COMSTOCK CONSTRUCTION, INC. v. SHEYENNE DISPOSAL, 20010281.

Citation2002 ND 141,651 N.W.2d 656
Decision Date29 August 2002
Docket NumberNo. 20010281.,20010281.
PartiesCOMSTOCK CONSTRUCTION, INC., Plaintiff, Appellee and Cross-Appellant, v. SHEYENNE DISPOSAL, INC., Defendant, Appellant and Cross-Appellee.
CourtUnited States State Supreme Court of North Dakota

Richard J. Henderson (argued), Nilles, Hansen & Davies, Ltd., Moorhead, MN and Jacqueline Sue Anderson (on brief), Nilles, Hansen & Davies, Ltd., Fargo, for defendant, appellant and cross-appellee.

Robert Garold Hoy, Ohnstad Twichell, P.C., West Fargo, for plaintiff, appellee and cross-appellant.

KAPSNER, Justice.

[¶ 1] Sheyenne Disposal, Inc., appeals from a judgment and order denying its post-trial motion for a new trial and for remittitur of interest. Comstock Construction, Inc., cross-appeals from the dismissal of its claim for a mechanic's lien. We conclude the trial court did not abuse its discretion in denying Sheyenne Disposal's post-trial motion, but the court erred in dismissing Comstock Construction's claim for a mechanic's lien. We affirm in part, reverse in part, and remand.

I

[¶ 2] In 1998, John Beardmore, a representative of Sheyenne Disposal, contacted Bob Comstock, a principal of Comstock Construction, regarding the construction of a solid waste transfer station in West Fargo. There was no written contract between the parties, and the main dispute in this case involves the price Comstock Construction would charge Sheyenne Disposal for construction of the transfer station if Bob Comstock did not receive an ownership interest in it. Bob Comstock did not receive an interest in the transfer station, and according to him, the parties agreed that, under those circumstances, Comstock Construction would charge Sheyenne Disposal cost plus "normal markup" for the work. According to Beardmore, the parties did not agree on a price for the work if Bob Comstock did not receive an interest in the transfer station, and in that case, he and Bob Comstock agreed to meet at a later date to negotiate the final price.

[¶ 3] In late 1998, Comstock Construction began work on the transfer station. According to Bob Comstock, Comstock Construction "substantially complete[d]" the station in May 1999, and the facility began operation then. In September 1999, Comstock Construction recorded a $487,847.41 mechanic's lien on the property on which the transfer station was built. On March 16, 2000, Sheyenne Disposal mailed Comstock Construction a written demand by certified mail with return receipt requested, stating "suit must be commenced and filed with the Clerk of Court for Cass County within thirty (30) days after this notice is served on Comstock Construction or the lien will be forfeited." Comstock Construction signed for receipt of the written demand on March 18, 2000. On April 17, 2000, Comstock Construction personally served a summons and complaint on the registered agent for Sheyenne Disposal. On April 18, 2000, Comstock Construction filed this action for a money judgment and for foreclosure of its mechanic's lien. The trial court granted Sheyenne Disposal partial summary judgment, concluding Comstock Construction had forfeited its mechanic's lien under N.D.C.C. § 35-27-25, because it had not commenced and filed its action within thirty days after service of the written demand.

[¶ 4] At trial, the parties disputed the amount due Comstock Construction for construction of the transfer station. Comstock Construction claimed the parties had an express or implied contract for costs plus normal markup. Sheyenne Disposal conceded Comstock Construction was entitled to reasonable expenses for its work under the doctrine of quasi contract, but claimed there was no express or implied agreement regarding the amount due. A jury returned a special verdict, finding there was an express or implied contract for construction of the transfer station, and the total amount Sheyenne Disposal owed Comstock Construction was $781,745.72. The jury also awarded Comstock Construction 6% interest on the award from May 1, 1999. The trial court credited Sheyenne Disposal for previous payments to Comstock Construction, and a judgment was entered awarding Comstock Construction $556,697.74, plus costs and disbursements. The trial court denied Sheyenne Disposal's post-trial motion for a new trial under N.D.R.Civ.P. 59(b)(6) and for remittitur of the interest under N.D.R.Civ.P. 59(b)(5).

II

[¶ 5] Sheyenne Disposal argues the jury's finding there was an express or implied agreement between the parties is not supported by the evidence. Sheyenne Disposal claims the parties' agreed they would meet at a later date to work out the final charges for the work. Sheyenne Disposal argues the trial court abused its discretion in denying the motion for a new trial.

