Skaw ND Precast, LLC v. Oil Capital Ready Mix, LLC

Filed 12/12/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2019 ND 296Skaw ND Precast, LLC, Plaintiff and Appellee
v.
Oil Capital Ready Mix, LLC, Agape
Holdings, LLP, Scott Dyk and Samuel Dyk, Defendants and Appellants
No. 20190138
Appeal from the District Court of Williams County, Northwest Judicial
District, the Honorable Paul W. Jacobson, Judge.
AFFIRMED.
Opinion of the Court by VandeWalle, Chief Justice.
David A. Tschider, Bismarck, ND, for plaintiff and appellee.
Mark A. Schwab, West Fargo, ND, for defendants and appellants.
Skaw ND Precast LLC v. Oil Capital Ready Mix, LLC
No. 20190138
VandeWalle, Chief Justice.
[¶1] Oil Capital Ready Mix, LLC; Agape Holdings, LLP; Scott Dyk; and
Samuel Dyk (collectively “Dyk”) appealed from a judgment awarding Skaw ND
Precast LLC (“Skaw”) $69,295 in damages for conversion of its property.
Because the district court’s findings of fact are not clearly erroneous, we affirm
the judgment.
I
[¶2] In March 2013, Skaw, a company which manufactures and sells precast
concrete items, entered into a five-year agreement with Tioga Ready Mix
(“Tioga”), a company which produces ready-mix concrete product, to rent a two-
acre parcel of land to conduct its business. The base rent for the site was $700
per month, subject to reductions if Skaw purchased designated quantities of
ready-mix product from Tioga. The agreement provided it would remain in
effect until December 31, 2018, and it did not allow either party to unilaterally
cancel the agreement.
[¶3] In spring 2015, Skaw learned that Tioga had arranged to sell Tioga’s
assets at a public auction, including the two-acre parcel of property where
Skaw conducted its business. Skaw’s owners attended the auction sale in May
2015. The auction service notified all attendees that Skaw’s assets on the
premises were not part of the sale, that there was a lease in place between
Skaw and Tioga, and that the lease went with the land. Dyk was the successful
bidder at the auction and entered into a commercial purchase agreement with
the sellers which did not include Skaw’s product inventory or equipment and
stated the sale was subject to “rights of tenants,” but did not list Skaw as a
tenant. Once Dyk got its ready-mix plant running, Skaw began purchasing
concrete ready-mix product from Dyk for its business.
[¶4] In August 2015, Dyk requested and was provided a copy of the March
2013 agreement between Skaw and Tioga. Dyk’s attorney informed one of
Skaw’s owners that the agreement between Skaw and Tioga “is no longer
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capable of being performed” and that “we need to come to terms.” Dyk
attempted to renegotiate the terms of the 2013 agreement, and Skaw agreed
to increase its monthly rental payments to $750 per month.
[¶5] On September 23, 2015, Dyk mailed a “notice of non-renewal of lease” to
Skaw stating:
PLEASE TAKE NOTICE that the lease under which you hold
possession of the above described property will terminate pursuant
to its own terms on November 22, 2015 and will not be renewed for
a new term, nor allowed to be converted to a month-to-month
tenancy. Please do not tender any money that will pay rent beyond
the end of the term. Please further be advised that any money
tendered, if accepted will have been accepted in error and will be
returned.
PLEASE TAKE FURTHER NOTICE that you are required to
surrender the premises to Samuel Dyk upon the termination date.
Please return the premises in the same condition as you found it
upon move-in, normal wear and tear excepted. Furthermore, you
are required to return all keys upon vacating the premises.
Failure to vacate the premises on or before the termination date
will result in legal proceedings against you to recover possession of
said premises.
During late 2015, both Skaw and Dyk shut down operations for the winter off-
season. Skaw did not comply with Dyk’s “notice.”
[¶6] During the winter, Dyk built an earthen berm around Skaw’s equipment
which prevented Skaw from accessing it. Dyk also transported Skaw’s concrete
pad and block inventory off of Skaw’s two acres to an area adjacent to Dyk’s
offices. Other Skaw assets were transported to undisclosed locations. When
Skaw discovered the berm had been constructed and its assets had been
moved, Dyk informed Skaw that Skaw had abandoned their temporary rental
agreement in December 2015 and that law enforcement would be notified if
there were “any attempts to breach the peace or trespass” on the property.
