940 N.W.2d 657
N.D.2020Background
- In spring 2012 Dickey County and German Township awarded Lakeview Excavating three FEMA-funded road construction contracts; the contracts required the contractor to provide all paperwork needed to satisfy FEMA funding requirements.
- Lakeview used more material than listed in bid documents, including material taken from private property without permission; the projects were completed in August 2012 and spawned separate litigation over the private-property material use.
- Lakeview sued the County and Township in October 2016 for breach of contract, fraud, negligent misrepresentation, and unlawful interference, alleging the defendants knew bid quantities were inaccurate and that shortages caused increased costs and delays.
- Defendants counterclaimed that Lakeview breached the contracts by failing to provide required FEMA documentation and bonding, resulting in FEMA denying $248,949.14 in funding.
- The district court granted summary judgment for the defendants, holding Lakeview’s tort claims time-barred by the three-year statute of limitations and that Lakeview breached the contracts; judgment entered for defendants for roughly $249,600.64.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lakeview's tort claims (fraud, misrepresentation, interference) are time‑barred under N.D.C.C. ch. 32‑12.1 | Limitations began Oct 21, 2014 when County rep said County knew quantities were inaccurate | Limitations began in May 2012 when Lakeview learned County was aware of inaccuracies; suit filed Oct 2016 so claims are untimely | Court: accrual began in May 2012 (discovery rule triggered); tort claims barred as filed after three‑year period |
| Whether incorrect bid quantities or alleged failure to accommodate Lakeview’s scheduling constituted a breach of the written contracts | Bid quantities were incorporated into contracts and shortages/ failure to accommodate breached those contracts causing delay and liquidated damages | Contracts contain no clause guaranteeing quantities or requiring accommodations for other projects; no contractual breach from inaccurate quantities | Court: contracts do not guarantee quantities nor require accommodations; no breach on those grounds |
| Whether Lakeview breached the contracts by failing to provide FEMA paperwork and required bonds | Defendants should have requested or assumed responsibility for bonds; County later told FEMA it accepted responsibility | Contracts unambiguously required the contractor to provide all documentation to satisfy FEMA; Lakeview failed to obtain required bonds and surveys | Court: Lakeview breached express contract term by failing to provide required FEMA documentation; summary judgment for defendants on counterclaim |
Key Cases Cited
- Brock v. Price, 934 N.W.2d 5 (summary judgment standard; view evidence favoring nonmovant and review de novo)
- Ayling v. Sens, 926 N.W.2d 147 (discovery rule and accrual; plaintiff must investigate once on notice)
- Swenson v. Mahlum, 927 N.W.2d 850 (elements of breach of contract: existence, breach, damages)
- Finstad v. Ransom‑Sargent Water Users, Inc., 812 N.W.2d 323 (tort claims against political subdivisions governed by N.D.C.C. ch. 32‑12.1)