Bakke v. D & A Landscaping Co.
820 N.W.2d 357
| N.D. | 2012Background
- Bakkes sought to expand an elevated patio and replace a boulder retaining wall due to permeability issues.
- Rocks and Blocks recommended using Thomas of D & A Landscaping for the project construction.
- Invoices and proposals over 2006-2008 identified D & A Landscaping as the entity working for the project.
- In 2010, the Bakkes sued D & A Landscaping Company, LLC, Rocks and Blocks, Inc., and Thomas for fraud, deceit, breach of contract, and negligence; default judgments were issued against some entities.
- Jury found Thomas personally liable for breach of contract, negligence and fraud, while entities were found not liable; judgment included a note that the fraudurer was Thomas.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the LLC veil could be pierced to impose Thomas’s liability | Bakkes contend piercing required to make Thomas liable personally. | Veil piercing not applicable since Thomas acted personally; LLC was not liable. | Veil piercing not required; Thomas liability found personally without piercing LLC. |
| Whether the jury instruction on fraud burden was correct | Fraud must be proven by clear and convincing evidence. | Instruction used greater weight of the evidence; burden not properly stated. | Fraud burden instruction not plain error; law-of-the-case burden instruction applied. |
Key Cases Cited
- Intercept Corp. v. Calima Fin., LLC, 2007 ND 180 (ND 2007) (piercing requires independent basis to hold the entity liable)
- Rau v. Kirschenman, 208 N.W.2d 1 (ND 1973) (plain error review flexibility for fundamental errors)
- Livingood v. Balsdon, 2006 ND 11 (ND 2006) (instruction becomes law of the case when unobjected)
- Wilson v. Gen. Motors Corp., 311 N.W.2d 10 (ND 1981) (plain error review guidance in ND)
- Wiest, American Bank Center v. Wiest, 2010 ND 251 (ND 2010) (fraud must be proven by clear and convincing evidence)
- Citizens State Bank-Midiwest v. Symington, 2010 ND 56 (ND 2010) (fraud elements burden of proof discussion in ND)
- Erickson v. Brown, 2008 ND 57 (ND 2008) (ND burden of proof standards for fraud cases)
- First Union Nat’l Bank v. RPB 2, LLC, 2004 ND 29 (ND 2004) (fraud burden and proof considerations in ND)
- Richland Cnty. Water Res. Bd. v. Pribbernow, 442 N.W.2d 916 (ND 1989) (judicial opinions should not be advisory)