Skaw replied that the 2013 lease was still valid and had not been abandoned,
and that Skaw planned to return to the property and continue operations. Dyk
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continued to claim the 2013 lease was invalid and would not allow Skaw access
to the property.
[¶7] After the parties’ actions resulted in exchanges of accusations to law
enforcement of trespass and felony theft, they began negotiating for the
removal of Skaw’s assets from the property. In April 2016, the parties entered
into a “right of access agreement” in which Dyk granted Skaw “the right to
access the PREMISES for the sole and exclusive purpose of retrieving the items
listed on Schedule A, and for no other purpose in exchange for a total payment
of” $5,250. The items listed on Schedule A included a number of septic tanks,
cylinders, covers and lids, but did not include Skaw’s concrete blocks and pads
which had been transported from the lease site to Dyk’s office area. After
retrieving the Schedule A property, Skaw returned to the premises to remove
the remaining cement blocks and pads. Skaw discovered that many of the
cement blocks and pads were either missing or broken. On the morning of May
19, 2016, Dyk informed Skaw that it would be allowed until 6 p.m. the following
day to remove more than 113 concrete blocks and pads from the premises, and
if Skaw remained on the property after 6 p.m., Dyk would seek criminal
prosecution against Skaw. Because of the physical impossibility of removing
the concrete blocks and pads from the property in 36 hours, Skaw did not
attempt to retrieve its assets.
[¶8] In December 2016, Skaw brought this conversion action against Dyk.
Following a bench trial, the district court held Dyk liable for conversion
damages. The court ruled that the 2013 agreement between Skaw and Tioga
was a lease which was binding on Dyk until December 31, 2018, and that Dyk
was fully aware that the purchase of the property was subject to the lease
agreement. The court found that Skaw did not abandon the lease or its
property and that Dyk wrongfully converted the property. The court awarded
Skaw $52,295 for the value of the wrongfully converted property and $17,000
for time and money expended by Skaw in pursuit of the property, for a total
damage award of $62,295.
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II
[¶9] Dyk argues the district court erred in ruling the 2013 agreement
between Skaw and Tioga was a lease rather than a license.
[¶10] In Blankenau v. Landess, 626 N.W.2d 588, 593 (Neb. 2001), the
Nebraska Supreme Court summarized well-settled principles of property law:
Generally, the owner of leased property may sell the
property, and such grant conveys the landlord’s interest in the
lease. 49 Am.Jur.2d Landlord and Tenant § 1052 (1995). A sale
by the lessor of real estate, during the unexpired leasehold term
under which the tenant is holding, does not, of itself, abrogate the
lease, determine the leasehold estate, or authorize the landlord or
the tenant to treat the lease as at an end. Kirk Corp. v. First
American Title Co., 220 Cal.App.3d 785, 270 Cal.Rptr. 24 (1990);
Plastone Plastic Co. v. Whitman-Webb Realty Co., 278 Ala. 95, 176
So.2d 27 (1965); 49 Am.Jur.2d Landlord and Tenant § 1060 (1995).
Its effect is to grant all the rights of the original landlord to the
grantee of the reversion. Id. The grantee then becomes the
landlord by operation of law, and the tenant becomes a tenant of
the grantee of the reversion. Id. See, also, Watson v. Calvin, 69
Ark.App. 109, 9 S.W.3d 571 (2000) (when lessor sells property that
is subject to unfulfilled lease, buyer takes property subject to terms
of lease); Murphrey v. Winslow, 70 N.C.App. 10, 318 S.E.2d 849(1984), reversed on other grounds 313 N.C. 320, 327 S.E.2d 878(1985) (when title passes, lessee ceases to hold under grantor and
becomes tenant of grantee; privity is automatically established
between lessor’s grantee and lessee).
See also 49 Am.Jur.2d Landlord and Tenant § 233 (2018); 52 C.J.S. Landlord
and Tenant § 159 (2012).
