Filed 8/27/20 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2020 ND 182

Woodrock, Inc. Plaintiff and Appellant

and

Bakken Aggregates, LLC, Plaintiff

v.

McKenzie County, North Dakota, Defendant and Appellee

No. 20200066

Appeal from the District Court of McKenzie County, Northwest Judicial 

District, the Honorable Robin A. Schmidt, Judge.

AFFIRMED.

Opinion of the Court by McEvers, Justice.

Thomas R. Olson, West Saint Paul, MN, for plaintiff and appellant Woodrock, 

Inc. 

Brian D. Schmidt (argued) and Scott K. Porsborg (on brief), Bismarck, ND, for 

defendant and appellee.
1

Woodrock v. McKenzie Cty.

No. 20200066

McEvers, Justice.

[¶1] Woodrock, Inc. appeals from a summary judgment dismissing its 

negligence and other claims against McKenzie County. Woodrock argues the 

district court erred in concluding a project to stockpile aggregate materials was 

not a public improvement and the bond requirement under N.D.C.C. § 48-01.2-

10 did not apply. We conclude supplying aggregate materials to stockpiles for 

general use in maintaining and repairing county roads does not constitute 

“construction of a public improvement.” We therefore conclude the district 

court did not err in concluding N.D.C.C. § 48-01.2-10 does not apply and the 

County was not required to obtain a bond. We affirm. 

I

[¶2] In September 2018, Woodrock sued the County for violations of N.D.C.C. 

ch. 48-01.2 and negligence. Woodrock alleged the County hired Edwards 

Gravel & Trucking, LLC to supply aggregate to aggregate stockpiles, the 

County did not obtain a payment bond from Edwards Gravel, Woodrock 

furnished materials for use in the project, and Edwards Gravel did not pay 

Woodrock for the materials. Woodrock claimed that the County violated 

N.D.C.C. § 48-01.2-10 and was negligent by failing to obtain a bond from 

Edwards Gravel and that the County is liable to the subcontractors and 

material suppliers who worked on the project. Woodrock requested damages in 

the amount of $298,629.54.

[¶3] The County moved for summary judgment, arguing N.D.C.C. § 48-01.2-

10 does not apply because the project is not a “public improvement” as defined 

by statute, there is no private right of action for failure to obtain a bond under 

N.D.C.C. § 48-01.2-10, and the negligence claim fails as a matter of law because 

the County did not owe a duty of care to Woodrock. Woodrock also moved for 

summary judgment, arguing N.D.C.C. § 48-01.2-10 applies to the aggregate 

stockpile project, the legislature intended suppliers would have a private cause 
2

of action against a governing body who failed to take a bond as required by 

statute, and the County is liable for its negligence.

[¶4] The district court granted the County’s motion and entered summary 

judgment in its favor. The court concluded there were two issues: 1) whether 

the project was a public improvement project as defined in N.D.C.C. ch. 48-

01.2; and 2) if the project was a public improvement project, was the County 

legally responsible for failing to obtain a bond. The court held it was 

undisputed the project was to supply aggregate to stockpiles of aggregate 

materials used for county road maintenance and repair, the contract was 

awarded to Edwards Gravel, the County did not obtain a payment bond, the 

County paid Edwards Gravel in full, and Edwards Gravel did not pay 

Woodrock. The court interpreted the statutory definition of “public 

improvement” and concluded the stockpiling aggregate for maintenance of 

county roads was not a public improvement as defined in N.D.C.C. ch. 48-01.2, 

county road maintenance is specifically excluded from the definition of a public 

improvement, and no bond was required under N.D.C.C. § 48-01.2-10. 

II

[¶5] Woodrock contends the district court erred in granting summary 

judgment in favor of the County. Woodrock argues the aggregate stockpile

project was a “public improvement project” as defined in N.D.C.C. ch. 48-01.2, 

N.D.C.C. § 48-01.2-10 applies, and the County violated the statute by failing 

to obtain a bond from Edwards Gravel before the work started. 

