author: KAPSNER, Justice.

text:
    2000 ND 61
    DAN NELSON CONSTRUCTION, INC., Dan Nelson Construction, and Dan Nelson, Plaintiffs and Appellants, v. NODLAND & DICKSON, a partnership, and Irvin B. Nodland, P.C., dba Nodland Law Offices, Defendants and Appellees.
    No. 990185.
    Supreme Court of North Dakota.
    March 23, 2000.

      James L. Norris, James L. Norris, PC, Bismarck, N.D., for plaintiffs and appellants.
    Rebecca S. Thiem (argued) and James S. Hill (appearance), Zuger Kirmis & Smith, Bismarck, N.D., for defendants and appellees.
   KAPSNER, Justice.

[¶ 1] Dan Nelson Construction, Inc., Dan Nelson Construction and Dan Nelson (“Nelson”) appealed from a summary judgment dismissing Nelson’s legal malpractice action against Nodland & Dickson, a partnership, and Irvin B. Nodland, P.C., doing business as Nodland Law Offices (“Nod-land”). We conclude the trial court correctly ruled Nodland’s alleged negligent act was not, as a matter of law, the proximate cause of any of Nelson’s damages. We affirm.

I

[IT' 2] Nelson, the owner of a Beach, North Dakota-based earth-moving company, was the successful bidder on a Wyoming state project to reclaim a portion of abandoned, open-pit, uranium mines in the Gas Hills area of Wyoming. On October 19, 1990, Nelson entered into a contract with the State of Wyoming, Department of Environmental Quality, Land Quality Division, and began work on the project ‘in November 1990.

[¶ 3] The contract contained two provisions requiring Nelson to give written notice to the State before any changes could be made to the contract. One provision, titled “Unforeseen Physical Conditions,” stated, “CONTRACTOR shall promptly notify OWNER and ENGINEER in writing, within 15 days, of any subsurface or latent physical conditions at the site differing materially from those indicated on the Surface or in the Contract Documents.” The other provision, titled “CHANGE OF CONTRACT PRICE,” stated, “Any claim for an increase in the Contract Price shall be' based on written notice delivered to OWNER and ENGINEER within 15 days of the occurrence of the event giving rise to the claim.”

[¶ 4] In January 1991, Nelson began encountering problems with rock and difficulty in handling contaminated water. In early May 1991, Nelson realized he was losing money on the project. In a May 28, 1991 letter to the State and the project engineer, Nelson asked for additional compensation based on “unforeseen and changed conditions at the site” because, although he had initially anticipated having to move 600 cubic yards of rock, he had instead uncovered about 120,000 cubic yards of rock. Nelson claimed monetary losses of $481,791.76 for the four-month time period from January 18, 1991 to May 20, 1991, and requested the original $1,906,779.52 contract amount be increased by $731,014.96. Nelson continued working and completed the project in October 1991.

[¶ 5] After Nelson submitted his May 28, 1991 letter, the State exercised a contract option and entered into mediation with Nelson on his claim. Mediation efforts were unsuccessful, and on April 8, 1992, Nelson, who had hired a Wyoming attorney to represent him, filed a claim with the Wyoming Department of Administration and Information and with the Department of Environmental Quality. Also on April 8, 1992, Nelson filed a complaint in Wyoming state district court against the State of Wyoming, the project engineer and the project designer. Nelson’s Wyoming attorney attached to the complaint a copy of Nelson’s April 8, 1992 claim filed with the State agencies.

[¶ 6] The State filed a motion to dismiss, alleging the Wyoming district court lacked jurisdiction because Nelson failed to file an itemized claim with the State before filing the complaint as required by Wyoming law. Nelson’s attorney opposed the motion. The State answered the complaint in July 1992, but did not allege as a defense that Nelson failed to give written notice of his claim to the State within the 15-day contract requirements.

[¶ 7] Nelson’s Wyoming attorney withdrew from representing Nelson in October 1992. On November 16, 1992, Nelson signed a contingent fee agreement with Nodland, and in December 1992, Nodland, along with a different Wyoming attorney, entered appearances in the case on behalf of Nelson.

[¶ 8] In June 1993, the State moved for summary judgment, arguing the case should be dismissed because Nelson failed to follow the contractual notice requirements and the statutory notice requirements of the Wyoming Governmental Claims Act. The project engineer also moved for summary judgment. Nodland, through a newly hired associate, opposed the motions. After oral argument, the Wyoming district court in August 1993 granted the State’s summary judgment motion. The court granted the State’s motion because the provision governing “CHANGE OF CONTRACT PRICE” required Nelson to file his claim within 15 days of the occurrence of the event giving rise to the claim, and because Nelson had encountered excessive rock as early as January 1991, his claim was barred. The court also ruled Nelson’s notice of claim filed with the State failed to meet the “itemization” requirement of Wyoming law. In September 1993, the court also granted the project engineer’s motion for summary judgment. No final judgment was entered at that time because there were unadjudicated claims remaining against the project designer. Nelson and Nodland discussed eventually appealing the court’s dismissal of the State from the action when the judgment became final.

[¶ 9] Nelson settled with the project designer, and on May 10, 1994, the claim against the project designer was dismissed based on a stipulated motion. A final order dismissing all claims with prejudice was issued by the court on May 25, 1994. On August 1, 1994, Nodland wrote to Nelson’s Wyoming attorney, stating “we have never received any notice of entry of judgment,” and asking, “we would like to know when the time for appeal begins to run, and what the Wyoming rules mandate for the filing of an appeal.” The Wyoming attorney responded on September 16, 1994, informing Nodland ‘Wyoming Rule of Appellate Procedure 2.01 requires that the filing of a Notice of Appeal be accomplished within fifteen (15) days following the entry of ‘the judgment or final order appealed from ...,’” and “[t]hat time period would have run on June 10, 1994.” Nodland did not attempt to appeal the court’s final order.

[¶ 10] Nelson brought this legal malpractice action against Nodland in North Dakota district court in March 1997, alleging Nodland negligently represented him before the Wyoming courts in the construction contract case against the State of Wyoming. Nelson claimed Nodland negligently failed to appeal the adverse summary judgment ruling to the Wyoming Supreme Court, and negligently failed to make appropriate arguments before the Wyoming district court which would have either prevented a summary judgment dismissal or would have resulted in a reversal in an appeal to the Wyoming Supreme Court. Nelson asserted if he had received proper representation, he would have been able to successfully try his case to a Wyoming jury.

[¶ 11] Both parties moved for summary judgment. Nodland sought dismissal of the legal malpractice action, arguing the Wyoming district court’s summary judgment ruling was proper under Wyoming law and would have been upheld on an appeal to the Wyoming Supreme Court even if additional arguments had been made by Nodland. Nelson sought summary judgment, arguing the Wyoming district court decision was incorrect under Wyoming law and would have been reversed on appeal to the Wyoming Supreme Court, resulting in a jury trial on the merits.

[¶ 12] The trial court granted summary judgment in favor of Nodland, concluding:

The Wyoming Supreme Court would not have reversed the trial court’s grant of summary judg[ ]ment because of two alternative reasons: 1) the Plaintiffs failed to follow the contractual procedure for giving notice of the changed subsurface conditions, and 2) the Plaintiffs failed to follow the statutory procedure for filing a claim against the State of Wyoming. Since the record shows that there is no genuine issue of material fact regarding those two alternative reasons, the Defendants are entitled to judgment as.a matter of law, and summary judgment in their favor is therefore proper.

Nelson appealed.

II

[¶ 13] Summary judgment under N.D.R.Civ.P. 56 is a procedural device for properly disposing of a lawsuit without trial if, after viewing the evidence in the light most favorable to the non-moving party, there are no genuine issues of material fact or conflicting inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Jose v. Norwest Bank North Dakota, N.A., 1999 ND 175, ¶ 7, 599 N.W.2d 293.

