Larson Latham Huettl v. Burckhard

                                                                                FILED
                                                                        IN THE OFFICE OF THE
                                                                     CLERK OF SUPREME COURT
                                                                         DECEMBER 22, 2022
                                                                      STATE OF NORTH DAKOTA




                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                

Larson Latham Huettl LLP,                            Plaintiff and Appellee
     v.
Thomas J. Burckhard,                              Defendant and Appellant

                                No. 20220187

Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable James D. Gion, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice.

Samuel G. Larson (argued) and Gregory C. Larson (on brief), Bismarck, ND,
plaintiff and appellee.

Thomas J. Burckhard, self-represented, Minot, ND, defendant and appellant.
                  Larson Latham Huettl v. Burckhard
                             No. 20220187

Jensen, Chief Justice.

[¶1] Thomas Burckhard appeals from a judgment entered following
consideration of Larson Latham Huettl LLP’s motion for summary judgment.
Burckhard argues there are genuine issues of material fact as to each of his
affirmative defenses and the district court abused its discretion in denying
Burckhard additional time to conduct discovery. We affirm.

                                       I

[¶2] Burckhard began employment with Larson Latham Huettl LLP
(hereinafter LLH) in January 2019. In May 2019 Burckhard signed an
employment contract, under which Burckhard agreed he would receive
compensation based upon projected hours billed. Any overpayment resulting
from a deficiency between the projected hours he would bill and the actual
hours he billed would be considered a debt owed by Burckhard to LLH. The
relevant portions of the contract are as follows:

           1. Salary. Associate will be paid a base salary pursuant to
     agreement with LLH and an incentive commission as shown on the
     attached Schedule A. Associate will be required to bill out the
     average number of hours per week as shown on Schedule A
     commensurate with the Associate’s base salary.

           ....

          3. Billed Hours Credited. Associate will be credited with
     hours that are billed out to clients that are approved by a partner
     of LLH. Associate may be credited for billable hours,
     administration hours, or client relation hours.

           It is possible, at the discretion of the partners of LLH, that
     some of Associate’s hours may be eliminated if it is determined
     that the hours are not appropriate to be billed and Associate will
     not receive any credit for these hours. If Associate is asked to do
     certain work for the firm that cannot be billed to a client, then this
     work will be billed as administration hours or client relations

                                       1
     hours. All administration and client relations hours must be pre-
     approved by a partner of LLH.

           ....

           6. Hours Billed Discrepancy. In the event that Associate bills
     out less than the base quota for a three month period, the
     Associate’s salary will be reduced appropriately at the discretion
     of LLH in order to make up for any discrepancy. Any discrepancy
     where the actual hours billed is less than the base hours required
     will be considered a debt owed by Associate to LLH at the end of
     the calendar year or at the termination of employment.

[¶3] Burckhard’s employment with LLH ended on August 15, 2020. At that
time, Burckhard was paid for 697.88 projected billable hours more than his
actual billable hours resulting in an overpayment of compensation in the
amount of $29,885.38. LLH filed suit alleging breach of contract seeking to
recover the excess compensation of $29,885.38, plus pre-judgment interest.

[¶4] LLH moved for summary judgment. The district court granted LLH’s
motion finding there were no issues of material fact and LLH was entitled to
judgment as a matter of law. Burckhard appealed, arguing summary judgment
was improper because the contract’s purpose was frustrated, the contract is
unconscionable, the contract fails for lack of consideration, LLH waived its
right to obtain payment, there is a genuine dispute as to the amount of the
damages, and the district court abused its discretion in denying Burckhard
additional time for discovery.

                                      II

[¶5] Burckhard argues the district court abused its discretion in denying him
additional time to complete discovery. Rule 56(f), N.D.R.Civ.P., allows for
additional discovery before summary judgment is granted and we have noted
the following:

     Should it appear from the affidavits of a party opposing the motion
     that the party cannot for reasons stated present by affidavit facts
     essential to justify the party’s opposition, the court may refuse the
     application for judgment or may order a continuance to permit

                                      2
      affidavits to be obtained or depositions to be taken or discovery to
      be had or may make such other order as is just.

