Breach of Contract Cases

Trial court did not err in granting summary judgment on appellant's breach of contract claim as related to the termination of her administrative positions. However, trial court erred in granting summary judgment on appellant's breach of contract claim related to the cancellation of appellant's endowed professorship where appellee failed to demonstrate the absence of a genuine issue of material fact. Trial court did not err in determining that it lacked jurisdiction over constitutional due process claim. Trial court did not err in granting summary judgment on discrimination claim because appellant failed to meet her burden of demonstrating prima facie case and pretext. Trial court did not err in granting summary judgment on retaliation claim because appellant failed to demonstrate prima facie case.

The trial court did not err in refusing to stay the litigation of certain claims pending arbitration where (1) those claims that were not part of the action that included the arbitrable claims and (2) the parties to the claims at issue had not executed an arbitration agreement.

The existence and terms of an oral contract are findings of fact subject to the clearly erroneous rule. A district court's determination of whether the facts support a finding of unjust enrichment is fully reviewable on appeal. An award of damages for an unjust enrichment claim is reviewed under the clearly erroneous standard. Issues not raised in the district court are waived.

An employer of an independent contractor generally is not liable for the negligence of the independent contractor. North Dakota law recognizes an implied warranty of fitness for a particular purpose in construction contracts. A contracting party cannot escape its liability on the contract by merely assigning its duties and rights under the contract to a third party. The remedy for fraud is rescission of the contract and requires returning the parties back to their original positions. Deceit is not an action dependent on a contract it is a tort cause of action, and allows recovery of damages upon proof of an affirmative misrepresentation or suppression of material facts. When a party requests leave to amend without requesting additional discovery and a summary judgment motion has been docketed, the proposed amendment must be both theoretically viable and solidly grounded in the record. The measure of damages for breach of contract is the amount which will compensate the injured person for the loss which fulfillment of the contract would have prevented or the breach of the contract now requires.

An employer of an independent contractor generally is not liable for the negligence of the independent contractor. North Dakota law recognizes an implied warranty of fitness for a particular purpose in construction contracts. A contracting party cannot escape its liability on the contract by merely assigning its duties and rights under the contract to a third party. The remedy for fraud is rescission of the contract and requires returning the parties back to their original positions. Deceit is not an action dependent on a contract it is a tort cause of action, and allows recovery of damages upon proof of an affirmative misrepresentation or suppression of material facts. When a party requests leave to amend without requesting additional discovery and a summary judgment motion has been docketed, the proposed amendment must be both theoretically viable and solidly grounded in the record. The measure of damages for breach of contract is the amount which will compensate the injured person for the loss which fulfillment of the contract would have prevented or the breach of the contract now requires.

The existence and terms of an oral contract are findings of fact subject to the clearly erroneous rule. A district court's determination of whether the facts support a finding of unjust enrichment is fully reviewable on appeal. An award of damages for an unjust enrichment claim is reviewed under the clearly erroneous standard. Issues not raised in the district court are waived.

The appellate court did not have jurisdiction to rule on the trial court's decision denying appellant's motion to dismiss under Civ.R. 12(B)(6) as an order denying a motion to dismiss is not a final appealable order. Furthermore, as appellants did not file a motion to stay proceedings pending arbitration as contemplated by R.C. 2711.02(B) but, rather, filed a motion to dismiss the complaint due to an arbitration provision, the trial court's determination that appellants waived their right to arbitration was not a final appealable order.

compromise verdict damages employment contract learned profession exception

Formalistic compliance with an opt-out notice is not required to validly opt-out of a class action. A vehicle owner, who, by admission, knows little about cars and has never done any service on any cars, nor personally observed the condition, is not qualified to offer an opinion, either as an expert or lay witness, to overcome summary judgment on whether a transmission conductor plate was faulty four or more years before it was found to be faulty and replaced.

APPELLATE REVIEW/CIVIL – ARBITRATION – CONTRACTS – JURISDICTION – PROCEDURE/RULES: The denial of a motion for a more definite statement is not a final, appealable order. The appellate court's standard for reviewing the trial court's determination of whether a party has waived a contractual right to arbitrate a dispute is an abuse of discretion. Defendants-appellants did not waive their right to arbitrate when they filed a motion to stay the proceedings pending arbitration within 93 days of the commencement of the litigation and, in the time prior to filing the motion, had filed only a few pleadings and conducted only one deposition. The appellate court's standard of review for determining whether a claim falls within the subject matter of a contractual arbitration provision is de novo. When determining whether a claim falls within the subject matter of a contractual arbitration provision, the trial court must consider the allegations made within each cause of action and determine whether the claim could be maintained without reference to the contract or relationship at issue. Plaintiff's claims for breach of fiduciary duty, unjust enrichment and conversion arose from his status as a member of defendant company, his claimed ownership interest in the company and the rights resulting from his membership therefore, those claims were subject to the arbitration clause in the company's operating agreement. Plaintiff's claims for unjust enrichment, fraudulent concealment and civil conspiracy did not arise from defendant company's operating agreement or from plaintiff's status as a member of the company, and could be maintained without reference to the operating agreement or plaintiff's status as a member of the company therefore, those claims were not subject to arbitration. An entry by the trial court compelling a party to produce discovery is not a final, appealable order.

Andres Trucking Co. (Andres) operated a dump truck that caught fire while it was insured by United Fire and Casualty Co. (United). The parties agreed that the truck was a total loss but disagreed about its value. Ultimately, Andres filed an amended complaint alleging breach of contract and bad faith denial and delay of an insurance claim under CRS §§ 10-3-1115 and -1116 and challenging the enforceability of the contractual appraisal provision. The district court struck the amended complaint on the ground that the insurance policy required an appraisal. Following an appraisal, United paid Andres the truck's appraised value and moved for entry of judgment under CRCP 12(b)(5), contending that as a matter of law the appraisal process had resolved Andres's claims. While this motion was pending, Andres moved to amend its complaint. The district court again denied the motion, reasoning that the appraisal process concluded the issues before the court, and entered judgment for United. On appeal, Andres argued that the district court erred in dismissing its complaint because the appraisal process did not resolve whether United had breached the insurance policy or unreasonably denied or delayed payment of benefits. The Court concluded that the appraisal process did not determine United's liability for breach of contract or statutory bad faith delay. The district court erred in determining that the appraisal precluded Andres from pursuing these claims. Andres also raised various challenges to the appraisal process itself. The Court rejected the arguments that (1) the appraisal provisions are unconstitutional (2) United did not properly invoke the appraisal because it never demanded it and (3) the appraisal process did not result in a binding loss valuation. The appraisal award is a binding determination of the value of the insured property, and thus Andres may not further litigate that issue. The district court did not err in enforcing the appraisal provision. The Court also de