IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2026 ND 92
Lepird Drywall, LLC d/b/a Lepird Decorating and Drywall, Plaintiff and Appellee v.
Elite Flooring Installations, Inc.
d/b/a Team Elite Construction, Defendant and Appellant No. 20250333
Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Nicholas W. Chase, Judge.
AFFIRMED.
Opinion of the Court by Bahr, Justice. Timothy P. Hill, Fargo, ND, for plaintiff and appellee. Katrina A.T. Lang, Fargo, ND, for defendant and appellant.
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Lepird Drywall v. Elite Flooring Installations No. 20250333
Bahr, Justice.
[¶1] Elite Flooring Installations, Inc. d/b/a Team Elite Construction (Elite) appeals from a district court judgment awarding Lepird Drywall, LLC d/b/a Lepird Decorating and Drywall (Lepird) $44,975 for Elite's breach of an oral contract and dismissing Elite's conversion counterclaim. We affirm.
I
[¶2] Elite served as the drywall subcontractor on three apartment construction projects: MAKT (Water Park) in Fargo, North Dakota; Horace in Horace, North Dakota; and JP Place in Perham, Minnesota. Construction by Epic (Epic) and Hammers Construction (Hammers) served as general contractors on the MAKT and JP Place projects, while Christianson Companies oversaw the Horace project. Elite subcontracted drywall, painting, taping, and texturing work to Juan Gonzalez d/b/a Juan Gonzalez Drywall LLC (Gonzalez), who in turn engaged Lepird to assist with priming, texturing, and painting. Lepird billed Gonzalez directly, and Gonzalez paid Lepird for all the priming, texturing, and painting work Lepird completed.
[¶3] In late September 2023, Gonzalez abandoned the job sites without completing punch list and patchwork obligations. Gonzalez had no further contact with Elite or Lepird. After Gonzalez left, Lepird called Andy Rahman, principal and owner of Elite, to discuss the unfinished work. Lepird testified the two reached an understanding: Lepird would complete the remaining punch list items in exchange for payment from the projects' retainage fees, plus supplemental compensation for change orders (patchwork). Lepird further testified he understood he would have no further affiliation with Gonzalez and Rahman knew this. Rahman denied making any such agreement and maintained Gonzalez told him Lepird would finish Gonzalez's punch list obligations. [¶4] Lepird completed the punch list and patchwork tasks across all three projects over a span of a few weeks. Upon completion, Lepird invoiced for $44,975, reflecting $10,000 for punch list work at MAKT, $20,550 for punch list
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and patchwork at Horace, and $14,425 for patchwork at JP Place. Elite never paid any of these invoices. Lepird filed suit seeking $20,550. [¶5] Lepird twice amended its complaint: first to correct the damages amount to $44,975, and then to add an unjust enrichment claim as an alternative to its contract cause of action. Elite counterclaimed alleging Lepird wrongfully removed approximately $20,000 worth of paint and supplies from the job sites. [¶6] On July 23, 2025, following a bench trial, the district court entered its Findings of Fact, Conclusions of Law, and Order for Judgment. The court found an enforceable oral contract existed, determined Lepird fully performed its obligations, and awarded $44,975 in damages. Further, the court dismissed Elite's conversion counterclaim with prejudice. The court also concluded, in the absence of an oral contract, Lepird satisfied the elements of its alternative claim for unjust enrichment. Elite timely appealed.
II
[¶7] Elite argues the district court erred in finding an oral contract existed between Elite and Lepird.
[¶8] Whether an oral contract exists, the extent of its terms, and whether a party substantially performed on the contract are questions of fact, which this Court reviews under the clearly erroneous standard. Pegg v. Kohn, 2015 ND 79, ¶¶ 8, 12, 861 N.W.2d 764. "A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after review of the entire record, we are left with a definite and firm conviction a mistake has been made." Cavendish Farms, Inc. v. Mathiason Farms, Inc., 2010 ND 236, ¶ 17, 792 N.W.2d 500 (quoting Helfenstein v. Schutt, 2007 ND 106, ¶ 14, 735 N.W.2d 410). This Court does not reweigh evidence or reassess credibility when evidence supports the district court's findings; instead, it views the evidence in the light most favorable to the findings. Id. ¶ 20.
[¶9] Elite argues no mutual assent occurred on the essential terms because the outward acts of the parties demonstrate Lepird worked as Gonzalez's subcontractor, not under a separate agreement with Elite, and the court
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improperly relied on industry custom rather than the overt acts of the parties. Lepird responds he entered into a separate agreement with Elite after Gonzalez departed, as evidenced by direct communications between Lepird and Rahman, a shared understanding of retainage-based compensation, and Lepird's performance of the work.
[¶10] The district court found Lepird credibly testified he contacted Rahman after Gonzalez departed and the two reached an understanding regarding retainage-based compensation for completing the remaining punch list items and supplemental compensation for the change orders (patchwork) items. Lepird's trial testimony corroborated this finding. The court further found this arrangement reflected standard industry practice—both Lepird and Rahman acknowledged their prior dealings involved similar verbal arrangements, and Rahman confirmed many of Elite's other subcontractor agreements for these projects likewise proceeded verbally. See N.D. Pub. Serv. Comm'n v. Cent. States Grain, Inc., 371 N.W.2d 767, 776 (N.D. 1985) ("Courts have regarded the established practices and usages within a particular trade or industry as a more reliable indicator of the true intentions of the parties. . . . The existence and scope of such a practice or usage is to be determined by the trier of fact."); Herman Oil, Inc. v. Peterman, 518 N.W.2d 184, 187 (N.D. 1994) (holding the trial court did not err in considering extrinsic evidence relating to the parties' oral agreement and that the court's findings on the terms of that oral agreement were not clearly erroneous.).
