IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2021 ND 214

Wades Welding LLC, Plaintiff and Appellee

v.

Tioga Properties, LLC, Defendant and Appellant

No. 20210107

Appeal from the District Court of Williams County, Northwest Judicial 

District, the Honorable Paul W. Jacobson, Judge.

AFFIRMED.

Opinion of the Court by Crothers, Justice.

Erich M. Grant, Minot, ND, for plaintiff and appellee; submitted on brief.

Taylor D. Olson (argued), Peter H. Furuseth and Dustin A. Richard (on brief), 

Williston, ND, for defendant and appellant.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

NOVEMBER 26, 2021 

STATE OF NORTH DAKOTA
1

Wades Welding v. Tioga Properties

No. 20210107

Crothers, Justice.

[¶1] Tioga Properties, LLC, appeals from a district court judgment awarding

Wades Welding, LLC $27,669.90 relating to Wades Welding’s lawsuit for 

enforcement of construction liens and unjust enrichment. Tioga Properties also 

appeals from the court’s orders denying its motions to continue and an order 

allowing testimony by reliable electronic means. We affirm.

I

[¶2] Janice Ellsworth is the owner of Tioga Properties. Tioga Properties 

owned a restaurant and home (referred to by the parties as a “mobile home”)

adjacent to each other in Tioga, North Dakota. Susan Gordon leased the 

restaurant from Tioga Properties. Gordon delivered rent payments to John 

Ellsworth Jr., Janice Ellsworth’s son. Gordon resided in the home but had no

written lease for that property.

[¶3] In late 2016 and early 2017, Gordon hired Wades Welding to repair

the home and restaurant. Wades Welding repaired the heat at the restaurant 

and repaired a sewer pipe at the home. Wades Welding performed $19,840 of 

work on the home and $2,500 of work on the restaurant. Wades Welding 

delivered the invoices for its work to Ellsworth Jr.

[¶4] A day after Wades Welding completed the sewer pipe repair at the home, 

Ellsworth evicted Gordon from the restaurant and home. Ellsworth Jr. 

supervised the eviction and Gordon left both properties within 48 hours.

[¶5] In December 2017, Wades Welding recorded construction liens against 

the properties after Tioga Properties failed to pay for the repairs. Tioga 

Properties sold the restaurant in July 2019. In September 2019, Tioga 

Properties served on Wades Welding a demand to enforce the home lien. In 

October 2019, Wades Welding sued Tioga Properties for breach of contract, 

foreclosure of the construction liens and unjust enrichment. Tioga Properties 
2

denied the allegations, claiming it did not authorize Wades Welding’s work on 

the properties.

[¶6] Prior to the scheduled December 2020 bench trial Tioga Properties 

moved for a continuance asserting Covid-19 precluded Janice Ellsworth from 

attending in person. The district court denied the motion, stating Tioga 

Properties’ witnesses could testify by reliable electronic means. Three days 

before the bench trial, Wades Welding filed a request to allow Gordon to testify 

by reliable electronic means because she did not want to travel from 

Washington state to North Dakota. The court allowed Gordon to testify by

telephone.

[¶7] After trial, the district court found Wades Welding’s construction liens

on both properties were valid and ordered foreclosure of the home lien. The 

court concluded the lien on the restaurant was unenforceable due to a service 

error; however, it awarded Wades Welding the amount of the repairs under the 

doctrine of unjust enrichment. The court ordered Tioga Properties to pay 

Wades Welding $27,669.90.

II

[¶8] Tioga Properties claims the district court abused its discretion in denying

its motion to continue the December 2020 trial.

[¶9] Under the version of N.D. Sup. Ct. Admin. Order 25, ¶ 5(3) in effect 

during trial, the district court had discretion to continue trials and hearings 

due to Covid-19. The order also stated “[c]ontinuances and extension requests 

related to COVID-19 should be presumptively granted.” Id. at ¶ 5(6). A court 

abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable 

manner, it misinterprets or misapplies the law, or its decision is not the product 

of a rational mental process leading to a reasoned determination. Ryberg v. 

