Swenson v. Raumin, 980008

• Decision Date: 18 August 1998
• Docket Number: No. 980008,980008
• Citation: 583 N.W.2d 102
• Parties: Peter SWENSON, Plaintiff and Appellant, and Sally Swenson, Plaintiff, v. Jerry RAUMIN and Roger Raumin, a co-partnership, doing business as Raumin Brothers, and doing business as MRTJ Potato Warehouse, Defendants and Appellees. Civil
• Court: North Dakota Supreme Court

Page 102

583 N.W.2d 102

1998 ND 150

Peter SWENSON, Plaintiff and Appellant and Sally Swenson, Plaintiff, v. Jerry RAUMIN and Roger Raumin, a co-partnership, doing business as Raumin Brothers, and doing business as MRTJ Potato Warehouse, Defendants and Appellees.

Civil No. 980008.

Supreme Court of North Dakota.

Aug. 18, 1998.

Kevin B. Spaeth, of Spaeth, Thelen, Van Voorhis & Jasmer, Grand Forks, for plaintiff and appellant.

Howard D. Swanson, of Letnes, Marshall & Swanson, Ltd., Grand Forks, for defendants and appellees.

SANDSTROM, Justice.

¶1 This is an appeal from a summary judgment dismissing Peter Swenson and Sally Swenson's action against Peter Swenson's employers, Jerry Raumin and Roger Raumin, doing business as the Raumin Brothers and MRTJ Potato Warehouse, to rescind a settlement agreement and collect damages for personal injuries sustained by Peter Swenson in a work-related farm injury. We conclude the trial court did not err in granting summary judgment dismissal of the Swensons' action because they did not present any evidence to satisfy the reasonable diligence requirements for rescission under N.D.C.C. § 9-09-04. We therefore affirm.

I

¶2 On January 31, 1986, Peter Swenson injured his hip and back when he slipped and fell while working at the Raumin Brothers' potato warehouse in Grafton. On April 11, 1986, a little more than two months after his injury and initial hospitalization, Peter Swenson signed a "Settlement and Full and Final Release of All Claims" for $2,400 offered to him by an insurance adjustor. The settlement agreement "forever discharge[d]" the Raumin Brothers from "all known and unknown" damages resulting from the January 31, 1986, accident, and the parties acknowledged "the injuries sustained may be permanent and progressive and ... recovery therefrom is uncertain and indefinite." In May 1986, Peter Swenson learned from medical professionals his "neck vertebrae was cracked." In October 1986, about six months after signing the release, Peter Swenson underwent major surgery to correct the injury to his vertebrae resulting from the accident, incurring medical costs in excess of $30,000. After the surgery, his treating physician assessed Peter Swenson as having a 13 percent permanent partial impairment rating.

¶3 In January 1992, almost six years after the accident, Peter Swenson and Sally Swenson brought this action against the Raumin Brothers. Peter Swenson requested rescission of the settlement agreement and sought more than $250,000 in damages. Sally Swenson sought more than $50,000 on her separate claim for loss of consortium.

¶4 The trial court granted the Raumin Brothers' motion for partial summary judgment on Peter Swenson's rescission action. The court concluded the settlement agreement Peter Swenson signed was a "complete settlement of all claims against" the Raumin Brothers arising out of the January 31, 1986, accident and all injuries sustained by Peter Swenson were known to him by May 1986. The court further concluded Peter Swenson had failed to make restitution of the amount received as consideration for the settlement agreement and failed to explain the delay of nearly six years in seeking rescission. The court therefore concluded Peter Swenson was not entitled to rescission of the settlement agreement because he had failed to comply with the reasonable diligence requirements for rescission under N.D.C.C. § 9-09-04.

¶5 The trial court, on its own motion, granted a N.D.R.Civ.P. 54(b) certification, but we dismissed the Swensons' prior appeal from the partial summary judgment because the Rule 54(b) certification was improvidently granted. See Swenson v. Raumin, 520 N.W.2d 858 (N.D.1994). A jury later rejected Sally Swenson's loss of consortium claim. Judgment was entered dismissing the Swensons' actions.

¶6 The trial court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Peter Swenson's appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.

II

¶7 The sole issue on appeal is whether the trial court erred in granting summary judgment dismissal of Peter Swenson's claim for rescission and damages.

A

¶8 Summary judgment is a procedure for the prompt and expeditious disposition of a controversy without trial if either litigant is entitled to judgment as a matter of law, if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving factual disputes would not alter the results. Perry Center, Inc. v. Heitkamp, 1998 ND 78, p 12, 576 N.W.2d 505. On appeal, we review the evidence in the light most favorable to the party opposing the summary judgment motion. Freed v. Unruh, 1998 ND 34, p 6, 575 N.W.2d 433.

