Shift Services v. Ames Savage Water Solutions

                                                                               FILED
                                                                       IN THE OFFICE OF THE
                                                                    CLERK OF SUPREME COURT
                                                                         DECEMBER 15, 2023
                                                                     STATE OF NORTH DAKOTA




                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                 

Shift Services, LLC,                                    Plaintiff and Appellant
      v.
Ames Savage Water Solutions, LLC,                      Defendant and Appellee

                                 No. 20230217

Appeal from the District Court of McKenzie County, Northwest Judicial
District, the Honorable Robin A. Schmidt, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice.

Jordon J. Evert, Williston, ND, for plaintiff and appellant.

Trevor A. Hunter, Williston, ND, for defendant and appellee.
             Shift Services v. Ames Savage Water Solutions
                               No. 20230217

Jensen, Chief Justice.

[¶1] Shift Services, LLC appeals from a judgment dismissing its breach of
contract claim asserted against Ames Savage Water Solutions and the
termination of a construction lien. Shift argues the district court erred when it
concluded a change of circumstances did not exist relating to the contract
between Shift and Ames; erred in finding that Ames did not approve and
authorize additional work to be performed by Shift; erred in finding that the
contract was not modified by the parties; and erred in interpreting and
applying the law governing contracts and agency principles. We affirm.

                                       I

[¶2] In February 2020, Ames accepted a written bid provided by Shift to
repair a liner inside a water tank operated by Ames. The bid contained a fixed
price of $39,500.00 which was to include all labor, material, and travel time to
remove and install the new liner.

[¶3] Prior to submitting the bid, Shift visited the water tank where “a thin
crust of ice” was observed on the surface of the water left inside. Around the
middle of March 2020, Shift commenced work on the water tank. After removal
of a panel, a thicker amount of ice was observed.

[¶4] On March 16, 2020, Shift sent Ames’ operational manager a text stating,
“[t]he tank by Mandaree has a foot to two feet of ice in it also. Would you want
us to remove it like we did the last one so you can get it done this week?” Ames’
operational manager responded, “Yes, please.” This was the only written
communication between the parties regarding ice removal. Shift attempted to
remove the ice via a mini excavator but was unable to continue after the mini
excavator fell into a sump hole at the bottom of the tank.

[¶5] After the failed attempt to remove the ice with the mini excavator, shift
initiated a conference call with Ames to inquire about subcontracting a hot oil
truck company to melt the ice. During the conference call, the parties’


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discussion was limited to the hourly rate of hot oil trucks. At that time, Shift
believed the quantity of ice in the tank and the sump hole created unforeseen
and unexpected circumstances giving Shift authority to proceed with a costly
and time-consuming method of melting the ice.

[¶6] Upon completion of the project, Ames paid the contracted amount. Shift
also presented Ames with a bill for an additional $31,705.00 related to the ice
removal. Ames refused to pay the additional $31,705.00 arguing it did not
authorize the use of the hot oil trucks, rates, labor charges, or equipment
charges outside the bid.

[¶7] After Ames refused to pay the additional $31,705.00, Shift recorded a
construction lien against the subject property and initiated an action alleging
breach of contract and seeking to foreclose on the lien. The issue presented to
the district court was whether the contract was modified to include the costs
associated with the ice removal. The court found the original contract between
Ames and Shift had not been modified because there was a lack of mutual
assent to compensate Shift for the additional ice removal work and therefore,
Ames did not breach the contract. The court dismissed Shift’s breach of
contract claim and terminated the construction lien. Shift appealed.

                                        II

[¶8] Shift advances numerous arguments challenging the district court’s
factual determinations regarding mutual assent and modification. As an initial
matter, we note that Shift does not challenge the formation or existence of the
original contract and did not seek to render the initial contract void or voidable.
Shift limits its argument to the assertion the contract was modified to include
costs associated with ice removal and challenges the finding Ames did not
approve and authorize additional ice removal work to be performed by Shift.

[¶9] Modifications of a contract generally require the mutual assent of the
parties. Spilovoy v. Gliege, 

 (N.D. 1980); 17A Am.Jur.2d
Contracts § 500 (2004); N.D.C.C. §§ 9-09-05, 9-09-06. The determination of
whether the required mutual assent existed is a question of fact which will not
be set aside on appeal unless it is clearly erroneous. Hartman v. Grager, 2021

 

, ¶¶ 14, 27, 

. A finding of fact is clearly erroneous if it
is not supported by any evidence, if, although there is some evidence to support
the finding, a reviewing court is left with a definite and firm conviction a
mistake has been made, or if the finding is induced by an erroneous conception
of the law. Pfeifle v. Tanabe, 

, 

. “A trial court’s
choice between two permissible views of the weight of the evidence is not
clearly erroneous, and simply because we may have viewed the evidence
differently does not entitle us to reverse the trial court.” Edward H. Schwartz
Constr., Inc. v. Driessen, 

, 

 (quoting Brandt v.
Somerville, 

, 

).

[¶10] Although there may have been contrary evidence provided during the
trial, the district court was provided evidence supporting a finding there was
no mutual intent between Shift and Ames to modify their original agreement.
That evidence included testimony Shift never disclosed to Ames that Shift
intended to add an additional charge for the time, materials, or equipment to
account for the increased cost associated with the removal of the ice. The
evidence also included testimony that Shift did not identify the subcontractor
it intended to use to assist with the removal of the ice, what equipment would
be used during the removal process, the estimated number of hours that would
be involved, or that the increased work would result in additional charges to
Ames. The court was free to choose between any conflicts in the evidence in
making its findings, there is evidence in the record to support the findings, the
court did not misapply the law, and we are not left with a definite and firm
conviction a mistake was made in the findings. We conclude the court’s finding
there was insufficient mutual assent to modify the contract was not clearly
erroneous.

                                       III

[¶11] The district court’s finding there was a lack of mutual assent to modify
the terms of the parties’ agreement was not clearly erroneous. We decline to
address Shift’s remaining arguments as either unnecessary to our decision or
without merit. We affirm.



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[¶12] Jon J. Jensen, C.J.
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte
      Douglas A. Bahr




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