Filed 5/16/19 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2019 ND 144

Willis G. Swenson, and Plaintiffs, Appellants, 

Dayna L. Johnson, and Cross-Appellees 

v.

Kyle Mahlum, Defendant, Third-Party Plaintiff,

 Appellee, and Cross-Appellant

v.

Carol Hodgerson, Gerard Swenson, Lee Alan

Swenson, and Mary Ann Vig, in their individual

capacities and as heirs to the estate of 

Junietta Swenson, Third-Party Defendants and Appellees

No. 20180345

Appeal from the District Court of Burke County, North Central Judicial

District, the Honorable Gary H. Lee, Judge.

REVERSED AND REMANDED.

Opinion of the Court by Crothers, Justice.

Taylor D. Olson (argued) and Peter H. Furuseth (on brief), Williston, ND, for

plaintiffs, appellants, and cross-appellees Willis G. Swenson and Dayna L. Johnson.

Ryan G. Quarne, Minot, ND, for defendant, third-party plaintiff, appellee, and

cross-appellant Kyle Mahlum.

Elizabeth L. Pendlay, Crosby, ND, for third-party defendants and appellees

Carol Hodgerson, Gerard Swenson, Lee Alan Swenson and Mary Ann Vig. 
Swenson v. Mahlum

No. 20180345

Crothers, Justice.

[¶1] Willis Swenson appeals and Kyle Mahlum cross-appeals from an order

dismissing Willis Swenson’s claims against Mahlum and Mahlum’s claims against

Carol Hodgerson, Gerard Swenson, Lee Alan Swenson, and Mary Ann Vig (“thirdparty defendants”). Willis Swenson argues the district court erred in dismissing his

breach of contract claim against Mahlum. We reverse the order and judgment and

remand.

I

[¶2] Robert and Junietta Swenson owned real property in Burke County, North

Dakota described as:

Township 163 North, Range 89 West

Section 28: NW1/4

Township 163 North, Range 88 West

Section 19: NE1/4

Section 29: NE1/4

Section 31: E1/2NE1/4

Section 32: SE1/4

Willis Swenson and the third-party defendants are the children of Robert and Junietta

Swenson. In 2004, Robert and Junietta Swenson conveyed the property to their

children as joint tenants, reserving a life estate for themselves. In 2005, Robert

Swenson died and Junietta Swenson became the sole life tenant. 

[¶3] In 2008, Junietta Swenson leased the property to Willis Swenson. Willis

Swenson agreed to rental payments of $20,016 per year, due in installments of

$10,008 on March 15 and October 15. 

[¶4] In December 2009, Willis Swenson leased the property to Mahlum for

$31,022.50 per year, due on March 1. The Swenson-Mahlum lease became effective

in March 2010 and stated it would expire in October 2019. The lease also stated, “In

the event of Junietta W. Swensons death, payments shall be made as follows. Semi

1
annual payments of $10,008 (ten thousand, eight and 00/100) on March 15 and

October 15 to Swenson farm land trust. A single payment to Willis G Swenson of

$11006.50 (Eleven thousand, six and 50/100) on March 1st of each year.” 

[¶5] In November 2011, Willis Swenson signed a new lease with Junietta Swenson. 

The lease required Willis Swenson to pay $10,008 on March 15 and October 15 of

each year. The lease began in 2012 and stated it would expire in 2022. The lease

permitted Willis Swenson to assign or sublet the property to any person.

[¶6] In July 2012, Lee Alan Swenson was appointed guardian and conservator for

Junietta Swenson. In January 2013, Lee Alan Swenson, as guardian and conservator,

leased the same property to Mahlum that Willis Swenson already was leasing to

Mahlum in the December 2009 lease. The new lease required Mahlum to pay Junietta

Swenson $31,122.50 each year on March 1. Junietta Swenson died on November 20,

2013. Mary Vig, as personal representative of Junietta Swenson’s estate, informed

Mahlum that future rental payments should be split and made to each of Junietta

Swenson’s children in equal amounts. 

[¶7] In January 2017, Willis Swenson and his daughter, Dayna Johnson, sued

Mahlum for unpaid rent. Willis Swenson alleged Mahlum was required to pay him

$31,022.50 each year under the 2009 lease, and Mahlum failed to pay any rent in

2013, 2014, 2015, and 2016. Willis Swenson requested $124,090 in damages.