[¶6] Our standard for reviewing a district court’s summary judgment is well 

established:

Summary judgment is a procedural device under 

N.D.R.Civ.P. 56(c) for promptly resolving a controversy on the 

merits without a trial if there are no genuine issues of material 

fact or inferences that can reasonably be drawn from undisputed 

facts, or if the only issues to be resolved are questions of law. The 

party seeking summary judgment must demonstrate there are no 

genuine issues of material fact and the case is appropriate for 

judgment as a matter of law. In deciding whether the district court 
3

appropriately granted summary judgment, we view the evidence 

in the light most favorable to the opposing party, giving that party 

the benefit of all favorable inferences which can reasonably be 

drawn from the record. A party opposing a motion for summary 

judgment cannot simply rely on the pleadings or on unsupported 

conclusory allegations. . . . When reasonable persons can reach 

only one conclusion from the evidence, a question of fact may 

become a matter of law for the court to decide. A district court’s 

decision on summary judgment is a question of law that we review 

de novo on the record.

Wachter Dev., Inc. v. Martin, 2019 ND 202, ¶ 8, 931 N.W.2d 698 (quoting 

Frontier Fiscal Servs., LLC v. Pinky’s Aggregates, Inc., 2019 ND 147, ¶ 6, 928 

N.W.2d 449). The interpretation of a statute is a question of law, which is fully 

reviewable on appeal. Hughes v. Olheiser Masonry, Inc., 2019 ND 273, ¶ 8, 935 

N.W.2d 530.

[¶7] We seek to ascertain the legislature’s intent when we interpret a statute. 

Rocky Mountain Steel Founds., Inc. v. Brockett Co., LLC, 2019 ND 252, ¶ 11, 

934 N.W.2d 531. Words are given their plain, ordinary, and commonly 

understood meaning, unless they are specifically defined or contrary intention 

plainly appears. N.D.C.C. § 1-02-02. A statute is ambiguous if it is subject to 

different, but rational meanings. Rocky Mountain Steel, at ¶ 11.

[¶8] Section 48-01.2-10, N.D.C.C., governs bonds from contractors for public 

improvements. When this action commenced the statute provided:

Unless otherwise provided under this chapter, a governing body 

authorized to enter a contract for the construction of a public 

improvement in excess of one hundred fifty thousand dollars shall 

take from the contractor a bond before permitting any work to be 

done on the contract. The bond must be for an amount equal at 

least to the price stated in the contract. The bond must be 

conditioned to be void if the contractor and all subcontractors fully 

perform all terms, conditions, and provisions of the contract and 

pay all bills or claims on account of labor performed and any 

supplies, and materials furnished and used in the performance of 

the contract, including all demands of subcontractors. . . . The bond 

is security for all bills, claims, and demands until fully paid, with 
4

preference to labor and material supplies as to payment. The bond 

must run to the governing body, but any person having a lawful 

claim against the contractor or any subcontractor may sue on the 

bond. 

N.D.C.C. § 48-01.2-10(1) (2017).

[¶9] Undisputed evidence established that the County maintains stockpiles 

of aggregate material for the purpose of repairing and maintaining roads and

that the County requested bids for 100,000 tons of Class 13 Modified aggregate 

material for the County Road Department for two aggregate stockpiles. The 

County prepared standard specifications to inform potential bidders of the 

requirements for the project. The stockpile specifications stated, “The Project 

consists of furnishing all labor, materials, and equipment to perform the 

hauling and stockpiling of 100,000 total tons of Class 13 Modified that will be 

divided between two (2) sites.” Edwards Gravel submitted a bid for the project 

for $1,435,750. The district court concluded it was undisputed the project was 

to supply aggregate for two aggregate material stockpiles to be used on county 

road maintenance and repairs. 

[¶10] The plain language of N.D.C.C. § 48-01.2-10 requires the governing body 

to take a bond before permitting any work to be done on a contract for the 

“construction of a public improvement” in excess of $150,000. “Construction” is 

defined as “the process of building, altering, repairing, improving, or 

demolishing any public structure or building or other improvement to any 

public property.” N.D.C.C. § 48-01.2-01(4) (2017). A “public improvement” for 

purposes of N.D.C.C. ch. 48-01.2 is:

[A]ny improvement undertaken by a governing body for the good 

of the public and which is paid for with any public funds . . . and is 

constructed on public land or within an existing or new public 

building or any other public infrastructure or facility if the result 

of the improvement will be operated and maintained by the 

governing body. The term does not include a county road 

construction and maintenance, state highway, or public service 

commission project governed by title 11, 24, or 38.

