Opinion
Civil No. A2-02-50
April 22, 2003
MEMORANDUM AND ORDER
I. Introduction
Park Construction Company ("Park"), a utility contractor, brings this action against another utility contractor, Lunseth Plumbing and Heating Co. ("Lunseth"), for unjust enrichment. Before the Court is Lunseth's motion for summary judgment (Doc. # 20.) For the reasons set forth below, the motion is GRANTED.
II. Background
In early 2000, Barton Malow Company, on behalf of the University of North Dakota, sought bids in twelve different bid categories for the completion of one utility project. Both Park and Lunseth were awarded contracts. Park was awarded a contract for Bid Category #5, which was entitled "Buried Steam Condensate Pipe Installation," and Lunseth was awarded a contract for Bid Category #7, which was entitled "Sidewalk, Curbs, Road, and Parking Lot Restoration."
The essence of Park's job was to install steam pipe. In order to do this, Park was first required to survey and prepare a layout of the area where pipe was to be installed. Then, existing pavement over the areas where pipe was to be installed had to be removed. However, before the pavement could be removed, the pavement needed to be sawcut parallel or perpendicular to the center line of pavement. Next, a pneumatic jackhammer or similar device could break up the pavement within the parameters of the sawcuts. The pavement then could be removed. Although the parties disagree as to whose duty it was to perform this initial sawcutting and pavement removal, they do not dispute the method by which it was to be completed.
Following the pavement removal process, the contract required Park to excavate a trench and haul away excess excavated soil. Next, Park was to install and test the pipe. Finally, Park was to backfill and compact the trench.
The essence of Lunseth's job was to restore site conditions to their original condition. As part of its job, Lunseth agrees that it was to do some sawcutting and pavement removal. Lunseth submits that it performed sawcutting and removal when pavement edges were damaged or broken in order to square and straighten the pavement edges. After this was completed, Lunseth installed new pavement within the 12 foot right of way.
The basis of Park's suit is that it completed the sawcutting and removal work within the 12 foot right of way for which Lunseth was entirely responsible under its bid category. Lunseth answers by arguing that Park was responsible for the initial sawcutting and pavement removal; Lunseth was only responsible for sawcutting and pavement removal following the installation and backfilling of the pipe.
In its motion for summary judgment, Lunseth frames the issue as one involving contract interpretation, and Park acquiesces in this framework, but not upon the conclusions drawn by Lunseth. Lunseth contends that Park did not perform work outside the scope of its contract, and, alternatively, even if it did, the work did not fall within the scope of Lunseth's contract. Contrarily, Park argues that the unambiguous language of their respective contracts establishes that it erroneously performed work that Lunseth was under an obligation to perform. Alternatively, Park argues that if the Court determines that the contracts ambiguously define the parties' respective work scopes, then the extrinsic evidence demonstrates the existence of material issues for trial.
III. Analysis
Even though Park's claim is for unjust enrichment, both parties agree that the resolution of the summary judgment motion requires that the Court initially determine the proper interpretation of the contracts affecting the parties. Since this action is one brought in diversity, the Court must apply the substantive law of the forum state. Archer v. Pavement Specialist, Inc., 278 F.3d 845, 846-47 (8th Cir. 2002). Under North Dakota law, threshold issues in contract interpretation are questions of law: When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible. The construction of a written contract to determine its legal effect is a question of law for the court to decide . . . [and] [t]he issue [of] whether a contract is ambiguous is a question of law. Kondrad ex rel. McPhail v. Bismarck Park Dist., 655 N.W.2d 411, 413 (N.D. 2003) (citations omitted). Therefore, summary judgment is appropriately granted unless the Court finds that Park has met the elements of an unjust enrichment claim as a matter of law and either (1) the unambiguous language of either contract supports Park's position or (2) the Court finds an ambiguity. See TeamBank, N.A. v. McClure, 279 F.3d 614, 617 (8th Cir. 2002) ("Because this case involves only questions of law, it is particularly appropriate for summary judgment.")
Therefore, the Court will begin by reviewing the language of Lunseth's contract, particularly the work scope section, which defines Lunseth's duties under the contract. In performing this task, the Court is guided by the principle that "every clause, sentence, and provision should be given effect consistent with the main purpose of the contract." U.S. Bank v. Koenig, 650 N.W.2d 820, 823 (N.D. 2002). An examination of Lunseth's work scope section reveals that the main objective of its contract is to perform restoration. The title of Lunseth's bid category is "Sidewalk, Curbs, Road, and Parking Lot Restoration." The contract provides that "[t]he scope of work is to include . . . [r]estoring site conditions to original condition as per specified in the above sections and contract documents."
In interpreting contract language, it is well-settled that words in a contract are to be given their ordinary and plain meaning. Burlington Northern and Sante Fe Ry. Co. v. Burlington Resources Oil Gas Co., 590 N.W.2d 433, 438 (N.D. 1999). Courts often look to dictionary definitions to ascertain the ordinary meaning of a word. See, e.g., Martin v. Allianz Life Ins. Co. of North America, 573 N.W.2d 823, 826 (N.D. 1998). The dictionary definition of "restore" is "to bring back to a former, original, or normal condition." Random House Webster's Unabridged Dictionary 1641 (2d ed. 1997). As explained above, the initial sawcutting and pavement removal was for the purposes of demolishing and removing the existing pavement so that Park could install pipe. Park's argument that Lunseth was responsible for this process is entirely contrary to the term "restore" and therefore contrary to the main purpose of the contract.