[¶ 14] The elements of a legal malpractice action against an attorney for professional negligence are the existence of an attorney-client relationship, a duty by the attorney to the client, a breach of that duty by the attorney, and damages to the client proximately caused by the breach of that duty. Richmond v. Nodland, 501 N.W.2d 759, 761 (N.D.1993). When it is alleged that an attorney negligently failed to perform some act on behalf of the client, the plaintiff must allege and prove performance of the act would have benefitted the client. Swanson v. Sheppard, 445 N.W.2d 654, 658 (N.D.1989). In this context, the “case-within-a-case” doctrine applies to alleged negligently-conducted litigation and requires that, but for the attorney’s alleged negligence, the litigation would have terminated in a result more favorable for the client. Wastvedt v. Vaaler, 430 N.W.2d 561, 567 (N.D.1988). In a case like this, where the underlying action was concluded by a summary judgment that was not appealed because of an attorney’s alleged negligence in failing to perfect an appeal, “a legal malpractice claimant must prove two claims: first, the one that was lost, and also that his attorney’s negligence caused that loss.” Bye v. Mack, 519 N.W.2d 302, 305 (N.D.1994).

[¶ 15] This Court has said summary judgment is ordinarily inappropriate for legal malpractice actions, Klem v. Greenwood, 450 N.W.2d 738, 743 (N.D. 1990), particularly with respect to the issue of proximate cause. See Bye, 519 N.W.2d at 305; Bjorgen v. Kinsey, 466 N.W.2d 553, 558 (N.D.1991). Nevertheless, even though legal malpractice is to be determined by the rules that apply to professional negligence, this generalization is subject to the necessary qualification that the court must determine legal questions which underlie the ultimate decision. Martinson Bros. v. Hjellum, 359 N.W.2d 865, 872 (N.D.1985). Deciding the proximate cause issue in this case requires a determination of whether, assuming for purposes of argument Nodland was negligent in failing to perfect the appeal, the appeal would have been successful. We agree with the parties and the trial court that determining the merits and the probable outcome of an appeal presents a question of law for the court to decide, and is therefore amenable to summary judgment disposition. See, e.g., Charles Reinhart Co. v. Winiemko, 444 Mich. 579, 513 N.W.2d 773, 786 (1994); Hyduke v. Grant, 351 N.W.2d 675, 677 (Minn.App.1984); 3 R. Mallen and J. Smith, Legal Malpractice § 29.41, at p. 771 (4th ed.1996), and cases collected therein.

[¶ 16] Nelson argues the trial court erred in: (1) failing to conclude Nodland should have argued, and the Wyoming district court should have ruled, the “Unforeseen Physical Conditions” provision of the contract rather than the “CHANGE OF CONTRACT PRICE” provision applied in this case; (2) failing to conclude the Wyoming court erred in refusing to find the State knew of Nelson’s problems with rock and water in January 1991, and this knowledge constituted a waiver of any right to contend, or estopped the State from claiming, Nelson did not give timely notice of unforeseen physical conditions; and (3) failing to conclude the Wyoming court erred in holding Nelson’s claim filed with the State was not an “itemized” statement required by Wyoming law.

A

[¶ 17] Nelson contends the trial court erred in not concluding the Wyoming district court applied the wrong provision of the construction contract to the parties’ dispute, and if Nodland had argued the “Unforeseen Physical Conditions” provision applied, summary judgment would not have been entered or would have been reversed on appeal.

[¶ 18] The standard for reviewing summary judgments in Wyoming does not differ from the standard used in North Dakota. In McKennan v. Newman, 902 P.2d 1285, 1287 (Wyo.1995), the Wyoming Supreme Court said summary judgment is proper “only if there are no genuine issues of material fact and the prevailing party is entitled to judgment as a matter of law.” The Court has said, “[t]he interpretation of an unambiguous contract is a question of law and, for that reason, summary judgment is appropriate with respect to disputes relating to unambiguous contracts.” 40 North Corp. v. Morrell, 964 P.2d 423, 426 (Wyo.1998). The Court has also noted in an analogous context, although entry of a summary judgment on the issue of when a statute of limitations commences to run is ordinarily inappropriate, if “uncontro-verted facts exist that demonstrate with specificity the time when a reasonable person would have been placed on notice, we will resolve the question as a matter of law.” Murphy v. Housel & Housel, 955 P.2d 880, 888 (Wyo.1998).

[¶ 19] Compliance with the terms of the Wyoming Governmental Claims Act is necessary to avoid a claim being barred by the doctrine of sovereign immunity. Ruppenthal v. State, 849 P.2d 1316, 1320 (Wyo.1993). Under the Wyoming Governmental Claims Act, the State has waived its immunity to suit “in actions based on a contract entered into by a governmental entity ... except to the extent provided by the contract if the contract was within the powers granted to the entity and was properly executed.... ” Wyo.Stat.Ann. § 1-39-104(a) (Michie 1999) (emphasis added). A claim against a governmental entity does not accrue until all contractual terms creating a condition precedent have been exhausted. Weston County Hosp. v. Westates Const., 841 P.2d 841, 849 (Wyo.1992). Nelson therefore had to comply with any conditions precedent in the construction contract before he could sue the State.

[¶ 20] There are two disputed provisions of the contract in this case. The first provision, titled “Unforeseen Physical Conditions,” states:

CONTRACTOR shall promptly notify OWNER and ENGINEER in writing, within 15 days, of any subsurface or latent physical conditions at the site differing materially from those indicated on the Surface or in the Contract Documents. ENGINEER will promptly investigate those conditions and advise OWNER in writing if further surveys or subsurface tests are necessary. Promptly thereafter, OWNER shall obtain the necessary additional surveys and tests and furnish copies to ENGINEER and CONTRACTOR. If ENGINEER finds that the results of such surveys or tests indicate that there are subsurface or latent physical conditions which differ materially from those intended in the Contract Documents, and
which could not reasonably have been anticipated by CONTRACTOR, a Change Order shall be issued incorporating the necessary revisions. No claim shall be made by the CONTRACTOR where prompt notice of a changed condition has not been provided as required herein.

[¶ 21] The second provision, titled “CHANGE OF CONTRACT PRICE,” states in relevant part:

The Contract Price may only be changed by a Change Order. Any claim for an increase in the Contract Price shall be based on written notice delivered to OWNER and ENGINEER within 15 days of the occurrence of the event giving rise to the claim. Notice of the amount of the claim with detailed supporting data for costs allowed by this section shall be delivered within 20 days of such occurrence unless ENGINEER allows an additional period of time to ascertain accurate cost data. Any change in the Contract Price resulting from any such claim shall be incorporated in a Change Order.

The contract also set forth an “informal process” for resolving disputes or claims arising under the contract before legal action could be commenced.

[¶ 22] The purpose of a differing site conditions, or changed conditions clause, often found in government construction contracts, was explained in Metropolitan Sewerage Com’n v. R.W. Const., 72 Wis.2d 365, 241 N.W.2d 371, 376 (1976):

The ehanged-conditions clause is a contractual innovation designed for the mutual benefit of both the government and the contractor. The government benefits by the use of such a clause because the contractor no longer needs to add large contingency sums to his bid in order to cover the risk of encountering adverse subsurface conditions. The contractor benefits because he is awarded extra compensation if adverse subsurface conditions are encountered which materially differ from those indicated in the contract. Thus, much of the gamble is taken out of underground construction. The government does not have to pay the contractor a windfall price when only normal conditions are encountered, and the contractor suffers no disaster when unanticipated conditions arise. Furthermore, both parties benefit by the existence of an informal machinery for resolving problems through negotiation rather than litigation.

See also Shank-Artukovich v. United States, 13 Cl.Ct. 346, 355 (1987); Asphalt Roads & Materials v. Commissioner, DOT, 257 Va. 452, 512 S.E.2d 804, 806-07 (1999); Annot., Construction and effect of “changed conditions” clause in public works or construction contract with state or its subdivision, 56 A.L.R.4th 1042, 1048 (1987). The purpose for the prompt written notice requirements found in both the changed conditions clause and the change of contract price provision is to permit the government’s early investigation into the validity of the claim and the contractor’s resulting costs so the government may retain control of the total contract price and weigh competing alternatives to excessive expenditures. See, e.g., Johnson Const. v. Rugby Municipal Airport, 492 N.W.2d 61, 63 (N.D.1992) (discussing change of contract price provision); Clark-Fitzpatrick, Inc./Franki Foundation Co. v. Gill, 652 A.2d 440, 447 (R.I.1994) (same); 3 S. Stein, Construction Law ¶ 15.03[l][c][ii], at p. 15-39 (1999) (discussing differing site conditions clause).

