Pavlicek v. Am. Steel Sys., Inc., 20180168

• Decision Date: 11 April 2019
• Docket Number: No. 20180168,20180168
• Parties: Larry PAVLICEK, Plaintiff and Appellee v. AMERICAN STEEL SYSTEMS, INC., Gabriel Construction Services, LLC, Door Pro, Inc., and Dickinson Ready-Mix, Co., Defendants and JRC Construction, LLC, Defendant and Appellant
• Court: North Dakota Supreme Court

925 N.W.2d 737

Larry PAVLICEK, Plaintiff and Appellee

v.AMERICAN STEEL SYSTEMS, INC., Gabriel Construction Services, LLC, Door Pro, Inc., and Dickinson Ready-Mix, Co., DefendantsandJRC Construction, LLC, Defendant and Appellant

No. 20180168

Supreme Court of North Dakota.

Filed April 11, 2019

Craig E. Johnson (argued) and Jared J. Hines (appeared), Fargo, N.D., for plaintiff and appellee.

Paul R. Sanderson, Bismarck, N.D., for defendant and appellant.

Tufte, Justice.

[¶1] JRC Construction, LLC, appeals a judgment entered after a jury awarded Larry Pavlicek $217,244.55 in damages against JRC. The jury found JRC breached a contract with Pavlicek relating to construction work performed by JRC. JRC argues the district court erred in denying its motion and renewed motion for judgment as a matter of law because Pavlicek failed to prove he had a contract with JRC. We affirm.

I

[¶2] Pavlicek contracted with American Steel Systems, Inc., for the purchase of a steel building. The contract provided Pavlicek was responsible for hiring other contractors to erect the building and perform other work, including concrete installation. American Steel made recommendations relating to the other contractors. JRC installed the concrete floor for the building. The concrete floor developed problems including peeling, cracking, delaminating, and bubbling. JRC’s attempted repair of the concrete was unsuccessful.

[¶3] Pavlicek sued American Steel and JRC for breach of contract relating to the defective work. JRC denied a contract existed between Pavlicek and JRC. American Steel did not answer the complaint, and the district court granted Pavlicek a $185,800.80 default judgment against American Steel.

[¶4] At trial, Pavlicek testified about his dealings with JRC. He testified he spoke with a representative from JRC about installing the concrete floor for the building. Pavlicek testified he received a verbal proposal from the JRC representative, he agreed to the proposal, and JRC began the concrete work. After JRC installed the concrete, Pavlicek noticed problems with the concrete, including peeling, cracking, delaminating, and bubbling. Pavlicek testified that JRC returned to the site to try to repair the concrete damage, but JRC’s efforts failed to correct the problems. On cross-examination, Pavlicek stated he did not enter into a written contract with JRC. He testified American Steel hired JRC to do the concrete work. On redirect, Pavlicek stated he contracted with JRC and understood JRC was working for him.

[¶5] At the conclusion of Pavlicek’s case-in-chief, JRC moved for judgment as a matter of law under N.D.R.Civ.P. 50, arguing Pavlicek did not prove he had a contract with JRC because of his conflicting testimony about who contracted with JRC to do the concrete work. JRC also argued the damages Pavlicek was awarded resulted in a double recovery because Pavlicek already had a judgment against American Steel for replacement of the concrete floor. The district court denied JRC’s motion and a jury returned a verdict in Pavlicek’s favor, awarding him $217,244.55 in damages. JRC renewed its motion for judgment as a matter of law after trial. Following a hearing, the court denied JRC’s renewed motion.

II

[¶6] JRC argues Pavlicek failed to prove he had a contract with JRC and the district court erred in denying its motion for judgment as a matter of law.

[¶7] Rule 50, N.D.R.Civ.P., governs judgments as a matter of law. Under N.D.R.Civ.P. 50(a)(1), a district court may grant a motion for judgment as a matter of law "[i]f a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue." A party moving for judgment as a matter of law "is, in effect, claiming that the evidence is insufficient to create a question of fact for the jury. And whether or not the evidence is sufficient to create a question of fact for the jury is itself a question of law to be decided by the trial court." Bjorneby v. Nodak Mut. Ins. Co. , 2016 ND 142, ¶ 7, 882 N.W.2d 232 (quoting Okken v. Okken , 325 N.W.2d 264, 267 (N.D. 1982) ).

