I N T H E S U P R EM E C O U R T

STATE OF NORTH DAKOTA

2024 ND 166

Jason Ziemann, Plaintiff, Appellee, and Cross-Appellant

v.

Juanita Grosz, Defendant, Appellant, and Cross-Appellee

No. 20230355

Appeal from the District Court of McLean County, South Central Judicial District, the 

Honorable Bonnie L. Storbakken, Judge.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Opinion of the Court by Crothers, Justice.

Nicholas M. Surma (argued) and Robert J. Pathroff (appeared), Bismarck, ND, for plaintiff, 

appellee, and cross-appellant

Ryan G. Quarne (argued) and Jessica L. Klein (appeared), Minot, ND, for defendant, 

appellant, and cross-appellee.
1

Ziemann v. Grosz

No. 20230355

Crothers, Justice.

[¶1] Juanita Grosz appeals from a judgment entered after a bench trial. Jason Ziemann 

cross appeals from a summary judgment dismissal of his claims. We affirm in part holding 

the district court did not err when it held the parties formed a partnership and Grosz 

contributed property to the partnership, when it dismissed Grosz’s trespass claim, when it 

dismissed Ziemann’s claims for tortious interference with a business relationship and 

breach of fiduciary duty, and when it awarded Ziemann costs and disbursements as the 

prevailing party. We reverse in part holding the court erred by not applying the N.D.C.C. 

§ 45-20-07 default partnership winding up provisions. We remand the case for the district 

court to enter judgment consistent with this decision. 

I

[¶2] Grosz and her husband operated a wrecking and salvage business called Grosz 

Wrecking. They lived in a home located on the same property as the business. Ziemann, 

who is Grosz’s grandson, became involved in the operation after her husband died. 

Ziemann moved into the home in 2014, but Grosz continued to own the property. In 2022, 

Grosz sought to evict Ziemann after he refused to purchase the home. Ziemann then sued 

Grosz alleging they entered into an oral partnership agreement. Ziemann sought a 

declaration that a partnership existed and brought claims for accounting and dissolution of 

the partnership, breach of fiduciary duties, and tortious interference with a business 

relationship. Grosz filed an answer denying the existence of a partnership and pleaded a 

counterclaim for trespass. 

[¶3] The parties filed cross-motions for partial summary judgment. The district court 

denied Ziemann’s motion ruling factual issues existed as to whether the parties formed a 

partnership. The court granted Grosz’s motion and dismissed Ziemann’s claims for tortious 

interference with a business relationship and breach of fiduciary duty. The court ruled 

certain evidence Ziemann relied on was inadmissible hearsay, and he had not identified 

evidence that could prove he suffered damages as a result of the alleged torts. 

[¶4] The case proceeded to a bench trial. Each party testified along with accountants, 

real estate valuation experts, and Janell Ziemann, who is Grosz’s daughter and Ziemann’s 

mother. The parties presented conflicting evidence concerning their business arrangement. 
2

Grosz testified she agreed to pay Ziemann a commission for selling her wrecking 

inventory. Ziemann testified Grosz agreed to give him an ownership interest in the business 

and a share of proceeds from what they sold. 

[¶5] The district court found the parties orally agreed to form a partnership with the 

following terms:

“The initial terms included a 75%/25% profit split of all existing inventory 

which was amended to a 70%/30% split of existing inventory minus the items 

that were specifically exempted from the agreement by Ms. Grosz. The 

parties also agreed Mr. Ziemann was to receive 100% of the proceeds of sales 

from newly acquired inventory. Mr. Ziemann was permitted to reside in the 

home located on the property owned by Ms. Grosz as a result of the 5% 

increase of sale proceeds to Ms. Grosz. It was also clear to the Court that Mr. 

Ziemann was responsible for most of the business expenses associated with 

the day-to-day business operations of Grosz Wrecking outside of the 

property taxes and expenses paid by Ms. Grosz.”

