from the District Court of Grand Forks County, Northeast
Central Judicial District, the Honorable Steven E.
M.Grossman (argued) and Nathan D. Severson (on brief), Fargo,
ND, for plaintiff and appellant.
H. McLean (argued) and Ian R. McLean (on brief), Fargo, ND,
for defendants and appellees.
James Broten appeals the dismissal of his attorney
malpractice claim. Broten argues the district court erred in
granting summary judgment after finding his claim was barred
by the applicable statute of limitations. He also challenges
the inclusion of expert witness fees within the expenses
awarded by the district court for experts who were
unnecessary for resolution of the statute of limitations
issue. We affirm.
Broten was appointed to serve as the personal representative
of his father's estate. Broten was subsequently sued by
his sisters who claimed Broten had breached his fiduciary
duties as personal representative by transferring land held
in the trust to himself. In 2011, attorney Ralph Carter was
retained by Broten to defend him against his sisters'
During Carter's representation, Broten showed Carter
approximately sixty boxes of records Broten believed
documented payments to his parents and provided a defense to
his sisters' claims. Broten repeatedly inquired with
Carter about his review of the records. The records were not
disclosed to the opposing party during discovery but
disclosed after Carter was replaced as Broten's counsel
in March of 2013.
On August 15, 2013, the district court entered findings of
fact, conclusions of law, and an order finding Broten had
breached his fiduciary duties as personal representative of
his father's estate. The court reserved its findings on
damages and ordered an evidentiary hearing to determine the
amount of damages. On January 21, 2014, following the
evidentiary hearing, the court issued a memorandum opinion
and order for judgment requiring Broten to pay damages to his
sisters in an amount of $1, 300, 054.
On January 14, 2016, Broten commenced this action for legal
malpractice claiming Carter failed to review the records
Broten had provided to Carter to support Broten's defense
to the breach of fiduciary duty claim asserted by his
sisters. Broten alleges Carter's failure to review and
disclose the documents prevented all of the records from
being introduced as evidence and resulted in the liability to
his sisters. Carter moved for summary judgment, arguing the
applicable two year statute of limitations barred
Broten's claim. The district court granted summary
judgment in favor of Carter and awarded to Carter the
recovery of costs and fees, including the costs expended for
expert witnesses who were unnecessary for resolution of the
statute of limitations issue. On February 25, 2019, the
district court entered a judgment dismissing Broten's
claims in their entirety, with prejudice.
Broten argues the district court erred in granting summary
judgment because the statute of limitations had not run on
his malpractice claim against Carter. He also argues the
district court erred in granting expert witness fees for
experts who were unnecessary for Carter to prevail on the
summary judgment motion.
Broten contends the district court erred in granting Carter
summary judgment after finding the statute of limitations for
asserting his malpractice claim had expired before he
initiated this action. This Court's standard of review
for summary judgment is well established:
Summary judgment is a procedural device under N.D.R.Civ.P.
56(c) for promptly resolving 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. The party seeking summary judgment must
demonstrate there are no genuine issues of material fact and
the case is appropriate for judgment as a matter of law. 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
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.
Pettinger v. Carroll, 2018 ND 140, ¶ 7, 912
N.W.2d 305 (quoting A.R. Audit Servs., Inc. v.
Tuttle, 2017 ND 68, ¶ 5, 891 N.W.2d 757 (internal
The parties agree an action for legal malpractice is governed
by the two year statute of limitations provided by N.D.C.C.
§ 28-01-18(3). Under N.D.C.C. § 28-01-18(3), a
client must commence a malpractice suit within two years
after the claim for relief has accrued. Larson v. Norkot
Mfg., Inc., 2001 ND 103, ¶ 9, 627 N.W.2d 386.
"A cause of action for legal malpractice does not
accrue, and the statute of limitations does not commence to
run, until the client has incurred some damage."
Id. (quoting Wall v. Lewis, 366 N.W.2d 471,
473 (N.D. 1985)). The action accrues when there is a
conjunction of damage and wrongful act. Jacobsen v.
Haugen, 529 N.W.2d 882, 885 (N.D. 1995).