[¶ 23] In its motion for summary judgment, the State argued Nelson’s claim was untimely under the “CHANGE OF CONTRACT PRICE” provision. In response, Nodland argued Nelson had no duty to report a changed condition until it affected the total cost of the project because of an addendum to the construction contract, and if there was a duty, the State either waived or was estopped from relying on the notice requirement. The Wyoming district court did not mention the “Unforeseen Physical Conditions” provision of the contract, but held, under the “CHANGE OF CONTRACT PRICE” provision, Nelson had not given the State notice “within 15 days of the occurrence of the event giving rise to the claim” because the “undisputed evidence shows that rock was first encountered as early as January, and indeed the May 28, 1991 notice shows that the conditions which required the use of dozers and rippers for the next several months were known to Dan Nelson months before the May 28 notice.” The North Dakota district court ruled Nelson’s notice was untimely, under either the “CHANGE OF CONTRACT PRICE” provision or the “Unforeseen Physical Conditions” provision, because Nelson “undoubtedly knew, well before May 28, 1991, that both an event triggering a claim for a contract price increase and a subsurface condition differing materially from the surface conditions existed.” Nelson contends which contract provision applies is significant because, while determining “the occurrence of the event giving rise to the claim” requires application of an objective test, determining “any subsurface or latent physical conditions at the site differing materially from those indicated on the Surface or in the Contract Documents” requires application of a subjective test, and when Nelson subjectively made this determination is purely a question of fact for a jury to decide.

[¶ 24] We reject Nelson’s argument. Nelson has not cited, nor have we found, any authority to support his assertion a subjective standard governs determinations made under the 15-day notice provision of the changed conditions clause. Rather, courts construing changed conditions clauses apply an objective, reason^ able person standard, in which a court places “itself ‘into the shoes of a “reasonable and prudent” contractor’ [to] decide how such a contractor would act in appellant’s situation.” P.J. Maffei Bldg. Wrecking v. United States, 732 F.2d 913, 917 (Fed.Cir.1984) (quoting H.N. Bailey & Associates v. United States, 196 Ct.Cl. 156, 449 F.2d 387, 390 (1971). See also, e.g., Spirit Leveling Contractors v. United States, 19 Cl.Ct. 84, 94 (1989); Mojave Enterprises v. United States, 3 Cl.Ct. 353, 358 (1983); Metropolitan Sewerage Com’n, 241 N.W.2d at 379. We conclude the changed conditions clause must be interpreted from the perspective of what the contractor knew, or what a reasonable contractor should have known, under the circumstances.

[¶ 25] The Wyoming Supreme Court has held that government contractors must strictly adhere to the prompt written notice requirements under change of contract price provisions of construction contracts. See Rissler & McMurry Co. v. Sheridan Area Water, 929 P.2d 1228, 1233 (Wyo.1996); Westates Const. Co. v. City of Cheyenne, 775 P.2d 502, 505 (Wyo.1989). We have no reason to believe the Court would treat compliance with the prompt written notice requirements under changed conditions clauses any differently.

[¶ 26] The undisputed evidence in this case clearly shows Nelson did not give timely notice under either of the contract provisions. Nelson ran into problems-with rock in January 1991. In his deposition, Nelson testified:

Q. (BY MR. SCOTT) Given the fact that you had been working the Tee spoils since early — since January, why was it not until early May that you came to the conclusion that it was a changed condition, the amount of rock and boulder?
A. Well, we kept thinking that we would get out of this rock, this whole thing wouldn’t be rock. Because after all, this was advertised as a dirt job with a 90 percent compaction and a 12-inch lift spec in it.
Now, if you’re going to put all this dirt in that hole in 12-inch lifts and it’s full of rock, it’s going to be awful hard to pack and awful hard to put a two-foot rock in a 12-inch lift. We kept thinking we’ll work out of this rock.
Q. Maybe you just have, but tell me why you thought you were going to get out of the rock.
A. I didn’t think the whole pile was going to be that way. After we got in there and discovered it was rock, I thought sooner or later, we’ll run out of this rock.
Q. Why did you think that?
A. Well, I just said, because this is a dirt job. It’s not a rock job, or it’s supposed to be a dirt job. Nobody told us it was all rock.

[¶ 27] Nelson’s May 28, 1991 letter to the State outlined that Nelson had incurred more than $182,000 in damages from the unanticipated subsurface conditions by the end of February 1991, and more than $400,000 in losses by the end of April 1991. The letter also indicated Nelson expected to encounter only 600 cubic yards of rock, but at the time the letter was written, he had actually encountered 120,000 cubic yards of rock, causing “excessive damage” to Nelson’s equipment.

[¶ 28] We agree with the trial court that, as a matter of law, Nelson knew, or reasonably should have known, more than 15 days before May 28, 1991, that both an event triggering a claim for a contract price increase and a subsurface condition differing materially from the surface conditions existed. Nelson’s failure to give timely written notice barred his subsequent lawsuit against the State.

B

[¶ 29] Nelson contends the trial court erred in failing to rule the Wyoming court incorrectly held the State did not waive and was not estopped from claiming the benefit of the 15-day written notice requirements under the contract. Nelson argues waiver and estoppel principles apply because the State had actual knowledge of Nelson’s rock and water problems in January 1991 and even assisted him in preparing a draft claim form for the changed conditions, and because Nelson and the State went through mediation for almost one year without the State informing him until after the lawsuit was commenced that his failure to comply with the 15-day written notice requirements barred the claim. The Wyoming district court and the trial court in this case ruled waiver and estoppel principles did not apply as a matter of law.

[¶ 30] Successfully claiming waiver or estoppel against a government entity is not an easy accomplishment. See Annot., Waiver of, or estoppel to assert, failure to give or defects in notice of claim against state or local political subdivision — modem status, 64 A.L.R.5th 519 (1998), and cases collected therein. Wyoming jurisprudence suggests Wyoming is no exception to this rule.

[¶ 31] Even if the State had actual knowledge of Nelson’s claim, actual knowledge of a potential claim by the government does not in itself estop the government from raising the untimely filing of the claim as a defense, absent a showing “that the delay in filing was induced by [the government], or that [the government] misled [the claimant] as to the need to file a claim.” Cranston v. Weston County Weed & Pest Bd., 826 P.2d 251, 256-57 (Wyo.1992). In Dehnert v. Arrow Sprinklers, Inc., 705 P.2d 846, 851 (Wyo. 1985), the Wyoming Supreme Court further ruled neither the verbal approval nor the subsequent conditional written approval of substituted equipment given by the government’s architect to a contractor could “be construed as a waiver of the additional contractual requirement that the contractor obtain a change order for the substitution of major equipment.” The State’s actual knowledge and assistance in drafting a claim form, without more, do not establish waiver or estoppel.

[¶ 32] Moreover, under Wyoming law active settlement negotiations with the government are insufficient as a matter of law to estop the government from defending on the basis of the claimant’s failure to timely file a claim. Duran v. Board of County Com’rs, 787 P.2d 971, 974-75 (Wyo.1990). The Wyoming Supreme Court has also ruled even a request by a city attorney to delay filing a claim against the city was insufficient as a matter of law to establish estoppel, at least where the city attorney “made neither a promise of settlement nor a promise not to assert the statute of limitations as an affirmative defense.” Archuleta v. City of Rawlins, 942 P.2d 404, 406-07 (Wyo.1997). Mediation efforts between the State and Nelson are likewise insufficient to establish waiver or estoppel.

[¶ 33] The State’s failure to raise the 15-day notice requirements until litigation began is also insufficient to establish waiver or estoppel. Even if governmental immunity has not been pleaded by the government as an affirmative defense, immunity may nevertheless be raised by the government in a motion for summary judgment unless “the adverse party is prejudiced by the moving party’s delay in raising the defense.” Pickle v. Board of County Com’rs, 764 P.2d 262, 264 (Wyo.1988). Nelson has alleged no prejudice resulting from the delay.