[¶11] Section 47-16-01, N.D.C.C., defines “[l]easing” as “a contract by which
one gives to another the temporary possession and use of real property for
reward and the latter agrees to return such possession to the former at a future
time.” We have defined a lease as “an agreement under which owner gives up
possession and use of property for valuable consideration and for definite term
and at end of term owner has absolute right to retake, control, and use
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property.” Prairieview Nursing Home v. N.D. Dep’t of Human Servs., 1999 ND
142, ¶ 9, 598 N.W.2d 116 (quoting Black’s Law Dictionary 889 (6th ed. 1990));
see also Lee v. N.D. Park Serv., 262 N.W.2d 467, 471 (N.D. 1977) (noting lease
is contract for possession of property for a term of years usually for a specified
rent). We have recognized a lease as being equivalent to a sale of the land for
the term of the lease in which the lessee acquires an estate in the land. See
Twogood v. Wentz, 2001 ND 167, ¶ 15, 634 N.W.2d 514. On the other hand, a
license is merely a permit or privilege to do what otherwise would be unlawful,
see Lee, at 470, and merely grants a right or permission to nonexclusive use of
the land for a specific, limited purpose. See Riverwood Commercial Park, LLC
v. Standard Oil Co., Inc., 2005 ND 118, ¶ 11, 698 N.W.2d 478. A license does
not convey an estate in affected property and is generally revocable at will
without notice. See Hector v. Metro Ctrs., Inc., 498 N.W.2d 113, 117 (N.D.
1993).
[¶12] Dyk argues the 2013 agreement was a mere license because it granted
Skaw the right to use the two-acre plot for six limited purposes, including
manufacturing precast concrete products, and imposed other restrictions and
obligations on use of the property. However, restrictions on the use of property
do not transform a lease into a license. We have said “a lease gives the right
of possession of the land, and the exclusive occupation of it for all purposes not
prohibited by its terms.” Lee, 262 N.W.2d at 470 (emphasis added; internal
citation omitted). The 2013 agreement stated it was effective until December
31, 2018, and contained provisions for monthly rent. Up until the time of the
lawsuit, the parties throughout their interactions treated the agreement as a
lease. We conclude the court did not err in ruling the 2013 agreement was a
lease which Dyk could not cancel at will.
[¶13] Dyk also argues, even if the 2013 agreement was a lease, it was modified
by the parties because Skaw agreed to increase rent from $700 to $750 per
month. However, there was no evidence that other terms of the lease regarding
duration or the amount of property subject to the lease were amended. The
rent modification did not relieve Dyk of its obligations under the lease or allow
Dyk to eject Skaw from the property. Dyk’s argument is without merit.
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III
[¶14] Dyk argues the district court erred in finding he converted Skaw’s
property.
[¶15] In Nelson v. Mattson, 2018 ND 99, ¶ 24, 910 N.W.2d 171, we said:
Conversion is the “tortious detention or destruction of personal
property, or a wrongful exercise of dominion or control over the
property inconsistent with or in defiance of the rights of the
owner.” Ritter, Laber and Associates, Inc. v. Koch Oil, Inc., 2004
ND 117, ¶ 11, 680 N.W.2d 634. We have said that if a party
“rightly came into possession and there was no wrongful taking of
goods, demand and refusal to return may be required for
conversion.” Id. A trial court’s determination on whether a
conversion has been committed is a finding of fact subject to the
clearly erroneous standard of review. Paxton v. Wiebe, 1998 ND
169, ¶ 29, 584 N.W.2d 72.
A finding of fact is clearly erroneous if it is induced by an erroneous view of the
law, if there is no evidence to support it, or if, after reviewing all of the
evidence, this Court is convinced a mistake has been made. See Larson v.
Tonneson, 2019 ND 230, ¶ 10, 933 N.W.2d 84.
