Peoples State Bk. of Truman v. Molstad Excavating
of Truman, Inc., a
Minnesota Corporation, Plaintiff and Appellant
v.
Molstad Excavating, Inc.,
a North Dakota corporation, Defendant
and
FGOH2O, Inc., d/b/a
Fargo Water Equipment, Defendant and Appellee
Judge Debbie Gordon Kleven
| Appellant: | Lawyer not licensed in N.D. | |
| Appellant: | Zimney Foster P.C. | |
| Appellee: | Flom & Associates, P.A, |
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I. Did the district court err by finding FG2O was an intended beneficiary of the Molstad-Haycraft Contract?
Yes. FH2O was not listed in the contract, provided no consideration to the Molstad-Haycraft Contract, was not owed a duty by either part to the Molstad-Haycraft Contract at the time the contract was created and the intent of the parties was not to benefit FH2O.
Most apposite authorities:
First Federal Sav. and Loan Ass'n of Bismarck v. Compass
Investments, Inc., 342 N.W.2d 214 (N.D. 1983);
O'Connell v. Entertainment Enterprises, Inc., 317 N.W.2d 385 (N.D. 1982);
Parlin v. Hall, 2 N.D. 473, 52 N.W. 406 (1892);
Apache Corp. v. MDU Resources Group, Inc., 603 N.W.2d 891 (N.D. 1999).
II. Did the district court err by determining that FH2O had "claims" against Molstad?
Yes. FH2O did not have a contractual claim against Molstad nor did it have a construction bond claim against the Project's construction bond.
Most apposite authorities:
Ziegelmann v. DaimlerChrysler Corp., 649 N.W.2d 556 (N.D. 2002);
Kuchenski v. Kramer Sheet Metal, 377 N.W.2d 133 (N.D. 1985);
Erickson v. Scotsman, Inc., 456 N.W.2d 535 (N.D. 1990);
N.D. Cent. Code 48-02-15 (2002);
N.D. Cent. Code 48-02-17 (2002)
III. Did the district court err by violating the law of the case?
Yes. Judge Braaten's October 5, 2004, Judgment specifically held that the Molstad-Haycraft Contract only allowed Molstad to withhold funds but eventually Molstad had to pay Haycraft or its assigns.
Most apposite authorities:
In re Guardianship and Conservatorship of Onstad, 704 N.W.2d 554 (N.D. 2005).
Appellee's Statement of the Issues:
I. The Appropriate Standard Of Review On A Review Of Summary Judgment Is de novo.
II. Fargo Water Was An Intended Beneficiary To The Contract Between Molstad And Haycraft.
III. The District Court Correctly Determined Fargo Water Had A Claim Against Molstad Because Fargo Water Was Not Required To Exhaust Its Available Remedies Before Collecting On The Contract.
IV. Fargo Water Is Entitled To Collect Because It Had A Claim Consistent With The Law Of The Case.
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