[¶ 6] We review a trial court's denial of a motion for a new trial under the abuse of discretion standard. Brandt v. Milbrath, 647 N.W.2d 674, 2002 ND 117, ¶ 24; Rodenburg v. Fargo-Moorhead Young Men's Christian Ass'n, 2001 ND 139, ¶ 7, 632 N.W.2d 407. A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, its decision is not the product of a rational mental process leading to a reasoned determination, or it misinterprets or misapplies the law. Sollin v. Wangler, 2001 ND 96, ¶ 8, 627 N.W.2d 159. In reviewing a trial court's decision on a motion for a new trial based on insufficiency of the evidence, we examine the evidence in the light most favorable to the verdict to determine if there is sufficient evidence to support the verdict. Kreidt v. Burlington Northern R.R., 2000 ND 150, ¶ 19, 615 N.W.2d 153.

[¶ 7] In considering a motion for a new trial based on insufficiency of the evidence, we have said:

the trial court may, within limits, weigh the evidence and judge the credibility of witnesses. In particular, when a motion for a new trial is made and the reason given in support of the motion is that there was insufficient evidence to justify the verdict, the moving party is asking the trial court to decide whether or not the verdict is against the weight of the evidence. And in making this decision, the trial judge must weigh the evidence; he must consider that evidence which supports the verdict equally with that evidence which challenges the verdict. In short, when ruling on a motion for a new trial, the trial judge may consider all the evidence.

Okken v. Okken, 325 N.W.2d 264, 269 (N.D.1982) (citations omitted).

[¶ 8] Sheyenne Disposal argues the trial court, in denying the motion for a new trial, referred only to Bob Comstock's testimony that the contract price was cost plus "normal markup" and to testimony about the meaning of "normal markup" by the comptroller for Comstock Construction, Susan Bowman. Sheyenne Disposal argues the court did not weigh that evidence with evidence that was contrary to the verdict, and the court's failure to do so was an abuse of discretion.

[¶ 9] The trial court cited Okken and said "[w]hen ruling on a motion for a new trial, a court must consider all the evidence which includes both evidence that supports the verdict and evidence that challenges the verdict." Although the trial court did not explicitly cite testimony contrary to the verdict, the court referred to the standard enunciated in Okken and stated "[t]he jury's role is to determine the weight and credibility to give to witnesses [and t]he jury performed that role with the testimony of Bob Comstock and the Controller." The court thereafter concluded there was sufficient evidence to sustain the verdict. Although the court's decision could have been more explicit, we conclude the court's statements reflect it weighed the conflicting testimony under Okken.

[¶ 10] Sheyenne Disposal argues the jury's verdict is not supported by the evidence and is against the weight of the evidence. Sheyenne Disposal argues there was only an agreement to agree at a future date on an acceptable price for the work.

[¶ 11] The trial court instructed the jury:

A contract is an agreement to do or not do a certain thing.
A contract may be express, implied-in-fact, or implied-in-law.
An express contract is one in which the terms are stated orally or in writing. An implied-in-fact contract is one in which its existence and terms are manifested by conduct.
The distinction between an express and an implied-in-fact contract relates only to the manner in which the agreement is shown. Both are based on the express or apparent intention of the parties.
An implied-in-law or quasi-contract is an obligation imposed by law to do justice even though it is clear that no promise was ever made or intended. The essence of an implied-in-law contract is the receipt of a benefit which would be inequitable to retain without paying for it.
A breach of contract is a failure to perform all or any part of what is warranted or required in a contract.

[¶ 12] Sheyenne Disposal has not raised any issues about the jury instructions, and those unopposed instructions are the law of the case. Anderson v. Jacobson, 2001 ND 40, ¶ 11, 622 N.W.2d 730. It is undisputed Bob Comstock did not receive an interest in the transfer station. According to Bob Comstock, if he did not receive an interest in the station, the parties agreed Comstock Construction would charge Sheyenne Disposal cost plus "normal markup" for the work. According to Beardmore, the parties did not agree on a price for the construction work, and he and Bob Comstock agreed to meet at a later date to negotiate the final charges. Susan Bowman, the comptroller for Comstock Construction, testified that Comstock Construction's cost plus "normal markup" for construction of the transfer station was $781,745.72. Bowman testified, for cost based jobs, the standard overhead markup was 10 percent of costs, the standard profit was 5 percent of costs, and the standard rate per hour for labor was $31. Bowman testified that, based on those percentages and rates, the total bill for construction of the transfer station was...

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