IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2021 ND 216

Leland Swanson, Plaintiff and Appellant

 v.

Mark E. Larson and 

Mark E. Larson, CPA, PLLC, Defendants and Appellees

No. 20210125

Appeal from the District Court of Cass County, East Central Judicial District, 

the Honorable Susan L. Bailey, Judge.

AFFIRMED.

Opinion of the Court by Crothers, Justice.

Ryan James (argued), Pittsburgh, PA, and Barton J. Cahill (appeared), 

Moorhead, MN, for plaintiff and appellant.

Michael T. Andrews, Fargo, ND, for defendants and appellees. 

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

DECEMBER 9, 2021 

STATE OF NORTH DAKOTA
1

Swanson v. Larson

No. 20210125

Crothers, Justice.

[¶1] Leland Swanson appeals from a judgment dismissing his breach of 

contract and professional negligence claims against Mark Larson and Mark 

Larson, CPA, PLLC. Swanson argues the district court prematurely and 

improperly granted summary judgment in Larson’s favor. We affirm.

I

[¶2] In 2017, Swanson hired Larson to provide a forensic accounting of 

various entities owned by Swanson. Larson provided the accounting services 

in anticipation of litigation against Swanson’s former business partner. The 

engagement agreement stated Larson was retained as a consulting expert and 

would provide expert witness testimony upon request.

[¶3] During discovery in subsequent litigation against Swanson’s former 

business partner, Larson was identified as an expert witness in a July 2018 

response to interrogatories. Larson ended his engagement in January 2019 by 

providing written notice to Swanson’s attorney. After Larson’s termination, 

Swanson retained another expert to testify in the pending litigation.

[¶4] In January 2020, Swanson sued Larson for breach of contract and 

professional negligence. Swanson alleged Larson breached their agreement

and committed professional negligence by terminating his services and 

refusing to testify as an expert witness in the litigation against Swanson’s 

former business partner.

[¶5] Larson moved for summary judgment, arguing the agreement did not 

require him to testify at trial. He also argued the agreement was terminable 

at will by either party, and he did not breach the agreement by terminating his 

services. Swanson resisted the motion and requested more time for discovery.

[¶6] In December 2020, the district court denied Swanson’s request for 

additional discovery and granted Larson’s summary judgment motion, 
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concluding the agreement only required Larson to provide consulting services

for Swanson. The court concluded Larson did not breach the agreement by 

terminating his services in January 2019 because the agreement did not have 

a fixed term or expiration date. The court also concluded Swanson’s 

professional negligence claim against Larson failed. The court entered 

judgment dismissing Swanson’s lawsuit.

II

[¶7] This Court’s standard of review for summary judgments 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 

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.”

Dwyer v. Sell, 2021 ND 139, ¶ 6, 963 N.W.2d 292 (quoting Krebsbach v. Trinity 

Hosps., Inc., 2020 ND 24, ¶ 7, 938 N.W.2d 133).

[¶8] “A party’s request for additional time for discovery under N.D.R.Civ.P. 

56(f) is within the district court’s sound discretion.” PLS Servs., LLC 

v. Valueplus Consulting, LLC, 2021 ND 99, ¶ 22, 960 N.W.2d 780. A court 

abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable 

manner, it misinterprets or misapplies the law, or its decision is not the 
3

product of a rational mental process leading to a reasoned 

determination. Ryberg v. Landsiedel, 2021 ND 56, ¶ 21, 956 N.W.2d 749.

III

[¶9] Swanson argues the district court prematurely granted summary 

judgment. In its December 2020 order, the court addressed 

Swanson’s N.D.R.Civ.P. 56(f) request for additional discovery:

“This action commenced on January 28, 2020. The parties 

have had ample time to conduct discovery. James’ affidavit asserts 

that Swanson would request information from Larson on the scope 

of the Engagement Agreement, facts regarding the termination of 

the Engagement Agreement, and facts regarding Larson’s fees. In 

short: James has failed to adequately explain the specific 

information sought, how the information would have precluded 

summary judgment, or why the information had not been 

previously obtained. In any event, because the Engagement 

Agreement is not ambiguous, its interpretation is limited to its 

four corners, and extrinsic/parole [sic] evidence is inadmissible to 

alter, change, or explain the contract contrary to its plain terms.

“The Court declines to order additional time for discovery 

before deciding the motion for summary judgment. Swanson 

cannot establish a claim for breach of contract under the plain, 

unambiguous terms of the Engagement Agreement.” 

