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C&C Plumbing & Heating, LLP v. Williams County

Supreme Court of North Dakota

June 24, 2014

C&C Plumbing and Heating, LLP, Plaintiff
Williams County, North Dakota, Defendant, Third-Party Plaintiff, and Appellee
American General Contractors, Inc., Third-Party Defendant, Fourth-Party Plaintiff, and Appellant
Davis Masonry, Inc., Fourth-Party Defendant, Fifth-Party Plaintiff, and Appellee
Parsons Commercial Fifth-Party Defendant Technology Group, Inc., and Appellee

Page 710

Appeal from the District Court of Williams County, Northwest Judicial District, the Honorable William W. McLees, Judge.


Collin P. Dobrovolny, Minot, N.D., for fourth-party defendant, fifth-party plaintiff and appellee Davis Masonry, Inc.

Charles L. Neff, Williston, N.D., for defendant, third-party plaintiff, and appellee Williams County, North Dakota.

Kip M. Kaler, Fargo, N.D., for third-party defendant, fourth-party plaintiff, and appellant.

Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. Opinion of the Court by McEvers, Justice.


Page 711

McEvers, Justice.

[¶1] American General Contractors, Inc. (" AGC" ), appeals from a judgment assessing liability and awarding damages and interest for the cost of delays in the construction of the Williams County Law Enforcement Center in Williston. Because AGC has not convinced us that the district court's findings of fact are clearly erroneous or that the court misapplied the law, we affirm.

Page 712


[¶2] In 2006, the Williams County Board of County Commissioners (" County" ) decided to construct a new law enforcement center and entered into a construction management contract with a firm that was subsequently acquired by Parsons Commercial Technology Group, Inc. (" Parsons" ). Parsons solicited bids for 28 prime contracts, and AGC was awarded five prime contracts for a total bid of $3,666,400: (1) building and site concrete; (2) masonry; (3) steel erection; (4) general trades/carpentry; and (5) drywall and plaster. AGC entered into a subcontract with Davis Masonry, Inc. (" Davis" ), for the masonry work on the building and with Arnco Diversified, Inc. (" Arnco" ), for the steel erection. Each of the County's contracts with the prime contractors contained a " Milestone Schedule" which listed April 2, 2007, as the date for " Start of Construction/Mobilization" ; August 15, 2007, as the date for " Building Enclosure and Roofing" ; and June 30, 2008, as the date for " Substantial Completion." However, delays with the construction project quickly ensued. Building enclosure and roofing was not achieved until February 15, 2008, and substantial completion was not accomplished until February 19, 2009, about seven and one-half months after the milestone schedule date for substantial completion.

[¶3] C& C Plumbing and Heating, LLP (" C& C" ), the successful bidder for the mechanical prime contract, brought this action against the County for additional costs incurred as a result of the delay. The County brought a third-party complaint against AGC, which in turn counterclaimed against the County and brought a fourth-party action against its subcontractor, Davis. Davis counterclaimed against AGC and brought a fifth-party action against Parsons. The district court dismissed the fifth-party action against Parsons on summary judgment and held a bench trial on the remaining claims between the parties.

[¶4] In a 94-page opinion, the district court found that the first four months of the delay was attributable to causes " inherent in the construction industry." The court found the remaining three and one-half months of delay was " largely attributable" to the County, through its agent Parsons, for " active interference" with its contractors. The court concluded it was appropriate for the County and AGC to share responsibility for providing temporary shelter and heat on the project. The court apportioned 47 percent of the liability for the costs of the delay for the three and one-half months of active interference to the County and 53 percent to AGC, for the four months delay inherent to the industry. The court awarded C& C approximately $73,000 on its claim against the County. After offsetting amounts owed between the parties, the court awarded AGC approximately $424,000 on its claim against the County. The court awarded Davis approximately $96,000 from AGC for masonry work completed under its subcontract with AGC, and rejected AGC's claimed offsets to that amount. Davis had provided heat, cover and shelter for the project during cold weather and sought $649,000 from the County and AGC for that expense including prompt payment interest. Davis had settled with the County for $530,000, and the court ruled AGC was responsible for 53 percent of the remaining $119,000, or $63,070.


[¶5] AGC argues the district court made several errors of law and fact in its decision.

[¶6] Our standard of review of a bench trial is well-established:

Page 713

In an appeal from a bench trial, the trial court's findings of fact are reviewed under the clearly erroneous standard of N.D.R.Civ.P. 52(a) and its conclusions of law are fully reviewable. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after reviewing all the evidence, we are left with a definite and firm conviction a mistake has been made. In a bench trial, the trial court is the determiner of credibility issues and we do not second-guess the trial court on its credibility determinations.

Trosen v. Trosen, 2014 ND 7, ¶ 20, 841 N.W.2d 687 (quoting 2013 ND 52, ¶ 6, 828 N.W.2d 521). Niles v. Eldridge,


[¶7] AGC argues the district court erred in determining AGC was liable for any of the costs incurred from the delay under its ...

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