[¶ 34] We conclude the trial court correctly ruled as a matter of law that the Wyoming court did not err in rejecting Nelson’s waiver and estoppel arguments.

C

[¶ 35] Nelson argues the trial court erred in failing to conclude the Wyoming court incorrectly ruled Nelson’s claim filed with the State was not an “itemized” statement required by Wyoming law.

[¶ 36] Article 16, Section 7 of the Wyoming Constitution declares that “no bills, claims, accounts or demands against the state ... shall be ... allowed or paid until a full itemized statement in writing, certified to under penalty of perjury, shall be filed with the officer or officers whose duty it may be to audit the same.” The claims procedures of the Wyoming Governmental Claims Act apply to contractual claims against governmental entities. See Wyo. Stat.Ann. § 1-39-104(a) (Michie 1999). The claims procedure is found in Wyo.Stat. Ann. § 1-39-113 (Michie 1999), which provides in relevant part:

(a) No action shall be brought under this act against a governmental entity unless the claim upon which the action is based is presented to the entity as an itemized statement in writing within two (2) years of the date of the alleged act, error or omission, ...
(b) The claim shall state:
(i) The time, place and circumstances of the alleged loss or injury including the name of the public employee involved, if known;
(ii) The name, address and residence of the claimant and his representative or attorney, if any; and
(iii) The amount of compensation or other relief demanded.

[¶ 37] The Wyoming Supreme Court has stressed that strict compliance with the claims procedure requirements is a jurisdictional prerequisite to a suit against the State. In Board of Trustees of the University of Wyoming v. Bell, 662 P.2d 410, 415 (Wyo.1983), the Court held that a district court has no jurisdiction over an action against the State “if the complaint fails to allege the filing of the claim pursuant to statute.” The Court expanded this rule in Amrein v. Wyoming Livestock Bd., 851 P.2d 769, 771 (Wyo. 1993), holding that, “in order to invoke the jurisdiction of the district court, such an allegation must encompass a statement of the date the claim was filed....” Noting “within a context of governmental claims, formality has risen to the status of ruling principle,” the Wyoming district court in this case ruled Nelson’s claim “falls far short of meeting the itemization requirement.” The North Dakota district court said Nelson’s claim “does not have a high degree of itemization,” and ruled “the Wyoming Supreme Court would agree and uphold the finding of lack of jurisdiction because of failure to meet the requirements” of the claims procedure statute.

[¶ 38] Nelson’s claim is six pages long, but the first four pages resemble a complaint alleging the theories under which the State should be held liable. The claim further states:

4. Nelson is demanding from the State compensation ■ for the following costs, damages and injuries:
(a) Nelson demands an adjustment pursuant to the Contract with the State accounting for expenses and damages incurred as a result of performing the Contract in light of the following unforeseen conditions:
(i) As a result of the excessive boulders in the TEE Spoils and required use of water in the TEE Spoils material above the water recovery level, Nelson was damaged in the sum of nine hundred and forty-two thousand seven hundred and nineteen dollars ($942,719.00).
(ii) As a result of excessive water handling in B-2 pit, Nelson incurred damages in the amount of sixty-three thousand six hundred and ninety dollars ($63,690.00).
(ni) As a result of ripping rock in UC cut, Nelson incurred damages in the sum of four hundred and forty-four thousand seven hundred and sixty-seven dollars ($444,767.00).
(iv) Nelson seeks a total adjusted claim in the sum of one million four hundred and fifty-one thousand one hundred and seventy-six dollars ($1,451,176.00).
(b) Nelson further demands compensation for costs, damages, and injury for being forced out of business due to losing its financing and bonding capacity resulting from the substantial expenses incurred by Nelson on Project 16E-2-A. The exact amount of these damages and costs is unknown at this time.

[¶ 39] The Wyoming Supreme Court has not defined what constitutes a sufficient “itemized statement in writing” for purposes of the Wyoming Governmental Claims Act. Courts construing statutory itemization requirements have reached varying results, some holding itemization is satisfied if “[t]he claim as filed fully informed the [government] as to the nature and amount of the claim,” Trustees of University Co-Op. Co. v. City of Madison, 233 Wis. 100, 288 N.W. 742, 747 (1939), and others holding itemization requires “the dates on which the material was delivered, or on which the labor was performed ... [and] the various items or quantities of material actually delivered.” Trinity Universal Ins. Co. v. Woitaske, 148 S.W.2d 235, 237 (Tex.Civ.App.1941). See also Ask, Inc. v. Wegerle, 286 N.W.2d 290, 293-94 (N.D.1979). Given the Wyoming Supreme Court’s strict construction of the claims procedure statute, we believe the Court would require a higher degree of itemization than provided by Nelson’s claim. We therefore conclude Nelson’s claim was not itemized as required by Wyoming law.

[¶ 40] The trial court did not err in concluding the Wyoming district court properly held Nelson’s claim against the State did not meet the itemization requirements of Wyoming law and, therefore, the Wyoming court did not acquire jurisdiction over Nelson’s action against the State.

Ill

[¶ 41] Because the Wyoming district court’s summary judgment dismissal of Nelson’s action was correct under Wyoming law and would not have been reversed on appeal to the Wyoming Supreme Court even if arguments not made by Nod-land had been presented, we conclude the trial court correctly ruled Nodland’s alleged negligent act was not, as a matter of law, the proximate cause of any of Nelson’s damages.

[¶ 42] The summary judgment is affirmed.

[¶ 48] GERALD W. VANDE WALLE, C.J., DALE SANDSTROM, WILLIAM A. NEUMANN, JJ„ NORMAN J. BACKES, D.J., concur.

[¶ 44] NORMAN J. BACKES, D.J., sitting in place of MARING, J., disqualified.

      . In Bye v. Mack, 519 N.W.2d 302, 304 (N.D.1994), the trial court concluded, following a bench trial, that " ‘[h]ad the Defendants properly perfected the Plaintiff’s appeal, however, a preponderance of the evidence failed to establish that the issues presented on appeal would have been sufficient to reverse the adverse summary judgmentsThis Court treated the trial court’s conclusion as a "finding[ ] of fact to the extent [it] deal[t] with ... proximate cause ...,” which was subject to the clearly erroneous standard of review under N.D.R.Civ.P. 52(a). Bye, 519 N.W.2d at 305. Insofar as Bye can be interpreted as suggesting the question whether an unperfect-ed appeal would have been successful is for the trier of fact, we disapprove it.

      . The Wyoming district court did not address the addendum to the contract in its opinion granting summary judgment. The North Dakota district court addressed the addendum in its decision, but held the addendum only complemented the timely notice requirements of other sections of the contract, and even if it did not require timely notice, the addendum "clearly applied only to claims based on fuel increases.” Nelson does not challenge the trial court's ruling concerning the contract addendum in this appeal. We further note at least one court has rejected the argument that "the occurrence of the event giving rise to the claim” under a change of contract price provision encompasses "an every day, ongoing series of incurred costs,” and that notice given after completion of the project is sufficient because the total additional expenses could not be calculated until then. Brady Contracting Co. v. West Manchester Tp., 97 Pa.Cmwlth. 31, 508 A.2d 1287, 1291 (1986).

      . Nelson relies on Allied Contractors, Inc. v. United States, 149 Ct.Cl. 671, 277 F.2d 464 (1960), for the proposition that Nelson’s May 28, 1991 letter to the State should constitute timely written notice of additional damages from the changed conditions from May 20, 1991 until the project was completed in late October 1991. In Allied Contractors, Inc., 277 F.2d at 466, the defendant contended the plaintiff failed to give timely written notice of a changed condition, but the court concluded the plaintiff “had filed a written notice originally and we do not construe that it must file an additional claim for excess cost every time a new rock was discovered.” Contrary to Nelson’s argument, Allied Contractors, Inc. does not hold that an untimely original written notice becomes "timely” for purposes of assessing additional damages for subsurface conditions incurred after the untimely notice was given. Nelson was required to give written notice within 15 days of encountering changed conditions. Nelson’s written notice was just as untimely for damages incurred from May through October 1991 as it was untimely for damages incurred from January through May 1991.