Landsiedel, 2021 ND 56, ¶ 21, 956 N.W.2d 749.

[¶10] In Tioga Properties’ brief in support of its motion to continue, Janice 

Ellsworth stated she “[felt] uncomfortable traveling to North Dakota for the 
3

[trial] due to the rapid spike in COVID-19 cases in North Dakota.” Ellsworth 

claimed her attendance and testimony was necessary for a proper defense.

[¶11] The district court denied the motion to continue without explanation and 

allowed Ellsworth to testify by telephone under N.D. Sup. Ct. Admin. R. 52.

Although the court should have explained its decision, the administrative 

order granted the court discretion to allow or deny the continuance. Ellsworth 

requested to continue the trial so she could attend in person; however, she has 

not otherwise shown how she was prejudiced by the court’s denial of the motion 

to continue. See Flattum-Riemers v. Peters-Riemers, 2001 ND 121, ¶ 15, 630 

N.W.2d 71 (stating a party must show prejudice resulted from the denial of the 

motion to continue). Ellsworth was not the only witness unable to attend the 

trial in person. Three of the four witnesses who provided testimony resided out 

of state and also testified by telephone. Due to the nature of the pandemic at 

the time, it could have been several months or more until all of the out-of-state 

witnesses were able to attend in person. The court did not abuse its discretion 

in denying the motion to continue.

III

[¶12] Tioga Properties argues the district court erred in allowing Susan 

Gordon to testify by telephone because Wades Welding did not properly file a 

motion and brief with its request.

[¶13] Under N.D. Sup. Ct. Admin. R. 52, Sec. 2(a), a district court “may conduct 

a proceeding by reliable electronic means on its own motion or on a party’s 

motion.” A party requesting to use reliable electronic means must obtain prior 

approval from the court after providing notice to other parties. N.D. Sup. Ct. 

Admin. R. 52, Sec. 2(b).

[¶14] A few days before the bench trial, Wades Welding served a request for 

Gordon to testify by reliable electronic means. Wades Welding filed its request 

with the district court and served it on Tioga Properties. The court allowed 

witnesses for both parties to testify by telephone. The court had discretion 

whether to allow Gordon to testify remotely and means by which that 
4

testimony was provided. The district court did not abuse its discretion by 

allowing Gordon and other witnesses to testify by telephone.

IV

[¶15] Tioga Properties argues Wades Welding was not entitled to a 

construction lien because no contract existed between the parties. Tioga 

Properties asserts Susan Gordon and John Ellsworth Jr. were not its 

agents and had no authority to contract on its behalf. Tioga Properties claims 

it did not have actual or constructive notice of the improvements because it 

had no knowledge of the repairs made by Wades Welding.

[¶16] Chapter 35-27, N.D.C.C., governs construction liens. “Any person that 

improves real estate, whether under contract with the owner of such real estate 

or under contract with any agent, trustee, contractor, or subcontractor of the 

owner, has a lien upon the improvement and upon the land on which the 

improvement is situated.” N.D.C.C. § 35-27-02. Under N.D.C.C. § 35-27-01(3), 

improvements include repairs. Under N.D.C.C. § 35-27-24, a person having a 

construction lien “may bring an action to enforce the lien.”

[¶17] Our standard of review in an appeal from a bench trial is well 

established:

“In an appeal from a bench trial, the district court’s findings 

of fact are reviewed under the clearly erroneous standard of 

review, and its conclusions of law are fully reviewable. 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. In 

a bench trial, the district court is the determiner of credibility 

issues and we will not second-guess the district court on its 

credibility determinations. Findings of the trial court are 

presumptively correct.”

Gimbel v. Magrum, 2020 ND 181, ¶ 5, 947 N.W.2d 891 (cleaned up).

