from the District Court of Williams County, Northwest
Judicial District, the Honorable Joshua B. Rustad, Judge.
Thaddeus E. Swanson, Fargo, ND, for plaintiff and appellee.
A. Nilson (argued) and William J. Brudvik (appeared), West
Fargo, ND, for defendants and appellants.
VANDEWALLE, CHIEF JUSTICE.
1] A&M Structuring, LLC, and Edward Couture, individually
and as manager of A&M Structuring, (collectively
"defendants"), appealed from a judgment entered in
favor of Lynn Flaten and from a post-judgment order denying
their motions to amend the judgments and "regarding
ownership or interest in levied property." We conclude
the district court did not err in granting partial summary
judgment or abuse its discretion in denying the post-judgment
motions. We affirm.
2] In September 2012, Flaten sued A&M Structuring, LLC,
and Couture, individually and as manager of A&M
Structuring, for claims of breach of contract, unjust
enrichment, and fraud. Flaten alleged he agreed to sell
certain real property located in Williams County
("Williston property") to the defendants for $275,
000 in February 2012, the defendants paid $50, 000 as a down
payment, but failed to pay the remaining amounts due for the
property. Flaten also alleged the defendants agreed to sell
him certain real property located in McKenzie County
("Dore property"), the Dore property consisted of
three individual lots, and the defendants never delivered the
3] The defendants answered, alleging various affirmative
defenses. The defendants also counterclaimed, alleging Flaten
owes them for bills they incurred and services they performed
on his behalf related to the properties.
4] In November 2014, the defendants moved for summary
judgment. They argued there were no disputed issues of
material fact, Flaten agreed to purchase the Dore property at
a discounted price of $75, 000 for each lot, but Flaten never
closed on the sale of the Dore property. The defendants also
alleged the discounted price on the Dore property was
negotiated to offset the discounted price they paid for the
Williston property. Couture filed an affidavit in support of
the defendants' motion, claiming the Dore property was
worth $450, 000 to $600, 000 for all three lots. He also
claimed the parties agreed to modify the terms of the sale of
the Williston property, the defendants would pay $50, 000
cash for the Williston property, the Dore property would be
discounted to $75, 000 for each lot, and the amount
discounted on the Dore property along with the $50, 000 cash
were equal to the $275, 000 price for the Williston property.
He alleged Flaten received full consideration and value for
the Williston property in the form of the cash and discounts.
5] Flaten opposed the motion and also moved for summary
judgment. He argued the written terms of the purchase
agreements for the Williston and Dore properties govern, the
purchase agreement for the Williston property states it was
to be a "cash sale" of $275, 000 and is silent
about any "discounted price, " and Couture breached
the purchase agreement for the Dore property by failing to
deliver the property. Flaten requested the court grant
summary judgment in his favor.
6] In October 2015, the district court denied the
defendants' motion for summary judgment and partially
granted Flaten's motion for summary judgment. Although
the purchase agreements for the Williston and Dore properties
were executed on the same day and are essentially the same
except for the switched purchaser and seller, the property
descriptions, and the purchase price, the court concluded the
Dore property purchase agreement was ambiguous but the
Williston property purchase agreement was not ambiguous. In
ruling the purchase agreement for the Williston property was
not ambiguous, the court noted that Flaten agreed to sell the
property to the defendants for $275, 000, the purchase
agreement did not reference any other transaction or state
the sale was dependent on the Dore property and the
defendants paid $50, 000. The court held the defendants
breached the contract and owe Flaten $225, 000. The court
concluded there was ambiguity in the Dore purchase agreement
regarding the terms for closing on the sale of the Dore
property and extrinsic evidence was necessary to determine
the closing terms, what was a reasonable time to close, and
whether Flaten had the ability and means to close on the
property. Any similar ambiguity in the purchase agreement for
the Williston property was not at issue because the parties
had closed on the sale of that property and a warranty deed
had been issued. The court determined there were genuine
issues of material fact on the claims related to the Dore
property and summary judgment was not appropriate on those
7] In April 2017, the defendants moved to dismiss the action
under N.D.R.Civ.P. 12 and for the court to grant them relief
from the order for partial summary judgment under
N.D.R.Civ.P. 60(b)(6). They argued the court did not have
subject matter jurisdiction because Flaten was the only named
plaintiff, he was not named in the purchase agreements as the
purchaser or seller of the properties, and there were genuine
issues of material fact about who entered into the purchase
agreement for the Williston property and whether the
agreement was enforceable. The district court denied the
8] A jury trial was held on the remaining issues in April
2017. A special verdict form was used. The jury found the
parties had agreed upon terms for the sale of the Dore
property that were different from the purchase agreement and
the defendants breached the agreed upon terms for the sale of
the property. The jury awarded Flaten $10, 000 plus interest
for the defendants' breach of the Dore property purchase
agreement and $4, 500 plus interest for work Flaten performed
on the Dore property. Neither party has challenged the
special verdict form on appeal and, as a result, we do not
consider whether or not the questions contained therein were
proper for the jury to answer. In May 2017, judgments were
entered in favor of Flaten for $289, 208.22 for the claims
related to the Williston property and $17, 303.88 for the
claims related to the Dore property.