Choice Fin. Grp. v. Schellpfeffer, 

, 

. A decision
to grant or deny a request under Rule 56(f) is within the discretion of the
district court and will not be reversed unless the court abuses its discretion.

 “A court abuses its discretion if it acts in an arbitrary, unreasonable, or
unconscionable manner, or if it misinterprets or misapplies the law.” 

(quoting Sec. Nat’l Bank v. Wald, 

 (N.D. 1995)).

[¶6] Burckhard did not move for additional time to conduct discovery, did not
reference Rule 56(f) in his response to the motion for summary judgment, and
conceded he did not dispute the discrepancy of 697.88 hours between his
projected hours and his actual billable hours as asserted by LLH. Burckhard
did allege in his response to the motion for summary judgment that he did not
have sufficient records to dispute how the actual billed hours were computed,
whether any hours he worked were excluded, or how much LLH collected from
clients.

[¶7] The district court addressed Burckhard’s assertion he needed to
complete discovery to determine how much LLH collected from clients for the
work he performed by finding the discovery was not relevant to determining
LLH’s damages, because how much LLH collected did not change the contract’s
calculation of damages based on the payment for projected hours exceeding
what Burckhard was owed for his actual billed hours. Even if LLH realized a
profit from Burckhard’s services, it could have realized a greater profit had he
met the billable hour requirement set in the contract.

[¶8] The district court addressed Burckhard’s assertion additional discovery
was needed to determine whether LLH properly credited him with hours he
had worked. The court found “Burckhard received notice every month of the
billable hours he made, so he did have notice he was deficient . . . [t]o prevent
summary judgment, Burckhard must do more than just say he thinks there
are issues with how LLH came up with the accounting.” Despite having access
to the monthly notices, Burckhard did not provide any evidence LLH failed to
credit him for billable hours.

                                       3
[¶9] We have previously affirmed a district court’s denial of a request for
additional discovery where the moving party failed to adequately explain what
information was sought, why it was not obtained beforehand, and how it would
preclude summary judgment. Swanson v. Larson, 

, 

. Additionally, N.D.R.Civ.P. 56(f) “requires that the party, preferably
by affidavit, identify with specificity what particular information is sought,
and explain how that information would preclude summary judgment and why
it has not previously been obtained.” Vicknair v. Phelps Dodge Indus., Inc.,

, ¶ 19, 

. Here, Burckhard did not reference the
applicable rule, failed to submit affidavits supporting his request for additional
discovery, failed to identify what information he would seek through discovery,
failed to explain why he was unable to obtain the information before the motion
for summary judgment, and failed to explain how the information would
preclude summary judgment. The court’s decision to deny the request for
additional discovery was not arbitrary, unreasonable, or rendered in an
unconscionable manner, and the court did not misinterpret or misapply the
law. We conclude the district court did not abuse its discretion by denying
Burckhard’s request for additional discovery.

                                      III

[¶10] The district court granted summary judgment in favor of LLH, awarding
LLH a recovery for the excess compensation and rejecting Burckhard’s
affirmative defenses. The standard for reviewing summary judgment is well
established.

      Summary judgment is a procedural device for the prompt
      resolution of a controversy on the merits without a trial if there
      are no genuine issues of material fact or inferences that can
      reasonably be drawn from undisputed facts, or if the only issues to
      be resolved are questions of law. A party moving for summary
      judgment has the burden of showing there are no genuine issues
      of material fact and the moving party is entitled to judgment as a
      matter of law. In determining whether summary judgment was
      appropriately granted, we must view the evidence in the light most
      favorable to the party opposing the motion, and that party will be
      given the benefit of all favorable inferences which can reasonably


                                        4
      be drawn from the record. On appeal, this Court decides whether
      the information available to the district court precluded the
      existence of a genuine issue of material fact and entitled the
      moving party to judgment as a matter of law. Whether the district
      court properly granted summary judgment is a question of law
      which we review de novo on the entire record.

Poppe v. Stockert, 

, 

 (citations omitted)
(quoting Johnson v. Shield, 

, 

).