      . Nelson relies on several cases from other jurisdictions to support his waiver and estop-pel arguments. See Schnip Bldg. Co. v. United States, 227 Ct.Cl. 148, 645 F.2d 950 (1981); Metropolitan Paving Co. v. City of Aurora, Colorado, 449 F.2d 177 (10th Cir.1971); Frederick Snare Corp. v. Maine-New Hampshire I.B.A., 41 F.Supp. 638 (D.N.H.1941); Kenny Const. Co. v. Metropolitan Sanitary Dist. of Greater Chicago, 52 Ill.2d 187, 288 N.E.2d 1 (1971); Bignold v. King County, 65 Wash.2d 817, 399 P.2d 611 (1965); Metropolitan Sewerage Com'n, 241 N.W.2d at 371. These decisions are not helpful in resolving the issue in this case because they are either distinguishable on their facts or conflict with Wyoming decisional law regarding the effect of waiver and estoppel principles on written notice of claim requirements.


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2000 ND 62
    Gail WACHTER, aka Gail F. Wachter, Lance A. Wachter, and Wachter Development L.L.C., Plaintiffs and Appellants, v. GRATECH COMPANY, LTD., Defendant and Appellee
    No. 990171.
    Supreme Court of North Dakota.
    March 24, 2000.

      William C. Severin, Severin, Ringsak & Morrow, Bismarck, N.D., for plaintiffs and appellants.
    Richard P. Olson (argued) and Troy J. Eiekhoff (appearance), Olson Burns Lee, Minot, N.D., for defendant and appellee.
   MARING, Justice.

[¶ 1] Gail Wachter, Lance A. Wachter, and Wachter Development, L.L.C. (“Wachter”), appealed from a judgment dismissing with prejudice an action against Gratech Company, Ltd. (“Gratech”) for slander of title, abuse of process and lost profits, and awarding Gratech $118,370 plus interest on its counterclaim against Wachter for breach of contract. We conclude the trial court’s findings that Wachter breached the parties’ contract, Gratech suffered $118,370 in damages as a result of the breach, and Gratech did not commit an abuse of process, are not clearly erroneous. We affirm.

I

[¶ 2] On February 22, 1996,. Wachter hired Gratech to excavate about 300,000 cubic yards of dirt for a housing development. The terms of the parties’ contract were set forth in a letter from Gratech to Wachter:

This is to confirm the work to be accomplished and the price and payment terms for the referenced project.
Grading items per your X-X-96 drawing, which consists of the removal of clay embankment material from a “borrow” area and the placement of this material in a nearby “fill” area. The approximate quantity of excavated material is 300,000 cubic yards and the approximate average haul distance is 3,000 feet.
Price per cubic yard of excavation:
• First 150,000 cy— $.85
• Second 150,000 cy— $.79
Our price includes:
• All labor, equipment and material necessary to provide cut and fill grades as specified.
• Clearing, grubbing and stockpiling the trees in the fill area for removal by others.
• Compaction of embankment in the area of streets as specified by Engineer.
Our price does not include:
• Building permits (if required)
• Utility relocation costs (if any)
• Compaction tests
• Initial layout of the work and “blue-tops”
• Initial and final cross-sectioning of excavation area

We ask that a payment in the amount of $20,000 be made at the start of mobilization, that progress payments be made bi-weekly based on estimated quantities and that final payment be made within 10 days of completion....

We understand your objective is to have this site ready for water and sewer line installation in approximately 8 to 10 weeks. We will commit the necessary resources in that effort, but cannot accept responsibility for weather related or other unforeseen delays outside our control.

[¶ 3] The excavation was part of Wachter’s plan for the development of two subdivisions. Swenson Hagen & Company (“Swenson Hagen”), an engineering firm, designed the housing project and proposed digging a lake and using the fill from the lake to raise the elevation of nearby land so it could be developed. Although the excavation was initially estimated to involve more than 300,000 cubic yards of dirt, Wachter estimated the total for compacted fill to be about 240,000 cubic yards. Gratech was to excavate the proposed lake and move the fill to a development area known as Cottonwood Lake Fifth Addition, which did not include the waterfront property. Wachter planned to develop the waterfront property at a later time.

[¶ 4] Gratech initially believed excavation of the lake would require the removal of eight feet of dirt and the company based its proposal to Wachter on that assumption. Before beginning work on the project, however, Gratech realized it would be required to remove 13 feet of dirt, which would involve excavating from below the water table. Swenson Hagen provided markers called “blue tops,” which indicated how much fill was needed to be placed into the development area.

[¶ 5] Gratech began the excavation project in February 1996. Gratech soon encountered water at the 13-foot level, which caused problems creating a smooth bottom for the lake. Gratech employees met with Swenson Hagen’s land consultant and Wachter’s agent to explain these problems. Rather than creating a flat bottom, Gra-tech dug a series of holes resembling basements and knocked down the walls between them to deal with the challenge of digging below the water table. Wachter’s agent and the land consultant either approved or did not object to Gratech’s method of digging the lake bottom. This method resulted in an “egg carton” bottom with small “islands” in the lake. Gratech employees said Wachter representatives told them they were not concerned about the bottom of the lake being flat, but were primarily concerned that sufficient dirt be removed to bring the fill area to the correct grade or elevation.

[¶ 6] Shortly before Gratech completed the project in September 1996, Gratech employees met with the land consultant and Wachter’s agent, who expressed concerns about the uneven bottom of the lake. After a Gratech employee reminded them about their earlier meeting regarding the difficulty in making the bottom of the lake flat, there was no further discussion about the lake bottom. The land consultant and Wachter’s agent viewed the fill area and requested that Gratech stockpile 4,000 cubic yards of fill for later use.

[¶ 7] On September 4, 1996, Lance Wachter wrote to Gratech stating he knew Gratech would be finished with the excavation project in a few days.

Therefore, I will have the lake crossed-sectioned [sic] to determine the amount of yards excavated. The only problem we have now is the islands in the lake. Who is going to pay, to straighten out.

[¶ 8] Gratech responded on September 6, 1996, telling Wachter:

Dining discussion with your representatives, Gratech’s project superintendents pointed out that it was not possible to excavate to the “neat line” in these conditions. They were told the primary objective of the project was to obtain material for fill and that the final condition of the borrow area bottom was not a significant concern.
Our position on this matter is that we have done the best we can to deal with a condition that was not apparent at the time the agreement was made. Any further work on the borrow area must be for the account of others.
In any event, though, we believe that over time the lake bottom will level out on its own. We do not feel any of the parties involved should spend money in this effort.

Wachter did not respond to Gratech’s letter.

[¶ 9] On January 20, 1997, Gratech sent Wachter a final invoice for $66,761. The invoice was based on information about the amount of dirt excavated provided by the Swenson Hagen land consultant. Gratech later learned the land consultant had not had the property cross-sectioned as called for by the contract, but had used a different method of calculating the amount of dirt excavated. Cross-sectioning is a process where measurements are taken of the topography of land to determine how much dirt has been removed or added. Generally, information concerning the topography before changes are made and after changes are made is necessary to gain an accurate measurement. The land consultant said the lake could not be accurately cross-sectioned because of the pitted nature of the bottom of the lake. However, cross-sectioning also was not performed before Gratech began the excavation project, and Gratech was not told before sending the final invoice of the failure to cross-section the lake.

[¶ 10] On December 12, 1997, almost 11 months after the final invoice had been sent and no payment had been made, Gra-tech again wrote to Wachter claiming Wachter had not acted in accordance with the contract, had changed the seope of the work, had failed to perform cross-sectioning and had failed to make payments. Gratech informed Wachter that, because of these reasons, Wachter would be billed on an “equipment time” hourly basis and requested payment of $571,297.65. Wachter did not respond to the letter or pay the invoice.

[¶ 11] On May 20, 1998, Wachter was served by certified mail with a notice of intention to claim a mechanic’s lien. However, Wachter refused the certified mail, and on June 9, 1998, Gratech filed a mechanic’s lien in the amount of $571,297.65.

