Corrected May 27, 2016.
from the District Court of Burleigh County, South Central
Judicial District, the Honorable Bruce B. Haskell, Judge.
A. Tschider, Bismarck, N.D., for plaintiff and appellee.
L. Rogneby, Bismarck, N.D., for defendant and appellant.
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.
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.
[¶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
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 ...