IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2022 ND 230

Larson Latham Huettl LLP, Plaintiff and Appellee

v.

Thomas J. Burckhard, Defendant and Appellant

No. 20220187

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

District, the Honorable James D. Gion, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice.

Samuel G. Larson (argued) and Gregory C. Larson (on brief), Bismarck, ND,

plaintiff and appellee.

Thomas J. Burckhard, self-represented, Minot, ND, defendant and appellant.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

DECEMBER 22, 2022 

STATE OF NORTH DAKOTA
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Larson Latham Huettl v. Burckhard

No. 20220187

Jensen, Chief Justice.

[¶1] Thomas Burckhard appeals from a judgment entered following 

consideration of Larson Latham Huettl LLP’s motion for summary judgment. 

Burckhard argues there are genuine issues of material fact as to each of his 

affirmative defenses and the district court abused its discretion in denying 

Burckhard additional time to conduct discovery. We affirm.

I

[¶2] Burckhard began employment with Larson Latham Huettl LLP 

(hereinafter LLH) in January 2019. In May 2019 Burckhard signed an 

employment contract, under which Burckhard agreed he would receive 

compensation based upon projected hours billed. Any overpayment resulting 

from a deficiency between the projected hours he would bill and the actual 

hours he billed would be considered a debt owed by Burckhard to LLH. The 

relevant portions of the contract are as follows:

1. Salary. Associate will be paid a base salary pursuant to 

agreement with LLH and an incentive commission as shown on the 

attached Schedule A. Associate will be required to bill out the 

average number of hours per week as shown on Schedule A 

commensurate with the Associate’s base salary.

. . . .

3. Billed Hours Credited. Associate will be credited with 

hours that are billed out to clients that are approved by a partner 

of LLH. Associate may be credited for billable hours, 

administration hours, or client relation hours.

It is possible, at the discretion of the partners of LLH, that 

some of Associate’s hours may be eliminated if it is determined 

that the hours are not appropriate to be billed and Associate will 

not receive any credit for these hours. If Associate is asked to do 

certain work for the firm that cannot be billed to a client, then this 

work will be billed as administration hours or client relations
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hours. All administration and client relations hours must be preapproved by a partner of LLH.

. . . .

6. Hours Billed Discrepancy. In the event that Associate bills 

out less than the base quota for a three month period, the 

Associate’s salary will be reduced appropriately at the discretion 

of LLH in order to make up for any discrepancy. Any discrepancy 

where the actual hours billed is less than the base hours required 

will be considered a debt owed by Associate to LLH at the end of 

the calendar year or at the termination of employment.

[¶3] Burckhard’s employment with LLH ended on August 15, 2020. At that 

time, Burckhard was paid for 697.88 projected billable hours more than his 

actual billable hours resulting in an overpayment of compensation in the 

amount of $29,885.38. LLH filed suit alleging breach of contract seeking to 

recover the excess compensation of $29,885.38, plus pre-judgment interest.

[¶4] LLH moved for summary judgment. The district court granted LLH’s 

motion finding there were no issues of material fact and LLH was entitled to 

judgment as a matter of law. Burckhard appealed, arguing summary judgment 

was improper because the contract’s purpose was frustrated, the contract is 

unconscionable, the contract fails for lack of consideration, LLH waived its

right to obtain payment, there is a genuine dispute as to the amount of the 

damages, and the district court abused its discretion in denying Burckhard

additional time for discovery.

II

[¶5] Burckhard argues the district court abused its discretion in denying him

additional time to complete discovery. Rule 56(f), N.D.R.Civ.P., allows for 

additional discovery before summary judgment is granted and we have noted 

the following:

Should it appear from the affidavits of a party opposing the motion 

that the party cannot for reasons stated present by affidavit facts 

essential to justify the party’s opposition, the court may refuse the 

application for judgment or may order a continuance to permit 
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affidavits to be obtained or depositions to be taken or discovery to 

be had or may make such other order as is just.

Choice Fin. Grp. v. Schellpfeffer, 2006 ND 87, ¶ 9, 712 N.W.2d 855. A decision 

to grant or deny a request under Rule 56(f) is within the discretion of the 

district court and will not be reversed unless the court abuses its discretion. 