[¶ 12] On June 12, 1998, Wachter brought this lawsuit against Gratech, seeking damages for slander of title, abuse of process and lost profits. Gratech counterclaimed for breach of contract and sought release of land sale proceeds from the development, which had been deposited in escrow by agreement of the parties, payment of $691,126.81 in principal and interest on the mechanic’s lien, and a declaration that its lien be given first priority on the development property. On October 5, 1998, the trial court ruled the mechanic’s lien could be enforced only in the amount of $102,570.90, with interest at the legal rate, but further ruled Gratech “may prove damages in excess of that amount when the issues between the parties are tried.”

[¶ 13] Following a bench trial, the trial court found Gratech’s filing of the mechanic’s lien was not an abuse of process or slander of title, and Wachter “failed to establish a claim for lost profits.” The court found Gratech was “justified” in filing its mechanic’s lien because Wachter “failed to pay the amounts claimed due by Gratech, failed to communicate with Gra-tech regarding the disputed claim, and provided misleading information regarding the amount of fill excavated.” Although Gratech filed the mechanic’s lien in an amount higher than appropriate, the court reasoned this was “the result of Wachter’s own failure to respond reasonably.”

[¶ 14] On the counterclaim, the trial court ruled Wachter materially breached the contract ‘Toy failing to have cross-sectioning done to determine the amount of dirt moved and by failing to make payments.” Although Wachter estimated 217,266.15 cubic yards of dirt were excavated based on cross-sectioning performed after commencement of the lawsuit, the trial court found this figure was inaccurate and chose the following as the most reasonable method of calculating the amount which should have been paid to Gratech:

It is reasonable to allow Gratech to recover for removal of 320,000 cubic yards, which was within the amount contemplated to be moved when the parties negotiated their agreement. This amount is supported by evidence presented concerning records kept by workers who performed the excavation. They estimated 323,227 cubic yards of dirt were moved. More accurate information may have been provided through cross-sectioning, but [Wachter] failed to have cross-sectioning done. Without initial cross-sectioning, any calculations of the amount of dirt removed are speculative and Gratech is entitled to rely on the best information it had — that compiled by its workers.

[¶ 15] Judgment was entered in favor of Gratech for $118,370 plus interest, and Wachter appealed.

II

[¶ 16] Wachter contends the trial court erred in finding Wachter breached the contract with Gratech and in calculating the amount of damages owed to Gratech.

[¶ 17] Whether a contract has been substantially performed and whether a party has breached a contract are findings of fact which will not be reversed on appeal unless they are clearly erroneous. See All Seasons Water Users v. Northern Improvement Co., 399 N.W.2d 278, 280 (N.D.1987); Mitchell v. Preusse, 358 N.W.2d 511, 513 (N.D.1984). A trial court’s determination of the amount of damages caused by a breach of contract is also a finding of fact subject to review under N.D.R.Civ.P. 52(a). See Korol v. Aronson, 360 N.W.2d 684, 686 (N.D.1985). A finding of fact is clearly erroneous if it is not supported by any evidence, if, although there is some evidence to support the finding, a reviewing court is left with a definite and firm conviction a mistake has been made, or if the finding is induced by an erroneous conception of the law. CAP Partners v. Cameron, 1999 ND 178, ¶ 11, 599 N.W.2d 309. We do not reexamine findings of fact made by the trial court upon conflicting evidence. Robert v. Air craft Inv. Co., Inc., 1998 ND 62, ¶ 10, 575 N.W.2d 672. We give due regard to the trial court’s opportunity to assess the credibility of the witnesses, and the court’s choice between two permissible views of the weight of the evidence is not clearly erroneous. Wachter Development, L.L.C. v. Gomke, 1998 ND 119, ¶ 9, 579 N.W.2d 209.

A

[¶ 18] Wachter argues the trial court’s finding Wachter breached the contract by failing to have the lake cross-sectioned and by failing to make payments is clearly erroneous because Gratech had a duty to excavate in a manner that allowed the lake to be cross-sectioned, and this duty was a condition precedent to Wachter’s duty to cross-section and determine excavated volume.

[¶ 19] A condition precedent is a condition which is to be performed before some right dependent thereon accrues or some act dependent thereon is performed. N.D.C.C. § 9-01-11. Before a party can enforce conditional contract obligations, the party must perform those requisite conditions for which the party is responsible. United Bank of Bismarck v. Trout, 480 N.W.2d 742, 748 (N.D.1992); see also N.D.C.C. § 9-01-16. Whether the doing of an act is a condition precedent depends on the intention of the parties as deduced from the whole instrument. E.E.E., Inc. v. Hanson, 318 N.W.2d 101, 105 (N.D.1982).

[¶ 20] Contrary to Wachter’s assertion, the parties’ contract clearly placed the responsibility for both the initial and final cross-sectioning of the excavation area upon Wachter. Cross-sectioning was one of several items in Gratech’s “our price does not include” list, and Wachter even acknowledged responsibility for cross-sectioning in his September 4, 1996 letter to Gratech. The evidence established that Wachter did not have an initial cross-sectioning performed before excavation began, and did not have a final cross-sectioning performed until after this lawsuit was commenced.

[¶ 21] Notwithstanding Wachter’s initial failure to have the lake area cross-sectioned before excavation work began, Wachter claims the obligation to perform the final cross-sectioning was rendered impossible and was prevented by Gratech’s failure to excavate the lake so it had a smooth bottom, and a smooth lake bottom was a condition precedent to both the final cross-sectioning and payment. See N.D.C.C. § 9-11-04(1); Tallackson Potato Co., Inc. v. MTK Potato Co., 278 N.W.2d 417, 424 n. 6 (N.D.1979); Fargo Public Library v. City of Fargo Urb. Renew. Ag., 185 N.W.2d 500, 505 (N.D.1971). Although Wachter presented evidence that, because of the lake bottom configuration, it would have been impossible, highly inaccurate and extremely expensive to attempt to cross-section at the time the project was completed, Gratech presented testimony that final cross-sectioning was possible, albeit its accuracy would be questionable. Given Wachter’s failure to have the lake area cross-sectioned before work began, which was itself a breach of the contract rendering improbable achievement of an accurate estimate of excavated dirt after the final cross-sectioning, it is difficult to comprehend how Gratech’s alleged breach of the condition precedent had a substantial affect on the accuracy of any volume figures derived from a final cross-sectioning.

[¶ 22] Moreover, conditions precedent may be waived, either expressly or by implication resulting from acts or conduct, by the party in whose favor they are made. See Fargo Public Library, 185 N.W.2d at 504. Although Gratech did not plead waiver as an affirmative defense under N.D.R.Civ.P. 8(c), where, as here, the trial court receives evidence on an un-pleaded affirmative defense and considers that evidence in arriving at its decision, we consider the merits of the affirmative defense under the theory the issue was tried by the implied consent of the parties. See Freed v. Unruh, 1998 ND 34, ¶ 8, 575 N.W.2d 433. Even if a smooth lake bottom was a condition precedent to a final cross-sectioning, the evidence supports the trial court’s finding that “Wachter’s project engineers and agent were aware of [Gratech’s] method of digging the lake and either approved or did not object.” Thus, Wachter waived any right to rely on a smooth lake bottom as a condition precedent to its obligations to perform final cross-sectioning and to make payment.

[¶ 23] Wachter also argues Gra-tech breached the contract by failing to dig the lake 13 feet deep and by failing to dig its full perimeter. According to Wachter, because of Gratech’s breach, Wachter has suffered damages because there are fewer waterfront lots to develop and their price had to be discounted because of lack of fill.

[¶ 24] There is evidence indicating that any deviations from the specifications called for in the contract were not the fault of Gratech, but were caused by the project engineers, Swenson Hagen. Swenson Ha-gen’s land consultant, who planned the project and prepared the final draft of a map showing where the lake should be, had his surveyors go to the site and stake the perimeter of the lake and the center line of the proposed streets in the fill area “so it was obvious for the excavator to come and look at.... ” Although the land consultant testified his crew of workers who monitored the excavation was unable to measure the bottom of the lake, he said “we kept the stakes up around the outside edge of the hole” and “[w]e could see that the side slopes ... were always accurate and neat.” Gratech’s project superintendent testified he did not move any of Swenson- Hagen’s stake boundaries and Wachter representatives did not complain about any problems with the site. When work was completed, Gratech’s superintendent notified Wachter representatives who confirmed Gratech had filled to the staked elevation on the center line of the streets. They only requested that Gratech stockpile 4,000 cubic yards of dirt for future use.