[¶11] The district court also identified corroborating evidence beyond Lepird's testimony. Rahman communicated directly with Lepird after Gonzalez's departure, visited the project sites, and directed Lepird's order of work. The general contractors notified Elite they would withhold funds from Elite's final billing to ensure Lepird received payment. Both parties operated under a shared understanding of retainage values and supplemental compensation for any change orders, consistent with prior dealings on the same projects. [¶12] Elite contends the absence of invoices directed to Elite undermines the finding of mutual assent. The documentary evidence Lepird introduced at trial named third parties rather than Elite as billing recipients. The district court heard
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and credited Lepird's testimony he billed Elite for the work. The court also heard Lepird's explanation for the JP Place invoice: after Elite refused to pay, a representative from Epic directed Lepird to send the bill to Hammers so funds could be reserved.
[¶13] Under the clearly erroneous standard, this Court does not reweigh the evidence or reassess the district court's credibility determinations. The district court observed the witnesses, assessed credibility, and credited Lepird's account of the agreement over Elite's denial. The court's finding an oral contract existed between Elite and Lepird is not induced by an erroneous view of the law, there is evidence to support it, and, after reviewing the entire record, we are not left with a definite and firm conviction a mistake has been made. The court's finding an oral contract existed is not clearly erroneous.
III
[¶14] Elite argues the district court erred in dismissing its conversion counterclaim because Lepird admittedly removed Elite's paint and supplies from the job sites without consent and never returned them. Elite contends the court should have examined the wrongful exercise of dominion or control over the property rather than focusing on Lepird's intent, and a formal demand proved unnecessary because demand would have been unavailing. [¶15] This Court reviews the district court's factual findings supporting dismissal of the counterclaim under the clearly erroneous standard. Auction Effertz, Ltd. v. Schecher, 2000 ND 109, ¶¶ 10, 15, 611 N.W.2d 173. "Whether a conversion has been committed is a finding of fact reviewed under a clearly erroneous standard." Roth v. Meyer, 2024 ND 113, ¶ 29, 9 N.W.3d 469. [¶16] The district court found Elite's testimony regarding the alleged values vague and unsupported by detail. See Johnson v. Monsanto Co., 303 N.W.2d 86, 93 (N.D. 1981) (holding damages must be proved to a reasonable degree of certainty and the "mere mention that such damages existed" is insufficient; the fact finder must have some factual basis for fixing damages). Rahman testified the values were derived from prior Hirshfield invoices, yet Elite failed to introduce any documentary evidence, such as the invoices themselves, to substantiate the
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quantity, condition, or value of the allegedly converted items. Rahman's testimony did not clarify when the materials allegedly disappeared, how Elite stored or tracked them, or from which project sites they originated. In contrast, Lepird acknowledged removing certain leftover supplies from the JP Place site at Gonzalez's direction—approximately ten buckets of paint, most of them used, and a small quantity of corner bead and expansion joints. Lepird estimated the value of the buckets when new at approximately $85 each. Lepird further testified Elite never requested the return of the materials and that Elite could retrieve the remaining buckets at any time.
[¶17] Elite argues demand was unnecessary because demand would have proved unavailing. See Hochstetler v. Graber, 48 N.W.2d 15, 19 (N.D. 1951). The district court, however, found no evidence supporting that proposition. To the contrary, the court found Lepird testified Elite could retrieve the materials at any time and Elite never made such a request. The court weighed the competing narratives and found Elite failed to prove conversion by a preponderance of the evidence. Beyond Lepird's admitted possession of a limited quantity of leftover paint from the JP Place site, the court found Elite presented no credible evidence of wrongful taking or withholding from any other location. The court found the counterclaim lacked specificity as to ownership, value, and wrongful interference with Elite's rights.
[¶18] The district court finding Elite failed to prove its conversion counterclaim is not clearly erroneous. It is not induced by an erroneous view of the law, there is evidence to support it, and, after reviewing the entire record, we are not left with a definite and firm conviction a mistake has been made.
IV
[¶19] The district court's finding an oral contract existed is not clearly erroneous. The court's finding Elite failed to prove its conversion counterclaim is not clearly erroneous. Because we affirm the district court's award of damages for breach of contract, we find it unnecessary to address Elite's arguments the court abused its discretion in allowing Lepird to amend its complaint to add an unjust
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enrichment counterclaim and the court erred in finding, in the alternative, Lepird was entitled to restitution under unjust enrichment. We affirm. [¶20] Lisa Fair McEvers, C.J.
Jon J. Jensen
Douglas A. Bahr
Mark A. Friese
Lindsey R. Nieuwsma, D.J.
[¶21] The Honorable Lindsey R. Nieuwsma, D.J., sitting in place of Tufte, J., disqualified.