The court also found Grosz “agreed to give [Ziemann] a 70% ownership stake in Grosz 

Wrecking.” The court ordered an accounting and dissolution of the partnership. The court 

dismissed Grosz’s trespass claim reasoning Ziemann’s occupancy of the property was part 

of the parties’ partnership agreement. The court ordered he “will be permitted to continue 

living on the property until the business is dissolved.” The court entered judgment requiring 

the partnership assets to be liquidated and “any surplus” to be distributed 70% to Ziemann 

and 30% to Grosz. The court also awarded Ziemann costs in the amount of $8,419.84. Both 

parties appeal. 

II 

[¶6] Grosz asserts a number of the district court’s findings concerning the parties’ 

dealings and intent are clearly erroneous, and she argues the court misapplied partnership 

law. Grosz also argues the court erred when it dismissed her trespass claim and when it 

awarded Ziemann costs as the prevailing party. 

[¶7] We apply the following standard when reviewing an appeal from a judgment entered 

after a bench trial:

“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. A finding of fact is clearly erroneous if it is 
3

induced by an erroneous view of the law, if there is no evidence to support 

it, or if, after reviewing all of the evidence, we are convinced a mistake has 

been made. The court’s findings are presumptively correct. The district court 

is the determiner of credibility issues and we will not second-guess the 

district court on its credibility determinations.”

Meuchel v. Red Trail Energy, LLC, 2024 ND 44, ¶ 5, 4 N.W.3d 203 (cleaned up) (quoting 

Zavanna, LLC v. GADECO, LLC, 2023 ND 142, ¶ 5, 994 N.W.2d 133). We also have 

emphasized:

“In applying the clearly erroneous standard, we will not reweigh evidence, 

reassess witness credibility, retry a [ ] case, or substitute our judgment for the 

trial court’s decision merely because this Court may have reached a different 

result. A choice between two permissible views of the weight of the evidence 

is not clearly erroneous.”

Kartes v. Kartes, 2013 ND 106, ¶ 25, 831 N.W.2d 731 (cleaned up) (quoting Hageman v. 

Hageman, 2013 ND 29, ¶ 8, 827 N.W.2d 23).

A

[¶8] Grosz argues the district court erred when it denied summary judgment on the issue 

of whether a partnership existed. She asserts testimony Ziemann provided at a preliminary 

injunction hearing establishes any agreement the parties reached would be barred by the 

statute of frauds because the agreement would not be capable of performance within a year. 

See N.D.C.C. § 9-06-04(1). However, a denial of summary judgment “puts the parties to 

their proof with a full opportunity to present all of their evidence.” Matter of Knoke, 2021 

ND 240, ¶ 10, 968 N.W.2d 178 (quoting Kartes, 2013 ND 106, ¶ 16). “‘If a case goes to 

trial after a motion for summary judgment is denied, the question of whether the trial court 

erred in denying summary judgment is moot[.]’” Estate of Vestre, 2011 ND 144, ¶ 19, 799 

N.W.2d 379 (quoting Olander Contracting Co. v. Gail Wachter Invs., 2002 ND 65, ¶ 9, 

643 N.W.2d 29). We decline to address the district court’s decision denying summary 

judgment concerning whether a partnership existed because that issue was decided after a 

full trial on the merits. 

B

[¶9] Grosz argues the district court erred when it determined the parties formed a 

partnership. She asserts Ziemann was an independent contractor who received commission 

based on sales. She also argues that even if a partnership existed, she did not contribute 
4

inventory to it. Alternatively, if she did contribute inventory, she asserts she is entitled to 

a credit for her contributions in the winding up process. 

[¶10] A partnership is “an association of two or more persons to carry on as co-owners a 

business for profit[.]” N.D.C.C. § 45-13-01(19). “A partnership is an entity distinct from 

the partnership’s partners.” N.D.C.C. § 45-14-01(1). Whether individuals have formed a 

partnership is governed by N.D.C.C. § 45-14-02, which provides: 

“1. Except as otherwise provided in subsection 2, the association of two 

or more persons to carry on as co-owners a business for profit forms 

a partnership, whether or not the persons intend to form a partnership. 