Id. “A court abuses its discretion if it acts in an arbitrary, unreasonable, or 

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

(quoting Sec. Nat’l Bank v. Wald, 536 N.W.2d 924, 928 (N.D. 1995)).

[¶6] Burckhard did not move for additional time to conduct discovery, did not 

reference Rule 56(f) in his response to the motion for summary judgment, and 

conceded he did not dispute the discrepancy of 697.88 hours between his 

projected hours and his actual billable hours as asserted by LLH. Burckhard

did allege in his response to the motion for summary judgment that he did not 

have sufficient records to dispute how the actual billed hours were computed, 

whether any hours he worked were excluded, or how much LLH collected from 

clients.

[¶7] The district court addressed Burckhard’s assertion he needed to 

complete discovery to determine how much LLH collected from clients for the 

work he performed by finding the discovery was not relevant to determining 

LLH’s damages, because how much LLH collected did not change the contract’s 

calculation of damages based on the payment for projected hours exceeding 

what Burckhard was owed for his actual billed hours. Even if LLH realized a 

profit from Burckhard’s services, it could have realized a greater profit had he 

met the billable hour requirement set in the contract.

[¶8] The district court addressed Burckhard’s assertion additional discovery 

was needed to determine whether LLH properly credited him with hours he 

had worked. The court found “Burckhard received notice every month of the 

billable hours he made, so he did have notice he was deficient . . . [t]o prevent 

summary judgment, Burckhard must do more than just say he thinks there 

are issues with how LLH came up with the accounting.” Despite having access 

to the monthly notices, Burckhard did not provide any evidence LLH failed to

credit him for billable hours.
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[¶9] We have previously affirmed a district court’s denial of a request for 

additional discovery where the moving party failed to adequately explain what 

information was sought, why it was not obtained beforehand, and how it would 

preclude summary judgment. Swanson v. Larson, 2021 ND 216, ¶ 9, 967 

N.W.2d 778. Additionally, N.D.R.Civ.P. 56(f) “requires that the party, preferably 

by affidavit, identify with specificity what particular information is sought, 

and explain how that information would preclude summary judgment and why 

it has not previously been obtained.” Vicknair v. Phelps Dodge Indus., Inc., 

2011 ND 39, ¶ 19, 794 N.W.2d 746. Here, Burckhard did not reference the 

applicable rule, failed to submit affidavits supporting his request for additional 

discovery, failed to identify what information he would seek through discovery, 

failed to explain why he was unable to obtain the information before the motion 

for summary judgment, and failed to explain how the information would 

preclude summary judgment. The court’s decision to deny the request for 

additional discovery was not arbitrary, unreasonable, or rendered in an 

unconscionable manner, and the court did not misinterpret or misapply the 

law. We conclude the district court did not abuse its discretion by denying 

Burckhard’s request for additional discovery.

III

[¶10] The district court granted summary judgment in favor of LLH, awarding 

LLH a recovery for the excess compensation and rejecting Burckhard’s 

affirmative defenses. The standard for reviewing summary judgment 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 
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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.

Poppe v. Stockert, 2015 ND 252, ¶ 4, 870 N.W.2d 187 (citations omitted) 

(quoting Johnson v. Shield, 2015 ND 200, ¶ 6, 868 N.W.2d 368).

A

[¶11] Burckhard argues the employment contract’s purpose was frustrated

because a basic assumption of the contract was that LLH would provide 

Burckhard with an adequate case load to meet his billable hour requirements.

Frustration of purpose occurs when “after a contract is made, a party’s 

principal purpose is substantially frustrated without his fault by the 

occurrence of an event the non-occurrence of which was a basic assumption on 

which the contract was made.” WFND, LLC v. Fargo Marc, LLC, 2007 ND 67, 

¶ 18, 730 N.W.2d 841 (quoting Restatement (Second) of Contracts § 285 (Tent. 