Nonetheless, in its brief in opposition to summary judgment and in neatly summarized tables presented at the summary judgment hearing, Park points to several provisions in Lunseth's contract that it argues establish that Lunseth was responsible for the initial sawcutting and pavement removal. The Court has examined each of these provisions. As explained below, none yields an ambiguous interpretation or an interpretation contrary to the manner in which Lunseth performed the contract.
Park insists that the following provision in Lunseth's contract unambiguously indicates that Lunseth was to perform all sawcutting: "The scope of work is to include . . . [s]aw-cutting to square edges at areas where concrete/asphalt must be replaced. (Cut to widest width of excavation.)" Park contrasts Lunseth's work scope provision with its own, which contains no explicit mention of sawcutting in the numbered list of items within its work scope. While this is interesting, the Court cannot consider provisions of Park's contract when attempting to determine whether or not there is an ambiguity in Lunseth's contract. See Meide v. Stenehjem ex rel. State of N.D., 649 N.W.2d 532, 535 (N.D. 2002) (citation omitted) "(Extrinsic evidence is properly considered only if the language of the agreement is ambiguous and the parties' intentions cannot be determined from the writing alone.").
The plain language of the sawcutting provision is not ambiguous and comports with Lunseth's position regarding its work scope. The work scope indicates that sawcutting must be done where "concrete/asphalt must be replaced." (emphasis added) As Lunseth points out, it would be difficult to ascertain the place where concrete/asphalt must be replaced if it had not already been removed. That Lunseth was only responsible for sawcutting and pavement removal following the installation of pipe is supported by the sawcutting provision and is consistent with the restorative purpose of the contract.
Lunseth's work scope provides that its work was to conform to several technical specification sections, including a section for "Pavement removal (where applicable)," which provides specifications for sawcutting and removing pavement. Notwithstanding the fact that the contract specifically limits the use of this section to areas "where applicable," Park submits that the reference to this technical specification requires Lunseth to perform all sawcutting and pavement removals. The Court must reject this expansive interpretation, since it belies the plain language of the contract and conflicts with the contract's restorative objective.
Park proffers Lunseth's bid form, which requires unit prices for sawcutting and pavement removal, as support for its position. Lunseth agrees, and its contract clearly indicates, that Lunseth was to do some sawcutting and pavement removal as part of the restoration process. Therefore, it is not surprising that Lunseth's bid form required unit prices on these items. As with the sawcutting provision, Park points to its own bidding form, which contains no unit prices for these items. Again, however, the Court may not examine extrinsic evidence to determine whether or not there is ambiguity.
Lunseth's work scope references several contract drawings. Park draws the Court's attention to two of these drawings, C3.10 and C3.11. Both C3.10 and C3.11 provide pavement details. The Court has examined these details. They do not conflict with Lunseth's position that it was only responsible for sawcutting and pavement removal following the trench excavation. Indeed, as Lunseth submits in its reply brief, the C3.10 drawing shows the existence of a trench, which, by ready implication, lends support to Lunseth's position and the restorative objective of its contract that the sawcutting referred to in the drawing must occur following the trench excavation.
Park argues that since its contract does not reference these drawings, then Lunseth must be responsible for the sawcutting and pavement removal that Park completed. Yet again, Park is attempting to create an ambiguity with extrinsic evidence; this it cannot do. Spanish Oaks, Inc. v. Hy-Vee, Inc., 655 N.W.2d 390, 403 (Neb. 2003) ("[E]xtrinsic evidence cannot be used to create ambiguity where the terms of the contract are clear and unambiguous.")
The Court concludes that Lunseth's contract is not ambiguous. The plain language of the contract establishes that the purpose of the contract was restoration. None of the provisions singled out by Park shows anything to the contrary, and, in fact, the cited provisions support the overall purpose of restoration. Under the plain language of the contract and consistent with its restorative purposes, Lunseth was not required to perform the initial sawcutting and pavement removal. Therefore, Lunseth was not enriched by Park's performance of the initial sawcutting and pavement removal, and Park's unjust enrichment claim must fail. Apache Corp. v. MDU Resources Group, Inc., 603 N.W.2d 891, 894-95 (N.D. 1999) (stating that the defendant must receive a benefit in order for the plaintiff to meet the elements of an unjust enrichment claim).
Since the Court holds that the contract was unambiguous, it need not consider extrinsic evidence. However, the Court notes that extrinsic evidence supports the unambiguous language of the contract, as pointed out by Lunseth during the oral argument on the summary judgment motion.
Accordingly, Lunseth's motion for summary judgment is GRANTED (doc. # 20.), and this action is ORDERED DISMISSED WITH PREJUDICE.
IS SO ORDERED.