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SWMO LLC v. Eagle Rigid Spans Inc.

Supreme Court of North Dakota

July 31, 2019

SWMO LLC, a North Dakota Limited Liability Company, Plaintiff and Appellant
v.
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

          Appeal from the District Court of Williams County, Northwest Judicial District, the Honorable Paul W. Jacobson, Judge.

          Daniel 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.

          Samuel G. Larson, Bismarck, ND, for Ronald J. Koch d/b/a RK Electric, defendant and appellee.

          OPINION

          CROTHERS, JUSTICE.

         [¶1] 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.

         I

         [¶2] 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 properly constructed.

         [¶3] 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.

         [¶4] 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.

         [¶5] 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).

         II

         [¶6] 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 ...


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