RRMC CONST., INC. v. Barth

Decision Date06 April 2010
Docket NumberNo. 20090292.,20090292.
PartiesRRMC CONSTRUCTION, INC., d/b/a Miller Construction, Plaintiff and Appellee v. Bill BARTH d/b/a Saturn of Bismarck Mandan and/or Bill Barth Ford, Inc., Defendant and Appellant.
CourtNorth Dakota Supreme Court

Marnell Ringsak, Bismarck, ND, for plaintiff and appellee.

Irvin B. Nodland, Bismarck, ND, for defendant and appellant.

CROTHERS, Justice.

¶ 1 Bill Barth appeals the district court's judgment requiring him to pay RRMC Construction, Inc. $102,951.62 plus costs and disbursements. Barth also appeals the district court's order denying his motion for a new trial. We affirm.

I

¶ 2 In the late fall of 2006, Barth made an oral contract with Randy Miller of RRMC Construction. Under the contract, Miller was to construct a building for Barth's use as a Saturn dealership and Barth was to compensate Miller for his costs plus 12 percent profit. In July 2007, Miller began construction without a final set of building plans, and many design details were resolved as construction progressed. Initially estimated at $540,000, the cost of construction rose quickly as Miller and Barth attempted to meet specific and expensive design qualities suggested by Saturn. Adding to the cost were significant design changes initiated by Barth, including adding a loft in the showroom, adding a metal liner to the dealership's shop and adding an inch of thickness to an enlarged parking lot.

¶ 3 Miller provided Barth with monthly invoices starting in August 2007. Barth paid Miller $93,647.37 on August 3, 2007; $97,124.24 on September 6, 2007; $178,587.08 on October 2, 2007; and $213,987.90 on November 1, 2007. On December 3, 2007, Miller presented Barth with a bill for $314,288.33. Barth became angry and demanded to know how much it would cost to complete construction. Miller stated it would cost about $75,000 to complete construction, and Barth told Miller to double-check his invoices to confirm the amount. Miller complied, and on December 5, 2007, he called Barth with a confirmed estimate of $75,000 to complete the project. Following Miller's confirmation, Barth gave Miller a $314,288.33 check to satisfy the December invoice.

¶ 4 The building was completed in early December 2007. In late December 2007, Miller presented Barth with a final invoice totaling roughly $181,000. Miller's final invoice was higher than his estimated completion cost because the estimate excluded a misfiled electrician's bill for $88,000, a roofer's bill for $20,000 that had not been previously submitted and Miller's 12 percent markup from November and December. Barth refused to pay Miller's final invoice, opting instead to pay Miller $94,192.16 to prevent Miller's subcontractors from filing mechanic's liens on the building.

¶ 5 On February 3, 2008, Miller submitted a revised final invoice for $126,617.44. Barth refused to pay, and Miller initiated this action on March 13, 2008. A bench trial was held on February 24 and 25, 2009. Miller testified he did not intend to change the cost plus 12 percent contract to a fixed-term contract when he estimated a completion cost of $75,000. Barth testified the only reason he paid Miller's $314,288.33 invoice was because Miller told him it would cost $75,000 to finish the job. The district court found for Miller, determining the oral contract between Miller and Barth had not been modified because the parties did not orally consent to the modification and because no new consideration supported Barth's proposed modification. Judgment was entered against Barth, and Barth moved for a new trial. The district court denied Barth's motion for a new trial; Barth timely filed this appeal.

II

¶ 6 Barth advances numerous arguments challenging the district court's factual determinations regarding alteration of the oral contract into a fixed-term contract. An oral contract can be altered "by consent of the parties in writing without a new consideration, or by oral consent of the parties with a new consideration." N.D.C.C. § 9-09-05. Neither party asserts the oral contract was altered by a written document, so any alteration here would have needed oral consent from both parties and new consideration.

¶ 7 "The existence of an oral contract and the extent of its terms are questions of fact subject to the clearly erroneous standard of review under N.D.R.Civ.P. 52(a)." WFND, LLC v. Fargo Marc, LLC, 2007 ND 67, ¶ 38, 730 N.W.2d 841. The same standard applies when determining if an oral contract has been altered because a modification would necessarily encompass the contract terms and because the consent and consideration provisions of N.D.C.C. § 9-09-05 are fact questions subject to clearly erroneous review. See, e.g., Gravel Products, Inc. v. Neshem-Peterson, Inc., 335 N.W.2d 323, 327 (N.D.1983) (applying clearly erroneous standard of review to consent finding); G.L. Ness Agency v. Woell, 335 N.W.2d 561, 562-63 (N.D.1983) (applying clearly erroneous standard of review to consideration finding). "A finding of fact is clearly erroneous if it is not supported by any evidence, if, although there is some evidence to support the finding, a reviewing court is left with a definite and firm conviction a mistake has been made, or if the finding is induced by an erroneous conception of the law." Pfeifle v. Tanabe, 2000 ND 219, ¶ 7, 620 N.W.2d 167. "A trial court's choice between two permissible views of the weight of the evidence is not clearly erroneous, and simply because we may have viewed the evidence differently does not entitle us to reverse the trial court." Edward H. Schwartz Constr.,...

To continue reading

Request your trial
7 cases
  • Serv. Oil, Inc. v. Gjestvang
    • United States
    • North Dakota Supreme Court
    • 30 Marzo 2015
    ...and simply because we may have viewed the evidence differently does not entitle us to reverse the trial court.” Id. (quoting RRMC Constr., Inc. v. Barth, 2010 ND 60, ¶ 7, 780 N.W.2d 656). A trial court's findings are adequate if the record enables us to understand the court's factual determ......
  • Pegg v. Kohn
    • United States
    • North Dakota Supreme Court
    • 2 Abril 2015
    ...the extent of its terms are questions of fact subject to the clearly erroneous standard of review under N.D.R.Civ.P. 52(a).” RRMC Constr., Inc. v. Barth, 2010 ND 60, ¶ 7, 780 N.W.2d 656 (quoting WFND, LLC v. Fargo Marc, LLC, 2007 ND 67, ¶ 38, 730 N.W.2d 841 ). “A finding of fact is clearly ......
  • Lumley v. Kapusta, 20150228.
    • United States
    • North Dakota Supreme Court
    • 12 Abril 2016
    ...will not be overturned on appeal unless they are clearly erroneous. See Broten v. Broten, 2015 ND 127, ¶ 9, 863 N.W.2d 902 ; RRMC Constr., Inc. v. Barth, 2010 ND 60, ¶ 7, 780 N.W.2d 656. In Broten, at ¶ 9, we explained:A finding of fact is clearly erroneous if it is induced by an erroneous ......
  • Erickson v. Olsen
    • United States
    • North Dakota Supreme Court
    • 3 Abril 2014
    ...erroneous, and simply because we may have viewed the evidence differently does not entitle us to reverse the trial court.” RRMC Constr., Inc. v. Barth, 2010 ND 60, ¶ 7, 780 N.W.2d 656 (citation omitted). A finding of fact rises to the level of clearly erroneous only “if it is induced by an ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT