IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2023 ND 224

Rodney E. Pagel and Scott A. Hager, Plaintiffs and Appellees

v.

Jeffrey S. Weikum, Defendant and Appellant

No. 20230156

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

District, the Honorable Gary H. Lee, Judge.

REVERSED AND REMANDED.

Opinion of the Court by Tufte, Justice.

Rodney E. Pagel (argued) and Scott A. Hager (appeared), Bismarck, N.D.,

plaintiffs and appellees.

Mark R. Hanson (argued) and Nicholas Mino (on brief), Fargo, N.D., for

defendant and appellant.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

NOVEMBER 24, 2023 

STATE OF NORTH DAKOTA
1

Pagel v. Weikum

No. 20230156

Tufte, Justice.

[¶1] Jeffrey S. Weikum appeals from a district court order and judgment 

denying his motion to compel arbitration and granting Rodney E. Pagel and 

Scott A. Hager’s motion for summary judgment. Weikum argues the district 

court misinterpreted the scope of the arbitration clause in the agreement. We 

reverse the order and judgment, and remand for entry of an order compelling 

arbitration.

I

[¶2] The parties agreed to dissolve their law firm, Pagel Weikum PLLP, and 

entered into a Release and Settlement Agreement (“Agreement”). The 

Agreement included a provision stating: “If there are any disputes regarding 

the terms of this Agreement, the Parties agree to submit those disputes to 

Judge Karen Klein (ret.) for a binding decision.”

[¶3] Pagel and Hager commenced an action in district court against Weikum 

for breach of contract and conversion. Weikum moved to dismiss the complaint 

and compel arbitration. Pagel and Hager opposed Weikum’s motion to compel 

arbitration and moved for summary judgment on the issues of breach of 

contract and conversion. Oral argument was held jointly on both matters. The 

district court denied Weikum’s motion to compel arbitration, finding this 

dispute was not subject to the arbitration clause. The court granted Pagel and 

Hager’s motion for summary judgment. Weikum appeals.

II

[¶4] Pagel and Hager argue Weikum did not properly move to compel 

arbitration.

[¶5] The North Dakota Uniform Arbitration Act, N.D.C.C. ch. 32-29.3, 

provides: “If a proceeding involving a claim referable to arbitration under an 

alleged agreement to arbitrate is pending in court, a motion under this section 
2

must be made in that court. Otherwise a motion under this section may be 

made in any court as provided in section 32-29.3-27.” N.D.C.C. § 32-29.3-07(5).

[¶6] “An issue which is not properly raised in the pleadings but is tried by the 

express or implied consent of the parties will be treated in all respects as 

having been raised in the pleadings.” Mertz v. Mertz, 2015 ND 13, ¶ 6, 858 

N.W.2d 292 (citation omitted). “Under Rule 15(b), N.D.R.Civ.P., a pleading may 

be amended impliedly, by the introduction of evidence which varies the theory 

of the case and which is not objected to by the opposing party.” Id. (citation 

omitted). “Whether the issue was tried by express or implied consent is a 

matter within the sound discretion of the trial court and will not be reversed 

on appeal unless an abuse of discretion is shown.” Id. (cleaned up). “A court 

abuses its discretion when it acts in an arbitrary, unreasonable, or 

unconscionable manner, or if it misinterprets or misapplies the law.” Moody v. 

Sundley, 2015 ND 204, ¶ 26, 868 N.W.2d 491.

[¶7] Weikum filed a motion entitled “Motion to Dismiss” citing N.D.R.Civ.P. 

12(b)(1) and (3), asserting “the issues in dispute are subject to parties’ 

agreement for resolution by binding arbitration.” Weikum also answered the 

complaint by asserting the issues are not properly before the court because of 

the arbitration clause, and requested an order “[t]hat the proper resolution 

mechanism for adjudicating disputes in this matter is binding arbitration as 

agreed upon in the [Agreement].” Pagel and Hager specifically recognized 

“Weikum seeks an order from this court dismissing [the] actions and thus 

requiring the parties to attend binding arbitration.” Their response specifically 

addressed the district court’s authority to “compel arbitration,” citing relevant 

case law regarding arbitration. The parties addressed the issue of compelling 

arbitration at the hearing on the motions.

[¶8] The district court analyzed the motion and explained that rather than 

submitting a motion to dismiss, Weikum should have made a motion to compel 

arbitration under N.D.C.C. § 32-29.3-07. The court, viewing the motion to 

dismiss as a motion to compel arbitration under N.D.C.C. § 32-29.3-06(2), 

reviewed the Agreement to decide whether it contains an enforceable 

agreement to arbitrate and whether the controversy is subject to the 
3

agreement to arbitrate. The court denied “[t]he motion to dismiss, or to compel 

arbitration.”

[¶9] Both parties briefed this issue to the district court as a motion to compel 

arbitration, and the court analyzed and decided the issue under the correct 

law. Pagel and Hager did not object on these grounds below. The motion to 

compel arbitration was tried by consent by the parties and should be treated 

in all respects as if raised in the pleadings. The district court did not abuse its 

discretion by considering the motion to dismiss as a motion to compel 

arbitration. The motion to compel arbitration is properly before this Court.

III

[¶10] Weikum argues the district court erred by denying his motion to compel 

arbitration.

[¶11] “We apply a de novo standard of review to decisions denying or granting 

a motion to compel arbitration, unless the district court’s decision is based on 

factual findings, in which case we apply the clearly erroneous standard to the 

factual findings.” Melendez v. Horning, 2018 ND 70, ¶ 8, 908 N.W.2d 115. In 

this case, the district court’s decision does not rest upon any factual findings; 

rather, it is based on the court’s interpretation of the Agreement. See, e.g., 26th 

St. Hosp., LLP v. Real Builders, Inc., 2016 ND 95, ¶ 11, 879 N.W.2d 437. “The 

interpretation of a written contract to determine its legal effect is a question of 

law, which is fully reviewable on appeal.” Id.

