from the District Court of Burleigh County, South Central
Judicial District, the Honorable David E. Reich, Judge.
A. Grinolds, Bismarck, ND, for plaintiff and appellant.
A. Kilwein (argued) and William P. Harrie (on brief), Fargo,
ND, for defendant and appellee Magi-Touch Carpet One Floor
& Home, Inc.
1] Shannon Bakke appeals from a judgment in favor of
Magi-Touch Carpet One Floor & Home, Inc. and denial of
her motion to amend her complaint. Bakke asserts the district
court erred in concluding she could not pursue a claim
against Magi-Touch because Magi-Touch was not liable for the
acts of its independent contractor. Bakke also asserts the
district court erred in denying, as futile, her motion to
amend her complaint to assert a contract claim against
Magi-Touch. We affirm in part, reverse in part, and remand
this case to the district court for further proceedings on
Bakke's contract claim.
2] Bakke entered into a contract with Magi-Touch for the
installation of floor tiles, a shower base, and related
products in a bathroom within Bakke's home. Magi-Touch
arranged to have the shower base and tile installed by VA
Solutions, LLC, an independent contractor. Bakke asserts the
shower door was improperly installed, the improper
installation resulted in the shower door imploding, and the
implosion caused damage to property in and around the shower
requiring the bathroom door and trim to be repainted.
3] Magi-Touch refused to compensate Bakke for repainting the
bathroom door and trim. Bakke initiated the litigation in
small claims court using a court provided small claims court
affidavit form and sought to recover compensation for the
repairs to the bathroom door and trim. The small claims court
affidavit form only requires a general description of the
claim, and Bakke did not state whether she was asserting tort
or contract claims.
4] Magi-Touch responded to the small claims court affidavit
with a formal answer and did not use the small claims court
answer form. The answer included a demand for a jury trial
and defenses that can be fairly characterized as responding
to a negligence (tort) cause of action. The answer included
an assertion that Bakke's claim was barred by the
economic loss doctrine; the economic loss doctrine would
limit Bakke's recovery to a breach of contract claim and
preclude tort claims such as negligence. Magi-Touch also
requested removal of the case from the small claims court to
the district court.
5] After removal of the case to the district court,
Magi-Touch moved for summary judgment asserting VA Solutions
was hired as an independent contractor and Magi-Touch could
not be held liable for the negligence of an independent
contractor. The district court granted Magi-Touch's
request for summary judgment after determining Magi-Touch had
no liability for the negligence of an independent contractor.
In the same order, the district court granted SPS Companies,
Inc.'s motion to dismiss after determining SPS was
relieved from liability for distribution of a defective
product because SPS is a non-manufacturing seller as defined
by N.D.C.C. § 28-01.3-04. Bakke has not appealed the
dismissal of SPS from the litigation.
6] At the same time the district court considered
Magi-Touch's motion for summary judgment and SPS's
motion to dismiss, the district court considered Bakke's
motion to file an amended complaint. The amended complaint
expanded on the general claim asserted in the small claims
court affidavit and specifically asserted claims for breach
of contract, fraud, deceit, negligence, and unlawful sales
practices. The district court denied Bakke's request for
leave to file the amended complaint after determining the
claims would be futile. In doing so, the district court
relied on its prior determination that Magi-Touch could not
be held responsible for the negligent acts of VA Solutions,
an independent contractor.
7] In its order granting summary judgment, the district court
determined Bakke and Magi-Touch entered into a contract for
the installation of floor tiles, a shower base, and the
related products in a bathroom within Bakke's home. That
finding is consistent with Magi-Touch's assertion in its
answer that the economic loss doctrine precludes tort claims.
8] The elements of a contract are outlined in N.D.C.C. §
9-01-02 and include parties capable of contracting, the
consent of the parties, a lawful object, and consideration.
In the present case, all of those elements exist: 1) both
parties were capable of entering into a contract; 2) both
parties consented to the contract; 3) installation/remodeling
of a bathroom is a lawful object; and 4) consideration for
the contract was satisfied by Magi-Touch's agreement to
provide materials and installation in exchange for payment
from Bakke. The district court properly determined the