Larson Latham Huettl LLP v. Iversen
| Citation | 2023 ND 16 |
| Decision Date | 16 February 2023 |
| Docket Number | 20220198 |
| Parties | Larson Latham Huettl LLP, Plaintiff and Appellee v. Travis D. Iversen, Defendant and Appellant |
| Court | United States State Supreme Court of North Dakota |
Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Dann E. Greenwood, Judge.
AFFIRMED.
Samuel G. Larson (argued) and Gregory C. Larson (on brief) Bismarck, N.D., for plaintiff and appellee.
Travis D. Iversen, self-represented, Bismarck, N.D., defendant and appellant.
[¶1] Travis D. Iversen appeals from a judgment in favor of the appellee, Larson Latham Huettl, LLP (hereafter "LLH"), and an order denying relief from judgment under N.D.R.Civ.P. 59(j). He argues that several genuine issues of material fact remain, precluding summary judgment. He also argues the district court abused its discretion in denying his motion under Rule 59(j). We affirm the judgment and the order denying Iversen's Rule 59(j) motion.
[¶2] Iversen is an attorney who was employed by LLH from February 2019 until July 2021. He signed an employment agreement with LLH in May 2019. The applicable sections of the employment agreement are:
[¶3] Iversen asserts that Tyrone Turner, an LLH partner, told Iversen that "you can only do the work that we give you." After Iversen terminated his employment with LLH, LLH requested that Iversen refund it $35,772.63 for overpayment. LLH argues that Iversen owes this debt to LLH because he had not been credited with sufficient billable hours to justify the compensation he received under the employment agreement. Iversen refused to pay the deficiency, and LLH then sued Iversen. The district court issued a memorandum opinion granting LLH's motion for summary judgment. Before judgment was entered, Iversen filed a "motion for reconsideration" citing N.D.R.Civ.P. 59(j). The district court denied Iversen's motion.
[¶4] On appeal, Iversen argues that summary judgment was inappropriate because genuine issues of fact remain as to whether: the employment agreement was ambiguous or unconscionable, LLH waived its rights under the agreement, it was impossible for Iversen to perform the agreement, LLH failed to mitigate damages, the employment agreement lacked consideration, and the district court's pre-judgment interest award was miscalculated. On these same bases, he argues that the district court's denial of his motion to reconsider was an abuse of discretion.
[¶5] The district court granted LLH's motion for summary judgment. This Court's standard of review over district court summary judgment orders 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 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. Rather, a party opposing a summary judgment motion must present competent admissible evidence by affidavit or other comparable means that raises an issue of material fact and must, if appropriate, draw the court's attention to relevant evidence in the record raising an issue of material fact. 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.
Cuozzo v. State, 2019 ND 95, ¶ 7, 925 N.W.2d 752 (quoting Dahms v. Nodak Mut. Ins. Co., 2018 ND 263, ¶ 6, 920 N.W.2d 293) (cleaned up).
[¶6] Iversen raised the following affirmative defenses at the district court: unconscionability, waiver or estoppel, impossibility of performance, failure to mitigate damages, and lack of consideration. We conclude, however, the court did not err in granting LLH's motion for summary judgment.
[¶7] Iversen argues the employment agreement was unconscionable.
When this Court determines whether a contractual provision is unconscionable, we employ a two-pronged framework. The first prong pertains to procedural unconscionability, which encompasses factors relating to unfair surprise, oppression and inequality of bargaining power.... The second prong pertains to substantive unconscionability, which focuses upon the harshness or one-sidedness of the contractual provision in question.. To prevail on an unconscionability claim, a party alleging unconscionability must demonstrate some quantum of both procedural and substantive unconscionability, and courts are to balance the various factors, viewed in totality, to determine whether the particular contractual provision is so one-sided as to be unconscionable.
Rutherford v. BNSF Ry. Co., 2009 ND 88, ¶ 22, 765 N.W.2d 705 (cleaned up). "Procedural unconscionability relates to procedural deficiencies in the contract formation process, including refusal to bargain over contract terms." Thompson v. Lithia ND Acquisition Corp. #1, 2017 ND 136, ¶ 19, 896 N.W.2d 230 (citing Strand v. U.S. Bank Nat'l Ass'n ND, 2005 ND 68, ¶ 10, 693 N.W.2d 918). "When one party is in such a superior bargaining position that it totally dictates all terms of the contract and the only option presented to the other party is to take it or leave it, some quantum of procedural unconscionability is established." Id. at ¶ 20 (quoting Strand, at ¶ 15).
[¶8] "Substantive unconscionability relates to the terms of the contract and whether the terms are unreasonably favorable to the more powerful party." Id. at ¶ 19. Whether there is unconscionability is a question of law, but this Court reviews those trial court's factual findings necessary for unconscionability determinations under the clearly erroneous standard of review under N.D.R.Civ.P.52(a). Terry v. Terry, 2002 ND 2, ¶ 14, 638 N.W.2d 11 (citing Weber v. Weber, 1999 ND 11, ¶ 8, 589 N.W.2d 358).
[¶9] Iversen argues the employment agreement was unconscionable because LLH had sole control over his performance under the employment agreement and how many hours to credit him, and it had primary control over his work, which prevented him from being able to comply with the employment agreement. The district court assumed there was "some level of procedural unconscionability" because LLH drafted the document and asked Iversen to sign it after he had already begun his employment. Regarding substantive unconscionability, there are no terms in the employment agreement that support the contention that LLH had sole control over Iversen's performance under the employment agreement. The district court concluded as follows:
The agreement does not appear to be substantively unconscionable. The agreement provided a salary for Iversen, gave him benefits, allowed for paid time off, based his billable hours requirement on the salary he received, and was an at-will contract. Although LLH was permitted to recover the debt if Iversen did not achieve his billable hour requirement, such a clause is not so onesided to be unconscionable. Rather, LLH was seeking to make Iversen's position profitable for the firm. Such an agreement is clearly distinguishable from an unconscionable agreement as was present in Eberle v. Eberle [, 2009 ND 107, 766 N.W.2d 477]. Under the employment agreement, both parties received benefits and had obligations. Having requirements for one's employees is not unconscionable.
We conclude ...
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