Filed 5/7/20 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2020 ND 89

Roger Feltman, Plaintiff and Appellant

and 

TRRP, LLC, Plaintiff

v.

Daniel Gaustad and Pearson, Christensen 

& Clapp, PLLP, Defendants and Appellees

No. 20190247

Appeal from the District Court of Grand Forks County, Northeast Central

Judicial District, the Honorable Stacy J. Louser, Judge.

AFFIRMED.

Opinion of the Court by Crothers, Justice.

DeWayne A. Johnston, Grand Forks, ND, for plaintiff and appellant.

Peter W. Zuger (argued) and Ronald H. McLean (on brief), Fargo, ND, for 

defendants and appellees.
1

Feltman v. Gaustad

No. 20190247

Crothers, Justice.

[¶1] Roger Feltman and TRRP LLC (Feltman) appeal a district court 

judgment dismissing their malpractice lawsuit against attorney Daniel 

Gaustad and the Pearson, Christensen & Clapp law firm (Gaustad). The court 

concluded summary judgment was appropriate because Feltman failed to 

establish a factual dispute as to the elements of legal malpractice. We affirm.

I

[¶2] Feltman retained Gaustad to represent him in matters relating to 

numerous loans with Washington Mutual Bank. In 2007, Feltman sued the 

bank in state court and the bank removed the case to federal district court. 

After Feltman sued, the bank was placed into receivership and the Federal 

Deposit Insurance Corporation (FDIC) was appointed the bank’s receiver. JP 

Morgan Chase later acquired the bank’s assets and became a party to 

Feltman’s lawsuit.

[¶3] In March 2012, Feltman and Chase executed a settlement agreement 

covering eight loans Feltman had with Washington Mutual Bank. In April 

2012, Gaustad, on Feltman’s behalf, filed a stipulation to dismiss the federal

lawsuit.

[¶4] In July 2015, Feltman brought a legal malpractice lawsuit against 

Gaustad. Feltman alleged Gaustad breached his fiduciary duties by providing 

improper legal advice and failing to act in Feltman’s best interests. Feltman 

claimed Gaustad acted negligently because he dismissed the federal lawsuit 

against Chase before Chase satisfied the terms of the settlement agreement.

[¶5] Gaustad and the law firm denied the allegations, claiming Feltman was 

appropriately represented. Both parties moved for summary judgment. 

Gaustad argued the statute of limitations barred Feltman’s case, and Gaustad 
2

had no duty to enforce the settlement agreement that Feltman voluntarily 

agreed to.

[¶6] The district court granted Gaustad’s motion, concluding Feltman did not 

establish that he suffered damages or that Gaustad breached a duty when he 

dismissed the federal lawsuit. The court dismissed Feltman’s lawsuit against 

Gaustad.

II

[¶7] Feltman argues the district court erred by granting Gaustad’s motion for 

summary judgment. 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.”

Pennington v. Cont’l Res., Inc., 2019 ND 228, ¶ 6, 932 N.W.2d 897 (quoting 

Horob v. Zavanna, LLC, 2016 ND 168, ¶ 8, 883 N.W.2d 855).

[¶8] The elements of a claim against an attorney for legal malpractice are: “1) 

the existence of an attorney-client relationship, 2) a duty by the attorney to the 

client, 3) a breach of that duty by the attorney, and 4) damages to the client 
3

proximately caused by the breach of duty.” Davis v. Enget, 2010 ND 34, ¶ 7, 

779 N.W.2d 126.

III

[¶9] Feltman claims Gaustad was negligent when he dismissed the federal 

lawsuit before Chase satisfied all terms of the settlement agreement. Feltman 

argues that since Gaustad dismissed the lawsuit before Chase satisfied the 

terms of the agreement, Chase was relieved from complying with the 

agreement and Feltman lacked a remedy against Chase.

[¶10] The district court concluded:

“One of the elements of legal malpractice is damages. 

Feltman has not established any duty by Gaustad that was 

breached when the federal case was dismissed. The dismissal 

‘with prejudice’ did not leave Feltman without a remedy, because 

Feltman had six years after the Agreement was executed to file an 

action to have the Settlement Agreement enforced.

. . . .

“As determined in Section II of this Order, Feltman has not 

established one of the elements of legal malpractice, i.e., that 

Feltman suffered damages when Gaustad breached a duty and 

‘prematurely’ dismissed the federal lawsuit, because, as a matter 

of law, Feltman had six years within which to sue Chase for 

enforcement of the Settlement Agreement and dismissal did not 

foreclose that remedy.