[¶16] After Dyk refused to honor the 2013 lease agreement between Skaw and
Tioga, Dyk detained Skaw’s property and refused to grant Skaw a reasonable
opportunity to retrieve its property. The circumstances in this case do not
suggest that Skaw voluntarily abandoned its property. As the district court
found:
On May 19, 2016, at 11:15 A.M., Attorney Frisk notified Officer
Braaten that . . . Skaw would have until 6:00 p.m. on Friday, May
20, 2016, or 36 hours, to remove all of the remaining Skaw pads
and blocks from the property. Attorney Frisk stated as follows:
“Beginning at 6:01 p.m. any one on site will be trespassing. A
complaint to Ben Johnson will be made on our behalf should
anyone decide to test this.” Defendants threatened criminal
prosecution in the event Skaw entered the Defendant’s property
after 6:00 o’clock p.m. on Friday, May 20, 2016. As of the date of
Frisk’s May 19, 201[6] e-mail, the Defendants had not commenced
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an eviction action against Plaintiff. Defendants had no legal basis
to exclude Plaintiff from the leased site and no legal basis to
threaten Plaintiff with a trespass claim. The Plaintiffs testified it
was physically impossible to remove that many pads and blocks in
36 hours and did not re-enter the Defendants’ property to retrieve
any Skaw assets.
....
The Court determines that the Defendants[’] acts herein,
including the wrongful eviction of Plaintiff from the leased site,
constitute the wrongful exercise of dominion and control by
Defendants over the personal property of Plaintiff in a manner
inconsistent with, or in defiance of, . . . Skaw’s rights and
constitute the wrongful conversion by Defendants of Skaw’s
personal property.
[¶17] Dyk argues this case “is analogous, if not identical” to this Court’s
decision in Paxton v. Wiebe, 1998 ND 169, ¶¶ 33-36, 584 N.W.2d 72, in which
we affirmed a district court’s finding that there was no conversion when the
landlord took the tenant’s personalty but did not exercise dominion over it in
violation of the tenant’s rights. We do not believe Paxton is persuasive
authority here. First, the district court in this case found Dyk exercised
dominion and control over the property in defiance of Skaw’s rights. Second,
Paxton was an affirmance of the district court’s finding of no conversion and
illustrates this Court’s limited standard for reviewing findings of fact under
N.D.R.Civ.P. 52(a). See Hust v. N.D. Workers Comp. Bureau, 1998 ND 20, ¶
17, 574 N.W.2d 808. The evidence in this case, as in Paxton, supports the
court’s finding.
[¶18] We conclude the district court’s finding that Dyk converted Skaw’s
property is not clearly erroneous.
IV
[¶19] Dyk argues the district court erred in awarding Skaw $17,000 in
damages to compensate it for hiring an investigative service to assist in
pursuing its claim against Dyk.
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[¶20] The detriment caused by the wrongful conversion of personal property
includes “[a] fair compensation for the time and money properly expended in
pursuit of the property.” N.D.C.C. § 32-03-23(3). The appropriate standard of
review in an appeal challenging a court’s award of damages in a bench trial is
whether the findings on damages are clearly erroneous. See Buri v. Ramsey,
2005 ND 65, ¶ 17, 693 N.W.2d 619.
[¶21] Skaw hired an investigative service to assist in recovering its wrongfully
detained property. The purpose of the investigation was to identify the location
and the persons who were in possession of more than 150 of Skaw’s precast
concrete pads, blocks and tanks. The investigator explained:
My primary goal was to first determine if the pads, blocks and
tanks identified as Skaw owned pads, blocks and tanks could be
located. If located my secondary goal was to determine how one
could reasonably identify a Skaw pad, block or tank from a non
Skaw pad, block or tank. If the pads, blocks or tanks could not be
located my third and final goal would be to attempt to identify who
may have benefited from the disposal and or sale of Skaw asset(s).
Skaw was billed $17,198 for those services.
[¶22] In determining that an award of $17,000 was fair compensation under
N.D.C.C. § 32-03-23(3), the district court reasoned:
The Plaintiff retained Professional Management &
Investigations (PMI) to assist Plaintiff in recovering its
personal property assets as wrongfully converted by
Defendants. The total cost of such services was in the sum
of approximately $17,000. The Court determines that the
wrongful actions of the Defendants precipitated the
Plaintiff’s hiring of PMI and the costs accrued by PMI and
that such costs would have been significantly reduced had
the Defendants allowed Plaintiff to regain possession of
Plaintiff’s assets.
[¶23] We conclude the district court’s award of $17,000 for investigative
services is not clearly erroneous.
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V
[¶24] It is unnecessary to address other arguments raised because they are
either unnecessary to the decision or without merit. The judgment is
affirmed.
[¶25] Gerald W. VandeWalle, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Jon J. Jensen
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