The district court concluded the only reasonable conclusion
that can be drawn from the undisputed facts is Broten's
action accrued on August 15, 2013, the date of the order
finding Broten breached his fiduciary duty to his sisters and
reserving the determination of damages arising from the
breach. Broten argues there is a material question of fact
precluding summary judgment because August 15, 2013, is not
the only date that can be reasonably considered as the date
he was placed on notice of his potential malpractice claim
against Carter. Broten argues the August 15, 2013, order
finding he breached his fiduciary duty allowed him to prove
an offset to potentially all the damages, and it was not
until the January 21, 2014, order awarding damages for the
breach of his fiduciary duty he actually became aware he
would have an obligation to his sisters. Broten contends the
uncertainty of whether the offsets would eliminate any
potential obligation to his sisters creates a question of
fact of whether the statute of limitations was tolled until a
damage award became a certainty following the January 21,
This Court has adopted the application of the discovery rule
to potentially toll the statute of limitations in legal
malpractice actions. Wall v. Lewis, 393 N.W.2d 758,
761 (N.D. 1986). The discovery rule delays the start of the
statute of limitations until the plaintiff "knows, or
with reasonable diligence should know, of the injury, its
cause, and the defendant's possible negligence."
Wall, at 761. "The discovery rule focuses on
whether the plaintiff has been apprised of facts which would
place a reasonable person on notice that a potential claim
exists, and it prevents the injustice of barring a claim
before the plaintiff reasonably could be aware of its
existence." Riemers v. Omdahl, 2004 ND 188,
¶ 6, 687 N.W.2d 445. We have recognized the discovery
rule employs an objective standard of knowledge, and it is
not necessary that a plaintiff be subjectively convinced of
the injury and that the injury was caused by the
defendant's negligence. Id.
In Riemers, this Court considered the extent to
which a Plaintiff is required to appreciate the injury caused
by the attorney's malpractice. Id. at ¶ 7.
In Riemers, this Court noted the following:
Under the discovery rule, the statute of limitations does not
begin to run until the plaintiff has incurred some injury or
damage. Larson v. Norkot Mfg., Inc., 2002 ND 175,
¶ 10, 653 N.W.2d 33 (citing Wall v. Lewis, 366
N.W.2d 471, 473 (N.D. 1985)). It is not necessary for the
plaintiff to fully appreciate the potential liability, or
even be convinced of an injury; the objective standard
requires only that the plaintiff be aware of facts that would
place a reasonable person on notice that a potential claim
exists. Larson v. Norkot Mfg., Inc., 2001 ND 103,
¶ 13, 627 N.W.2d 386. In Wall, 366 N.W.2d at
473 (quoting Budd v. Nixen, 6 Cal.3d 195, 491 P.2d
433, 436-37, 98 Cal.Rptr. 849 (Cal. 1971)), we explained:
". . . until the client suffers appreciable harm as a
consequence of his attorney's negligence, the client
cannot establish a cause of action for malpractice. Prosser
states the proposition succinctly, 'It follows that the
statute of limitations does not begin to run against a
negligence action until some damage has occurred.'
(Prosser, Law of Torts (4th ed. 1971), § 30 at p. 144.)
The cause of action arises, however, before the client
sustains all, or even the greater part, of the damages
occasioned by his attorney's negligence. . . . Any
appreciable and actual harm flowing from the attorney's
negligent conduct establishes a cause of action upon which
the client may sue.
Indeed, once having discovered his attorney's negligence
and having suffered some damage, the client must institute
his action within the time prescribed in the statute of
limitations or he will be barred from thereafter complaining
of his attorney's conduct."
Ordinarily, when the discovery rule is applied, knowledge of
when the plaintiff should have discovered there was a
potential malpractice claim is a question of fact precluding
summary judgment. Id. at ¶ 8. "However,
issues of fact may become issues of law if reasonable persons
could reach only one conclusion from the facts."
Id. at ¶ 8 (citing Twogood v. Wentz,
2001 ND 167, ¶ 10, 634 N.W.2d 514). "A
plaintiff's knowledge of a potential claim is an issue of
law if the ...