[¶18] The district court found Wades Welding’s construction liens against each 

property were valid. As to the home property, the court found Gordon was an 
5

“owner” under N.D.C.C. § 35-27-01(5), because she had “immediate use and 

benefit” of the improvements. The court treated Gordon as an “owner” of the 

home because no written lease existed between Gordon and Tioga Properties

for Gordon’s use of the home property. The court found “there was no evidence 

presented that the mobile home property was subject to any lease agreement.” 

[¶19] We disagree with the district court’s finding that no lease existed for the

home. Although no written lease existed for the home, the testimony at trial

established Gordon leased both properties from Tioga Properties. Ellsworth 

testified the written lease was for the restaurant, but “the deal with the [home] 

was the same as with the restaurant.” Gordon testified the restaurant and 

home were a “package deal.” We conclude Gordon leased both properties from 

Tioga Properties.

[¶20] Because Gordon leased both properties, N.D.C.C. § 35-27-07 applies and 

provides in part:

“When improvements are made by one person upon the land of 

another, all persons interested therein . . . are deemed to have 

authorized such improvements, insofar as to subject their interests 

to liens therefor. Any person who has not authorized the same may

protect the person’s interest from such liens by serving upon the 

person doing work or otherwise contributing to such improvement 

within five days after knowledge thereof, written notice that the 

improvement is not being made at the person’s instance, or by 

posting like notice, and keeping the same posted, in a conspicuous 

place on the premises. As against a lessor no lien is given for 

repairs made by or at the instance of the lessor’s lessee, unless the 

lessor has actual or constructive notice thereof and does not object 

thereto.”

In Struksnes v. Kevin’s Plumbing & Heating, Inc., 1997 ND 245, ¶ 9, 572 

N.W.2d 815, this Court “[concluded] N.D.C.C. § 35-27-07 applies to situations 

in which repairs are made to a lessor’s property at the instance of his lessee.”

[¶21] The district court found Tioga Properties had constructive notice of the 

repairs and did not object:
6

“[T]here was ample evidence presented that Tioga Properties, LLC 

had at least constructive notice of the work performed by Wades 

Welding and that Tioga Properties, LLC failed to object in the 

manner prescribed by N.D.C.C. § 35-27-07.

“Tioga Properties had first notice of the work being done by 

Wades Welding when it was observed by John Ellsworth Jr., son of 

the owner and the individual who actually monitored the 

properties on behalf of Tioga Properties LLC. Tioga Properties had 

further notice of the work when Wade Sprenger delivered invoices 

for the work to John Ellsworth Jr’s business, Northern Energy 

Services. Susan Gordon also testified that she communicated 

directly with Janice Ellsworth the day after the sewer repair was 

complete, when Ms. Ellsworth evicted her. Tioga Properties’ failure 

to provide written notice or to post conspicuous notice as required 

by NDCC § 35-27-07 is enough to find that Tioga Properties at 

least implicitly consented to the work being done by Wades 

Welding. Moreover, Tioga Properties is statutorily deemed to have 

authorized the improvements under N.D.C.C. § 35-27-07.” 

[¶22] Although not found specifically, the district court’s analysis implicitly 

found Ellsworth Jr. was Tioga Properties’ agent. “Agency is the relationship 

which results when one person, called the principal, authorizes another, called 

the agent, to act for the principal in dealing with third persons.” N.D.C.C. 

§ 3-01-01. Agency is actual or ostensible; “[i]t is ostensible when the principal 

intentionally or by want of ordinary care causes a third person to believe 

another to be the principal’s agent, who really is not employed by the

principal.” N.D.C.C. § 3-01-03. “Ostensible authority is such as the principal 

intentionally or by want of ordinary care causes or allows a third person to 

believe the agent possesses.” N.D.C.C. § 3-02-02. “Agency is a matter of fact, 

and a party alleging the existence of an agency relationship must establish it 

by clear and convincing evidence.” Struksnes, 1997 ND 245, ¶ 11 (citing Hector 

v. Metro Centers, Inc., 498 N.W.2d 113, 118 (N.D. 1993)).

