from the District Court of Williams County, Northwest
Judicial District, the Honorable Paul W. Jacobson, Judge.
A. Tschider, Bismarck, ND, for plaintiff and appellee.
A. Schwab, West Fargo, ND, for defendants and appellants.
VANDEWALLE, CHIEF JUSTICE.
Oil Capital Ready Mix, LLC; Agape Holdings, LLP; Scott Dyk;
and Samuel Dyk (collectively "Dyk") appealed from a
judgment awarding Skaw ND Precast LLC ("Skaw") $69,
295 in damages for conversion of its property. Because the
district court's findings of fact are not clearly
erroneous, we affirm the judgment.
In March 2013, Skaw, a company which manufactures and sells
precast concrete items, entered into a five-year agreement
with Tioga Ready Mix ("Tioga"), a company which
produces ready-mix concrete product, to rent a two-acre
parcel of land to conduct its business. The base rent for the
site was $700 per month, subject to reductions if Skaw
purchased designated quantities of ready-mix product from
Tioga. The agreement provided it would remain in effect until
December 31, 2018, and it did not allow either party to
unilaterally cancel the agreement.
In spring 2015, Skaw learned that Tioga had arranged to sell
Tioga's assets at a public auction, including the
two-acre parcel of property where Skaw conducted its
business. Skaw's owners attended the auction sale in May
2015. The auction service notified all attendees that
Skaw's assets on the premises were not part of the sale,
that there was a lease in place between Skaw and Tioga, and
that the lease went with the land. Dyk was the successful
bidder at the auction and entered into a commercial purchase
agreement with the sellers which did not include Skaw's
product inventory or equipment and stated the sale was
subject to "rights of tenants," but did not list
Skaw as a tenant. Once Dyk got its ready-mix plant running,
Skaw began purchasing concrete ready-mix product from Dyk for
In August 2015, Dyk requested and was provided a copy of the
March 2013 agreement between Skaw and Tioga. Dyk's
attorney informed one of Skaw's owners that the agreement
between Skaw and Tioga "is no longer capable of being
performed" and that "we need to come to
terms." Dyk attempted to renegotiate the terms of the
2013 agreement, and Skaw agreed to increase its monthly
rental payments to $750 per month.
On September 23, 2015, Dyk mailed a "notice of
non-renewal of lease" to Skaw stating:
PLEASE TAKE NOTICE that the lease under which you hold
possession of the above described property will terminate
pursuant to its own terms on November 22, 2015 and will not
be renewed for a new term, nor allowed to be converted to a
month-to-month tenancy. Please do not tender any money that
will pay rent beyond the end of the term. Please further be
advised that any money tendered, if accepted will have been
accepted in error and will be returned.
PLEASE TAKE FURTHER NOTICE that you are required to surrender
the premises to Samuel Dyk upon the termination date. Please
return the premises in the same condition as you found it
upon move-in, normal wear and tear excepted. Furthermore, you
are required to return all keys upon vacating the premises.
Failure to vacate the premises on or before the termination
date will result in legal proceedings against you to recover
possession of said premises.
late 2015, both Skaw and Dyk shut down operations for the
winter offseason. Skaw did not comply with Dyk's
During the winter, Dyk built an earthen berm around
Skaw's equipment which prevented Skaw from accessing it.
Dyk also transported Skaw's concrete pad and block
inventory off of Skaw's two acres to an area adjacent to
Dyk's offices. Other Skaw assets were transported to
undisclosed locations. When Skaw discovered the berm had been
constructed and its assets had been moved, Dyk informed Skaw
that Skaw had abandoned their temporary rental agreement in
December 2015 and that law enforcement would be notified if
there were "any attempts to breach the peace or
trespass" on the property. Skaw replied that the 2013
lease was still valid and had not been ...