2. An association formed under a statute other than chapters 45-13 

through 45-21, a predecessor statute, or a comparable statute of 

another jurisdiction is not a partnership under chapters 45-13 through 

45-21. 

3. In determining whether a partnership is formed, the following rules 

apply: 

a. Joint tenancy, tenancy in common, tenancy by the entireties, 

joint property, common property, or part ownership does not 

by itself establish a partnership, even if the co-owners share 

profits made by the use of the property. 

b. The sharing of gross returns does not by itself establish a 

partnership, even if the persons sharing them have a joint or 

common right or interest in property from which the returns are 

derived. 

c. A person who receives a share of the profits of a business is 

presumed to be a partner in the business, unless the profits were 

received in payment: 

(1) Of a debt by installments or otherwise; 

(2) For services as an independent contractor or of wages 

or other compensation to an employee; 

(3) Of rent; 

(4) Of an annuity or other retirement benefit to a 

beneficiary, representative, or designee of a deceased or 

retired partner; 

(5) Of interest or other charge on a loan, even if the amount 

of payment varies with the profits of the business, 

including a direct or indirect present or future 

ownership of the collateral, or rights to income, 

proceeds, or increase in value derived from the 

collateral; or 
5

(6) For the sale of the goodwill of a business or other 

property by installments or otherwise.”

[¶11] Whether a partnership exists depends on the facts and circumstances of each case, 

but certain elements are “critical.” Gangl v. Gangl, 281 N.W.2d 574, 579 (N.D. 1979). 

“The critical elements of a partnership are (1) an intention to be partners, (2) co-ownership 

of the business, and (3) a profit motive.” Tarnavsky v. Tarnavsky, 2003 ND 110, ¶ 7, 666 

N.W.2d 444. “The existence of a partnership is a mixed question of law and fact, and the 

ultimate determination of whether a partnership exists is a question of law.” Id. 

1

[¶12] Grosz claims evidence proves the parties did not intend to form a partnership. Grosz 

asserts the parties’ dealings establish a “commission style arrangement” where Ziemann 

was an independent contractor and his share of the profit was commission for sales. 

[¶13] Intent to form a partnership is “[o]ne of the most important tests” to determine 

whether a partnership exists. Ziegler v. Dahl, 2005 ND 10, ¶ 14, 691 N.W.2d 271. “[T]he 

focus is not on whether individuals subjectively intended to form a partnership, but on 

whether the individuals intended to jointly carry on a business for profit.” Id. Intent can be 

derived from the actions of the parties and does not need to be vocalized or memorialized 

in writing. Id. at ¶ 15. Individuals “may inadvertently create a partnership” despite a 

subjective intention not to do so. Id. at ¶ 14 (quoting Uniform Partnership Act, § 202, cmt. 

1 (1997)).

[¶14] Grosz identifies paperwork indicating a partnership was not formed, including tax 

returns, documents related to loans, insurance policies, and Ziemann’s divorce filings. She 

also notes the parties did not share a joint bank account. The district court acknowledged 

the parties “made every effort to not describe themselves as partners in any writing[.]” The 

court nonetheless found “the parties’ actions show the opposite.” The court found Grosz 

intended to operate Grosz Wrecking with Ziemann for a profit hoping he would someday 

carry on the business. The court’s findings have evidentiary support. For example, when 

asked why she agreed to let Ziemann “be part of the business with you,” Grosz testified: “I 

thought once he owned it, it would materialize into a good business for us and some day 

he would maybe own it all but it never happened. Not enough hours put in.” The court’s 

choice between two permissible views of the weight of the evidence is not clearly 

erroneous.
6

2

[¶15] Grosz argues the co-ownership element indicates the parties did not form a 

partnership. Grosz acknowledges Ziemann exercised control over business operations, but 

maintains his control was consistent with his role as an independent contractor. Grosz 

argues she could have instructed Ziemann to not sell “her inventory” but choose not to do 

so “because she had no reason to at any point prior to Ziemann rejecting the agreement to 

purchase the house.” 