[¶23] The district court discussed the testimony by each party and

found Ellsworth Jr. visited the restaurant often and discussed issues related 

to the restaurant and home with Gordon and Ellsworth. The court found 

Gordon paid her monthly rent to Ellsworth Jr. Gordon testified she believed 
7

Ellsworth Jr. was aware of the work being done by Wades Welding because he 

discussed it with her. Gordon testified Ellsworth Jr. commented on the heating 

repairs to the restaurant and how it made a difference. Gordon testified she 

would contact Ellsworth Jr. if something was needed at either of the properties. 

She testified she and Ellsworth Jr. discussed the sewer problems at the home. 

Gordon testified that after she was evicted, Ellsworth Jr. changed the locks at 

the restaurant. She testified she recalled hearing Ellsworth Jr. tell Wade 

Sprenger to bring him the bill for the sewer repair on the home. 

[¶24] Wade Sprenger testified he believed Ellsworth Jr. was aware of the work

being done. Sprenger testified he told Ellsworth Jr. he was installing a new 

sewer line at the home, and Ellsworth Jr. had no objection to the work. 

Sprenger testified he knew Janice Ellsworth owned the properties, but when 

something needed to be done she had Ellsworth Jr. take care of it because he 

was around more. Sprenger testified that after Gordon was evicted, 

Ellsworth Jr. told him to deliver the invoices for the work to Ellsworth Jr.’s 

business for payment. The invoices were billed to Tioga Properties LLC and 

included Janice Ellsworth’s and John Ellsworth Jr.’s names. Sprenger testified 

he brought the invoices to Ellsworth Jr.’s office, but he would not pay them 

because they were too expensive. Sprenger testified Ellsworth Jr. did not object 

to the work done on the properties. 

[¶25] The evidence at trial demonstrated Ellsworth Jr. acted as an ostensible 

agent of Tioga Properties. Gordon paid rent to Ellsworth Jr., he supervised the 

eviction of Gordon from the properties and he did not object to the repairs

either before or after Sprenger delivered the invoices to him. The evidence and 

the district court’s findings establish Sprenger had a reasonable belief 

Ellsworth Jr. had authority to act on behalf of Tioga Properties.

[¶26] Tioga Properties argues Gordon was liable for all improvements and 

repairs to the properties. However, Wades Welding was not a party to the lease, 

and Gordon was not a party to this action. The lease did not prohibit Wades 

Welding from recording construction liens against the properties. Although the

district court analyzed the home lien differently, it did not err in finding Wades 

Welding’s construction liens were valid. See Schmidt v. City of Minot, 2016 ND 
8

175, ¶ 16, 883 N.W.2d 909 (stating we will not set aside a correct result merely 

because the district court’s reasoning is incorrect if the result is the same under 

the correct law and reasoning).

V

[¶27] Tioga Properties contends the district court erred in awarding Wades 

Welding the value of its work on the restaurant under the doctrine of unjust 

enrichment.

[¶28] Unjust enrichment is an equitable doctrine based upon a quasi or 

constructive contract implied by law to prevent a person from being unjustly 

enriched at the expense of another. Smestad v. Harris, 2012 ND 166, ¶ 16, 820 

N.W.2d 363. “Five elements are required to establish unjust enrichment: 1. An 

enrichment; 2. An impoverishment; 3. A connection between the enrichment 

and the impoverishment; 4. Absence of a justification for the enrichment and 

impoverishment; and 5. An absence of a remedy provided by law.” McDougall 

v. AgCountry Farm Credit Servs., 2021 ND 98, ¶ 14, 960 N.W.2d 792. A district 

court’s decision on whether the facts support a finding of unjust enrichment is 

a conclusion of law that is fully reviewable on appeal. Smestad, at ¶ 15. A 

court’s findings of fact supporting an unjust enrichment decision are subject to 

the clearly erroneous standard of review. McDougall, at ¶ 14.

