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Welch Construction & Excavating, LLC v. Duong

Supreme Court of North Dakota

March 18, 2016

Welch Construction & Excavating, LLC, Plaintiff and Appellee
v.
Linh Duc Duong, d/b/a Classy Nails, Defendant and Appellant

         As Corrected May 27, 2016.

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce B. Haskell, Judge.

         David A. Tschider, Bismarck, N.D., for plaintiff and appellee.

         Monte L. Rogneby, Bismarck, N.D., for defendant and appellant.

         Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Benny A. Graff, S.J., Gerald W. VandeWalle, C.J. Opinion of the Court by McEvers, Justice. Honorable Benny A. Graff, S.J., sitting in place of Kapsner, J., disqualified.

          OPINION

Page 293

          Lisa Fair McEvers, Justice

          [¶1] Linh Duc Duong, doing business as Classy Nails, appeals from a judgment entered after a bench trial awarding Welch Construction & Excavating, LLC, $30,825, plus interest, for the balance due on a construction contract. We conclude 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. We affirm.

         I

          [¶2] 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.

          [¶3] After a bench trial, the district court concluded the parties' written agreement did not include a completion date for the work and Duong presented no evidence of either a written or an executed oral agreement establishing the parties contracted for a completion date before Thanksgiving 2013. The court found the parties signed an estimate forming a written

Page 294

contract on October 29, 2013, the parties knew there was a four to six week time lag between an October 29, 2013 application for a city building permit and issuance of that permit, and there was also a four to six week wait for delivery of custom flooring ordered by Duong on October 30, 2013. Cody Welch, Welch Construction's owner, testified no significant delays occurred once work began on the project and the court found Welch Construction's evidence that there was no promised completion date was more reasonable than Duong's version of the completion date. The court found Duong failed to establish Welch Construction promised the work would be done before Thanksgiving 2013. The court alternatively found Duong failed to establish the alleged failure to complete the project on time caused him damages, explaining his evidence about damages was speculative. The court ruled that Welch Construction completed the work on time, that Duong failed to establish the cost to repair the claimed defects to conform to his specifications, and that he failed to establish how the claimed defects impacted his profits. The court said Duong failed to complain about specific items of workmanship while the project was ongoing, refused to participate in a walk through after the completion date on December 26, 2013, and refused to allow Welch Construction to return to the project to address his complaints. The court ...


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