967 N.W.2d 778
N.D.2021Background
- In 2017 Swanson retained Mark Larson to perform a forensic accounting as a consulting expert in anticipation of litigation with a former business partner; the engagement stated Larson would be available to provide expert testimony if requested.
- Larson performed the forensic examination, provided an affidavit with preliminary opinions, and was disclosed in July 2018 interrogatory responses as an expert.
- Larson terminated the engagement by written notice in January 2019; Swanson later retained a different expert to testify.
- Swanson sued Larson in January 2020 for breach of contract and professional negligence, alleging Larson breached by terminating services and refusing to testify.
- The district court denied Swanson’s request for additional discovery, granted Larson’s summary judgment motion, concluding the engagement was unambiguous, terminable at will, did not obligate Larson to testify absent a request, and that the negligence claim failed.
- The North Dakota Supreme Court affirmed the grant of summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court abused its discretion in denying additional discovery under N.D.R.Civ.P. 56(f) | Swanson needed discovery about scope, termination, and fees to oppose summary judgment | Parties had ample time; Swanson failed to specify what evidence was sought or how it would preclude summary judgment | No abuse of discretion; Swanson didn’t identify specific discovery or show it would prevent summary judgment; contract unambiguous |
| Whether the engagement agreement obligated Larson to testify as an expert | The agreement and subsequent disclosure/affidavit show Larson was retained to testify and thus had an obligation to do so | The agreement made Larson available to testify only if Swanson requested it; no unconditional duty to testify | Agreement required a request to trigger testimony; disclosure may create a factual issue whether a request occurred, but no breach even assuming a request because agreement was terminable at will |
| Whether the engagement had a definite duration or was terminable only for nonpayment / for the duration of litigation | The agreement was effective for the duration of the litigation; early termination was a material breach | The agreement did not fix a time or duration; silence implies terminable at will by either party | Agreement silent as to duration and therefore terminable at will; Larson had completed the forensic examination and communicated results |
| Whether Swanson stated a viable professional negligence claim | Termination/refusal to testify and abandonment constituted malpractice causing damages | The allegations arise from contractual duties; no allegation of breach of an independent professional duty or substandard accounting | Professional negligence claim dismissed: plaintiff alleged only contractual breaches, not an independent tort duty or negligent performance |
Key Cases Cited
- Dwyer v. Sell, 963 N.W.2d 292 (summary-judgment standard and de novo review of legal questions)
- Krebsbach v. Trinity Hosps., Inc., 938 N.W.2d 133 (summary judgment principles)
- N. Am. Pump Corp. v. Clay Equip. Corp., 199 N.W.2d 888 (contract silence on duration permits termination at will)
- Myra Found. v. Harvey, 100 N.W.2d 435 (same principle on terminability when no duration fixed)
- Olander v. State Farm Mut. Auto. Ins. Co., 317 F.3d 807 (general rule that silence on duration implies at-will termination)
- Dakota Grain Co., Inc. v. Ehrmantrout, 502 N.W.2d 234 (breach of contract alone does not give rise to a tort claim)