Johnston Law Office, P.C. v. Brakke, 919 N.W.2d 733

Background

Johnston Law Office (Johnston) was previously found liable in PHI Financial Services actions; Vogel represented PHI and attempted garnishments against Johnston and Johnston’s clients/accounts.
Johnston sued Vogel for (1) tortious interference with its lending bank relationship, (2) tortious interference with attorney-client relationships, and (3) abuse of process.
Vogel moved for summary judgment, arguing no recoverable damages or essential elements were supported by admissible evidence; Vogel also moved to quash a subpoena Johnston served on PHI Financial.
The district court granted summary judgment on all three claims, finding Johnston failed to present admissible evidence of proximate cause or actual damages; the court found any Rule 62 violation would not by itself show damages.
The court deemed the subpoena issue moot. Johnston appealed; the Supreme Court of North Dakota affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Vogel unlawfully interfered with Johnston’s lending-bank relationship	Vogel’s garnishments caused the bank to sever credit; DeWayne Johnston’s affidavit shows the bank stopped lending due to Vogel’s actions	No admissible evidence of proximate cause or actual damages; Johnston’s affidavit contains hearsay and conclusory statements	Affirmed: Johnston failed to present competent admissible evidence of causation or damages; summary judgment proper
Whether Vogel intentionally interfered with attorney-client relationships	Serving garnishee summons on clients disrupted relationships and constituted unlawful interference (including violations of professional conduct and statute)	Contacts were not barred by Rule 4.2 (not in the matter), statute’s 10-day notice did not apply to attorney fees, and no conversion occurred; no evidence of proximate harm or actual damages	Affirmed: Even accepting some legal violations arguendo, Johnston presented no evidence of proximate cause or actual damages
Whether Vogel committed abuse of process by garnishment actions	Vogel used garnishment primarily for an improper purpose and violated Rule 62 and statutory notice—resulting in damages	Garnishment is a permissible process to collect a judgment; Vogel showed Johnston had not disclosed any damages despite discovery; no evidence of actual damages caused by alleged abuse	Affirmed: Johnston failed to produce admissible, specific evidence of actual damages; summary judgment proper
Whether the district court erred by quashing/subsuming the subpoena to PHI Financial	Johnston needed PHI billing and communications to prove Vogel acted on PHI’s behalf and to show damages	PHI did not object but court found subpoena moot given Johnston’s failure to show damages; information would not change summary judgment outcome	Affirmed: District court did not abuse discretion in treating the subpoena issue as moot because additional PHI evidence would not alter lack of damages/cause

Key Cases Cited

PHI Fin. Servs., Inc. v. Johnston Law Office, P.C., 2016 ND 20, 874 N.W.2d 910 (background judgment against Johnston)
PHI Fin. Servs., Inc. v. Johnston Law Office, P.C., 2016 ND 114, 881 N.W.2d 216 (background facts and prior proceedings)
Barbie v. Minko Constr., Inc., 2009 ND 99, 766 N.W.2d 458 (summary judgment standards)
Trade ’N Post, L.L.C. v. World Duty Free Americas, Inc., 2001 ND 116, 628 N.W.2d 707 (elements of interference with business relationships)
Alerus Fin., N.A. v. Erwin, 2018 ND 119, 911 N.W.2d 296 (hearsay inadmissibility at summary judgment)
Riemers v. City of Grand Forks, 2006 ND 224, 723 N.W.2d 518 (summary judgment evidence rules)
First Nat’l Bank of Hettinger v. Clark, 332 N.W.2d 264 (availability and purpose of summary judgment)