Draft No. 9) (1974)); see also Restatement (Second) of Contracts § 265 (1981) 

(adopted version). Determining whether there has been frustration of purpose 

with regard to a contract requires consideration of “whether events have 

occurred after formation of the contract to frustrate the principal purpose or 

basic assumption of the contract and involves interpretation of the principal 

purpose or basic assumption of the contract.” City of Harwood v. City of Reiles 

Acres, 2015 ND 33, ¶ 23, 859 N.W.2d 13.

[¶12] Our cases reviewing an allegation of frustration of purpose in a contract 

cite favorably to the requirements described in the Restatement. R & F Fin.

Serv., LLC v. Cudd Pressure Control, Inc., 2021 ND 12, ¶ 19, 953 N.W.2d 665

(citing Restatement (Second) of Contracts § 265 comment (a) (1981)). Those 

requirements include the following: 1) the purpose that is frustrated must have 

been “a party’s principal purpose” in making the contract; 2) the purpose must 

be “substantially frustrated” without fault by the party asserting the defense; 

and 3) the non-occurrence of the frustrating event must have been “a basic 

assumption on which the contract was made.” Id. at ¶¶ 19-20.
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[¶13] In his appellate brief, Burckhard does not identify or provide direct 

discussion of the requirements recognized by this Court as necessary to 

establish the defense of frustration of purpose. His brief summarily asserts the 

parties assumed LLH would provide sufficient work for Burckhard to meet the 

projected billable hours upon which his compensation was based, and there are 

questions of fact regarding whether LLH made sufficient work available to 

him. In the district court he argued he had no control over the work and clients 

provided to him, the COVID-19 pandemic made it impossible to meet the 

billable hour requirements, and LLH’s receipt of payroll assistance funds 

related to pandemic relief supported his defense of frustration of purpose.

[¶14] The district court, in ruling on the motion for summary judgment, noted 

the following:

For frustration of purpose, a defendant must prove, through no

fault of his own, something occurred which the non-occurrence of

was a basic assumption of the contract. In this case, Burckhard

would have to show 1) there was a basic assumption that LLH 

would provide him sufficient cases and clients to meet his billable 

hour requirements; 2) LLH failed to provide him the clients; and 

3) the lack of work was through no fault of his own. The Court finds

Burckhard failed to provide any evidence that LLH agreed to 

provide him clients. The employment agreement does not state 

LLH would do so, but rather provided incentives for Burckhard to 

find his own work.

[¶15] In the context of considering the defense of frustration of purpose we 

have noted the “object of interpreting and construing a contract is to ascertain

and give effect to the parties’ mutual intention at the time of contracting.” 

Harwood, 2015 ND 33, ¶ 24 (citing N.D.C.C. § 9-07-03; Fargo Foods, Inc. v. 

Bernabucci, 1999 ND 120, ¶ 13, 596 N.W.2d 38). “The parties’ intention must 

be ascertained from the writing alone, if possible.” Id. (citing N.D.C.C. § 9-07-

04; Bernabucci, at ¶ 13). “A contract must be construed as a whole to give effect 

to each provision, if reasonably possible.” Id. (citing N.D.C.C. § 9-07-06; 

Bernabucci, at ¶ 13). “The interpretation of a written contract to determine its 

legal effect is a question of law.” Id. (citing Bernabucci, at ¶ 13). “Interpretation 

of a contract is a question of law, and on appeal this Court independently 
7

examines and construes the contract to determine if the district court erred in 

its interpretation.” Lario Oil & Gas Co. v. EOG Res., Inc., 2013 ND 98, ¶ 5, 832 

N.W.2d 49 (quoting Irish Oil and Gas, Inc. v. Riemer, 2011 ND 22, ¶ 11, 794 

N.W.2d 715).

[¶16] The primary purpose of the contract was to define an employment 

relationship between LLH and Burckhard, including the terms of 

compensation. Burckhard asserts the parties assumed LLH would provide 

sufficient work for him to satisfy his billable hour requirement. In order to 

prevail on his defense of frustration of purpose he must demonstrate a basic 

assumption of the contract was that LLH would provide sufficient billable 

hours to cover his prepaid compensation, that the lack of sufficient billable 

hours led to a substantial frustration of the employment relationship as 

defined by the contract, and the substantial frustration was not his fault. 