9] In July 2017, the defendants moved for relief from the
judgments under N.D.R.Civ.P. 59(j) and 60 (b)(1) and (6). The
defendants argued Couture should be removed from the
judgments and should not be held personally liable because
Flaten failed to pierce the corporate veil. Flaten opposed
10] In August 2017, the defendants filed a "Motion
Regarding Ownership or Interest in Levied Property, "
requesting funds be returned that they alleged were removed
from bank accounts for business entities who were not parties
to the case. They claimed the purchase agreements only listed
A&M Structuring 7, LLC as the buyer or seller, A&M
Structuring 7 is part of a Nevada series limited liability
company, there are 13 total A&M Structuring series
limited liability companies, the other A&M Structuring
series limited liability companies were not parties to the
action, and any funds from their accounts should be returned.
Flaten opposed the motion.
11] After a hearing, the district court denied both motions.
12] The defendants argue the district court erred in granting
summary judgment on Flaten's breach of contract claim
related to the Williston property. They claim they raised a
genuine issue of material fact about the terms of the
purchase agreement and the court erred in concluding the
purchase agreement was unambiguous.
13] In reviewing a district court's decision on a motion
for summary judgment, this Court views the evidence in the
light most favorable to the party opposing the motion.
Snider v. Dickinson Elks Bldg., LLC, 2018 ND 55,
¶ 9, 907 N.W.2d 397. "[T]his 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."
Id. Whether the court properly granted summary
judgment is a question of law, which is reviewed de novo on
the entire record. Id.
14] We have explained the well-established rules for
interpreting written contracts:
The construction of a written contract to determine its legal
effect is a question of law. A contract is to be interpreted
to give effect to the mutual intention of the parties at the
time of contracting. Under [N.D.C.C. § 9-07-04], the
intention of the parties to a written contract is to be
ascertained from the writing alone, if possible. If executed
documents are unambiguous, parol evidence is not admissible
to contradict the terms of the written agreement. If a
written contract is ambiguous, extrinsic evidence can be
considered to clarify the parties' intent. [W]here the
contract is clear and unambiguous there is no reason to go
further. Whether or not a contract is ambiguous is a question
of law. An ambiguity exists when rational arguments can be
made in support of contrary positions as to the meaning of
the term, phrase, or clause in question. If the parties'
intentions can be ascertained from the writing alone, then
the interpretation of the contract is entirely a question of
law, and we will independently examine and construe the
contract to determine if the district court erred in its
interpretation of it. A contract may be explained by
reference to the circumstances under which it was made and
the matter to which it relates. However broad may be the
terms of a contract, it extends only to those things
concerning which it appears that the parties intended to
In re Estate of Dionne, 2009 ND 172, ¶ 16, 772
N.W.2d 891 (quoting Pamida, Inc. v. Meide, 526
N.W.2d 487, 490 (N.D. 1995) (internal quotations omitted)).
15] A contract for the sale of real property is invalid
unless it is in writing. N.D.C.C. § 9-06-04. "The
execution of a contract in writing, whether the law requires
it to be written or not, supersedes all the oral negotiations
or stipulations concerning its matter which preceded or
accompanied the execution of the instrument." N.D.C.C.
§ 9-06-07. "When the language of a contract is
plain and unambiguous and the parties' intentions can be
ascertained from the writing alone, extrinsic evidence is
inadmissible to alter, vary, explain, or change the
document." Burk v. State, 2017 ND 25, ¶ 9,
890 N.W.2d 535; see also N.D.C.C. § 9-07-04.
"If the language of [a] contract is clear and
unambiguous and the intent is apparent from its face, there
is no room for further interpretation, and extrinsic evidence
may not be used to vary or contradict the terms of the
agreement or to create an ambiguity." Limberg v.
Sanford Med. Ctr. Fargo, 2016 ND 140, ¶ 17, 881
16] The purchase agreement for the Williston property states:
A&M Structuring 7, LLC, 4590 E. Cincinatti [sic], Las
Vegas NV 89104 herinafter [sic] referred to as the purchaser,
do herby [sic] agree to purchase, and Flaten Trucking, LLC,
PO Box 4311, Williston ND 58801, hereinafter referred to as
the seller, do hereby agree to sell the ...