[¶16] “If partners are co-owners of a business, they each have the power of ultimate 

control.” Ziegler, 2005 ND 10, ¶ 21. “Control is an indispensable component of coownership which, when combined with profit sharing, strongly suggests the existence of a 

partnership.” Gangl, 281 N.W.2d at 580; see also Tarnavsky v. Tarnavsky, 147 F.3d 674, 

677-78 (8th Cir. 1998) (stating co-ownership includes the “sharing of profits and losses as 

well as the power of control in the management of the business.”). A partner does not have 

to actually exercise control “but only needs to have the right to exercise control in the 

management of the business.” Ziegler, at ¶ 21.

[¶17] The district court found Ziemann attended auctions, developed a website, created 

business cards, and with Grosz’s consent, held himself out to the community as an owner 

of Grosz Wrecking. The court also found Ziemann paid the majority of the business’s 

expenses, including insurance, advertising, fuel, electrical, trucking, and maintenance. The 

court reasoned: “Someone who was merely hired as a salesman would not typically be 

responsible for dictating the entire business model for the business and making decisions 

about when, and for how much, to sell.” The court found the parties were operating a 

partnership as co-owners with Ziemann focusing on sales and operations and Grosz 

focusing on administrative responsibilities. The court determined “they each had control 

in how the business functioned and operated.” The court’s findings have evidentiary 

support and are not clearly erroneous.

3

[¶18] The last element of partnership formation is a profit motive. Tarnavsky, 2003 ND 

110, ¶ 7. Although Grosz characterizes the parties’ dealings as a “commission style 

arrangement,” she does not dispute the district court’s finding that the business was 

operated for a profit. Although the parties provided conflicting accounts of their business 

arrangement, evidence supports the district court’s findings that they intended to jointly 
7

carry on the wrecking business for a profit and shared control of the business while doing 

so. 

[¶19] The district court’s findings are based largely on credibility assessments. The court 

found both parties’ testimony lacked credibility on certain issues but determined Ziemann’s 

account of the parties’ agreement and dealings was more credible. “‘A choice between two 

permissible views of the weight of the evidence is not clearly erroneous.’” Kartes, 2013 

ND 106, ¶ 25 (quoting Hageman, 2013 ND 29, ¶ 8). Taken together, the court’s findings 

support a legal determination that Grosz and Ziemann formed a partnership. The district 

court did not err when it held the parties formed a partnership by oral agreement. 

C

[¶20] Grosz argues that even if the parties formed a partnership, she did not contribute her 

salvage inventory to the partnership.

[¶21] Property is partnership property when it is acquired by or transferred to a partnership 

or when it is acquired by or transferred to an individual in the individual’s capacity as a 

partner. N.D.C.C. § 45-14-04(1)-(2). Property purchased with partnership assets is 

presumed to belong to the partnership. N.D.C.C. § 45-14-04(3). A presumption also exists 

that assets acquired by a partner without use of partnership assets and without reference to 

the partnership or the individual’s capacity as a partner are not partnership property. 

N.D.C.C. § 45-14-04(4). “The determination whether property held in the name of an 

individual partner belongs to the partnership is a question of fact.” Eckert v. Eckert, 425 

N.W.2d 914, 915 (N.D. 1988). “The relevant inquiry is whether the partners intended that 

the property in question be partnership property or individual property.” Id.

[¶22] Grosz argues she acquired the inventory of Grosz Wrecking from her husband’s 

estate in her individual capacity and she did not contribute it to a partnership. In her words, 

if a partnership existed, “this was a partnership where Grosz did not contribute assets to 

the partnership beyond the proceeds of any inventory actually sold.” The district court 

found Grosz objected to, but ultimately acquiesced in, Ziemann selling inventory that she 

now claims was her individual property. The court reasoned that Grosz’s acquiescence in 

Ziemann’s exercise of control over the inventory indicated it was partnership property. The 

court also found that when inventory was sold checks were written to Grosz Wrecking and 

not Grosz individually. The court’s finding that Grosz contributed inventory to be sold in 

the course of the partnership is supported by the evidence and not clearly erroneous.
8

D 

[¶23] Grosz argues that even if she contributed inventory to the partnership, the district 

court erred when it did not allow her a credit in the winding up process for the contributions 

she made. 