[¶17] The contract provides no indication LLH had an obligation to provide 

Burckhard with sufficient work to satisfy his billing requirement. To the 

contrary, the inclusion of Section 6 in the employment agreement anticipated 

there could be instances where Burckhard would not reach his required 

billable hours. The contract also provided incentives for Burckhard to find his 

own work. The district court noted that Burckhard had failed to provide any 

evidence LLH had an obligation to provide sufficient work to prevent a 

deficiency between his prepaid compensation and billable hours. Even if there 

was an assumption LLH would provide Burckhard with sufficient work to meet 

his billable hour requirement, and we assume LLH failed to do so, the primary 

purpose of defining the parties’ employment relationship remained intact with 

the amount of compensation adjusted accordingly; there was not a substantial 

frustration of purpose. Based on the record in this case, we conclude the district 

court did not err in determining there were no questions of fact regarding the 

defense of frustration of purpose.

B

[¶18] Burckhard argues the employment agreement was unconscionable and 

should not be enforced. 
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The court employs a two-prong framework to determine 

whether a contractual provision is unconscionable and considers 

both procedural unconscionability and substantive 

unconscionability. Strand [v. U.S. Bank Nat’l Ass’n ND], 2005 ND 

68, ¶ 7, 693 N.W.2d 918. Procedural unconscionability relates to 

procedural deficiencies in the contract formation process, 

including refusal to bargain over contract terms. Id. at ¶ 10. 

Substantive unconscionability relates to the terms of the contract 

and whether the terms are unreasonably favorable to the more 

powerful party. Id.“[A] party alleging unconscionability must 

demonstrate some quantum of both procedural and substantive 

unconscionability, and courts are to balance the various factors, 

viewed in totality, to determine whether the particular contractual 

provision is ‘so one-sided as to be unconscionable.’” Id. at ¶ 

12 (quoting Construction Assocs., [Inc. v. Fargo Water Equip. Co.,] 

446 N.W.2d [237,] 241 [(N.D. 1989)]).

Thompson v. Lithia N.D. Acquisition Corp. #1, 2017 ND 136, ¶ 19, 896 N.W.2d 

230. The question of unconscionability is one of law, but factual findings by the 

trial court are reviewed under the clearly erroneous standard. Terry v. Terry,

2002 ND 2, ¶ 14, 638 N.W.2d 11.

[¶19] “Procedural unconscionability focuses upon formation of the contract and 

fairness of the bargaining process, including factors such as inequality of 

bargaining power, oppression, and unfair surprise.” Thompson, 2017 ND 136, 

¶ 20 (quoting Strand, 2005 ND 68, ¶ 13). “Substantive unconscionability 

focuses on the harshness or one-sidedness of the contractual provision.” Id. at 

¶ 21.

[¶20] Burckhard argues the contract was procedurally unconscionable because 

he was asked to sign the employment agreement several months into his 

employment and he did not feel that he could negotiate the terms of the 

agreement. Burckhard argues the employment agreement is substantively 

unconscionable because the agreement provides LLH the sole control to decide 

what hours will be credited to the associate’s required billable hours and LLH 

was in control of the client base. The district court addressed these assertions 

as follows:
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The Court finds Burckhard has failed to prove the employment

agreement was unconscionable. Both parties received benefits and

had obligations under the contract. Burckhard was provided with 

a reasonable salary and benefits. Having a billable hour 

requirement as is present in this agreement was not

unconscionable. Further, the Court finds there was no procedural 

unconscionability. Although LLH drafted the agreement, there is 

no evidence Burckhard objected to anything in the employment 

agreement when he signed it. Burckhard is a well-educated man 

with training in contracts from law school. The Court finds the 

employment agreement was not so one-sided or harsh to be 

unconscionable.

[¶21] After a review of the record we conclude the district court did not err in 

determining the parties’ employment contract was not unconscionable.

C

[¶22] Burckhard argues the employment contract is void for lack of 

consideration because he was asked to sign the contract months after he 

started working for LLH and received nothing in exchange and his billing rate 

was increased and he received nothing in exchange. Consideration in a contract 

consists of a benefit conferred or a detriment received. Frontier Fiscal Servs., 

LLC v. Pinky’s Aggregates, Inc., 2019 ND 147, ¶ 19, 928 N.W.2d 449. Section 9-

05-10, N.D.C.C., provides “[a] written instrument is presumptive evidence of a 

consideration.”

