Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Thomas E. Merrick, Judge.
The opinion of the court was delivered by: Crothers, Justice.
D&A Landscaping Co., 2012 ND 170 This opinion is subject to petition for rehearing. [Go to Documents]
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AFFIRMED. Opinion of the Court by Crothers, Justice.
[¶1] Andrew Thomas appeals the district court's judgment entered after a jury awarded Randall and Shannon Bakke $25,000 plus interest for breach of contract, negligence and fraud. Thomas argues insufficient evidence existed to pierce the corporate veil of D&A Landscaping Company, LLC and hold him personally liable for breach of contract and fraud. Thomas also claims that the district court committed plain error by failing to properly instruct the jury on the burden of proving fraud and that insufficient evidence existed to support the fraud verdict. We affirm, concluding the corporate veil was not pierced and the jury instruction on the burden of proof for fraud was law of the case.
[¶2] In 2006, the Bakkes considered expanding an elevated patio and replacing a boulder retaining wall that was part of the elevated patio. The Bakkes had experienced problems with sand and other materials passing through the boulder retaining wall and wanted a more permanent and less porous wall. The Bakkes visited the Bismarck landscape supply company Rocks and Blocks, Inc. Rocks and Blocks, Inc. recommended using particular building materials and employing Andrew Thomas of D&A Landscaping for project construction.
[¶3] The Rocks and Blocks' salesperson gave the Bakkes Thomas' business card containing the words "D&A Landscaping," "Your front to back landscaping company," the name "Andy Thomas" along with a telephone number, the email address "firstname.lastname@example.org" and a website address "www.dalandscaping.com."
[¶4] On August 24, 2006, Thomas provided the Bakkes with an initial estimate and a drawing for expanding the elevated patio, labor and specified materials. The proposal was "[r]espectfully submitted D&A Landscaping 426-4982 Per Andy Thomas." On March 22, 2008, the Bakkes received a second proposal submitted by "D&A Landscaping Per Andy Thomas." The Bakkes accepted the March 22, 2008 Proposal on March 26, 2008.
[¶5] During the summer and fall of 2008, Thomas installed the retaining wall and paver patio and completed other landscaping at the Bakkes' home. The Bakkes claim they first learned D&A Landscaping was a legal entity when they received a July 15, 2008 invoice directing payment to "D&A Landscaping, Inc." After the fact, the Bakkes learned D&A Landscaping Company, LLC (a limited liability company and not a corporation) was formed in 2005 and dissolved in 2008.
[¶6] The Bakkes were not satisfied with the quality of the work on their patio and wall. On August 31, 2010, the Bakkes sued D&A Landscaping Company, LLC; Rocks and Blocks, Inc.; Andrew Thomas; and Rocks & Blocks Landscaping & Contracting, LLC for fraud, deceit, breach of contract and negligence. On September 3, 2010, D&A Landscaping Company, LLC and Thomas answered. Rocks and Blocks, Inc. and Rocks & Blocks Landscaping & Contracting, LLC did not respond to the complaint. On December 15, 2010, the Bakkes moved for default judgment against Rocks & Blocks Landscaping & Contracting, LLC. On January 18, 2011, Rocks & Blocks Landscaping & Contracting, LLC resisted the motion and answered the Bakkes' complaint. On January 24, 2011, the district court denied the Bakkes' motion for default judgment against Rocks & Blocks Landscaping & Contracting, LLC. On February 10, 2011, the Bakkes moved for default judgment against Rocks and Blocks, Inc. On February 28, 2011, D&A Landscaping Company, LLC; Thomas; and Rocks & Blocks Landscaping & Contracting, LLC responded that they did not oppose the motion but contended that Rocks and Blocks, Inc. was not a predecessor entity to Rocks & Blocks Landscaping & Contracting, LLC. On April 15, 2011, the district court entered default judgment against Rocks and Blocks, Inc. for $24,427.50 plus interest.
[¶7] On June 19-22, 2011, the district court held a jury trial. The jury found that neither D&A Landscaping Company, LLC nor Rocks and Blocks, Inc. was liable for damages to the Bakkes. The jury found Thomas was liable for breach of contract, negligence and fraud. The jury awarded the Bakkes $25,000 plus interest. The verdict form also contains a notation, apparently in the district judge's handwriting, that "Jury was polled. The defendant who committed fraud was ...