                                      A

[¶11] Burckhard argues the employment contract’s purpose was frustrated
because a basic assumption of the contract was that LLH would provide
Burckhard with an adequate case load to meet his billable hour requirements.
Frustration of purpose occurs when “after a contract is made, a party’s
principal purpose is substantially frustrated without his fault by the
occurrence of an event the non-occurrence of which was a basic assumption on
which the contract was made.” WFND, LLC v. Fargo Marc, LLC, 

, 

 (quoting Restatement (Second) of Contracts § 285 (Tent.
Draft No. 9) (1974)); see also Restatement (Second) of Contracts § 265 (1981)
(adopted version). Determining whether there has been frustration of purpose
with regard to a contract requires consideration of “whether events have
occurred after formation of the contract to frustrate the principal purpose or
basic assumption of the contract and involves interpretation of the principal
purpose or basic assumption of the contract.” City of Harwood v. City of Reiles
Acres, 

, 

.

[¶12] Our cases reviewing an allegation of frustration of purpose in a contract
cite favorably to the requirements described in the Restatement. R & F Fin.
Serv., LLC v. Cudd Pressure Control, Inc., 

, 

(citing Restatement (Second) of Contracts § 265 comment (a) (1981)). Those
requirements include the following: 1) the purpose that is frustrated must have
been “a party’s principal purpose” in making the contract; 2) the purpose must
be “substantially frustrated” without fault by the party asserting the defense;
and 3) the non-occurrence of the frustrating event must have been “a basic
assumption on which the contract was made.” Id. at ¶¶ 19-20.

                                      5
[¶13] In his appellate brief, Burckhard does not identify or provide direct
discussion of the requirements recognized by this Court as necessary to
establish the defense of frustration of purpose. His brief summarily asserts the
parties assumed LLH would provide sufficient work for Burckhard to meet the
projected billable hours upon which his compensation was based, and there are
questions of fact regarding whether LLH made sufficient work available to
him. In the district court he argued he had no control over the work and clients
provided to him, the COVID-19 pandemic made it impossible to meet the
billable hour requirements, and LLH’s receipt of payroll assistance funds
related to pandemic relief supported his defense of frustration of purpose.

[¶14] The district court, in ruling on the motion for summary judgment, noted
the following:

      For frustration of purpose, a defendant must prove, through no
      fault of his own, something occurred which the non-occurrence of
      was a basic assumption of the contract. In this case, Burckhard
      would have to show 1) there was a basic assumption that LLH
      would provide him sufficient cases and clients to meet his billable
      hour requirements; 2) LLH failed to provide him the clients; and
      3) the lack of work was through no fault of his own. The Court finds
      Burckhard failed to provide any evidence that LLH agreed to
      provide him clients. The employment agreement does not state
      LLH would do so, but rather provided incentives for Burckhard to
      find his own work.

[¶15] In the context of considering the defense of frustration of purpose we
have noted the “object of interpreting and construing a contract is to ascertain
and give effect to the parties’ mutual intention at the time of contracting.”
Harwood, 

 (citing N.D.C.C. § 9-07-03; Fargo Foods, Inc. v.
Bernabucci, 

, 

). “The parties’ intention must
be ascertained from the writing alone, if possible.” 

 (citing N.D.C.C. § 9-07-
04; Bernabucci, at ¶ 13). “A contract must be construed as a whole to give effect
to each provision, if reasonably possible.” Id. (citing N.D.C.C. § 9-07-06;
Bernabucci, at ¶ 13). “The interpretation of a written contract to determine its
legal effect is a question of law.” Id. (citing Bernabucci, at ¶ 13). “Interpretation
of a contract is a question of law, and on appeal this Court independently


                                         6
examines and construes the contract to determine if the district court erred in
its interpretation.” Lario Oil & Gas Co. v. EOG Res., Inc., 

, 

 (quoting Irish Oil and Gas, Inc. v. Riemer, 

, 

).