¶9 In considering a motion for summary judgment, a court may examine the pleadings, depositions, admissions, affidavits, interrogatories, and inferences to be drawn from that evidence to determine whether summary judgment is appropriate. Matter of Estate of Otto, 494 N.W.2d 169, 171 (N.D.1992). Although the party seeking summary judgment has the burden to clearly demonstrate there is no genuine issue of material fact, the court must also consider the substantive standard of proof at trial when ruling on a summary judgment motion. State Bank of Kenmare v. Lindberg, 471 N.W.2d 470, 474-75 (N.D.1991). The party resisting the motion may not simply rely upon the pleadings or upon unsupported, conclusory allegations, but must present competent admissible evidence by affidavit or other comparable means which 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. Kummer v. City of Fargo, 516 N.W.2d 294, 297 (N.D.1994). Summary judgment is proper against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case and on which that party will bear the burden of proof at trial. Matter of Estate of Stanton, 472 N.W.2d 741, 746 (N.D.1991).

B

¶10 In this case, the Raumin Brothers supported their summary judgment motion with an affidavit, signed by their attorney, attesting to the "facts in connection with said cause of action." The facts attested to are the date of Peter Swenson's injury, the date Peter Swenson signed the release, the date the Swensons brought this lawsuit, and the nature of the relief they sought.

¶11 We have often noted an affidavit of counsel in support of or resistance to a motion for summary judgment made on information and belief does not comply with N.D.R.Civ.P. 56(e) because an attorney's hearsay affidavit is not a substitute for the personal knowledge of a party. See, e.g., Hummel v. Mid Dakota Clinic, P.C., 526 N.W.2d 704, 708 (N.D.1995). Nevertheless, the erroneous presentation of an affidavit that does not meet Rule 56(e) standards does not require reversal of the summary judgment if other evidence in the record supports summary judgment. See Luithle v. Taverna, 214 N.W.2d 117, 124 (N.D.1973).

¶12 The information recited in the attorney's affidavit appeared in court records. The complaint and the settlement agreement were in the record, and the date of and information about Peter Swenson's major surgery appear in his answers to interrogatories, also filed with the court. A party is not required to file an affidavit in support of a motion for summary judgment. See N.D.R.Civ.P. 56(a) and (b). Because the information in the affidavit already appeared in the record before the trial court, we conclude any error in relying on the attorney's affidavit is harmless.

C

¶13 Under N.D.C.C. §§ 9-08-08 and 9-08-09, a person may automatically rescind a personal injury settlement agreement within six months after the date of injury if the settlement agreement was made within 30 days after the injury or if it was made while the injured person remained under disability. The Swensons did not avail themselves of this procedure, and the six-month limitation has long since passed.

¶14 Nevertheless, this Court has held N.D.C.C. §§ 9-08-08 and 9-08-09 provide a remedy in addition to the general rescission statute, N.D.C.C. § 9-09-04, and an action to rescind a personal injury settlement agreement can be brought under the general statute "subject only to the [six-year] statute of limitations contained in Section 28-01-16." Mitzel v. Schatz, 175 N.W.2d 659, 660 Syllabus 5 (N.D.1970). See also Wock v. Kuhn, 221 N.W.2d 65, 68 (N.D.1974).

¶15 N.D.C.C. § 9-09-04 provides:

Rules governing rescission. Rescission, when not effected by consent or pursuant to sections 9-08-08 and 9-08-09, can be accomplished only by the use, on the part of the party rescinding, of reasonable diligence to comply with the following rules:

1. He shall rescind promptly upon discovering the facts which entitle him to rescind, if he is free from duress, menace, undue influence, or disability and is aware of his right to rescind; and

2. He shall restore to the other party everything of value which he has received from him under the contract or must offer to restore the same upon condition that such party shall do likewise, unless the latter is unable or positively refuses to do so.

¶16 Although the Wock and Mitzel courts said a general rescission action is "subject only to" the six-year statute of limitations, we reject the Swensons' argument the other requirements for a rescission action are eliminated under N.D.C.C. § 9-09-04 and all they must do is bring their action within the six-year statute of limitations. Not only does the statute refer to the two sections not applicable in this case, but this Court specifically recognized in Schmidt v. Grand Forks Country Club, 460 N.W.2d 125, 128 n. 2 (N.D.1990), prompt rescission is a requirement separate and distinct from any statute of limitations question:

Our case law demonstrates that a waiver of the right to rescind under § 9-09-04 can...