[¶ 25] There is substantial evidence that Gratech did not breach the contract, but merely followed the instructions given by Wachter’s project engineers. We conclude the trial court’s finding that Wachter materially breached the contract by failing to perform cross-sectioning and by failing to make payments is not clearly erroneous.

B

[¶ 26] Wachter contends the trial court erred in calculating the damages owed to Gratech.

[¶ 27] In Leingang v. City of Mandan Weed Bd., 468 N.W.2d 397, 398 (N.D.1991), this Court explained:

For a breach of contract, the injured party is entitled to compensation for the loss suffered, but can recover no more than would have been gained by full performance. NDCC §§ 32 — 03—09, 32-03-36. Our law thus incorporates the notion that contract damages should give the non-breaching party the benefit of the bargain by awarding a sum of money that will put that person in as good a position as if the contract had been performed. See generally 22 Am. Jur.2d Damages § 45 (1988).

[¶ 28] Wachter estimated the project would involve the removal of “approximately]” 300,000 cubic yards of clay from the borrow area in order to provide 240,-000 cubic yards of compacted material in the fill area. Wachter also provided plans to Gratech whicli illustrated 320,000 cubic yards of clay were available for this purpose. Gratech relied on those representations in making its bid for the project. Swenson Hagen’s land consultant testified these preliminary plans which were given to Gratech were inaccurate, but he did not inform Gratech.

[¶ 29] In assessing damages, the trial court relied on calculations made from the Gratech site superintendent’s running load count kept in daily log books which were used to record work progress at the site. The number of truck loads per day hauled from the borrow area to the fill area was multiplied by an estimate of how many cubic yards the trucks held per load. This method resulted in a total of 323,227 cubic yards estimated by the load count, which is close to the 320,000 cubic yards originally anticipated by Wachter. The trial court reduced the load count estimate to 320,000 cubic yards, and after applying the parties’ contractual formula, found Wachter still owed Gratech $118,370 for the excavation work.

[¶ 30] Wachter argues the trial court should have accepted the results of a final cross-sectioning performed in 1998 showing a volume of only 217,000 cubic yards of clay had been removed. However, the evidence establishes that any cross-sectioning performed without an initial cross-sectioning, which Wachter did not perform in this case, would result in inaccurate calculations. Wachter alternatively argues the court should have accepted the land consultant’s calculated estimate of 254,000 cubic yards because Gratech “accepted” and based its final invoice for $66,761 on that measurement. However, Gratech was under the mistaken belief that the 254,000 cubic yard total was based on cross-sectioning when it billed Wachter for that amount. Wachter also argues the trial court should not have used Gratech’s load count because this method was not contemplated by the parties. However, the accuracy of the parties’ contemplated method of measurement, cross-sectioning, was placed in jeopardy by Wachter’s own failure to have an initial cross-section performed on the site before any excavation work began.

[¶ 31] The trial court was presented with conflicting evidence on the damage issue. The trial court chose Gratech’s estimated load count as the most reasonable method to calculate damages, and the damage award is within the realm of the evidence presented. Under the circumstances, we are not left with a definite and firm conviction that the trial court’s $118,370 damage award is clearly erroneous.

Ill

[¶ 32] Wachter does not challenge the trial court’s dismissal of the slander of title and lost profits claims, but argues the court erred in finding Gratech did not commit an abuse of process by filing an inflated mechanic’s lien.

[¶ 33] This Court discussed abuse of process in Stoner v. Nash Finch, Inc., 446 N.W.2d 747, 751 (N.D.1989):

The tort of abuse of process is described in Restatement (Second) of the Law of Torts § 682 (1976): “One who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed, is subject to liability to the other for harm caused by the abuse of process.” The essential elements of the tort are discussed in Prosser and Kee-ton, The Law of Torts § 121, at p. 898 (5th ed.1984):
“The essential elements of abuse of process, as the tort has developed, have been stated to be: first, an ulterior purpose, and second, a wilful act in the use of the process not proper in the regular conduct of the proceeding. Some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process, is required; and there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions. The improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or a club. There is, in other words, a form of extortion, and it is what is done in the course of negotiation, rather than the issuance or any formal use of the process itself, which constitutes the tort.” [Footnotes omitted].

[¶ 34] Although an abuse of process is recognized even when no property is taken and the attempted extortion is wholly unsuccessful, Volk v. Wisconsin Mortgage Assur. Co., 474 N.W.2d 40, 44 (N.D.1991), the plaintiff still must show actual damages suffered as a result of the abuse of process. See Blair v. Maxbass Security Bank, 44 N.D. 12, 14, 19, 176 N.W. 98, 101 (1919); see also Lauren Corp. v. Century Geophysical Corp., 953 P.2d 200, 202 (Colo.App.1998); Fuller v. Local Union No. 106, 567 N.W.2d 419, 422 (Iowa 1997); Tanguay v. Asen, 722 A.2d 49, 50 (Me.1998); One Thousand Fleet v. Guerriero, 346 Md. 29, 694 A.2d 952, 956 (1997); Gordon v. Community First State Bank, 255 Neb. 637, 587 N.W.2d 343, 351 (1998); Bank of Oklahoma, N.A. v. Portis, 1997 OK CIV APP 32, 942 P.2d 249, 255 (1997); RRR Farms, Ltd. v. American Horse Protection Ass’n, 957 S.W.2d 121, 133 (Tex.App.1997). Good faith is a defense. A & A Metal Bldgs, v. I-S, Inc., 274 N.W.2d 183, 187 (N.D.1978).

[¶ 35] The trial court found Gratech’s filing of the mechanic’s lien for $571,297.65 was not an abuse of process, reasoning in part:

[Wachter’s] persistent failure to communicate with Gratech and the misleading information provided by Wachter concerning the amount of fill excavated led to Gratech’s filing of the mechanic’s lien. While the Court does not agree with the method used to calculate the amount of that lien, the filing of a mechanic’s lien was necessary and Wachter’s attention to the correspondence of Gratech could have avoided the filing of the lien in an amount higher than ultimately determined appropriate.

[¶ 36] We are troubled by the trial court’s reasoning, which seems to suggest an abuse of process can be “forgiven” if it is “invited” by the plaintiff. We know of no such rule. The gist of the tort of abuse of process is the misuse or misapplication of the legal process to accomplish an end other than that which the process was designed to accomplish, and it is the purpose behind the use of the legal process that is controlling. Kummer v. City of Fargo, 516 N.W.2d 294, 297 (N.D.1994).

[¶ 37] Under the mechanic’s lien laws, a lien must be for a contractually agreed price, “otherwise ... it must be for the reasonable value of the work done, and of the skill and material furnished.” N.D.C.C. § 35-27-06. A lien may not “exist for a greater amount than the sum claimed in the lien account, nor for any amount, if it be made to appear that the claimant has knowingly demanded in the statement more than is justly due.” N.D.C.C. § 35-27-16. In Blair, 44 N.D. at 14, 18, 176 N.W. at 99, 100, this Court dealt with a situation in which the plaintiffs sought to recover damages for abuse of process from a bank which had sued to foreclose mortgages for an amount more than four times what the plaintiffs owed the bank. This Court concluded the complaint, which alleged the plaintiffs suffered damages as a result of the bank’s actions, stated a cause of action for abuse of process and reversed and remanded for a new trial. Blair, 44 N.D. at 19, 176 N.W. at 101.

[1Í 38] In other jurisdictions, some plaintiffs have been successful in recovering on abuse of process claims based upon the defendants’ filing of meritless or grossly inflated mechanic’s liens. See, e.g., Display Fixtures Co. v. R.L. Hatcher, Inc., 438 N.E.2d 26, 31 (Ind.App.1982); Kleinschmidt v. Morrow, 642 A.2d 161, 164 (Me.1994). Claims of abuse of process based on allegedly inflated mechanic’s hens generally have been unsuccessful when there is a legitimate dispute over the amount of money owed to the lien filer. See, e.g., Montgomery GMC Trucks, Inc. v. Nunn, 657 S.W.2d 334, 336 (Mo.App.1983); Weaver v. Acampora, 227 A.D.2d 727, 642 N.Y.S.2d 339, 341 (1996); New York State Properties Inc. v. Clark, 183 A.D.2d 1003, 583 N.Y.S.2d 317, 319 (1992); Key Bank of Northern New York v. Lake Placid Co., 103 A.D.2d 19, 479 N.Y.S.2d 862, 867-68 (1984).

