concurring specially.
[¶ 51] Although I concur in the result reached by the majority, I write to express my concerns with portions of the opinion.
[¶ 52] I am not convinced the trial court was correct in dismissing the negligence claims. It appears the dismissal may have been based on a belief or a philosophy that once a contract has been entered into any negligent acts by the parties are nothing more than a breach of contract. As the majority opinion notes, conduct that constitutes a breach of contract may subject the actor to an action in tort if the conduct constitutes a breach of an independent duty that did not arise from contract. Dakota Grain v. Ehrmantrout, 502 N.W.2d 234 (N.D.1993).
[¶ 53] The majority opinion observes that “Bismarck has not shown Olander breached any independent duty that did not arise from its contract with Bismarck and Wachter.” But the majority does not explain or discuss whether that lack of showing may have been due to the trial court’s pre-trial dismissal of the negligence claims. While I applaud the trial court for attempting to simplify the issues, cafe should be taken not to substitute the trial court’s theory of the cause of action for that of the plaintiff.
[¶ 54] I concur in the result on this issue because, as the majority notes, once having ordered the negligence claims dismissed, Bismarck did not rally its evidence or request a continuance if it was caught off guard by the trial court’s sua sponte dismissal of the negligence claims.
[¶ 55] My concern is heightened by the lack of specific instructions on workmanship required of Olander. Once the negligence allegations of the counterclaim were stricken under the belief that Olander’s alleged acts would constitute simply a breach of contract, I believe explicit instructions on the workmanship required of the contractor should have been given. The majority notes that Bismarck did not press the issue in its appellate brief and that the effect of the instruction given by the court “adequately focused the jury’s attention on what Olander warranted.... ” Because Bismarck was not free to argue negligence on Olander’s part once those allegations were stricken, explicit instructions on the workmanship required of Olander should have been given. But, Bismarck has not persuaded me those specific instructions were requested. Again, we do not know whether or not this was due to surprise at the trial court’s striking of the negligence allegations. In any event, a party has a duty to protect and perfect the record for appeal. I therefore concur in the result.
[¶ 56] GERALD W. VANDE WALLE, C.J., and CAROL RONNING KAPSNER, JJ., concur.