[¶16] The primary purpose of the contract was to define an employment
relationship between LLH and Burckhard, including the terms of
compensation. Burckhard asserts the parties assumed LLH would provide
sufficient work for him to satisfy his billable hour requirement. In order to
prevail on his defense of frustration of purpose he must demonstrate a basic
assumption of the contract was that LLH would provide sufficient billable
hours to cover his prepaid compensation, that the lack of sufficient billable
hours led to a substantial frustration of the employment relationship as
defined by the contract, and the substantial frustration was not his fault.

[¶17] The contract provides no indication LLH had an obligation to provide
Burckhard with sufficient work to satisfy his billing requirement. To the
contrary, the inclusion of Section 6 in the employment agreement anticipated
there could be instances where Burckhard would not reach his required
billable hours. The contract also provided incentives for Burckhard to find his
own work. The district court noted that Burckhard had failed to provide any
evidence LLH had an obligation to provide sufficient work to prevent a
deficiency between his prepaid compensation and billable hours. Even if there
was an assumption LLH would provide Burckhard with sufficient work to meet
his billable hour requirement, and we assume LLH failed to do so, the primary
purpose of defining the parties’ employment relationship remained intact with
the amount of compensation adjusted accordingly; there was not a substantial
frustration of purpose. Based on the record in this case, we conclude the district
court did not err in determining there were no questions of fact regarding the
defense of frustration of purpose.

                                        B

[¶18] Burckhard argues the employment agreement was unconscionable and
should not be enforced.



                                        7
            The court employs a two-prong framework to determine
      whether a contractual provision is unconscionable and considers
      both     procedural       unconscionability    and     substantive
      unconscionability. Strand [v. U.S. Bank Nat’l Ass’n ND], 

, 

. Procedural unconscionability relates to
      procedural deficiencies in the contract formation process,
      including refusal to bargain over contract terms. Id. at ¶ 10.
      Substantive unconscionability relates to the terms of the contract
      and whether the terms are unreasonably favorable to the more
      powerful party. Id. “[A] party alleging unconscionability must
      demonstrate some quantum of both procedural and substantive
      unconscionability, and courts are to balance the various factors,
      viewed in totality, to determine whether the particular contractual
      provision is ‘so one-sided as to be unconscionable.’” Id. at ¶
      12 (quoting Construction Assocs., [Inc. v. Fargo Water Equip. Co.,]
      446 N.W.2d [237,] 241 [(N.D. 1989)]).

Thompson v. Lithia N.D. Acquisition Corp. #1, 

, 

. The question of unconscionability is one of law, but factual findings by the
trial court are reviewed under the clearly erroneous standard. Terry v. Terry,

, 

.

[¶19] “Procedural unconscionability focuses upon formation of the contract and
fairness of the bargaining process, including factors such as inequality of
bargaining power, oppression, and unfair surprise.” Thompson, 

 (quoting Strand, 

). “Substantive unconscionability
focuses on the harshness or one-sidedness of the contractual provision.” Id. at
¶ 21.

[¶20] Burckhard argues the contract was procedurally unconscionable because
he was asked to sign the employment agreement several months into his
employment and he did not feel that he could negotiate the terms of the
agreement. Burckhard argues the employment agreement is substantively
unconscionable because the agreement provides LLH the sole control to decide
what hours will be credited to the associate’s required billable hours and LLH
was in control of the client base. The district court addressed these assertions
as follows:



                                       8
      The Court finds Burckhard has failed to prove the employment
      agreement was unconscionable. Both parties received benefits and
      had obligations under the contract. Burckhard was provided with
      a reasonable salary and benefits. Having a billable hour
      requirement as is present in this agreement was not
      unconscionable. Further, the Court finds there was no procedural
      unconscionability. Although LLH drafted the agreement, there is
      no evidence Burckhard objected to anything in the employment
      agreement when he signed it. Burckhard is a well-educated man
      with training in contracts from law school. The Court finds the
      employment agreement was not so one-sided or harsh to be
      unconscionable.

[¶21] After a review of the record we conclude the district court did not err in
determining the parties’ employment contract was not unconscionable.