N.D.C.C. § 48-01.2-01(21) (2017). 
5

[¶11] The word “improvement” is not specifically defined in N.D.C.C. ch. 48-

01.2. This Court previously noted the common definition of “improvement” as 

it relates to real property is, “a change or addition to land or real property, as 

a sewer, fence, etc., to make it more valuable.” See Bellemare v. Gateway 

Builders, Inc., 420 N.W.2d 733, 736 (N.D. 1988) (quoting Webster’s New World 

Dictionary (2d College Ed. 1980)). See also Improvement, Black’s Law

Dictionary 907 (11th ed. 2019) (defining improvement as “[a]n addition to 

property, usu. real estate, whether permanent or not; esp., one that increases 

its value or utility or that enhances its appearance.”).

[¶12] We conclude supplying materials to a stockpile for use in future projects

does not constitute “the construction of a public improvement” as defined in 

N.D.C.C. ch. 48-01.2. Supplying materials to a stockpile for use in some 

unspecified future project does not meet the statutory definition of construction 

because it is not a process of building, altering, repairing, improving, or 

demolishing a public structure or building or other improvement. It also does 

not meet the statutory definition of a public improvement because it does not 

constitute an improvement. It is something that has value, but it is not an 

addition to property that increases its value or utility or enhances its 

appearance. Our decision is consistent with the conclusion other courts have 

reached in cases with similar facts. See Rogers v. Nez Perce County, 364 P.2d 

1049, 1050 (Idaho 1961) (holding bond was not required when the county hired 

a contractor to crush and deliver gravel to be stockpiled for repair and 

construction of public roads because the contract was not for the construction, 

alteration, or repair of a public work); Knuth v. Fid. & Cas. Co. of N.Y., 83

N.W.2d 126, 130 (Wis. 1957) (holding a contract to furnish sand and gravel was 

not a contract for a public improvement because it was not directly related to 

any public improvement and merely called for the sale of delivery of a 

commodity not earmarked for use on any particular project). 

[¶13] The South Dakota Supreme Court reached a similar result in Pete Lien 

& Sons, Inc. v. City of Pierre, 1998 S.D. 38, 577 N.W.2d 330 (per curiam). The 

City solicited bids for the supply of gravel to a city stockpile used for general 

road maintenance purposes, and a subcontractor sued the City after the 

contractor failed to pay for the gravel the subcontractor supplied. Id. at ¶¶ 2-
6

3. Section 5-21-1, S.D. Codified Laws, directed the City to require surety from 

a contractor furnishing materials for the construction or repair of a public 

improvement. Pete Lien, at ¶ 6. The subcontractor argued the City should have 

required a surety from the contractor because the contract was to furnish 

materials for the repair of a public improvement. Id. The court concluded the 

statute specifically defined “public improvement” but did not define 

“improvement,” and an improvement is ordinarily defined as a permanent 

addition or betterment of real property that enhances its value and involves 

the expenditure of labor or money and is designed to make the property more 

useful or valuable. Id. at ¶¶ 8-9. The court held a pile of gravel does not fall 

within the definition of an improvement, particularly when the material is 

furnished for a general stockpile and not for a particular road improvement 

project. Id. at ¶ 9. The court held that “a gravel stockpile itself does nothing to 

make property more useful or valuable.” Id. We agree, a general stockpile of 

materials that are not for use in a particular project does not meet the 

definition of an improvement.

[¶14] Moreover, the definition of “public improvement” under N.D.C.C. § 48-

01.2-01(21) unambiguously excludes a county road construction and 

maintenance project. Woodrock argues the exception for projects to repair or 

maintain county roads does not apply, because the project only involved 

constructing a stockpile of the materials and did not involve the construction 

or maintenance of a county road. Although the project to acquire the aggregate 

materials itself may not have involved actual road maintenance or 

construction, it involved stockpiling materials used to repair and maintain the 

county roads. The project was completed for the purpose of repairing and 

maintaining the county roads. 

[¶15] The project was not for the construction of a public improvement as 

defined by N.D.C.C. § 48-01.2-01(4) and (21), and therefore the statutory bond 

requirement for public improvements under N.D.C.C. § 48-01.2-10 did not 

apply. We conclude the district court did not err in granting summary 

judgment and dismissing Woodrock’s claims against the County. 
7

III

[¶16] We affirm the judgment. 

[¶17] Lisa Fair McEvers

Daniel J. Crothers

Jerod E. Tufte

Gerald W. VandeWalle

Jon J. Jensen, C.J.