IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2023 ND 29

L&C Expedition, LLC, and 

Williams Building Company, Inc., Plaintiffs and Appellants

v.

Swenson, Hagen and Company, P.C.;

Unlimited Excavating, LLC; and

Hartze Construction, Inc., Defendants

and

International Fidelity Insurance Company, Defendant and Appellee

No. 20220169

Appeal from the District Court of Mercer County, South Central Judicial 

District, the Honorable Bruce A. Romanick, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice.

Bradley N. Wiederholt, Bismarck, ND, for plaintiffs and appellants.

Robert J. Pathroff, Bismarck, ND, for defendant and appellee.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

FEBRUARY 16, 2023 

STATE OF NORTH DAKOTA
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L&C Expedition v. Swenson, Hagen and Co.

No. 20220169

Jensen, Chief Justice.

[¶1] L&C Expedition, LLC (“L&C”) appeals from a judgment entered 

following the district court granting summary judgment in favor of 

International Fidelity Insurance Company (“IFIC”) and denying summary 

judgment to L&C. L&C argues the district court erred in finding a contractual 

limitation on the period to assert a claim was enforceable, erred in failing to 

apply N.D.C.C. § 9-08-05 to preclude modification of the applicable statute of 

limitations, and erred in interpreting N.D.C.C. § 22-03-03 as providing an 

exception to the prohibition against modifying the applicable statute of 

limitations. We affirm.

I

[¶2] L&C contracted with Unlimited Excavating (“Unlimited”) to perform 

work on a residential development project. The parties’ contract required

Unlimited to obtain a performance bond. Unlimited obtained a performance 

bond through IFIC.

[¶3] Unlimited completed its work in November 2016 and received final 

payment in July 2017. In 2019, L&C learned of major problems in the 

construction and notified Unlimited it needed to make repairs. Unlimited did 

not make the repairs and L&C demanded IFIC arrange for performance of 

Unlimited’s work per the terms of the performance bond. IFIC refused to 

arrange for performance. L&C subsequently initiated suit against IFIC in May 

2020 arguing L&C is entitled to recover $393,000 under the terms of the

performance bond.

[¶4] The performance bond provided the following: “[a]ny suit under this bond 

must be[] [i]nstituted before the expiration of two years from the date on which 

final payment under the subcontract falls due.” The parties do not dispute the 

district court’s finding L&C initiated its action outside the limitation period 

provided within the terms of the bond.
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[¶5] L&C and IFIC both moved for summary judgment. The district court 

granted summary judgment in favor of IFIC, finding L&C’s claims against 

IFIC are time-barred by the two-year limitation for asserting a claim as 

provided within the terms of the performance bond.

II

[¶6] L&C argues the two-year time limitation provided in the performance 

bond is invalid. L&C asserts N.D.C.C. § 9-08-05 precludes parties from 

contracting for a period of limitation to bring a claim different than the 

applicable statute of limitations, and N.D.C.C. § 22-03-03 does not provide an

exception to N.D.C.C. § 9-08-05.

[¶7] We have outlined the standard of statutory interpretation as follows: 

Statutory interpretation is a question of law, which is fully 

reviewable on appeal. Nelson v. Johnson, 2010 ND 23, ¶ 12, 778 

N.W.2d 773. The primary purpose of statutory interpretation is to 

determine the intention of the legislation. In re Estate of Elken, 

2007 ND 107, ¶ 7, 735 N.W.2d 842. Words in a statute are given 

their plain, ordinary, and commonly understood meaning, unless 

defined by statute or unless a contrary intention plainly appears. 

N.D.C.C. § 1-02-02. If the language of a statute is clear and 

unambiguous, “the letter of [the statute] is not to be disregarded 

under the pretext of pursuing its spirit.” N.D.C.C. § 1-02-05. If the 

language of the statute is ambiguous, however, a court may resort 

to extrinsic aids to interpret the statute. N.D.C.C. § 1-02-39.

Bindas v. Bindas, 2019 ND 56, ¶ 10, 923 N.W.2d 803 (quoting Ferguson v. 

Wallace-Ferguson, 2018 ND 122, ¶ 7, 911 N.W.2d 324).