[¶29] The district court concluded the lien on the restaurant property was 

valid, but it could not be enforced because Wades Welding did not serve notice 

of the foreclosure action on the current owner of the restaurant property after 

Tioga Properties sold it. See N.D.C.C. § 35-27-24 (requiring a lienholder to 

provide notice of an intention to enforce the lien on the record owner of 

property). The court dismissed the foreclosure claim against the restaurant but

concluded unjust enrichment entitled Wades Welding to the value of its work 

on the restaurant:

“The essential elements of unjust enrichment are met with 

regards to the work done by Wades Welding on the restaurant 

property. Tioga Properties LLC was enriched when Wades Welding 

performed work benefiting the property and increasing its value, 

and it retained that value after the work was completed and Susan 
9

Gordon was evicted from the property. Wades Welding was 

correspondingly impoverished by performing work and supplying 

parts and materials and paying employees for labor without being 

compensated by the beneficiary. Wades Welding is unable to 

foreclose its construction lien, as noted above, and therefore lacks 

a remedy provided by law. There is no justification for Tioga 

Properties to retain the benefit of Wades Welding’s services 

without cost to Tioga Properties. Equity demands that Tioga 

Properties, LLC pay for the value of the benefits conferred upon it. 

Judgment in the amount of $2,500 in favor of Wades Welding and 

against Tioga Properties in relation to the restaurant property 

claims is therefore appropriate.”

[¶30] Tioga Properties claims unjust enrichment was improper because Wades 

Welding had an adequate remedy at law. Tioga Properties asserts Wades 

Welding has a claim against Gordon for the value of the repairs because she 

was responsible for the repairs. Tioga Properties argues this Court’s decision 

in Struksnes v. Kevin’s Plumbing & Heating, Inc., 1997 ND 245, 572 N.W.2d 

815, supports its claim.

[¶31] In Struksnes, a sublessee hired a plumbing and heating company to 

make repairs to the lessor’s property. 1997 ND 245, ¶ 3. When the company 

was not paid, it served a mechanic’s lien notice on the lessor. Id. In response, 

the lessor served an objection advising the company it had not authorized any 

repairs and the objection was being made within five days after receiving 

knowledge of the repairs. Id. After the company filed a mechanic’s lien, the 

lessor sued to quiet title. Id. at ¶¶ 3-4. The district court concluded the 

company’s lien was invalid and the company had no lien or encumbrance on 

the property. Id. at ¶ 4.

[¶32] On appeal, this Court held the lease language requiring the lessee or 

sublessee to keep the property in good repair did not make the lessee or 

sublessee the lessor’s agent in making repairs. Struksnes, 1997 ND 245, ¶¶ 11-

12. This Court also dismissed the company’s unjust enrichment claim, 

concluding the company “has not shown nonpayment by the [lessor] of a bill 

for repairs it did not request would be contrary to equity.” Id. at ¶ 13. We stated 
10

the invalid lien did not prevent the company from pursuing an action against 

the sublessee. Id. at ¶ 14.

[¶33] This case differs from Struksnes. Here, unlike in Struksnes, Tioga 

Properties did not object to the repairs after having actual or constructive 

notice of the repairs made by Wades Welding. See N.D.C.C. § 35-27-07. Because 

there was no objection to the repairs, Wades Welding’s construction liens 

against Tioga Properties were valid. Wades Welding could have pursued an 

action against Gordon; however, it instead chose to pursue its remedy at law

under N.D.C.C. § 35-27-24 against Tioga Properties to enforce its liens on the 

home and restaurant. Wades Welding also sought unjust enrichment as an 

alternative claim. See McDougall, 2021 ND 98, ¶ 27 (stating “[u]njust 

enrichment is an alternative claim, and a legal claim which has yet to fail or 

succeed does not preclude a plaintiff from also asserting an unjust enrichment 

claim”). When Wades Welding could not enforce its lien on the restaurant, the 

district court awarded relief by concluding Tioga Properties was unjustly 

enriched. See McColl Farms, LLC v. Pflaum, 2013 ND 169, ¶ 20, 837 N.W.2d 

359 (stating a court should consider possible recovery under an equitable 

remedy if the legal remedy fails).