[¶8] This Court has explained the standard of review for a motion for judgment as a matter of law:

The trial court’s decision on a motion brought under N.D.R.Civ.P. 50 to deny or grant judgment as a matter of law is based upon whether the evidence, when viewed in the light most favorable to the party against whom the motion is made, leads to but one conclusion as to the verdict about which there can be no reasonable difference of opinion. In considering this motion, the trial court must apply a rigorous standard with a view toward preserving a jury verdict, and so must we in our review on appeal. In determining if the evidence is sufficient to create an issue of fact, the trial court must view the evidence in the light most favorable to the non-moving party, and must accept the truth of the evidence presented by the non-moving party and the truth of all reasonable inferences from that evidence which support the verdict. The trial court’s decision on a motion for judgment as a matter of law is fully reviewable on appeal.

Bjorneby , 2016 ND 142, ¶ 7, 882 N.W.2d 232 (quoting Minto Grain, LLC v. Tibert , 2009 ND 213, ¶ 7, 776 N.W.2d 549 ). To determine whether the trial court erred in granting or denying a motion for judgment as a matter of law, "this Court examines the trial record and applies the same standard as the district court was required to apply initially." Id.

A

[¶9] JRC argues this case is analogous to Thompson v. Hannah Farmers Coop. Elevator Co. , 79 N.W.2d 31 (N.D. 1956). In Thompson , a farmer alleged he delivered flax to an elevator and did not get paid. Id. at 32. The farmer attempted to prove his case based solely on his testimony. Id. at 33. This Court discussed the standard for submitting the issue of a witness’s credibility to the jury:

The right to the submission of an issue of fact depending upon the credibility of a witness does not exist where the testimony is inherently incredible or impossible or where the undisputed circumstances show that the story told by the witness cannot be true, or that it is so improbable, absurd and self-contradictory that it should be deemed a nullity by the court. Where the inherent improbability of the evidence is so patent that no truth can be in it, the question is one of law. That is also the case where it is so inherently weak that reasonable minds could not entertain different opinions about it. The rule that it is for the jury to reconcile conflicting testimony of a witness does not apply where the only evidence in support of a controlling fact is that of a witness who so contradicts himself as to render findings of fact a mere guess. Where a witness’ testimony is itself so contradictory that it has no probative force, a jury cannot be invited to speculate about it or to select one or another contradictory statement as a basis of a verdict.

Id. at 37 (citations omitted).

[¶10] This Court held the farmer failed to prove his cause of action against the elevator because "[h]is testimony upon matters vital to his cause is contradictory and improbable." Id. at 36. This Court further explained the farmer’s failure to prove his claim:

The plaintiff comes into court and attempts to establish a cause of action against the defendant based on his own oral testimony without support or corroboration. He brought this action nearly six years after the claim which he is attempting to establish had accrued. He says he received scale tickets for the flax hauled on the 4th and 5th of November 1948 to the defendant elevator. He offers contradictory explanations as to his failure to produce them. He intimates that they may have been washed with his clothes. Later he asserts that they were given to the Internal Revenue inspector. No explanation is made, nor is there any evidence in the record as to whether any attempt was made to contact the Internal Revenue Department to locate these alleged scale tickets. Although the plaintiff asserts that he asked about the flax several times during the winter of 1948 and 1949, he never made a formal demand for either a sale of the flax or a return or redelivery thereof.

....

The defendant has no record to show deliveries of flax on November 4 and 5, 1948. To attempt to explain away the lack of this record, the plaintiff offers the absurd explanation that the rats carried away the particular book of scale tickets covering his flax. The defendant’s manager positively testifies that the plaintiff did not deliver any flax to the defendant on the dates in question. The inability of the manager and of the plaintiff to find any such record indicates the truth of the manager’s statement.

....

A close examination of the evidence indicates that even upon many minor matters, as well as the essential facts, the testimony of the plaintiff is contradictory, inaccurate, incoherent, evasive, irresponsive and improbable. There is no substantial evidence to establish the plaintiff’s cause of action.

The evidence in this case is so contradictory and inherently improbable that reasonable minds could not entertain different opinions thereon and could arrive at but one conclusion, that the plaintiff did not on November 4 and 5, 1948, haul over 1,100 bushels of flax to the defendant.

Id. at 38-39.

[¶11] JRC argues Pavlicek’s conflicting testimony about who contracted with JRC is similar to the contradictory testimony in Thompson . We disagree; Thompson is distinguishable from this case. Unlike Thompson , Pavlicek’s claim against JRC did not hinge solely on his testimony. Although Pavlicek gave conflicting testimony about who contracted with JRC,...