SWMO LLC, a North Dakota Limited Liability Company, Plaintiff and Appellant
Eagle Rigid Spans Inc., the General Contractor; Mon-Dak Plumbing and Heating, Inc.; Ronald J. Koch d/b/a RK Electric, Defendants and Appellees Creative Image Concrete, Inc.; and all other persons unknown, claiming any estate or interest in, or lien or encumbrance upon, the real estate described in the complaint, Defendants
from the District Court of Williams County, Northwest
Judicial District, the Honorable Paul W. Jacobson, Judge.
J. Frisk, West Fargo, ND, for plaintiff and appellant.
Christopher J. Nyhus, Bismarck, ND, for Eagle Rigid Spans,
Inc., defendant and appellee.
Charles L. Neff, Williston, ND, for Mon-Dak Plumbing and
Heating, Inc., defendant and appellee.
G. Larson, Bismarck, ND, for Ronald J. Koch d/b/a RK
Electric, defendant and appellee.
SWMO, LLC appeals district court orders granting partial
summary judgment to Mon-Dak Plumbing and Heating, Inc. and RK
Electric relating to their work performed on a building owned
by SWMO. The court awarded Mon-Dak $125, 600 and RK Electric
$114, 242 from funds deposited into court by SWMO. SWMO
claims disputed issues of fact precluded summary judgment. We
affirm in part, reverse in part and remand.
SWMO contracted with Eagle Rigid Spans for the construction
of a commercial building in Williston. Eagle was the general
contractor and Mon-Dak and RK Electric were subcontractors
for the project. Mon-Dak and RK Electric contracted with
Eagle to provide HVAC, plumbing, and electrical work on the
building. During construction, SWMO noticed defects in the
materials and workmanship and believed the building was not
After completing their work and not receiving full payment
from Eagle, Mon-Dak recorded a $136, 300 construction lien
against SWMO's property and RK Electric recorded a $114,
242.32 lien. In June 2015, SWMO sued Eagle, Mon-Dak, and RK
Electric, alleging breach of contract and negligence related
to the building's construction. After filing suit, SWMO
applied for a release of Mon-Dak's and RK Electric's
construction liens by undertaking as allowed under N.D.C.C.
ch. 35-21. SWMO claimed the amount of the liens were in
dispute. SWMO deposited $276, 862.32 to cover the amount of
the liens and interest.
RK Electric and Mon-Dak both moved for partial summary
judgment, claiming they were entitled to their respective
portions of deposited funds. They argued they performed the
work as requested with no objections from SWMO or Eagle, and
the liens they recorded against SWMO's property entitled
them to payment. Mon-Dak also asserted it was entitled to
payment because SWMO was unjustly enriched by Mon-Dak's
work on the building. In response, SWMO disputed the amounts
claimed by Mon-Dak and RK Electric. The district court
granted partial summary judgment to RK Electric and Mon-Dak,
concluding they performed "the work on the project and
[were] entitled to be paid for that work." The court
awarded RK Electric $114, 242 and Mon-Dak $125, 600 from the
funds deposited by SWMO.
After a bench trial, the district court found Eagle breached
the contract with SWMO, and materially misrepresented the
amounts paid to subcontractors. The court entered a judgment
against Eagle awarding SWMO $262, 154.21 in damages. SWMO
appealed the partial summary judgment orders after entry of
final judgment. See Brunsoman v. Scarlett, 465
N.W.2d 162, 164 (N.D. 1991) (treating an appeal from an
interlocutory partial summary judgment order as an appeal
from the final judgment).
SWMO argues the district court erred in granting partial
summary judgment to Mon-Dak and RK Electric. SWMO claims
summary judgment was not appropriate because disputes existed
about the amounts ...