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.
R. Sanderson, Bismarck, N.D., for defendant and appellant.
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.
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.
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.
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.
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.
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.
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)).
This Court has explained the standard of review for a motion