Swanson v. Mark E. Larson & Mark E. Larson, Cpa, PLLC
Decision Date | 09 December 2021 |
Docket Number | No. 20210125,20210125 |
Citation | 967 N.W.2d 778 |
Parties | Leland SWANSON, Plaintiff and Appellant v. Mark E. LARSON and Mark E. Larson, CPA, PLLC, Defendants and Appellees |
Court | North Dakota Supreme Court |
Ryan James (argued), Pittsburgh, PA, and Barton J. Cahill (appeared), Moorhead, MN, for plaintiff and appellant.
Michael T. Andrews, Fargo, ND, for defendants and appellees.
[¶1] Leland Swanson appeals from a judgment dismissing his breach of contract and professional negligence claims against Mark Larson and Mark Larson, CPA, PLLC. Swanson argues the district court prematurely and improperly granted summary judgment in Larson's favor. We affirm.
[¶2] In 2017, Swanson hired Larson to provide a forensic accounting of various entities owned by Swanson. Larson provided the accounting services in anticipation of litigation against Swanson's former business partner. The engagement agreement stated Larson was retained as a consulting expert and would provide expert witness testimony upon request.
[¶3] During discovery in subsequent litigation against Swanson's former business partner, Larson was identified as an expert witness in a July 2018 response to interrogatories. Larson ended his engagement in January 2019 by providing written notice to Swanson's attorney. After Larson's termination, Swanson retained another expert to testify in the pending litigation.
[¶4] In January 2020, Swanson sued Larson for breach of contract and professional negligence. Swanson alleged Larson breached their agreement and committed professional negligence by terminating his services and refusing to testify as an expert witness in the litigation against Swanson's former business partner.
[¶5] Larson moved for summary judgment, arguing the agreement did not require him to testify at trial. He also argued the agreement was terminable at will by either party, and he did not breach the agreement by terminating his services. Swanson resisted the motion and requested more time for discovery.
[¶6] In December 2020, the district court denied Swanson's request for additional discovery and granted Larson's summary judgment motion, concluding the agreement only required Larson to provide consulting services for Swanson. The court concluded Larson did not breach the agreement by terminating his services in January 2019 because the agreement did not have a fixed term or expiration date. The court also concluded Swanson's professional negligence claim against Larson failed. The court entered judgment dismissing Swanson's lawsuit.
[¶7] This Court's standard of review for summary judgments is well established:
Dwyer v. Sell , 2021 ND 139, ¶ 6, 963 N.W.2d 292 (quoting Krebsbach v. Trinity Hosps., Inc. , 2020 ND 24, ¶ 7, 938 N.W.2d 133 ).
[¶8] "A party's request for additional time for discovery under N.D.R.Civ.P. 56(f) is within the district court's sound discretion." PLS Servs., LLC v. Valueplus Consulting, LLC , 2021 ND 99, ¶ 22, 960 N.W.2d 780. A court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, it misinterprets or misapplies the law, or its decision is not the product of a rational mental process leading to a reasoned determination. Ryberg v. Landsiedel , 2021 ND 56, ¶ 21, 956 N.W.2d 749.
[¶9] Swanson argues the district court prematurely granted summary judgment. In its December 2020 order, the court addressed Swanson's N.D.R.Civ.P. 56(f) request for additional discovery:
[¶10] On appeal, Swanson does not address how the district court abused its discretion by denying Swanson's request for additional discovery. As the court explained, Swanson failed to describe what information was sought and how it might preclude summary judgment. The court did not abuse its discretion by denying Swanson's request for additional discovery.
[¶11] Swanson argues the district court erred in its interpretation of the engagement agreement. Swanson asserts the agreement was breached by Larson terminating the agreement and refusing to testify after being disclosed as a testifying expert. Swanson also contends the agreement was effective for the duration of the litigation, and Larson breached the agreement by terminating his services before the litigation concluded.
[¶12] Chapter 9-07, N.D.C.C., governs the interpretation of contracts. The parties’ intent is ascertained from the writing alone if possible. N.D.C.C. § 9-07-04. "The language of a contract is to govern its interpretation if the language is clear and explicit and does not involve an absurdity." N.D.C.C. § 9-07-02. "Matters of contractual interpretation present questions of law that are fully reviewable on appeal." Bismarck Fin. Grp., LLC v. Caldwell , 2020 ND 207, ¶ 9, 950 N.W.2d 155.
[¶13] The engagement agreement provides:
[¶14] The district court concluded Larson did not breach the agreement by terminating his services in January 2019 and refusing to provide opinion testimony:
[¶15] The engagement agreement required Swanson to request Larson to testify as an expert. The record does not show Swanson specifically requested Larson to testify. However, in a July 2018 response to interrogatories, Swanson named Larson as an "expert witness you have consulted or retained in relation to this action." Swanson's response to interrogatories also mentioned Larson's attached affidavit "which describes with specificity the facts and opinions to which he will testify." Larson's April 2018 affidavit offers his preliminary opinions, but does not mention testifying at trial.
[¶16] Viewing the evidence in a light most favorable to Swanson, the disclosure of Larson as an expert witness and Larson's affidavit may raise a genuine issue of material fact as to whether Swanson requested Larson to testify under the engagement agreement. However, even assuming there was a request to testify, Larson did not breach the agreement by terminating his accounting services in January 2019 because the agreement was terminable at will by either party.
[¶17] Swanson claims the engagement agreement had a definite duration. He argues the agreement remained effective for the duration of the litigation, and Larson's termination before the litigation concluded was a material breach of the agreement. Swanson asserts the agreement specified that Larson could terminate only on Swanson's failure to meet his payment obligations.
[¶18] "This court has held that where parties enter into an agreement by the terms...
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