[¶24] Partnership partners are deemed to have an account that is credited with the amount 

of money and property, net of the amount of any liabilities, they contributed to the 

partnership. N.D.C.C. § 45-16-01(1)(a). The partners’ accounts also must be charged with 

the partners’ share of losses and an amount equal to the property and money, net of the 

amount of any liabilities, distributed by the partnership to the partner. N.D.C.C. § 45-16-

01(1)(b). Under N.D.C.C. § 45-20-07(1), when winding up a partnership, after the 

partnership’s obligations are satisfied, “[a]ny surplus must be applied to pay in cash the net 

amount distributable to partners in accordance with their right to distributions under 

subsection 2,” which provides: 

“Each partner is entitled to a settlement of all partnership accounts upon 

winding up the partnership business. In settling accounts among the partners, 

the profits and losses that result from the liquidation of the partnership assets 

must be credited and charged to the partner’s accounts. The partnership shall 

make a distribution to a partner in an amount equal to any excess of the 

credits over the charges in the partner’s account. A partner shall contribute 

to the partnership an amount equal to any excess of the charges over the 

credits in the partner’s account.” 

N.D.C.C. § 45-20-07(2). These provisions are default rules and do not apply if the partners 

have agreed otherwise. N.D.C.C. § 45-13-03. Whether partners have agreed to override a 

statutory default rule is a finding of fact subject to the clearly erroneous standard of review. 

See Carlson v. Carlson, 2011 ND 168, ¶ 15, 802 N.W.2d 436 (affirming a district court’s 

finding that partners agreed there would be no equalization of unequal contributions).

[¶25] The district court determined Grosz was not entitled to a credit for her contributions 

holding “Ms. Grosz formed a partnership with Mr. Ziemann and agreed to give him a 70% 

ownership stake in Grosz Wrecking.” However, as previously discussed, the court also 

found Grosz “intended the existing inventory to be part of her and Mr. Ziemann’s 

partnership.” If Grosz intended to contribute her inventory to the partnership, neither she 

nor Ziemann personally own it. “Property acquired by a partnership is property of the 

partnership and not of the partners individually.” N.D.C.C. § 45-14-03. Ziemann has not 

identified any evidence the parties discussed or agreed to specific winding up provisions 
9

that differ from the statutory defaults. Absent a contrary agreement, Grosz is entitled to a 

settlement of her account under N.D.C.C. § 45-20-07. The district court erred when it did 

not apply the statutory default winding up provisions.

E

[¶26] Grosz argues the district court erred when it determined she did not prove her claim 

for trespass related to Ziemann’s purported refusal to vacate the home at the salvage yard. 

She claims she revoked her consent for Ziemann to be on the property by serving an 

eviction notice. However, the district court found Grosz agreed to allow Ziemann to live 

in the home because he was responsible for the day-to-day wrecking operations. The court 

also found Grosz’s permission for Ziemann to live in the home was a term of the parties’ 

oral partnership agreement. The court’s finding is supported by the evidence. 

Consequently, the court did not err in ordering Ziemann is entitled to live in the home and 

be present on the property until the winding up process is complete. See N.D.C.C. § 45-20-

02(1) (stating a partnership continues after dissolution and is terminated when winding up 

of its business is complete). 

F

[¶27] Grosz argues the district court erred when it awarded Ziemann costs and 

disbursements. 

[¶28] Under N.D.C.C. § 28-26-06, the clerk of the district court is required to tax 

“necessary disbursements” as part of the judgment in favor of the prevailing party. The 

issue of whether a litigant is a prevailing party is a question of law subject to de novo 

review. Harris v. Oasis Petroleum, Inc., 2024 ND 85, ¶ 11, 6 N.W.3d 611. 

“The determination of who is a prevailing party is based upon success on the 

merits, not damages. If opposing litigants each prevail on some issues, there 

may not be a single prevailing party for whom disbursements may be taxed. 

A prevailing party is one in whose favor a judgment is rendered, regardless 

of the amount of damages awarded. Generally, the prevailing party to a suit, 

for the purpose of determining who is entitled to costs, is the one who 

successfully prosecutes the action or successfully defends against it, 

prevailing on the merits of the main issue, in other words, the prevailing party 

is the one in whose favor the decision or verdict is rendered and the judgment 

entered.”
10

Id. (quoting LAWC Holdings, LLC v. Vincent Watford, L.L.C., 2024 ND 16, ¶ 13, 2 N.W.3d 

672). While the determination of whether a litigant is a prevailing party is a question of 

law, the amount of costs and disbursements ordered is left to the discretion of the district 

court. See N.D.C.C. § 28-26-10 (providing “costs may be allowed for or against either party 

in the discretion of the court”); see also Davis v. Mercy Medical Ctr., 2023 ND 153, ¶ 31, 

994 N.W.2d 380 (stating “the question of the amount to be allowed for disbursements and 

costs is one of fact, subject to an abuse of discretion standard.”) 

[¶29] Grosz asserts Ziemann is not a prevailing party because she successfully defeated 

his claims for breach of fiduciary duty and tortious interference with a business 

relationship. The district court determined Ziemann was the prevailing party because he 

succeeded in his claim for a declaration a partnership existed. We agree. Whether the 

parties formed a partnership was the main issue in this case. The question was extensively 

litigated and each side devoted substantial time presenting evidence on the issue. Grosz 

also argues the court erred when it did not limit fees for Ziemann’s expert accountant 

witness. Grosz asserts the expert’s fees are excessive given the court determined his 

testimony was not determinative. The court decided Ziemann’s request for expert fees was 

reasonable based on the amount of documentary evidence the expert was required to review 

and the length of the expert’s testimony at trial. After reviewing the record, we are not 

convinced the amount of costs and disbursements ordered by the court was an abuse of 

discretion. 

III

[¶30] Ziemann cross appeals arguing the district court erred when it granted Grosz 

summary judgment dismissing his claims for breach of fiduciary duty and tortious 

interference with a business relationship.

[¶31] Our summary judgment standard of review is well established:

“In deciding whether the district court appropriately granted summary 

judgment, we view the evidence in the light most favorable to the opposing 

party, giving that party the benefit of all favorable inferences which can 

reasonably be drawn from the record. A party opposing a motion for 

summary judgment cannot simply rely on the pleadings or on unsupported 

conclusory allegations. Rather, a party opposing a summary judgment 

motion must present competent admissible evidence by affidavit or other 

comparable means that raises an issue of material fact and must, if 

appropriate, draw the court’s attention to relevant evidence in the record 
11

raising an issue of material fact. When reasonable persons can reach only one 

conclusion from the evidence, a question of fact may become a matter of law 

for the court to decide. A district court’s decision on summary judgment is a 

question of law that we review de novo on the record.”

Dahms v. Legacy Plumbing, LLC, 2024 ND 53, ¶ 4, 5 N.W.3d 531 (quoting Miller v. Nodak 

Ins. Co., 2023 ND 37, ¶ 12, 987 N.W.2d 369). 

A 

[¶32] Ziemann asserts the court erred when it decided evidence he submitted in opposition 

to Grosz’s motion for summary judgment was inadmissible hearsay. 

[¶33] “Hearsay is a statement, other than one made by the declarant while testifying at the 

trial or hearing, offered in evidence to prove the truth of the matter asserted.” State v. 