[¶8] Mahlum answered and filed a third-party complaint, suing the third-party

defendants, in their individual capacities and as heirs to the Estate of Junietta

Swenson, for unjust enrichment. He alleged in 2013 he paid $31,122.50 to Junietta

Swenson under the terms of the 2013 lease. He also alleged in 2014, 2015, and 2016

he paid $31,122.50 in rent to each of Junietta Swenson’s five children. He claimed

that the third-party defendants have been unjustly enriched, and that the third-party

defendants be ordered to pay Mahlum any amounts the court finds he owes Willis

Swenson if Willis Swenson obtains a judgment against him.

[¶9] After a bench trial, the district court dismissed Willis Swenson and Dayna

Johnson’s claims against Mahlum with prejudice and dismissed Mahlum’s claims

2
against the third-party defendants without prejudice. The court dismissed Johnson’s

claims, finding she had no interest in the property, no interest in the lease, she could

not assert Willis Swenson’s rights, and therefore she had no standing. The court

found Willis Swenson’s alleged damages were limited because he was required to pay

Junietta Swenson $20,016 per year for rent on the property and therefore the most he

would ever receive from Mahlum under the lease was $11,006.50, and the maximum

amount of his recovery was $44,026 if he recovered any damages. 

[¶10] The court dismissed Willis Swenson’s claims to any rent for 2014 through

2016, finding Junietta Swenson’s 2011 lease to Willis Swenson terminated upon her

death, Willis Swenson no longer had a right to sublease the property, and therefore

the lease between Willis Swenson and Mahlum also terminated upon Junietta

Swenson’s death in November 2013. The court also dismissed Willis Swenson’s

claims for payment of the 2013 rent. The court found Lee Alan Swenson advised

Mahlum in 2013 that all future rental payments should be made directly to Junietta

Swenson, Mahlum paid the 2013 rent to Junietta Swenson, and Mahlum is protected

from any claim by N.D.C.C. § 30.1-29-23 because he acted in good faith with Lee

Alan Swenson, as guardian and conservator.

II

[¶11] The third-party defendants argue the appeal should be dismissed because

Mahlum’s claims were dismissed without prejudice, the district court did not certify

the judgment as final under N.D.R.Civ.P. 54(b), and the judgment is not final and

appealable. 

[¶12] The right to appeal is governed by statute, and the appeal must be dismissed

if there is no statutory basis to hear the appeal. James Vault & Precast Co. v. B&B

Hot Oil Serv., Inc., 2018 ND 63, ¶ 8, 908 N.W.2d 108. A party may appeal from a

judgment or order in a civil action under N.D.C.C. § 28-27-01. Only judgments and

decrees which constitute a final judgment and orders specified by statute are

appealable. James Vault & Precast, at ¶ 8. 

3
[¶13] A dismissal without prejudice generally is not appealable. Conrad v.

Wilkinson, 2017 ND 212, ¶ 5, 901 N.W.2d 348. “This Court has noted that, because

either side may commence another action after a civil complaint is dismissed without

prejudice, the order dismissing the action neither ‘determines the action’ nor ‘prevents

a judgment from which an appeal might be taken.’” Bell v. Pro Tune Plus,

2013 ND 147, ¶ 4, 835 N.W.2d 858 (quoting Triple Quest, Inc. v. Cleveland Gear

Co., Inc., 2001 ND 101, ¶ 7, 627 N.W.2d 379). “However, a dismissal without

prejudice may be final and appealable if the plaintiff cannot cure the defect that led

to dismissal, or if the dismissal has the practical effect of terminating the litigation in

the plaintiff’s chosen forum.” Conrad, at ¶ 5 (quoting Rodenburg v. Fargo-Moorhead

Young Men’s Christian Ass’n, 2001 ND 139, ¶ 12, 632 N.W.2d 407). 

[¶14] In James Vault & Precast, 2018 ND 63, ¶ 1, 908 N.W.2d 108, the question was

whether the judgment was final for purposes of appeal when some claims were

dismissed without prejudice. There, the district court granted summary judgment

dismissing several of the defendants’ cross-claims. Other claims remained and were

scheduled for trial. To make the case appealable, the parties stipulated to dismissal

of the remaining claims without prejudice, and the court entered judgment conforming

to the stipulation. Id. at ¶¶ 4-5. On appeal we considered the extent of our

jurisdiction where parties voluntarily dismissed claims without prejudice to create a

final judgment for purposes of appeal. Id. at ¶ 11. In reviewing the approaches

federal appellate courts have adopted, we said, “We adopt the bright-line approach to

review appeals where remaining claims are dismissed without prejudice. Under this

approach, if there is a dismissal without prejudice of remaining non-adjudicated

claims to create a final disposition of all claims in a lawsuit, there is not a final

judgment of the rights of the parties.” Id. at ¶ 14.

[¶15] This case is different than James Vault & Precast. Here, after a bench trial, the

district court dismissed Willis Swenson’s claims against Mahlum with prejudice and

dismissed Mahlum’s claims against the third-party defendants without prejudice. 

Willis Swenson’s claims against Mahlum were for failure to pay rent due under the

4
farm lease. Mahlum’s unjust enrichment claims against the third-party defendants

were dependent on the court entering judgment against Mahlum on Willis Swenson’s

claims. Because the court found in favor of Mahlum on Willis Swenson’s claims, it

dismissed Mahlum’s claims without deciding the merits of his claims. None of the

parties requested Mahlum’s third-party claims be dismissed without prejudice to

“create” or “manufacture” a final judgment for purposes of appellate jurisdiction. 

None of the claims were dismissed without prejudice “to create a final disposition of

all claims.” Because Mahlum’s third-party claims were dependent on Willis

Swenson’s claims which were dismissed without prejudice, the court’s decision has

the practical effect of terminating the litigation. Therefore, the order and judgment

dismissing Willis Swenson’s claims with prejudice and Mahlum’s claims without

prejudice is appealable. 

III

[¶16] Willis Swenson argues the district court erred in dismissing his breach of

contract claim against Mahlum for unpaid rent for the 2013 farm year. He claims a

valid and enforceable lease existed between himself and Mahlum, the lease was not

terminated, and the court erred in finding Mahlum was protected from any claim

under N.D.C.C. § 30.1-29-23. Willis Swenson does not argue the district court erred

in denying his claims for unpaid rent for 2014, 2015, or 2016.

[¶17] In an appeal from a bench trial, the district court’s findings of fact are reviewed

under the clearly erroneous standard of review and its conclusions of law are fully

reviewable. W. Energy Corp. v. Stauffer, 2019 ND 26, ¶ 5, 921 N.W.2d 431. A

finding of fact is clearly erroneous if there is no evidence to support it, it is induced

by an erroneous view of the law, or if after reviewing all of the evidence, this Court

is convinced a mistake has been made. Id.

[¶18] The district court found Mahlum was protected from any claim by Willis

Swenson for the 2013 rent on the property. The court explained:

5
“Prior to 2013, Kyle Mahlum dealt with Willis Swenson. He

made payments to Willis Swenson as required by the various farm

leases.

“In 2013, Lee Alan Swenson was appointed as guardian and

conservator for Junietta Swenson. As guardian, and conservator Lee

Alan Swenson advised Kyle Mahlum that all future lease payments

should be made directly to Junietta Swenson only.

“On February 28, 2013, Kyle Mahlum paid $20,016 to Junietta

Swenson as land rent for 2013. The check was endorsed by Junietta

Swenson, and Lee Alan Swenson as guardian. A second check was

issued on December 2, 2013, after Junietta Swenson’s death. The

check was issued to Junietta Swenson in the amount of $11,500. The

check was endorsed by Junietta Swenson by Mary Ann Vig, P.R. 

“The two payments total the amount due from Kyle Mahlum for

rental for the land in 2013.

“It does not appear that Willis Swenson was involved in any of

these discussions or decisions regarding the 2013 rental payment. It

further does not appear that he did anything regarding the 2013

payment at the time. The December, 2009 lease between Willis

Swenson and Kyle Mahlum required Kyle Mahlum to pay Junietta

Swenson $10,008 on March 15, and again on October 15. Kyle

Mahlum was also required to pay Willis Swenson $11,006.50, in

March. 

“As noted above, Kyle Mahlum made his first payment to

Junietta Swenson on February 28. Willis Swenson made no demand

for his share of that payment pursuant to the lease. He commenced no

action against the guardian, or Kyle Mahlum for any portion of any

payment.

“Willis Swenson was aware of this possible diversion of the

2013 payments as early as November 19, 2012, when attorney John

Steinberger, attorney for Lee Alan Swenson, Guardian, and

Conservator, sent him a letter advising that the guardian had entered

into a new lease with Kyle Mahlum for the 2013 crop year. Yet again,

Willis Swenson did nothing.

“Willis Swenson now seeks to reach back to 2013, and to be

paid by Kyle Mahlum for the 2013 year lease.

. . . . 

“There is no suggestion that Kyle Mahlum acted otherwise than

in good faith with Lee Alan Swenson, as guardian and conservator. 

Kyle Mahlum is therefore, by [N.D.C.C. § 30.1-29-23], protected from

any claim by Willis Swenson.

“To the extent Willis Swenson may have any claim at all to any

2013 payments, those claims are to be made against the guardian and

conservator, and not Kyle Mahlum. Willis Swenson has made no claim

6
against Lee Alan Swenson as guardian or conservator for Junietta

Swenson. The claim against Kyle Mahlum for any 2013 payment is

therefore DISMISSED.”

[¶19] “The elements for a prima facie case for breach of contract are: (1) the

existence of a contract; (2) breach of the contract; and (3) damages which flow from

the breach.” WFND, LLC v. Fargo Marc, LLC, 2007 ND 67, ¶ 13, 730 N.W.2d 841. 

“A breach of contract is the nonperformance of a contractual duty when it is due.” 

Bakke v. Magi-Touch Carpet One Floor & Home, Inc., 2018 ND 273, ¶ 13,

920 N.W.2d 726. The party asserting a breach of contract must prove all elements. 

WFND, at ¶ 13. Whether a party has breached a contract is a finding of fact which

will not be reversed on appeal unless it is clearly erroneous. Id. 

[¶20] The general rules of contract interpretation apply to leases. See Zundel v.

Zundel, 2017 ND 217, ¶ 12, 901 N.W.2d 731; Abelmann v. Smartlease USA, L.L.C.,

2014 ND 227, ¶ 13, 856 N.W.2d 747. “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. Words are given their plain, ordinary, and commonly

understood meaning, unless they are used by the parties in a technical sense or special

meaning is given by useage. N.D.C.C. § 9-07-09. If the parties’ intent can be

ascertained from the language alone, the interpretation of the contract to determine

its legal effect is a question of law, which is fully reviewable on appeal. Abelmann,

at ¶ 13; see also N.D.C.C. § 9-07-04. 

[¶21] Willis Swenson sued Mahlum for failure to pay rent for the 2013 farm year. 

The parties do not dispute they executed the 2009 lease, which covered the 2013 farm

year. The 2009 lease stated:

“Contract for farmland lease between Willis G Swenson &

Dayna L. Johnson, father and daughter and Kyle Mahlum.

. . . . 

“Terms of the lease are:

$31,022.50 (thirty one thousand, twenty two and 50/100)

to be paid by March 1st of each year in one annual

payment. In the event of Junietta W. Swensons death,

payments shall be made as follows. Semi annual

7
payments of $10,008 (ten thousand, eight and 00/100) on

March 15 and October 15 to Swenson farm land trust. A

single payment to Willis G. Swenson of $11006.50

(Eleven thousand, six and 50/100) on March 1st of each

year. This contract shall be in effect from March 1, 2010

to October 15, 2019.” 

[¶22] Mahlum did not dispute that he used the farmland in 2013 or that he did not

pay rent to Willis Swenson for 2013. Mahlum testified he entered into the lease with

Willis Swenson in December 2009, and he paid rent to Willis Swenson through 2012. 

Mahlum testified he paid rent to Junietta Swenson in 2013 because her guardian and

conservator said he needed to lease directly from Junietta Swenson. In January 2013

Mahlum and the conservator signed a new lease. Although Mahlum admitted he

farmed the property in 2013 and did not pay Willis Swenson rent, the district court did

not find Mahlum breached the contract and did not find the contract was terminated. 

Rather, the court found Lee Alan Swenson, as guardian and conservator for Junietta

Swenson, advised Mahlum to make lease payments directly to Junietta Swenson;

Mahlum paid all rent due in 2013 directly to Junietta Swenson; and Mahlum is

protected by N.D.C.C. § 30.1-29-23 from any claim by Willis Swenson. 

[¶23] Section 30.1-29-23, N.D.C.C., provides protections for people dealing with

conservators, stating:

“A person who in good faith either assists a conservator or deals with

the conservator for value in any transaction other than those requiring

a court order as provided in section 30.1-29-08 is protected as if the

conservator properly exercised the power. The fact that a person

knowingly deals with a conservator does not alone require the person

to inquire into the existence of a power or the propriety of its exercise,

except that restrictions on powers of conservators which are endorsed

on letters as provided in section 30.1-29-26 are effective as to third

persons. A person is not bound to see to the proper application of estate

assets paid or delivered to a conservator. The protection here expressed

extends to instances in which some procedural irregularity or

jurisdictional defect occurred in proceedings leading to the issuance of

letters. The protection here expressed is not by substitution for that

provided by comparable provisions of the laws relating to commercial

transactions and laws simplifying transfers of securities by fiduciaries.”

8
[¶24] The plain language of N.D.C.C. § 30.1-29-23 states a person who in good faith

assists or deals with a conservator for value in any transaction is protected as if the

conservator properly exercised his power. Cf. Stuber, 2017 ND 198, ¶ 16,

900 N.W.2d 230 (interpreting a similar statute providing protections for people

dealing with personal representatives). The statute allows a person dealing with a

conservator to rely on the conservator being properly appointed and having authority

to act on the protected person’s behalf, subject to any restrictions to the conservator’s

powers endorsed on the conservator’s letters of appointment. The issue in this case

is whether Mahlum breached the lease he had with Willis Swenson. This was not a

transaction dealing with a conservator. The statute does not provide Mahlum with

protection against Willis Swenson’s breach of contract claims. 

[¶25] Our application of N.D.C.C. § 30.1-29-23 is consistent with other resources we

have reviewed. Section 30.1-29-23, N.D.C.C., is part of the Uniform Probate Code. 

When a uniform statute is interpreted it must be construed to effectuate its general

purpose to make the law uniform in those states which enacted it. Stuber v. Engel,

2017 ND 198, ¶ 15, 900 N.W.2d 230. Section 30.1-29-23, N.D.C.C., is based on the

Uniform Probate Code § 5-423 (1969). The revised Uniform Probate Code § 5-424

(2010) is based on Uniform Probate Code § 5-423 (1969), and contains language

similar to N.D.C.C. § 30.1-29-23. See Unif. Probate Code § 5-424, Official Comment

(2010) (stating the section is based on U.P.C. § 5-422 (1982)); Unif. Probate Code §

5-422, Official Comment (1982) (stating the source of that section is U.P.C. § 5-423

(1969) adopted without substantive change). The Editorial Board Comments for the

uniform provision state:

“The purpose of this section is to facilitate commercial transactions by

negating the traditional duty of inquiry found under the common law

of trusts. Even the third party’s actual knowledge that the third party

is dealing with a conservator does not require that the third party

inquire into the possession of or propriety of the conservator’s exercise

of a power. Nor is the third party, contrary to the common law,

responsible for the proper application of funds or property delivered to

the conservator. But consistent with the emphasis on limited

conservatorship, the protection extended to third parties is not

9
unlimited. Third parties are charged with knowledge of restrictions on

the authority of limited conservators.”

Unif. Probate Code § 5-424, Official Comment (2010). The Uniform Probate Code

Practice Manual further explains:

“The fact that a person knowingly deals with a conservator does not

alone require the person to inquire into the existence of power or the

propriety of its exercise except that restrictions on the conservator’s

powers imposed by the court and endorsed on his letters of

conservatorship are effective against third persons. The protection

accorded to purchasers and others who deal with a conservator or assist

him in a transaction extends to instances in which some procedural

irregularity or jurisdictional defect occurred in proceedings leading to

the issuance of letters of conservatorship. In other words, a person

dealing with a de facto conservator is protected as much as one dealing

with a de jure conservator.” 

2 Richard V. Wellman, Uniform Probate Code Practice Manual 546 (2d ed. 1977).

[¶26] The district court found the 2009 lease between Willis Swenson and Mahlum

required Mahlum to pay Junietta Swenson $10,008 on March 15 and October 15, with

the balance of $11,006.50 paid to Willis Swenson in March. The court incorrectly

interpreted the lease. Under the plain language of the lease, each year Mahlum was

required to pay Willis Swenson $31,022.50 by March 1, unless Junietta Swenson

died. In that case Mahlum was to make semi-annual payments of a portion of the rent

to the Swenson farm land trust and a single payment of the remaining rental to Willis

Swenson. The lease did not require any payment to Junietta Swenson. 

[¶27] Mahlum testified he made payments under the lease directly to Willis Swenson

in years prior to those at issue in the lawsuit, and other documentary evidence was

presented supporting his testimony. Junietta Swenson died in November 2013, after

the 2013 rental payment was due. Under the lease, Mahlum was required to pay the

entire amount of the annual rent to Willis Swenson on March 1, 2013. The district

court erred in interpreting the lease otherwise. 

