877 N.W.2d 292
N.D.2016Background
- Welch Construction & Excavating (Welch) contracted with Linh Duc Duong (doing business as Classy Nails) to remodel a vacant retail space into a salon for $92,225; Welch sued for an unpaid balance of $30,825 after completing work.
- Duong counterclaimed that Welch breached the contract by failing to complete the project by a promised date (before Thanksgiving 2013, later allegedly before Christmas) and by failing to build the space to his specifications, seeking setoffs for repair costs and lost profits.
- The parties signed Welch’s written estimate on October 29, 2013; the estimate contained no completion date.
- Evidence showed permit processing and custom flooring each had expected 4–6 week waits, and Welch testified no significant delays occurred once work began.
- The district court found Welch’s timeline more credible, found no enforceable oral completion-date promise, found Duong’s damage evidence speculative and unsupported, and awarded Welch the $30,825 balance.
Issues
| Issue | Plaintiff's Argument (Welch) | Defendant's Argument (Duong) | Held |
|---|---|---|---|
| Whether the contract included an oral completion date (time of the essence) | No specific completion date; estimate controls and is silent on date | Welch orally promised finish within 30 days/ by Thanksgiving and later agreed to pre-Christmas date | Court: No enforceable oral completion date; Welch’s timeline more credible; finding not clearly erroneous |
| Whether Welch unreasonably delayed performance | Performance was timely given permit and flooring lead times; no significant delays after start | Delay breached contract and caused damages (lost profits) | Court: No unreasonable delay; performance not shown to be untimely |
| Whether Welch breached by failing to construct according to Duong’s specifications (workmanlike manner) | Work performed in a workmanlike manner; many complaints cosmetic or altered after installation | Numerous construction defects and deviations from Classy Nails standard requiring repair | Court: Breach on specifications need not be decided because Duong failed to prove damages; credibility favored Welch where addressed |
| Whether Duong proved damages (repair costs and lost profits) | Duong’s damage claims speculative, unsupported by estimates or documentation | Duong entitled to setoff for repair costs ($18k–$20k claimed) and lost profits | Court: Duong’s damage testimony speculative and unsupported; failed to prove repair costs or lost profits; damages denied |
Key Cases Cited
- WFND, LLC v. Fargo Marc, LLC, 730 N.W.2d 841 (N.D. 2007) (elements and proof required for breach of contract and standard of review for factual findings)
- Cavendish Farms, Inc. v. Mathiason Farms, Inc., 792 N.W.2d 500 (N.D. 2010) (deference to trial court credibility determinations)
- Delzer v. United Bank of Bismarck, 459 N.W.2d 752 (N.D. 1990) (parol evidence rule and when oral terms can supplement a written contract)
- Myaer v. Nodak Mut. Ins. Co., 812 N.W.2d 345 (N.D. 2012) (contract construction is a question of law; ascertain parties’ intent from writing when possible)
- Keller v. Hummel, 334 N.W.2d 200 (1983) (time is of the essence: express term or fact question; reasonable delay standard)
- Air Heaters, Inc. v. Johnson Elec., Inc., 258 N.W.2d 649 (N.D. 1977) (implied obligation that construction be performed in a reasonably good and workmanlike manner)