[¶23] Burckhard and LLH had a written employment contract where 

Burckhard received compensation based on projected hours, subject to his 

subsequent ability to meet his billable hour requirement. The employment 

contract stated its purpose was to memorialize the parties’ agreement, not 

create a new agreement. Burckhard received a benefit, his compensation, in 

exchange for providing work on behalf of LLH. The district court did not err in 

dismissing Burckhard’s lack of consideration defense.
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D

[¶24] Burckhard argues LLH waived its right to enforce Section 6 of the 

employment agreement because LLH did not enforce the “debt owed” until 

after the employment agreement was terminated. “Waiver is a voluntary and 

intentional relinquishment of a known right or privilege and is ordinarily a 

question of fact.” Holverson v. Lundberg, 2016 ND 103, ¶ 23, 879 N.W.2d 718.

Waiver can be established by an express agreement or by inference from acts 

or conduct of the parties. Pfeifle v. Tanabe, 2000 ND 219, ¶ 18, 620 N.W.2d 167. 

If circumstances of an alleged waiver are admitted or clearly established and 

reasonable persons can draw only one conclusion from those circumstances, 

whether there was a waiver is a question of law. Id. “Waiver may be found from 

an unexplained delay in enforcing contractual rights or accepting performance 

different than called for by the contract.” Id.

[¶25] The contract permits LLH to seek the “debt owed” by an associate at the 

end of each calendar year or upon termination of employment. Section 6 

provides:

6. Hours Billed Discrepancy. In the event that Associate bills 

out less than the base quota for a three month period, the 

Associate’s salary will be reduced appropriately at the discretion 

of LLH in order to make up for any discrepancy. Any discrepancy 

where the actual hours billed is less than the base hours required 

will be considered to be a debt owed by Associate to LLH at the end 

of the calendar year or at the termination of employment.

(Emphasis added.) LLH had the discretion to seek a recovery of the debt owed 

at the end of the calendar year or at the termination of employment. LLH chose 

to seek the debt owed after termination of Burckhard’s employment. The 

district court did not err in dismissing Burckhard’s waiver defense.

E

[¶26] Burckhard argues there are genuine issues of material fact as to the 

amount of damages. A party resisting summary judgment may not simply rely 

upon the pleadings or upon unsupported, conclusory allegations. Riemers v. 

Omdahl, 2004 ND 188, ¶ 4, 687 N.W.2d 445.
11

A party resisting a motion for summary judgment has the 

responsibility of presenting competent admissible evidence by 

affidavit or other comparable means, and, if appropriate, drawing 

the court’s attention to evidence in the record . . . raising a material 

factual issue, or from which the court may draw an inference 

creating a material factual issue.

First Nat. Bank of Hettinger v. Clark, 332 N.W.2d 264, 267 (N.D. 1983) 

(citations omitted).

[¶27] Burckhard argues that if “[v]iewed in a light most favorable to the party 

resisting Summary Judgment, the discrepancy as to the total damages, if any, 

would create a factual dispute to be determined by a trier of fact, and as much 

was alleged in the response to the motion.” In his affidavit, Burckhard alleges 

the amount of damages is incorrect because LLH was in sole control of whether 

the hours reported by Burckhard would be credited as billable hours. However, 

under the terms of the contract, LLH had the sole discretion to determine 

which hours would be credited to Burckhard’s required billable hours. 

Moreover, Burckhard provided the district court with mere conclusory 

statements that he disagrees with the amount of damages without any 

explanation regarding how he reaches that conclusion. He provided no 

evidence that the amount of hours he actually billed was improperly 

calculated. Burckhard failed to provide sufficient evidence to show there is a 

genuine dispute as to a material fact regarding the calculation of LLH’s 

damages.

IV

[¶28] Burckhard failed to prove there was a genuine dispute as to any material 

fact. The district court properly granted summary judgment in favor of LLH 

and properly dismissed all of Burckhard’s affirmative defenses. We affirm. 

[¶29] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte