966 N.W.2d 912
N.D.2021Background:
- Wades Welding repaired a mobile home (sewer and other work, $19,840) and a restaurant (heating, $2,500) in Tioga, ND, at the request of tenant Susan Gordon; invoices were delivered to John Ellsworth Jr.
- Gordon was evicted by Ellsworth Jr. the day after the home sewer repair; she had a lease for the restaurant and the parties treated the home as part of the tenancy though no written lease existed for the home.
- Wades recorded construction liens in December 2017 after nonpayment; Tioga sold the restaurant in July 2019; Wades sued in October 2019 to foreclose liens and for unjust enrichment.
- District court denied Tioga’s COVID-related continuance request but permitted remote testimony; trial resulted in findings that liens were valid, the home lien was foreclosed, the restaurant lien was unenforceable due to defective service on the current owner.
- Because the restaurant lien could not be foreclosed, the court awarded Wades $2,500 under unjust enrichment and entered total judgment of $27,669.90 against Tioga.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Motion to continue trial (COVID) | Trial should proceed; remote testimony sufficed | Continuance needed because owner Janice Ellsworth was uncomfortable traveling and her in-person testimony was necessary | Denial not an abuse of discretion; court allowed remote testimony instead |
| Allowing Gordon to testify by telephone | Request complied with Admin. R. 52 and was timely served | Procedure insufficient (no formal motion/brief) | Court had discretion under Admin. R. 52; allowing telephone testimony was not an abuse of discretion |
| Validity of construction liens (agency/notice) | Liens valid: Gordon was tenant, Ellsworth Jr. was ostensible agent; Tioga had constructive notice and failed to object per N.D.C.C. §35-27-07 | No contract/authority; Tioga lacked actual or constructive notice | Liens valid; Gordon leased both properties; Ellsworth Jr. was ostensible agent and Tioga had constructive notice |
| Unjust enrichment for restaurant work | Alternative equitable relief appropriate because lien unenforceable by service error and Wades lacks remedy against property | Wades had remedy at law against Gordon; Struksnes requires pursuing that remedy first | Unjust enrichment available as alternative against Tioga; court awarded value of restaurant work ($2,500) |
| Costs/attorney fees for contesting restaurant lien | Tioga entitled to fees under §35-27-24.1 for successfully contesting lien enforcement | Lien was valid (only unenforceable for service defect), so statute doesn’t apply | Tioga not entitled to fees because it did not successfully contest the validity or accuracy of the lien; lien was valid but unenforceable due to service error |
Key Cases Cited
- Ryberg v. Landsiedel, 956 N.W.2d 749 (abuse-of-discretion review for continuance decisions)
- Gimbel v. Magrum, 947 N.W.2d 891 (bench-trial factual findings clearly erroneous standard / credibility deference)
- Struksnes v. Kevin’s Plumbing & Heating, Inc., 572 N.W.2d 815 (lessee-initiated repairs and lien; pursuing remedies against lessee vs. lessor)
- Smestad v. Harris, 820 N.W.2d 363 (elements and nature of unjust enrichment)
- McDougall v. AgCountry Farm Credit Servs., 960 N.W.2d 792 (unjust enrichment elements and review)
- McColl Farms, LLC v. Pflaum, 837 N.W.2d 359 (equitable recovery considered when legal remedy fails)