“‘Rule 56 requires the entry of summary judgment against a 

party who fails to establish the existence of a material factual 

dispute as to an essential element of the claim and on which the 

party will bear the burden of proof at trial.’ Barbie v. Minko Const., 

Inc., 2009 ND 99, ¶ 6, 766 N.W.2d 458. Because Feltman has failed 

to establish a factual dispute as to an element of legal malpractice, 

summary judgment dismissing Feltman’s claims is appropriate.”
4

[¶11] Paragraph 8 of the settlement agreement, “Dismissal of Federal 

Litigation,” provided that, “Within 10 days of the completion of the items 

delineated in Paragraphs 2-6 above, the Feltmans shall cause the Federal 

Litigation to be dismissed, with prejudice.” Gaustad executed the stipulation 

to dismiss on April 12, 2012, and the court dismissed the federal lawsuit on 

April 13, 2012. 

[¶12] Feltman argues Chase failed to satisfy certain terms contained in 

paragraphs 2-6 of the settlement agreement before Gaustad dismissed the 

federal lawsuit. Specifically, Feltman claims Chase did not comply with 

paragraph 4 relating to escrow balances associated with the loans. Paragraph 

4 stated Chase would forgive all negative escrow balances and would refund 

all positive escrow balances. Even assuming without deciding Gaustad 

breached a duty when he dismissed the lawsuit before Chase satisfied

paragraphs 2-6 of the settlement agreement, Feltman provided no evidence of

damages that were proximately caused by the breach.

[¶13] Feltman asserts his damages are that he lacks a remedy against Chase 

when Gaustad dismissed the federal lawsuit before Chase satisfied paragraphs 

2-6 of the settlement agreement. We disagree.

[¶14] The settlement agreement does not state it becomes valid and enforceable

upon Chase’s satisfaction of paragraphs 2-6. Paragraph 22 of the agreement 

states the terms and conditions are “contractual in nature,” and “when fully 

executed, shall constitute a legal, valid and binding obligation of the parties, 

enforceable in accordance with its terms.” The agreement became valid and 

enforceable when Feltman, Chase and the FDIC executed it in March 2012.

[¶15] Paragraph 10 of the settlement agreement, “Release by Feltmans of 

Chase,” states in part:

“Upon full execution of this Settlement Agreement, the 

Feltmans release and forever discharge Chase of and from any and 

all claims, demands, actions, causes of action, liabilities, [and] 

suits . . . with respect to any and all matters relating to the Loans 

and the Properties as of the date of this Settlement Agreement.”
5

Paragraph 17, titled “Non-Litigation Covenant,” provides:

“Except to enforce any obligation, term or condition of this 

Settlement Agreement the parties agree that none of the parties 

shall in any manner challenge this Settlement Agreement. . . .

Notwithstanding the mutual releases found at Paragraphs 10, 11, 

12 and 13 nothing in this Settlement Agreement is, nor shall it be 

deemed to be, a release of the obligations, terms and conditions of 

this Settlement Agreement, and nothing herein shall in any 

manner limit or otherwise preclude the parties from commencing 

an action solely for the purpose of enforcing any obligation, term 

or condition of this Settlement Agreement.”

[¶16] Paragraph 22 provides the settlement agreement is valid and 

enforceable on execution. Under paragraph 10, Feltman released all of his 

original claims against Chase when he executed the agreement on March 22, 

2012. Paragraph 17 plainly states that regardless of the release, Feltman may 

bring an “action solely for the purpose of enforcing any obligation, term or 

condition of [the agreement].” Although paragraph 8 required Chase to satisfy 

certain conditions before dismissal of the federal lawsuit, the failure to satisfy 

those conditions did not prohibit Feltman from bringing an action against 

Chase for noncompliance with the agreement following dismissal of the

lawsuit. Additionally, Feltman has not claimed enforcement of the settlement 

agreement would be more costly than his original cost of pursuing remedies 

against Chase, or that enforcing the settlement agreement left him with an 

inferior remedy against Chase.

[¶17] Feltman has not established that Gaustad’s dismissal of the federal 

lawsuit before Chase satisfied paragraphs 2-6 of the settlement agreement 

foreclosed an action against Chase for breaching the agreement. Feltman 

cannot show Gaustad’s alleged breach of duty was the proximate cause of 

damages resulting from Chase’s noncompliance with the agreement. The 

district court did not err in granting summary judgment dismissing Feltman’s 

lawsuit.
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IV

[¶18] Feltman’s remaining arguments have been considered and are either 

without merit or not necessary to our decision. The judgment is affirmed.

[¶19] Daniel J. Crothers

Gerald W. VandeWalle

Bruce B. Haskell, S.J.

Dale V. Sandstrom, S.J.

Jerod E. Tufte

[¶20] The Honorable Bruce B. Haskell, S.J., sitting in place of McEvers, J., 

disqualified.

[¶21] The Honorable Dale V. Sandstrom, S.J., sitting in place of Jensen, C.J., 

disqualified.