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Agri Industries, Inc. v. Franson

Supreme Court of North Dakota

July 11, 2018

Agri Industries, Inc., Plaintiff and Appellee
v.
Francis Franson, Defendant, Third-Party Plaintiff, Appellant, and Cross-Appellee
v.
Hess Corporation, Third-Party Defendant, Appellee, and Cross-Appellant

          Appeal from the District Court of Williams County, Northwest Judicial District, the Honorable Benjamen James Johnson, Judge.

          Lynn M. Mesteth, Fargo, ND, for plaintiff and appellee Agri Industries, Inc.

          Scott A. Hager, Bismarck, ND, for defendant, third-party plaintiff, appellant, and cross-appellee Francis Franson.

          Paul J. Forster (argued) and Benjamin J. Sand (appeared), Bismarck, ND, for third-party defendant, appellee, and cross-appellant Hess Corporation.

          OPINION

          Jensen, Justice.

         [¶1] Francis Franson appeals from a judgment entered after the district court granted Hess Corporation's ("Hess") motion for summary judgment and Agri Industries, Inc.'s ("Agri") motion for prejudgment interest. Hess cross-appeals from the parts of the district court's judgment rejecting Hess' alternative arguments for dismissal. We affirm the portion of the district court's judgment granting summary judgment to Hess. We reverse the portion of the district court's judgment granting Agri's motion for prejudgment interest.

         I

         [¶2] In 2008, Hess hired Geokinetics USA, Inc. to complete seismographic testing on Franson's property, which took place in mid-December 2008. Shortly after, Franson noticed a loss of pressure from his water well between December 2008 and January 2009. Franson hired Agri to drill a new well in January 2009. In March 2013, Agri sued Franson for not paying for its well-drilling services.

         [¶3] In May 2014, the district court granted Franson's motion to commence a third-party action against Hess for the amounts he owed Agri. Franson served the third-party complaint against Hess in December 2014. In the third-party complaint, Franson alleged the damage to his well was a direct result of Hess' seismographic work on his property. In March 2017, Hess moved for dismissal or summary judgment, arguing Franson's claim expired under the six-year statute of limitations, Franson's third-party complaint against Hess failed to state a claim upon which relief could be granted, and Hess could not be liable for torts of its independent contractor. The district court determined Hess was not entitled to dismissal under the statute of limitations and Franson's third-party complaint was adequate under N.D.R.Civ.P. 8 and 14. However, the district court granted Hess' motion for summary judgment, concluding Hess could not be held liable for the negligence of its independent contractor and Franson did not comply with N.D.C.C. § 38-11.1-06, which required a certified water test to recover against a mineral developer for damage to a water supply.

         [¶4] The district court held a jury trial on the remaining issues between Agri and Franson, and the jury returned a verdict in favor of Agri in the amount of $77, 924.85, the exact amount invoiced to Franson for the services. The jury verdict did not mention interest. Agri moved for an award of prejudgment interest. The district court determined Agri was entitled to prejudgment interest because the damages were certain or capable of being made certain by calculation.

         II

         [¶5] On appeal, Franson argues the district court erred in granting Hess' summary judgment motion because N.D.C.C. § 38-11.1-06 does not require a certified water test to recover from Hess. This Court reviews summary judgment as follows:

Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. A party moving for summary judgment has the burden of showing there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the record. On appeal, this Court decides whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law. Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record.

Hallin v. Inland Oil & Gas Corp., 2017 ND 254, ¶ 6, 903 N.W.2d 61 (quoting THR Minerals, LLC v. Robinson, 2017 ND 78, ΒΆ ...


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