[¶12] In considering arbitration claims, this Court has recognized four 

generally applicable principles:

(1) arbitration is a contractual matter and parties cannot be 

compelled to arbitrate disputes that they have not agreed to 

submit to arbitration; (2) the question of whether the parties 

agreed to arbitrate is decided by a court unless the parties clearly 

and [unmistakably] require an arbitrator to decide arbitrability; 

(3) a court may not rule on the potential merits of claims that the 

parties have agreed to submit to arbitration; and (4) any doubts 
4

about the applicability of an arbitration clause should be resolved 

in favor of a strong public policy for arbitration.

Melendez, 2018 ND 70, ¶ 8 (adopting the United States Supreme Court’s

arbitration principles cited in AT&T Techs., Inc. v. Commc’ns Workers of Am., 

475 U.S. 643, 648-50 (1986)). “Arbitration clauses are construed under rules 

for interpreting contracts and in view of the strong federal and state policy 

favoring arbitration.” Melendez, at ¶ 19.

[¶13] We have summarized the rules for construing contracts:

Contracts are construed to give effect to the mutual intention of 

the parties at the time of contracting. N.D.C.C. § 9-07-03. The 

parties’ intention must be ascertained from the writing alone, if 

possible. N.D.C.C. § 9-07-04. A contract must be construed as a 

whole to give effect to each provision if reasonably practicable. 

N.D.C.C. § 9-07-06. Words in a contract are construed in their 

ordinary and popular sense, unless used by the parties in a 

technical sense or given a special meaning by the parties. N.D.C.C. 

§ 9-07-09. If the parties’ intention in a written contract can be 

ascertained from the writing alone, the interpretation of the 

contract is a question of law for the court to decide.

Real Builders, Inc., 2016 ND 95, ¶ 11 (cleaned up).

[¶14] The Agreement states: “If there are any disputes regarding the terms of 

this Agreement, the Parties agree to submit those disputes to Judge Karen 

Klein (ret.) for a binding decision.” The district court reviewed the arbitration 

clause in the Agreement, noting it was broad, but found it “applies only if there 

are disputes regarding the terms of the Agreement. If the terms of the 

Agreement are clear, are not in dispute, and the intention of the parties can be 

ascertained by the plain language of the agreement, there is no dispute to 

submit to arbitration.” We disagree.

[¶15] In Melendez, 2018 ND 70, ¶ 17, we relied on a Delaware Supreme Court 

case, Parfi Holding AB v. Mirror Image Internet, Inc., 817 A.2d 149, 155 (Del. 

2002), describing its analysis for determining arbitrability:
5

First, the court must determine whether the arbitration clause is 

broad or narrow in scope. Second, the court must apply the 

relevant scope of the provision to the asserted legal claim to 

determine whether the claim falls within the scope of the 

contractual provisions that require arbitration. If the court is 

evaluating a narrow arbitration clause, it will ask if the cause of 

action pursued in court directly relates to a right in the contract. 

If the arbitration clause is broad in scope, the court will defer to 

arbitration on any issues that touch on contract rights or contract 

performance.

In construing arbitration clauses, courts have categorized arbitration clauses 

as either broad or narrow. Schwarz v. Gierke, 2010 ND 166, ¶ 17, 788 N.W.2d 

302. “A broad arbitration provision covers all disputes arising out of a contract 

to arbitrate; a narrow provision limits arbitration to specific types of disputes.” 

Id. (citation omitted).

[¶16] We agree with the district court that the language of this arbitration 

clause is broad. The provision, requiring “any disputes regarding the terms of 

this Agreement” to be submitted to arbitration, is broad. See Melendez, 2018

ND 70, ¶ 16 (construing “any controversy or dispute arises . . . concerning any

provision of this Agreement or the rights and duties of any person or entity in

relation thereto” as a broad arbitration clause, requiring arbitration for claims

about conversion of funds and fraud); Real Builders, Inc., 2016 ND 95, ¶ 22,

(construing a provision stating “any claim or controversy arising out of or

relating to this Agreement” as “broad” noting it “does not contain any specific

exclusions”); Schwarz, 2010 ND 166, ¶¶ 17-29, (construing broad language of 

arbitration provision covering “[a]ny controversy arising out of or relating . . .

to any . . . accounts or . . . transactions” to require arbitration of claims for 

alleged breach of duty). “[T]his Court resolves any doubts concerning the scope 

of arbitrable issues in favor of arbitration when there is a broad arbitration 

clause and no exclusion clause.” Schwarz, at ¶ 11.

[¶17] Given that the arbitration clause is broad and not limited by any 

exceptions, we must “defer to arbitration on any issues that touch on contract 

rights or contract performance,” Melendez, 2018 ND 70, ¶ 17 (citation omitted), 
6

including the parties’ rights and performance obligations under the Agreement

relating to contingency fees and the Decker litigation. We therefore conclude 

the district court misinterpreted the Agreement by finding the claims were not 

arbitrable and by denying the motion to compel arbitration of those claims.

IV

[¶18] We reverse the order and judgment, and remand for entry of an order 

compelling arbitration.

[¶19] Jon J. Jensen, C.J.

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

William A. Neumann, S.J.

[¶20] The Honorable William A. Neumann, Surrogate Judge, sitting in place 

of Bahr, J., disqualified.