[¶10] On appeal, Swanson does not address how the district court abused its 

discretion by denying Swanson’s request for additional discovery. As the court 

explained, Swanson failed to describe what information was sought and how it 

might preclude summary judgment. The court did not abuse its discretion by 

denying Swanson’s request for additional discovery.

IV

[¶11] Swanson argues the district court erred in its interpretation of the 

engagement agreement. Swanson asserts the agreement was breached by

Larson terminating the agreement and refusing to testify after being disclosed 

as a testifying expert. Swanson also contends the agreement was effective for
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the duration of the litigation, and Larson breached the agreement by 

terminating his services before the litigation concluded.

A

[¶12] Chapter 9-07, N.D.C.C., governs the interpretation of contracts. The 

parties’ intent is ascertained from the writing alone if possible. N.D.C.C. § 9-

07-04. “The language of a contract is to govern its interpretation if the language 

is clear and explicit and does not involve an absurdity.” N.D.C.C. § 9-07-02.

“Matters of contractual interpretation present questions of law that are fully 

reviewable on appeal.” Bismarck Fin. Grp., LLC v. Caldwell, 2020 ND 207, ¶ 9, 

950 N.W.2d 155.

[¶13] The engagement agreement provides:

“You have requested, as a consulting expert witness in anticipation 

of litigation, me to conduct a forensic examination of various 

entities owned by Lee Swanson involving examination of Mr. 

Swanson’s various companies’ books & records, including financial 

statements and income returns for the purposes of determining 

and communicating the result of my examination and my opinions 

with respect to the economic damages in the related litigation. As 

requested I am also available to provide expert witness testimony 

but understand I will commence this engagement as a consulting 

expert and be available for testimony if so requested.

“The engagement objective is to perform as a ‘finder [of] facts’ and 

express various opinions for the ‘trier of facts.’” 

[¶14] The district court concluded Larson did not breach the agreement by 

terminating his services in January 2019 and refusing to provide opinion

testimony:

“Larson was only obligated to provide consulting services, that is, 

conduct a forensic examination and communicate the results of 

that examination, under the terms of the Engagement Agreement. 

Larson could also possibly testify for Swanson, but only at 

Swanson’s later request. The only reasonable interpretation of the 

Engagement Agreement between Swanson and Larson was for 
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consulting services of an indefinite duration, and the Engagement 

Agreement was terminable at will, by either party, as a matter of 

law. The Engagement Agreement is unambiguous, and extrinsic or 

parole [sic] evidence is not admissible to alter, vary, explain or 

change the contract.”

[¶15] The engagement agreement required Swanson to request Larson to 

testify as an expert. The record does not show Swanson specifically requested

Larson to testify. However, in a July 2018 response to interrogatories, Swanson 

named Larson as an “expert witness you have consulted or retained in relation 

to this action.” Swanson’s response to interrogatories also mentioned Larson’s

attached affidavit “which describes with specificity the facts and opinions to 

which he will testify.” Larson’s April 2018 affidavit offers his preliminary 

opinions, but does not mention testifying at trial. 

[¶16] Viewing the evidence in a light most favorable to Swanson, the disclosure 

of Larson as an expert witness and Larson’s affidavit may raise a genuine issue 

of material fact as to whether Swanson requested Larson to testify under the 

engagement agreement. However, even assuming there was a request to 

testify, Larson did not breach the agreement by terminating his accounting 

services in January 2019 because the agreement was terminable at will by 

either party. 

B

[¶17] Swanson claims the engagement agreement had a definite duration. He 

argues the agreement remained effective for the duration of the litigation, and 

Larson’s termination before the litigation concluded was a material breach of 

the agreement. Swanson asserts the agreement specified that Larson could 

terminate only on Swanson’s failure to meet his payment obligations.

[¶18] “This court has held that where parties enter into an agreement by the 

terms of which one party is to perform services for the other, and the contract 

neither expressly nor impliedly fixes the time of its duration, it may be 

terminated by either party by the giving of notice to the other.” N. Am. Pump 

Corp. v. Clay Equip. Corp., 199 N.W.2d 888, 894 (N.D. 1972) (citing Myra 

Found. v. Harvey, 100 N.W.2d 435, 437 (N.D. 1959)). In this state, the “general 
6

rule establishes that [an] [a]greement’s silence as to its duration is, without 

more, an unambiguous declaration that it is terminable at will by either party.” 

Olander v. State Farm Mut. Auto. Ins. Co., 317 F.3d 807, 810-11 (8th Cir. 2003).

