Carlson Homes, Inc. v. Messmer, 9875

• Decision Date: 25 June 1981
• Docket Number: No. 9875,9875
• Citation: 307 N.W.2d 564
• Parties: CARLSON HOMES, INC., a corporation, Plaintiff and Appellant, v. Brian J. MESSMER and Dianna L. Messmer, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 564

307 N.W.2d 564

CARLSON HOMES, INC., a corporation, Plaintiff and Appellant, v. Brian J. MESSMER and Dianna L. Messmer, Defendants and Appellees.

Civ. No. 9875.

Supreme Court of North Dakota.

June 25, 1981.

Freed, Dynes, Malloy & Reichert, Dickinson, for plaintiff and appellant; argued by George T. Dynes, Dickinson.

Thomas F. Murtha, Dickinson, for defendants and appellees.

SAND, Justice.

The plaintiff, Carlson Homes, Inc. (Carlson), appealed from a $3,500.00 judgment, on the counterclaim of the defendants, Brian J. and Dianna L. Messmer (Messmers).

Carlson initially began this action against the Messmers for the balance due on a home construction contract. The Messmers' answer denied liability for the balance due on the contract and interposed a counterclaim which alleged that Carlson was "negligent in the performance of its landscaping work and did not complete the landscaping in a workmanlike manner." The Messmers' counterclaim further alleged that "due to the negligence and unworkmanlike manner in the landscaping of the lot purchased by the ... (Messmers), the back portion of ... (the) lot is washing away and whole sections are dropping into a drainage ditch adjacent to the lot, due to the unworkmanlike manner in which the fill was compacted." The Messmers essentially admitted they owed the balance on the home construction contract when the case was set for trial, and the only factual dispute and legal issue involved in the trial before the district court concerned the Messmers' counterclaim.

Carlson and the Messmers executed a written agreement dated 4 Oct 1977 whereby Carlson agreed to build a home in Dickinson, North Dakota, for the Messmers. The lot for the Messmers' home borders a drainage ditch and extends to the edge of the city's easement for the drainage ditch. The city's easement contains the slope on each side of the drainage ditch.

The Farmers Home Administration financed the Messmers' home and one of their loan conditions required the contractor to provide a plat of the lot with the elevations at the four corners of the lot. The elevations on the plat provided by Carlson reflected that the Messmers' back yard would be relatively level. The Messmers purchased the lot with the understanding that the back yard would be level to accommodate a garden and other family activities. At the time the Messmers purchased their lot, the only construction completed on their house was the foundation, and the back yard was not yet at the level indicated on the plat. The area manager for Carlson, Chester Willer, indicated to the Messmers that he lived by a drainage ditch and that it would be no problem.

When the Messmers moved into their home, the back yard was still not at the level indicated on the plat. The record reflects that the lot was gradually sloped to accommodate an approximately 15-foot drop in height from the front of their lot to the back of their lot where the drainage ditch was located. The Messmers insisted that Carlson comply with the elevations in the plat, and Carlson hauled in several loads of dirt to raise the Messmers' back yard to the elevation reflected in the plat. However, this resulted in a much steeper slope on the drainage ditch. Because of the steeper slope and wind and rain erosion, the Messmers encountered problems keeping their back yard level. Part of the dirt which Carlson used to level the Messmers' lot eventually washed away and was replaced by the Messmers.

The elevation of the Messmers' lot is presently in accordance with that indicated in the plat. However, in order to maintain this elevation, a retaining wall of some type on the bank of the drainage ditch is necessary to prevent the dirt from washing away.

The district court's judgment determined that the "landscaping plan failed to properly set out the elevation in view of the drainage ditch to the south of the property and that ... (Carlsons') negligence in arranging the levels and elevation of the lot made the lot practically, and to some degree, unfit or unmaintainable on the part of the ... (Messmers) in view of the steep slope of the drainage ditch." The district court's judgment further provided for a $3,500.00 judgment to the Messmers "due to the negligent landscaping" of Carlson. Carlson appealed from that judgment.

The first issue raised by Carlson is whether or not there was sufficient evidence of negligence to sustain the trial court's decision finding Carlson liable. Carlson asserts that the Messmers' theory of the case was that their back yard was improperly compacted and that there was no evidence presented which suggested improper compaction.

However, the Messmers' counterclaim alleges that Carlson was negligent in the performance of its landscaping work and that Carlson did not complete the landscaping in a workmanlike manner, and further alleges that due to the negligence and unworkmanlike manner in the landscaping of the lot purchased by the Messmers that that portion of the lot was washing away and whole sections were dropping into the drainage ditch adjacent to the lot. Furthermore, based on the statements contained in the district court's judgment, it is apparent that the district court decision was based upon "negligent landscaping."

In this instance, we believe there was sufficient evidence to support the trial court's finding that Carlson was negligent in landscaping the Messmers' back yard and,...