from the District Court of McKenzie County, Northwest
Judicial District, the Honorable Daniel S. El-Dweek, Judge.
A. Hunter (argued) and Lisa M. Six (on brief), Williston, ND,
for plaintiff and appellee.
Matthew D. Kirschenmann (argued) and Michael T. Andrews (on
brief), Fargo, ND, for defendants and appellants.
Pinky's Aggregates, Inc., and its president, Dale Honsey,
appeal from a judgment awarding Frontier Fiscal Services,
LLC, $526, 253.12 in its action for breach of contract and to
collect on a personal guaranty. Because Pinky's and
Honsey failed to raise a genuine issue of material fact to
preclude summary judgment, we affirm.
Honsey is the president and owner of Pinky's, which is in
the business of providing sand, gravel, and other aggregate
and excavation and hauling services. In 2016 the Department
of Transportation contracted with Baranko Brothers, Inc.,
which subcontracted with Pinky's to supply material and
labor for a construction project. Pinky's entered into at
least 16 hauling agreements with sub-subcontractors to
transport gravel and aggregate for the project. Many of the
sub-subcontractors assigned their accounts receivable under
the hauling agreements to Frontier, which provides invoice
factoring services, purchasing receivables at a discount in
exchange for an immediate cash payment. Pinky's received
notice of the assignments and made payments to Frontier for
the sub-subcontractors' invoices.
Pinky's eventually fell behind on its payments to
Frontier, and Frontier in turn ceased factoring for the
sub-subcontractors. The sub-subcontractors refused to do any
more work for Pinky's unless Frontier resumed factoring
services for them. The situation resulted in Honsey signing a
personal guaranty with Frontier as "an Individual &
President of Pinky's."
After Pinky's failed to pay Frontier in full, Frontier
brought a breach of contract action against Pinky's and
sought to collect on the personal guaranty signed by Honsey.
The district court granted Frontier's motions for summary
judgment against Pinky's and Honsey and held them jointly
and severally liable for $526, 253.12.
Pinky's and Honsey argue genuine issues of material fact
precluded the district court from granting summary judgment
The standard of review for summary judgments is well
Summary judgment is a procedural device under N.D.R.Civ.P.
56(c) for promptly resolving 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. The party seeking summary judgment must
demonstrate there are no genuine issues of material fact and
the case is appropriate for judgment as a matter of law. In
deciding whether the district court appropriately granted
summary judgment, we view the evidence in the light most
favorable to the opposing party, giving that party the
benefit of all favorable inferences which can reasonably be
drawn from the record. A party opposing a motion for summary
judgment cannot simply rely on the pleadings or on
unsupported conclusory allegations. Rather, a party opposing
a summary judgment motion must present competent admissible
evidence by affidavit or other comparable means that raises
an issue of material fact and must, if appropriate, draw the
court's attention to relevant evidence in the record
raising an issue of material fact. When reasonable persons
can reach only one conclusion from the evidence, a question
of fact may become a matter of law for the court to decide. A
district court's decision on summary judgment is a
question of law that we review de novo on the record.
Becker v. Burleigh Cty., 2019 ND 68, ¶ 7, 924
N.W.2d 393 (quoting Dahms v. Nodak Mut. Ins.
Co., 2018 ND 263, ¶ 6, 920 N.W.2d 293).
Pinky's argues because an assignee receives no greater
rights than the assignor, see Collection Ctr., Inc. v.
Bydal, 2011 ND 63, ¶ 15, 795 N.W.2d 667, Frontier
had the burden to establish that the sub-subcontractors
complied with their various hauling contracts. Pinky's
does not claim any of the sub-subcontractors failed to comply
with the hauling contracts. Rather, Pinky's argues that
Frontier failed to present evidence that the
sub-subcontractors timely and correctly completed paperwork,
that they raised their dispute about nonpayment in a timely
fashion, that they maintained proper hauling records, and
that Pinky's consented to the assignments.
Pinky's' argument is without merit. Frontier
presented the following deposition testimony of Honsey:
Q. So then a follow-up question to that would be, you do
believe that Pinky's owes monies to Frontier Fiscal for
the factoring we've been talking about?
A. Absolutely. . . . I mean, I owe the money; Pinky's
owes the money, I'm not disputing that whatsoever.
Q. So the only-okay. So you're not contesting any
assertion made against Pinky's in the complaint by