[¶19] The district court concluded “[t]he Engagement Agreement does not fix 

a date or set a duration on which it will terminate.” The court concluded that 

under the plain language of the agreement, “Larson only agreed to conduct a 

forensic examination of various entities . . . for the purposes of determining 

and communicating the result of my examination and my opinions with respect 

to the economic damages in the related litigation.” The court further concluded:

“At most, one could imply a term for so long as it took Larson to 

complete the defined object of the Engagement Agreement, that is, 

so long as it took Larson to conduct a forensic examination and 

communicate the result of his examination and opinions. Larson 

did complete the forensic examination and communicated the 

results and his opinions to Swanson prior to terminating the 

Engagement Agreement. Any implied term was met.”

[¶20] We agree with the district court. While the engagement agreement

allows Larson to terminate for “delinquent payment,” the agreement does not 

“expressly . . . [fix] the time of its duration.” N. Am. Pump Corp., 199 N.W.2d 

at 894. The agreement states Larson was retained “in anticipation of 

litigation,” but it does not specify Larson was retained for the duration of the 

litigation. The agreement cannot be interpreted to say Larson was employed 

for the entirety of the litigation. Nor could the agreement be read to require 

Swanson to use Larson for the duration of the litigation if Larson’s opinions 

would have been unfavorable or unhelpful to Swanson. The court did not err 

in concluding Swanson failed to establish a breach of contract claim under the 

plain language of the engagement agreement. 

V

[¶21] Swanson claims Larson committed professional negligence by failing to 

render expert witness services under the proper standard of care.

[¶22] Professional negligence, or malpractice, is:
7

“[T]he failure of one rendering professional services to exercise the 

degree of skill and learning commonly applied under all the 

circumstances in the community by the average prudent reputable 

member of the profession, which results in injury, loss, or damage 

to the recipient of those services or to those entitled to rely upon 

them.”

Krebsbach, 2020 ND 24, ¶ 10. To establish a professional negligence claim, a 

plaintiff must show the professional has a duty to protect another from injury, 

a breach of the duty and a resulting injury proximately caused by the breach 

of duty. Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Eng’g, 

P.C., 419 N.W.2d 920, 921-22 (N.D. 1988).

[¶23] The district court dismissed Swanson’s professional negligence 

claim, concluding Swanson’s complaint did not allege Larson breached a duty 

by providing substandard forensic accounting services that caused Swanson to 

suffer damages. The court concluded Larson’s termination of the engagement 

agreement was “not conduct sufficient to make out a claim of professional 

negligence as a matter of law.”

[¶24] A breach of contract does not, by itself, provide a basis for a negligence 

action. Dakota Grain Co., Inc. v. Ehrmantrout, 502 N.W.2d 234, 236 (N.D. 

1993). Conduct constituting a breach of contract does not subject the defendant 

to an action in tort for negligence, unless the defendant’s conduct also 

establishes a breach of an independent duty that does not arise from the 

contract. Id. at 236-37; see also D & A Dev. Co. v. Butler, 357 N.W.2d 156, 158 

(Minn. Ct. App. 1984) (to prevail on a negligence claim, a plaintiff must prove 

as one element the defendant breached a duty imposed by law, not merely one 

imposed by contract).

[¶25] Swanson’s complaint alleged Larson committed professional negligence 

by:

“(a) unilaterally terminating the Engagement Agreement and 

abandoning Swanson; (b) refusing to provide further litigation 

support services to Swanson; (c) refusing to either meet or further 

communicate with Swanson and/or his counsel regarding the 
8

further provision of litigation support services and the Litigation; 

and (d) refusing to complete performance of the agreed upon 

litigation support services, including, without limitation, by 

testifying at trial in the Litigation.”

[¶26] Swanson’s allegations against Larson arise from the duties imposed by 

the engagement agreement. As the district court concluded, Swanson did not 

claim Larson breached an independent professional duty imposed by law by

providing substandard forensic accounting services. The district court properly

dismissed Swanson’s professional negligence claim against Larson.

VI

[¶27] Swanson’s remaining arguments are not necessary to our decision or are 

without merit. The judgment is affirmed.

[¶28] Daniel J. Crothers, Acting C.J. 

Gerald W. VandeWalle 

Lisa Fair McEvers 

Jerod E. Tufte

William A. Neumann, S.J.

[¶29] The Honorable William A. Neumann, S.J., sitting in place of Jensen, C.J., 

disqualified.