Broten v. Carter, 935 N.W.2d 654

James Broten was the personal representative of his father’s estate and was sued by his sisters for breach of fiduciary duty; he retained attorney Ralph Carter in 2011.
Broten provided Carter ~60 boxes of records he believed would support his defense; Broten repeatedly asked Carter about review of the records.
The records were not disclosed during discovery while Carter represented Broten; they were disclosed after Carter was replaced.
On August 15, 2013 the district court found Broten breached fiduciary duties (reserving damages); on January 21, 2014 the court awarded $1,300,054 in damages.
Broten sued Carter for legal malpractice on January 14, 2016 (claiming Carter failed to review/disclose the records). Carter moved for summary judgment, arguing the two-year statute of limitations barred the suit; the district court granted summary judgment and awarded costs including expert fees for experts who did not testify.
Broten appealed the summary judgment and the award of expert expenses; the Supreme Court affirmed the summary judgment and the costs award, while a dissent argued the court lacked appellate jurisdiction because a treble-damages claim remained unadjudicated.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Accrual date/statute of limitations for legal malpractice	Broten: accrual tolled until Jan 21, 2014 (damages certain after damages order); thus suit filed within two years	Carter: action accrued Aug 15, 2013 when court found breach; two‑year limitations expired before suit	Court: objective discovery rule applied; reasonable minds can draw only one conclusion that Broten was on notice on Aug 15, 2013; summary judgment affirmed
Award of expert witness fees for experts who did not testify	Broten: experts were unnecessary to resolve the statute‑of‑limitations motion, so their fees should not be taxed	Carter: experts were disclosed per scheduling order and reasonably necessary to rebut plaintiff’s experts and prepare for trial	Court: district court did not abuse discretion; experts’ work and scheduling support awarding their expenses
Appealability / adjudication of treble‑damages claim (N.D.C.C. §27‑13‑08)	Broten (and dissent): the §27‑13‑08 claim was not adjudicated; absent Rule 54(b) certification appeal is premature	Carter / majority: parties treated statute of limitations issue together; judgment dismissed complaint "in its entirety" and Broten did not argue below that §27‑13‑08 was separate	Majority: did not find jurisdictional defect and affirmed; Dissent: would dismiss appeal for lack of jurisdiction and vacate judgment so district court can adjudicate the §27‑13‑08 claim

Pettinger v. Carroll, 912 N.W.2d 305 (2018) (summary judgment standard and de novo appellate review)
Larson v. Norkot Mfg., Inc., 627 N.W.2d 386 (2001) (malpractice action accrues when client has incurred some damage)
Wall v. Lewis, 393 N.W.2d 758 (1986) (adoption of discovery rule in legal malpractice actions)
Riemers v. Omdahl, 687 N.W.2d 445 (2004) (discovery rule uses objective notice standard)
Jacobsen v. Haugen, 529 N.W.2d 882 (1995) (cause of action accrues when damage and wrongful act coincide)
Richter v. Jones, 378 N.W.2d 209 (1985) (district court discretion to allow disbursements and determine reasonableness)
Pratt v. Heartview Foundation, 512 N.W.2d 675 (1994) (expert fees may be taxed even if expert does not testify)
N.D. DOT v. Schmitz, 910 N.W.2d 874 (2018) (district court may decline non‑testifying expert expenses; awarding or denying such expenses reviewed for abuse of discretion)