[¶34] Tioga Properties argues unjust enrichment was improper because Wades 

Welding had a remedy at law against Gordon. However, Tioga Properties has 

not cited, nor have we found, any law requiring a party to pursue all legal 

remedies against all possible parties before seeking unjust enrichment. Other 

states require the party to pursue all legal remedies against only the adverse 

party before seeking unjust enrichment. See Loiselle v. Cosas Mgmt. Grp., LLC,

228 P.3d 943, 947 (Ariz. Ct. App. 2010) (“We agree that, to bring a successful 

unjust enrichment claim, a party must show the absence of any remedy at law. 

The legal remedy, however, must be against the same person from whom relief 

in equity is sought.”) (internal citation omitted); Hill v. Hill, 345 P.2d 1015, 

1025 (Kan. 1959) (“The existence of a remedy at law does not deprive equity of 

jurisdiction unless such remedy is clear, adequate and complete. Such remedy 

at law . . . must exist against the same person from whom the relief in equity 

is sought.”); Mitchell v. Houstle, 142 A.2d 556, 560 (Md. 1958) (“[T]he doctrine 

that equity will grant no relief when there is an adequate remedy at law is 
11

limited to cases in which there is an adequate legal remedy against the 

defendants that are before the court.”); Buttinghausen v. Rappeport, 24 A.2d 

877, 880 (N.J. Ch. 1942) (“[T]he legal remedy which may move equity to deny 

relief is a remedy against the same person from whom relief in equity is 

sought.”).

[¶35] When we have concluded an adequate remedy at law precluded unjust 

enrichment, the remedy involved the parties to the action. See, e.g., Cont’l Res., 

Inc. v. Armstrong, 2021 ND 171, ¶ 35, 965 N.W.2d 57; Lochthowe v. C.F. 

Peterson Est., 2005 ND 40, ¶¶ 13-14, 692 N.W.2d 120; Spagnolia v. Monasky, 

2003 ND 65, ¶ 18, 660 N.W.2d 223; D.C. Trautman Co. v. Fargo Excavating 

Co., Inc., 380 N.W.2d 644, 645-46 (N.D. 1986). Wades Welding was not required 

to bring an action against Gordon before recovering in equity from Tioga 

Properties. The district court did not err in awarding Wades Welding the value 

of its work on the restaurant under the doctrine of unjust enrichment.

VI

[¶36] Tioga Properties asserts it should be awarded its costs and attorney’s 

fees for successfully challenging the construction lien on the restaurant 

property. Tioga Properties claims it is entitled to its costs and attorney’s fees 

because the lien on the restaurant could not be enforced.

[¶37] Under N.D.C.C. § 35-27-24.1, “[a]ny owner that successfully contests the 

validity or accuracy of a construction lien by any action in district court must 

be awarded the full amount of all costs and reasonable attorney’s fees incurred 

by the owner.”

[¶38] “When a provision at issue is unambiguous, this Court looks to the plain 

language of the statute to ascertain its meaning.” City of Jamestown v. 

Nygaard, 2021 ND 172, ¶ 13, 965 N.W.2d 47. In construing a statute, the law 

is what is said, not what is unsaid, and the mention of one thing implies 

exclusion of another. Id.

[¶39] The district court concluded the construction lien on the restaurant was 

valid; however, it could not be enforced because Wades Welding did not serve 
12

notice of the foreclosure action on the current owners of the property. Because 

the lien was valid but unenforceable due to a service error, Tioga Properties is 

not entitled to its costs and attorney’s fees relating to its challenge of the 

restaurant lien.

VII

[¶40] The remaining arguments raised by Tioga Properties are unnecessary to 

resolve the disposition of this case. The judgment is affirmed.

[¶41] Jon J. Jensen, C.J. 

Gerald W. VandeWalle 

Daniel J. Crothers 

Lisa Fair McEvers 

Jerod E. Tufte