. After a jury trial, the jury found in favor of Westby and awarded him $239,595.14 in damages.


[¶7] The appellants argue the district court erred in allowing Bryan Mindt, Westby's expert witness, to testify without limiting his testimony to the standards or practices of the industry. They contend Mindt's testimony was extensively based on his personal preferences, and he admitted that he was not familiar with industry standards in some instances.

[¶8] Under N.D.R.Ev. 702, a party may present testimony from an expert witness:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

"Rule 702, N.D.R.Ev., envisions generous allowance of the use of expert testimony if the witness is shown to have some degree of expertise in the field in which the witness is to testify." State v. Hernandez, 2005 ND 214, ¶ 8, 707 N.W.2d 449. The district court's decision whether a witness is qualified as an expert and to allow the testimony is within the court's discretion, and the court's decision will not be reversed on appeal unless the court abused its discretion. Id. A district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, it misinterprets or misapplies the law, or when its decision is not the product of a rational mental process leading to a reasoned determination. Id.

[¶9] Mindt testified he owns Mindt Construction and has worked in the construction industry for over twenty years. He testified his company specializes in building custom homes, and he has worked on three to four hundred custom homes during his career. The appellants are not challenging his qualifications as an expert witness. Rather, the appellants argue the district court erred in allowing Mindt to testify about his own preferences for construction techniques instead of industry standards.

[ΒΆ10] The appellants objected to Mindt's testimony five times during the trial arguing his testimony was not based on industry standards. The district court sustained some of the appellants' objections and Westby's attorney agreed to rephrase other questions without further objection. The court overruled two of the appellants' ...

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