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Pavlicek v. American Steel Systems, Inc.

Supreme Court of North Dakota

April 11, 2019

Larry Pavlicek, Plaintiff and Appellee
v.
American Steel Systems, Inc., Gabriel Construction Services, LLC, Door Pro, Inc., and Dickinson Ready-Mix, Co., Defendants and JRC Construction, LLC, Defendant and Appellant

          Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable William A. Herauf, Judge.

          Opinion of the Court by Tufte, Justice. Craig E. Johnson (argued) and Jared J. Hines (appeared), Fargo, N.D., for plaintiff and appellee.

          Paul R. Sanderson, Bismarck, N.D., for defendant and appellant.

          TUFTE, JUSTICE.

         [¶1] JRC Construction, LLC, appeals a judgment entered after a jury awarded Larry Pavlicek $217, 244.55 in damages against JRC. The jury found JRC breached a contract with Pavlicek relating to construction work performed by JRC. JRC argues the district court erred in denying its motion and renewed motion for judgment as a matter of law because Pavlicek failed to prove he had a contract with JRC. We affirm.

         I

         [¶2] Pavlicek contracted with American Steel Systems, Inc., for the purchase of a steel building. The contract provided Pavlicek was responsible for hiring other contractors to erect the building and perform other work, including concrete installation. American Steel made recommendations relating to the other contractors. JRC installed the concrete floor for the building. The concrete floor developed problems including peeling, cracking, delaminating, and bubbling. JRC's attempted repair of the concrete was unsuccessful.

         [¶3] Pavlicek sued American Steel and JRC for breach of contract relating to the defective work. JRC denied a contract existed between Pavlicek and JRC. American Steel did not answer the complaint, and the district court granted Pavlicek a $185, 800.80 default judgment against American Steel.

         [¶4] At trial, Pavlicek testified about his dealings with JRC. He testified he spoke with a representative from JRC about installing the concrete floor for the building. Pavlicek testified he received a verbal proposal from the JRC representative, he agreed to the proposal, and JRC began the concrete work. After JRC installed the concrete, Pavlicek noticed problems with the concrete, including peeling, cracking, delaminating, and bubbling. Pavlicek testified that JRC returned to the site to try to repair the concrete damage, but JRC's efforts failed to correct the problems. On cross-examination, Pavlicek stated he did not enter into a written contract with JRC. He testified American Steel hired JRC to do the concrete work. On redirect, Pavlicek stated he contracted with JRC and understood JRC was working for him.

         [¶5] At the conclusion of Pavlicek's case-in-chief, JRC moved for judgment as a matter of law under N.D.R.Civ.P. 50, arguing Pavlicek did not prove he had a contract with JRC because of his conflicting testimony about who contracted with JRC to do the concrete work. JRC also argued the damages Pavlicek was awarded resulted in a double recovery because Pavlicek already had a judgment against American Steel for replacement of the concrete floor. The district court denied JRC's motion and a jury returned a verdict in Pavlicek's favor, awarding him $217, 244.55 in damages. JRC renewed its motion for judgment as a matter of law after trial. Following a hearing, the court denied JRC's renewed motion.

         II

         [¶6] JRC argues Pavlicek failed to prove he had a contract with JRC and the district court erred in denying its motion for judgment as a matter of law.

         [¶7] Rule 50, N.D.R.Civ.P., governs judgments as a matter of law. Under N.D.R.Civ.P. 50(a)(1), a district court may grant a motion for judgment as a matter of law "[i]f a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue." A party moving for judgment as a matter of law "is, in effect, claiming that the evidence is insufficient to create a question of fact for the jury. And whether or not the evidence is sufficient to create a question of fact for the jury is itself a question of law to be decided by the trial court." Bjorneby v. Nodak Mut. Ins. Co., 2016 ND 142, ¶ 7, 882 N.W.2d 232 (quoting Okken v. Okken, 325 N.W.2d 264, 267 (N.D. 1982)).

         [¶8] This Court has explained the standard of review for a motion ...


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