Tomahawk Enterprises, Inc. v. Fort Totten Housing Authority, (1996)

• Court: Devils Lake Sioux Tribal Court
• Decision Date: 28 March 1996
• Docket Number: Court File 95-02-008
• Citation: Tomahawk Enterprises, Inc. v. Fort Totten Housing Authority (Devils Lake Sioux Tribal Ct. 1996)
• Parties: TOMAHAWK ENTERPRISES, INC., PLAINTIFF, v. FORT TOTTEN HOUSING AUTHORITY AND ROGER YANKTON, IN HIS CAPACITY AS DIRECTOR OF THE FORT TOTTEN HOUSING AUTHORITY AND INDIVIDUALLY, DEFENDANTS.

TOMAHAWK ENTERPRISES, INC., PLAINTIFF, v. FORT TOTTEN HOUSING AUTHORITY AND ROGER YANKTON, IN HIS CAPACITY AS DIRECTOR OF THE FORT TOTTEN HOUSING AUTHORITY AND INDIVIDUALLY, DEFENDANTS.

Court File No. 95-02-008

Devils Lake Sioux Tribal Court

March 28, 1996

Dennis Edward Johnson, Associate Justice of the Northern Plains Intertribal Court of Appeals, LeRoy Greaves, Associate Justice of the Northern Plains Intertribal Court of Appeals Paul Godtland, Associate Justice of the Northern Plains Intertribal Court of Appeals

OPINION

SUMMARY

Tomahawk Enterprises, Inc. (herein "Tomahawk") was hired as a general contractor to build a housing project for the Fort Totten Housing Authority (herein "Housing Authority"). The Housing Authority oversees housing projects built on the Devils Lake Sioux Indian Reservation located within the State of North Dakota. A dispute arose over whether the project was being completed on a timely basis or in an appropriate manner. The Housing Authority notified Tomahawk it would not be allowed to finish the project. This occurred on or about June 30, 1992.

After giving the notice to Tomahawk, the Housing Authority sought and received an Ex-Parte Order restraining Tomahawk from removing its equipment and supplies from the Reservation and basically prohibiting Tomahawk from coming on to the Reservation. Eventually, on or about February 1, 1995 Tomahawk filed a Complaint bringing a lawsuit against the Housing Authority for damages. Housing Authority filed a Motion to Dismiss on grounds that Tomahawk's Complaint failed to state a cause of action upon which relief could be granted and contesting the proper designation of the parties responsible and subject to the suit. A hearing was held on April 28, 1995, and the Tribal Court, focusing upon a one year contractual statute of limitations and citing a laches-type theory, dismissed Tomahawk's Complaint. Tomahawk appealed from that decision. Based upon grounds stated herein, this Court reverses the decision of the Tribal Court and remands with instructions.

DISCUSSION AND OPINION

Tomahawk was hired as a general contractor on a low rent housing project by the Housing Authority which oversees housing projects on the Devils Lake Sioux Indian Reservation located in North Dakota. Tomahawk and Housing Authority entered into a United States Department of Housing and Urban Development (herein HUD) contract on June 14, 1991, under which Tomahawk was to be paid the sum of $1,479,000.00 for completion of a housing project. Tomahawk commenced work under the contract. The contract had a project deadline of April 11, 1992.

Tomahawk alleges that the executive director of the Housing Authority Roger Yankton, was supposed to provide Tomahawk with location of gas and sewer lines so Tomahawk could correctly place and connect the housing units that were being built. Tomahawk alleges that neither Yankton nor the Housing Authority provided the information in regard to these utility connections. Tomahawk also alleges that it made several written requests for an extension of the April 11, 1992 deadline due to the Housing Authority's failure to provide this information and also due to excessive rainfall that delayed the work on the project. Tomahawk alleges that the Housing Authority never responded to its requests regarding the extension of time deadline.

On or about June 30, 1992, Housing Authority gave written notice to Tomahawk that it would not be allowed to complete the project as it alleged that Tomahawk had not timely pursued the completion of the housing project. Tomahawk alleges that when their right to complete the project was terminated, it had completed over 90 percent of the project. Housing Authority apparently hired an engineering firm to inspect Tomahawk's work and give an estimate of the cost of completion. The consultant indicated it would take approximately $50,000.00 to $100,000.00 to complete the project at that point.

There was additional correspondence between Housing Authority or its attorneys or representatives and Tomahawk following the consultant's opinion. Eventually the Housing Authority sought and received an Ex-Parte Order which restrained Tomahawk from completing or working on the project, prevented Tomahawk from removing its equipment and supplies from the Reservation, and ordering Tomahawk off the Reservation. The Housing Authority did not allow, according to Tomahawk Tomahawk to take possession of its equipment and remove it from the Reservation for over twelve months despite repeated requests.

Apparently it took Housing Authority two and one-half more years to fully finish the project. Tomahawk had requested an accounting of how money was spent that was allegedly owed to Tomahawk on the contract. Apparently the contract required Tomahawk initially to secure a letter of credit for $150,000.00 in place of a performance bond. In addition, the Housing Authority was allowed to withhold ten percent of the total contract price until the project was completed.

After additional events apparently occurred, on or about February 1, 1995, Tomahawk filed a Complaint against the Housing Authority and Yankton for damages it alleges it suffered in not being allowed to complete the project. Tomahawk also requested an accounting of monies owed to it, including monies from the letter of credit.

The Housing Authority brought a Motion to Dismiss Tomahawk's action alleging what is commonly referred to as a "Rule 12(b) (6)" for failure to state a cause of action upon which relief could be granted. However, on April 28, 1995, a hearing was held on this Motion and the Trial Court instead focused on a one year contractual time limitation on filing suits that was contained in the HUD contract. The Trial Court dismissed the action filed by Tomahawk on those grounds.

Paragraph 14 of the contract specifically recites how disputes are to be resolved. Paragraph 14 is reproduced in full as follows:

14. Disputes

a. Except for disputes arising from Form HUD-52554, Supplement to the General Conditions of the Contract for construction, Article 1, "Labor Standards" (Development), or from the Form HUD-5370A, Supplementary Conditions of the Contract for Construction (Nonroutine Maintenance), all disputes arising under or relating to this contract, including any claims for damages for the alleged breach thereof which are not disposed of by agreement, shall be presented in writing to the contracting Officer, the contracting Officer shall, with reasonable promptness, after obtaining the approval of HUD, render his/her decision to the Contractor in writing.

b Unless the Contractor, within 30 days after receipt of the Contracting Officer's decision, shall notify the Contracting Officer in writing that it takes exception to such decision, the decision shall be final and...