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Ihli v. Lazzaretto

Supreme Court of North Dakota

June 11, 2015

Lori Ihli, Plaintiff and Appellant
v.
Anthony Lazzaretto d/b/a Lazzaretto Construction, Defendant and Appellee

Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Gary H. Lee, Judge.

Jessica L. Merchant (argued) and Ryan G. Quarne (appeared), Minot, ND, for plaintiff and appellant.

Kelsey A. Krapp, Bismarck, ND, for defendant and appellee.

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

OPINION

Page 484

Carol Ronning Kapsner, Justice.

[¶1] Lori Ihli appeals from a district court judgment dismissing her claims against Anthony Lazzaretto, d/b/a Lazzaretto Construction (" Lazzaretto" ). Under the facts of this case, we conclude the district court did not abuse its discretion in imposing the sanction of dismissal and denying Ihli's motion to amend. We affirm.

I

[¶2] In June 2011, Ihli's Minot home flooded. Ihli contacted Lazzaretto for an estimate to repair the home, and in February 2012, she accepted Lazzaretto's bid proposal. Lazzaretto began working on

Page 485

Ihli's home; however, a dispute arose between the parties regarding the quality of the work, and Lazzaretto ceased working on the home. In November 2012, Ihli applied for federal disaster relief funding to repair or replace her house through the City of Minot Disaster Recovery Homeowner Rehabilitation and Reconstruction Program. In early 2013, Ihli sought estimates from two construction companies, Real Builders, Inc. and Wright Brothers, to " repair" and complete the project.

[¶3] On July 23, 2013, Ihli sued Lazzaretto, alleging he damaged her property by performing remodeling work in a negligent manner. On July 31, 2013, Lazzaretto's attorneys served a Notice of Appearance upon Ihli's attorney. According to an affidavit of Lazzaretto's attorney, on or about August 23, Lazzaretto's attorney left a voice message for Ihli's attorney, requesting an extension of time to respond to Ihli's complaint, and on August 26, Ihli's attorney e-mailed Lazzaretto's attorney, granting the extension. Lazzaretto's attorney's affidavit stated that on September 3, Lazzaretto's attorney e-mailed a reply to Ihli's attorney, requesting until September 13, to serve Lazzaretto's answer.

[¶4] According to an affidavit of Ihli, after commencing the suit against Lazzaretto on July 23, 2013, she learned she was eligible for the disaster relief funding in " late August 2013." In Ihli's deposition, Ihli stated that after learning she was eligible for the funding, program administrators inspected the house and recommended the house be torn down and replaced, instead of being repaired. After Ihli commenced the suit against Lazzaretto and learned of her eligibility for disaster relief funding and after Ihli's counsel granted Lazzaretto's counsel an extension to file Lazzaretto's answer to Ihli's complaint, Ihli allowed the house to be demolished on September 6, 2013.

[¶5] Before the house was demolished, Ihli's attorney had advised Ihli to take photos or video of the property before the house was torn down. Ihli never informed Lazzaretto of the plan to demolish the house. After the house was demolished, Lazzaretto served its answer on September 13, 2013. In June 2014, Lazaretto moved for sanctions, requesting the case be dismissed due to Ihli's spoliation of evidence. Ihli then moved to amend her complaint, seeking to add a claim for breach of contract. After a hearing on both motions, the ...


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