[¶8] L&C argues N.D.C.C. § 9-08-05 voids any contractual provision which 

limits the time within which a party can enforce their right and N.D.C.C. § 22-

03-03 does not provide for an exception. We disagree.

[¶9] Section 9-08-05, N.D.C.C., provides:

Every stipulation or condition in a contract by which any party 

thereto is restricted from enforcing that party’s rights under the 
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contract by the usual legal proceedings in the ordinary tribunals 

or which limits the time within which that party thus may enforce 

that party’s rights is void, except as otherwise specifically 

permitted by the laws of this state.

Section 9-08-05, N.D.C.C., does void all provisions in a contract which limit the 

time within which a party can enforce their rights, but specifically allows for 

parties to limit the time for asserting a claim if another North Dakota law 

permits the limitation.

[¶10] Section 22-03-03, N.D.C.C., provides: “[a] surety cannot be held beyond 

the express terms of the surety’s contract and if such contract prescribes a 

penalty for its breach, the surety cannot be liable in any case for more than the 

penalty.” The language of the statute is clear and unambiguous. The language 

of the statute provides a surety cannot be held beyond the terms in the contract 

nor held beyond the amount of liability provided for in the contract. A contract 

provision which limits the amount of time a party is allowed to bring suit is an 

express provision of the contract. Therefore, N.D.C.C. § 22-03-03 provides that 

if the parties contractually agree to a limitation on the time to bring a claim, 

the surety cannot be held beyond that limitation. N.D.C.C. § 22-03-03 serves 

as an exception under N.D.C.C. § 9-08-05.

[¶11] L&C further argues Storing v. National Surety Co., 56 ND 14, 215 N.W.

875 (1927) is controlling. In Storing, this Court invalidated a 15-month lawsuit 

deadline contained in a surety bond under Section 5927, Compiled Laws 1913. 

Section 5927 and N.D.C.C. § 9-08-05 are very similar but have one important 

difference. Section 5927, Compiled Laws 1913, read as follows:

Every stipulation or condition in a contract by which any party 

thereto is restricted from enforcing his rights under the contract

by the usual legal proceedings in the ordinary tribunals or which 

limits the time within which he may thus enforce his rights is void.

N.D.C.C. § 9-08-05 provides: 

Every stipulation or condition in a contract by which any party 

thereto is restricted from enforcing that party’s rights under the 

contract by the usual legal proceedings in the ordinary tribunals 
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or which limits the time within which that party thus may enforce 

that party’s rights is void, except as otherwise specifically 

permitted by the laws of this state. 

[¶12] The primary difference between the two statutes is the addition of the 

phrase “except as otherwise specifically permitted by the laws of this state[]” 

in N.D.C.C. § 9-08-05. As discussed above, N.D.C.C. § 22-03-03 serves as an 

exception to Section 9-08-05. The statute analyzed in Storing did not provide 

for any exceptions. Storing is not controlling.

[¶13] Section 22-03-03, N.D.C.C., provides a surety cannot be held beyond the 

express terms of the surety contract. Therefore, the contractual statute of 

limitations in the performance bond governs. The performance bond provides, 

“[a]ny suit under this bond must be[] [i]nstituted before the expiration of two 

years from the date on which final payment under the subcontract falls due.” 

The express terms of the contract provide that any suit must be brought within 

two years from final payment under the subcontract. Unlimited completed its 

work in November 2016 and received its last payment in July 2017. L&C 

initiated the proceedings in May 2020. L&C failed to initiate proceedings 

within two years after final payment was received by Unlimited and their 

claims against IFIC are barred.

III

[¶14] The two year limitation for asserting a claim provided for in the 

performance bond is enforceable, L&C failed to bring suit within two years,

and L&C is barred from asserting its claims against IFIC. We affirm.

[¶15] Jon J. Jensen, C.J.

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

Daniel D. Narum, D.J.

[¶16] Gerald W. VandeWalle, who was a member of the Court when this matter 

was submitted, was disqualified and did not participate in this decision. The 

Honorable Daniel D. Narum, D.J., sitting.
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[¶17] Justice Douglas A. Bahr was not a member of the Court when this matter

was submitted and did not participate in the decision.