                                       C

[¶22] Burckhard argues the employment contract is void for lack of
consideration because he was asked to sign the contract months after he
started working for LLH and received nothing in exchange and his billing rate
was increased and he received nothing in exchange. Consideration in a contract
consists of a benefit conferred or a detriment received. Frontier Fiscal Servs.,
LLC v. Pinky’s Aggregates, Inc., 

, ¶ 19, 

. Section 9-
05-10, N.D.C.C., provides “[a] written instrument is presumptive evidence of a
consideration.”

[¶23] Burckhard and LLH had a written employment contract where
Burckhard received compensation based on projected hours, subject to his
subsequent ability to meet his billable hour requirement. The employment
contract stated its purpose was to memorialize the parties’ agreement, not
create a new agreement. Burckhard received a benefit, his compensation, in
exchange for providing work on behalf of LLH. The district court did not err in
dismissing Burckhard’s lack of consideration defense.




                                       9
                                       D

[¶24] Burckhard argues LLH waived its right to enforce Section 6 of the
employment agreement because LLH did not enforce the “debt owed” until
after the employment agreement was terminated. “Waiver is a voluntary and
intentional relinquishment of a known right or privilege and is ordinarily a
question of fact.” Holverson v. Lundberg, 

, 

.
Waiver can be established by an express agreement or by inference from acts
or conduct of the parties. Pfeifle v. Tanabe, 

, 

.
If circumstances of an alleged waiver are admitted or clearly established and
reasonable persons can draw only one conclusion from those circumstances,
whether there was a waiver is a question of law. 

 “Waiver may be found from
an unexplained delay in enforcing contractual rights or accepting performance
different than called for by the contract.” 

[¶25] The contract permits LLH to seek the “debt owed” by an associate at the
end of each calendar year or upon termination of employment. Section 6
provides:

             6. Hours Billed Discrepancy. In the event that Associate bills
      out less than the base quota for a three month period, the
      Associate’s salary will be reduced appropriately at the discretion
      of LLH in order to make up for any discrepancy. Any discrepancy
      where the actual hours billed is less than the base hours required
      will be considered to be a debt owed by Associate to LLH at the end
      of the calendar year or at the termination of employment.

(Emphasis added.) LLH had the discretion to seek a recovery of the debt owed
at the end of the calendar year or at the termination of employment. LLH chose
to seek the debt owed after termination of Burckhard’s employment. The
district court did not err in dismissing Burckhard’s waiver defense.

                                       E

[¶26] Burckhard argues there are genuine issues of material fact as to the
amount of damages. A party resisting summary judgment may not simply rely
upon the pleadings or upon unsupported, conclusory allegations. Riemers v.
Omdahl, 

, 

.

                                       10
            A party resisting a motion for summary judgment has the
      responsibility of presenting competent admissible evidence by
      affidavit or other comparable means, and, if appropriate, drawing
      the court’s attention to evidence in the record . . . raising a material
      factual issue, or from which the court may draw an inference
      creating a material factual issue.

First Nat. Bank of Hettinger v. Clark, 

 (N.D. 1983)
(citations omitted).

[¶27] Burckhard argues that if “[v]iewed in a light most favorable to the party
resisting Summary Judgment, the discrepancy as to the total damages, if any,
would create a factual dispute to be determined by a trier of fact, and as much
was alleged in the response to the motion.” In his affidavit, Burckhard alleges
the amount of damages is incorrect because LLH was in sole control of whether
the hours reported by Burckhard would be credited as billable hours. However,
under the terms of the contract, LLH had the sole discretion to determine
which hours would be credited to Burckhard’s required billable hours.
Moreover, Burckhard provided the district court with mere conclusory
statements that he disagrees with the amount of damages without any
explanation regarding how he reaches that conclusion. He provided no
evidence that the amount of hours he actually billed was improperly
calculated. Burckhard failed to provide sufficient evidence to show there is a
genuine dispute as to a material fact regarding the calculation of LLH’s
damages.

                                        IV

[¶28] Burckhard failed to prove there was a genuine dispute as to any material
fact. The district court properly granted summary judgment in favor of LLH
and properly dismissed all of Burckhard’s affirmative defenses. We affirm.

[¶29] Jon J. Jensen, C.J.
      Gerald W. VandeWalle
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte


                                        11