Vickerman, 2022 ND 184, ¶ 9, 981 N.W.2d 881; see also N.D.R.Ev. 801(c). “‘Hearsay 

statements are generally not admissible and will not be considered in deciding a motion for 

summary judgment unless the statements fall within an exception to the hearsay rule.’” 

Markgraf v. Welker, 2015 ND 303, ¶ 13, 873 N.W.2d 26 (quoting McColl Farms, LLC v. 

Pflaum, 2013 ND 169, ¶ 30, 837 N.W.2d 359). A statement made by and offered against 

an opposing party is generally not considered hearsay. N.D.R.Ev. 801(d)(2). 

[¶34] Ziemann recorded a conversation he had with a scrap metal buyer and submitted a 

transcript of it with his response to Grosz’s motion for summary judgment. The transcript 

contains statements purportedly made by the buyer recounting what Grosz allegedly said 

to the buyer during a different conversation. Ziemann argues Grosz’s statements, as 

recounted by the buyer, are admissible because they are statements of an opposing party. 

However, when a statement within a statement is at issue, each must be admissible on its 

own. See N.D.R.Ev. 805 (stating multiple layers of hearsay are admissible “if each part of 

the combined statements conforms with an exception to the rule”). Ziemann has not 

advanced any rationale for why the scrap metal buyer’s statement is not hearsay. The 

district court did not err when it refused to consider this evidence while ruling on Grosz’s 

motion for summary judgment. 

B 

[¶35] Ziemann argues the district court erred when it determined he did not present 

sufficient evidence to create a genuine issue of material fact as to whether he sustained 

damages as a result of Grosz’s alleged misconduct. 
12

[¶36] “‘Summary judgment is appropriate against a party who fails to establish the 

existence of a factual dispute on an essential element of his claim and on which he will 

bear the burden of proof at trial.’” Collette v. Clausen, 2003 ND 129, ¶ 14, 667 N.W.2d 

617 (quoting Kimball v. Landeis, 2002 ND 162, ¶ 5, 652 N.W.2d 330). Damages are an 

essential element of both a claim for breach of fiduciary duty and a claim for tortious 

interference with a business relationship. Johnston Law Office, P.C. v. Brakke, 2018 ND 

247, ¶ 11, 919 N.W.2d 733; Estate of Vendsel, 2017 ND 71, ¶ 18, 891 N.W.2d 750. “In 

cases where damages are an adequate remedy, they must nevertheless be proved.” 

Livinggood v. Balsdon, 2006 ND 11, ¶ 8, 709 N.W.2d 723. When there is reasonable 

certainty that substantial damages have occurred, uncertainty as to the exact amount does 

not preclude recovery. Id. “Yet, damages that are not clearly ascertainable in their nature 

and origin cannot be recovered.” Id. “Merely stating damages exist is not enough.” Vendsel,

at ¶ 18. 

[¶37] Ziemann claims he raised a genuine issue of material fact concerning damages. He 

relies on a declaration attached to his complaint and testimony at a preliminary injunction 

hearing, which he argues “corroborated his declaration.” Ziemann’s statements indicate 

Grosz communicated with a scrap metal buyer and the buyer subsequently would not return 

Ziemann’s calls. Neither Ziemann’s declaration or testimony at the preliminary hearing 

provide evidence of a specific lost sale or evidence of ascertainable damages. The district 

court did not err when it held Ziemann failed to meet his burden in response to Grosz’s 

motion for summary judgment. 

IV

[¶38] The district court did not err when it held the parties formed a partnership and Grosz 

contributed property to it, when it dismissed Grosz’s trespass claim, when it dismissed 

Ziemann’s claims for tortious interference with a business relationship and breach of 

fiduciary duty, and when it awarded Ziemann costs and disbursements as the prevailing 

party. The court erred by not applying the N.D.C.C. § 45-20-07 default partnership winding 

up provisions. The case is remanded for the district court to enter judgment consistent with 

this decision.

[¶39] Jon J. Jensen, C.J. 

Daniel J. Crothers 

Lisa Fair McEvers 

Jerod E. Tufte

Douglas A. Bahr 
13