[¶ 39] In this case, Gratech’s mechanic’s lien was filed for an amount almost five times more than the trial court ultimately found Gratech was entitled to be paid. The amount of the mechanic’s lien raises a strong inference of improper purpose. However, the trial court did not err in dismissing the abuse of process claim because Wachter presented no evidence to show damage resulted from the abuse of process. Even though this was not the basis for the trial court’s dismissal, we will not set aside a correct result merely because the trial court assigned an incorrect reason if the result is the same under the correct law and reasoning. State Bank & Trust of Kenmare v. Brekke, 1999 ND 212, ¶8, 602 N.W.2d 681. Although Wachter testified he had to sell lots for a discounted price, those damages related to Gratech’s alleged breach of the contract for not having raised the fill area to the proper elevation. Wachter presented evidence of expended attorney fees, but those fees, captioned “Wachter vs. Gra-tech” and covering the period from June 11, 1998 to March 1, 1999, were incurred for “this lawsuit.” While some courts have held reasonable attorney fees and costs incurred in defending a suit from which the abuse of process arose are recoverable items of damage, see Display Fixtures Co., 438 N.E.2d at 32; 72 C.J.S. Process § 114, at p. 705 (1987), they are not recoverable for litigating the abuse of process damage action itself. See First Sec. Bank of Utah v. J.B.J. Feedyards, 653 P.2d 591, 597 (Utah 1982).

[¶ 40] We conclude the trial court’s finding that Gratech did not commit an abuse of process is not clearly erroneous.

IV

[¶ 41] We have considered Wachter’s other arguments and deem them to be without merit. The judgment is affirmed.

[¶ 42] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, CAROL RONNING KAPSNER, JJ., JOEL D. MEDD, D.J., concur.

[¶ 43] JOEL D. MEDD, D. J., sitting in place of SANDSTROM, J., disqualified.


author: NEUMANN, Justice.

text:
    2000 ND 63
    Dr. John ROE, Petitioner, v. The Honorable Cynthia A. ROTHESEEGER, Judge of the District Court, East Central Judicial District, Jane Doe and Midwest Medical Insurance Company, Respondents.
    No. 990344.
    Supreme Court of North Dakota.
    March 27, 2000.

      Joel A. Flom, of Jeffries, Olson, Flom & Donarski, PA, Moorhead, MN, for petitioner.
    John P. Dosland, West Fargo, N.D., for respondent Jane Doe, and Richard J. Thomas, of Burke & Thomas, St. Paul, MN, for respondent Midwest Medical Insurance Company.
   NEUMANN, Justice.

[¶ 1] Dr. John Roe (a pseudonym) has petitioned this Court for a supervisory writ directing the district court to vacate its order granting Midwest Medical Insurance Company’s (“Midwest”) motion to intervene in Jane Doe’s (a pseudonym) medical malpractice action against Roe. We conclude this is not an appropriate case in which to exercise our supervisory jurisdiction, and we deny the petition.

[¶ 2] Doe brought a malpractice action against Roe, alleging Roe negligently prescribed the wrong medication, negligently failed to refer her to a psychiatrist, and negligently handled the phenomenon of patient transference. While Doe’s action was pending, Midwest, which is Roe’s medical malpractice insurer, brought a declaratory judgment action, requesting the trial court to declare it had no duty to indemnify Roe for liability upon Doe’s claim for negligently handling patient transference. The trial court entered a summary judgment declaring Midwest had a duty to defend and indemnify on all Doe’s claims. On appeal, we concluded “it was inappropriate for the court to grant declaratory relief under N.D.C.C. Ch. 32-23, because Midwest has conceded the duty to defend and obligation to indemnify for some counts in the underlying litigation,” and vacated the summary declaratory judgment. Midwest Med. Ins. Co. v. Doe, 1999 ND 17, ¶ 12, 589 N.W.2d 581.

[¶ 3] Midwest then moved to intervene in Doe’s action against Roe or to consolidate Doe’s action with Midwest’s declaratory judgment action. On July 16, 1999, the district court issued an order denying the motion to consolidate the cases and granting Midwest’s motion to intervene, “limited to the issue of whether the sexual relationship between Dr. Roe and Doe arose from negligent or intentional conduct.” The court ruled “[t]he jury’s factual findings on all issues in the malpractice action shall be binding upon these parties in the subsequent declaratory judgment action to resolve the coverage dispute.” The trial court determined “pre-trial and trial procedures exist which can and will resolve the potential problems, if and when they develop” as a result of Midwest’s intervention.

[¶ 4] Roe filed a notice of appeal and an alternative petition for a supervisory writ directing the district court to vacate its order allowing Midwest to intervene. We dismissed the appeal because the intervention order was not appealable, and we now deny the supervisory writ.

[¶ 5] Our authority to issue supervisory writs derives from N.D. Const. art. VI, § 2, and N.D.C.C. § 27-02-04. Dimond v. State Bd. of Higher Educ., 1999 ND 228, ¶ 19, 603 N.W.2d 66. The authority to issue supervisory writs is discretionary; it cannot be invoked as a matter of right. Trinity Med. Ctr. v. Holum, 544 N.W.2d 148, 151 (N.D.1996); Odden v. O’Keefe, 450 N.W.2d 707, 708 (N.D.1990). This Court determines whether it should exercise its original jurisdiction to issue remedial writs on a case-by-case basis. Heartview Found. v. Glaser, 361 N.W.2d 232, 234 (N.D.1985); Marmon v. Hodny, 287 N.W.2d 470, 474 (N.D.1980). Courts generally will not exercise supervisory jurisdiction “where the proper remedy is an appeal merely because the appeal may involve an increase of expenses or an inconvenient delay.” Fibelstad v. Glaser, 497 N.W.2d 425, 429 (N.D.1993). We exercise our authority to issue supervisory writs rarely and cautiously, and only to rectify errors and prevent injustice in extraordinary cases in which there is no adequate alternative remedy. State ex rel. v. Hagerty, 1998 ND 122, ¶6, 580 N.W.2d 139.

[¶ 6] Roe argues Midwest “has a duty to act in good faith and protect the interests of its insured;” Midwest “seeks to inject additional, unrelated issues ... about the determination of insurance coverage” which “would irreparably prejudice the defense of Dr. Roe” and tend to confuse and mislead the jury. Roe argues Midwest’s intervention will result in additional discovery, and disclosure he has insurance will compromise the impartiality of the jury. Roe argues Midwest’s intervention “will subject Dr. Roe to great harm, as it will be assisting the Plaintiff in attempting to place fault on Dr. Roe. This undoubtedly will lead to a bad faith claim and a subsequent lawsuit.”

[¶ 7] Midwest’s intervention may possibly inject additional issues, prejudice Roe’s defense, result in additional discovery, lead to jury confusion, or allow Midwest to assist Doe in placing fault on Roe. However, we are not persuaded any harm to Roe that might flow from Midwest’s intervention is incapable of being remedied in an appeal from an adverse judgment. We are not convinced, on the record before us, that this is an extraordinary case in which there is no adequate alternative remedy, requiring us to exercise our supervisory jurisdiction and issue a supervisory writ to prevent injustice.

[¶ 8] We conclude this is not an appropriate case in which to exercise our supervisory jurisdiction, and we deny the .petition.

[¶ 9] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, J., BRUCE B. HASKELL, D.J., JOHN C. McCLINTOCK, Jr., D.J., concur.

[¶ 10] BRUCE B. HASKELL, D.J., and JOHN C. McCLINTOCK, Jr., D.J., sitting in place of MARY MUEHLEN MARING, J., and CAROL RONNING KAPSNER, J., disqualified.