[¶28] The evidence established the 2009 lease between Willis Swenson and Mahlum

was valid and enforceable, and remained in effect in 2013. Mahlum agreed he farmed

the property in 2013 but did not pay rent to Willis Swenson. The evidence established

10
Mahlum breached the lease by failing to pay Willis Swenson rent in 2013. We

conclude the court’s findings are clearly erroneous and reverse the district court’s

dismissal of Willis Swenson’s breach of contract claim for 2013.

IV

[¶29] Willis Swenson argues he should be awarded at least $31,022.50 in damages

for Mahlum’s breach of contract. He contends a damage award of $31,022.50 would

put him in the same position he would have been in if the lease had been performed

according to its terms. 

[¶30] The district court ruled any damages Willis Swenson was entitled to if his

claims were successful were limited. The court explained:

“Willis Swenson seeks $31,022.50 for the years of 2013, and

through the term of the lease. . . . [A]ccording to the lease between

Junietta Swenson and Willis Swenson, of the above stated amount,

$20,016 was first to be paid to Junietta Swenson. The most Willis

Swenson would ever receive under the lease would be $11,006.50 per

year.

“Section 32-03-36, NDCC, provides that no person can recover

a greater amount in damages for breach of an obligation than that

person would have gained by full performance. Full performance

would have netted Willis Swenson $11,006.50 per year. His damages,

if any, must be limited accordingly.” 

[¶31] Section 32-03-09, N.D.C.C., governs damage awards for breach of contract,

and states:

“For the breach of an obligation arising from contract, the measure of

damages, except when otherwise expressly provided by the laws of this

state, is the amount which will compensate the party aggrieved for all

the detriment proximately caused thereby or which in the ordinary

course of things would be likely to result therefrom.”

“The general rule in the case of a breach of contract is that the measure of damages

is the amount which will compensate the injured person for the loss which a

fulfillment of the contract would have prevented or the breach of the contract now

requires.” Bakke, 2018 ND 273, ¶ 23, 920 N.W.2d 726. “The person injured is, as

far as it is possible to do so by monetary award, to be placed in the position he would

11
have been in had the contract been performed.” Id. (quoting Vallejo v. Jamestown

Coll., 244 N.W.2d 753, 758 (N.D. 1976)).

[¶32] The contract required Mahlum to pay Willis Swenson $31,022.50 in 2013. 

Although Willis Swenson had a separate lease with Junietta Swenson for the property

that required him to pay her $20,016, Willis Swenson’s lease with Mahlum did not

require any of the rental payment to be paid directly to Junietta Swenson. The only

issues in this case were whether Mahlum breached his lease with Willis Swenson, and

whether the third-party defendants were unjustly enriched. Any amounts Willis

Swenson may owe Junietta Swenson or her estate for the 2013 rent are unrelated to

the issues in this case. There were no claims in this case related to the Willis

Swenson and Junietta Swenson lease. The district court’s finding that Willis

Swenson’s damages for his 2013 breach of contract claim were limited to $11,006.50

because “$20,016 was first to be paid to Junietta Swenson” was clearly erroneous. 

[¶33] Mahlum argued Willis Swenson failed to mitigate his damages in 2013. 

Whether a party made a good faith effort to mitigate damages is a question of fact. 

See Ruud v. Larson, 392 N.W.2d 62, 63 (N.D.1986). The district court did not

directly address this argument. On remand, the court must decide the amount of

damages Willis Swenson is entitled to recover for his breach of contract claim against

Mahlum for unpaid rent in 2013, including whether Willis Swenson failed to mitigate

those damages.

V

[¶34] Mahlum argues the district court erred in dismissing his claim against the thirdparty defendants. The district court did not decide Mahlum’s claim. Mahlum’s claim

was dependent on the court entering judgment against him on Willis Swenson’s claim. 

Because we are reversing the court’s order and judgment on Willis Swenson’s 2013

breach of contract claim, we also reverse the court’s order and judgment dismissing

Mahlum’s claim against the third-party defendants. On remand, the court must decide

Mahlum’s claim against the third-party defendants. 

12
VI

[¶35] The remaining issues are without merit or unnecessary to our decision. We

reverse the district court’s order and judgment dismissing Willis Swenson and

Mahlum’s claims, and remand for further proceedings consistent with this decision.

[¶36] Daniel J. Crothers, Acting C.J.

Lisa Fair McEvers

Jon J. Jensen

Jerod E. Tufte

Benny Graff, S.J.

[¶37] The Honorable Benny Graff, S.J., sitting in place of VandeWalle, C.J.,

disqualified.

13