Swenson v. Mahlum ( 2019 )

Filed 5/16/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2019 ND 144
Willis G. Swenson, and Plaintiffs, Appellants,
Dayna L. Johnson, and Cross-Appellees
v.
Kyle Mahlum, Defendant, Third-Party Plaintiff,
Appellee, and Cross-Appellant
v.
Carol Hodgerson, Gerard Swenson, Lee Alan
Swenson, and Mary Ann Vig, in their individual
capacities and as heirs to the estate of
Junietta Swenson, Third-Party Defendants and Appellees
No. 20180345
Appeal from the District Court of Burke County, North Central Judicial
District, the Honorable Gary H. Lee, Judge.
REVERSED AND REMANDED.
Opinion of the Court by Crothers, Justice.
Taylor D. Olson (argued) and Peter H. Furuseth (on brief), Williston, ND, for
plaintiffs, appellants, and cross-appellees Willis G. Swenson and Dayna L. Johnson.
Ryan G. Quarne, Minot, ND, for defendant, third-party plaintiff, appellee, and
cross-appellant Kyle Mahlum.
Elizabeth L. Pendlay, Crosby, ND, for third-party defendants and appellees
Carol Hodgerson, Gerard Swenson, Lee Alan Swenson and Mary Ann Vig.
Swenson v. Mahlum
No. 20180345
Crothers, Justice.
[¶1] Willis Swenson appeals and Kyle Mahlum cross-appeals from an order
dismissing Willis Swenson’s claims against Mahlum and Mahlum’s claims against
Carol Hodgerson, Gerard Swenson, Lee Alan Swenson, and Mary Ann Vig (“third-
party defendants”). Willis Swenson argues the district court erred in dismissing his
breach of contract claim against Mahlum. We reverse the order and judgment and
remand.
I
[¶2] Robert and Junietta Swenson owned real property in Burke County, North
Dakota described as:
Township 163 North, Range 89 West
Section 28: NW1/4
Township 163 North, Range 88 West
Section 19: NE1/4
Section 29: NE1/4
Section 31: E1/2NE1/4
Section 32: SE1/4
Willis Swenson and the third-party defendants are the children of Robert and Junietta
Swenson. In 2004, Robert and Junietta Swenson conveyed the property to their
children as joint tenants, reserving a life estate for themselves. In 2005, Robert
Swenson died and Junietta Swenson became the sole life tenant.
[¶3] In 2008, Junietta Swenson leased the property to Willis Swenson. Willis
Swenson agreed to rental payments of $20,016 per year, due in installments of
$10,008 on March 15 and October 15.
[¶4] In December 2009, Willis Swenson leased the property to Mahlum for
$31,022.50 per year, due on March 1. The Swenson-Mahlum lease became effective
in March 2010 and stated it would expire in October 2019. The lease also stated, “In
the event of Junietta W. Swensons death, payments shall be made as follows. Semi
1
annual payments of $10,008 (ten thousand, eight and 00/100) on March 15 and
October 15 to Swenson farm land trust. A single payment to Willis G Swenson of
$11006.50 (Eleven thousand, six and 50/100) on March 1st of each year.”
[¶5] In November 2011, Willis Swenson signed a new lease with Junietta Swenson.
The lease required Willis Swenson to pay $10,008 on March 15 and October 15 of
each year. The lease began in 2012 and stated it would expire in 2022. The lease
permitted Willis Swenson to assign or sublet the property to any person.
[¶6] In July 2012, Lee Alan Swenson was appointed guardian and conservator for
Junietta Swenson. In January 2013, Lee Alan Swenson, as guardian and conservator,
leased the same property to Mahlum that Willis Swenson already was leasing to
Mahlum in the December 2009 lease. The new lease required Mahlum to pay Junietta
Swenson $31,122.50 each year on March 1. Junietta Swenson died on November 20,
2013. Mary Vig, as personal representative of Junietta Swenson’s estate, informed
Mahlum that future rental payments should be split and made to each of Junietta
Swenson’s children in equal amounts.
[¶7] In January 2017, Willis Swenson and his daughter, Dayna Johnson, sued
Mahlum for unpaid rent. Willis Swenson alleged Mahlum was required to pay him
$31,022.50 each year under the 2009 lease, and Mahlum failed to pay any rent in
2013, 2014, 2015, and 2016. Willis Swenson requested $124,090 in damages.
[¶8] Mahlum answered and filed a third-party complaint, suing the third-party
defendants, in their individual capacities and as heirs to the Estate of Junietta
Swenson, for unjust enrichment. He alleged in 2013 he paid $31,122.50 to Junietta
Swenson under the terms of the 2013 lease. He also alleged in 2014, 2015, and 2016
he paid $31,122.50 in rent to each of Junietta Swenson’s five children. He claimed
that the third-party defendants have been unjustly enriched, and that the third-party
defendants be ordered to pay Mahlum any amounts the court finds he owes Willis
Swenson if Willis Swenson obtains a judgment against him.
[¶9] After a bench trial, the district court dismissed Willis Swenson and Dayna
Johnson’s claims against Mahlum with prejudice and dismissed Mahlum’s claims
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against the third-party defendants without prejudice. The court dismissed Johnson’s
claims, finding she had no interest in the property, no interest in the lease, she could
not assert Willis Swenson’s rights, and therefore she had no standing. The court
found Willis Swenson’s alleged damages were limited because he was required to pay
Junietta Swenson $20,016 per year for rent on the property and therefore the most he
would ever receive from Mahlum under the lease was $11,006.50, and the maximum
amount of his recovery was $44,026 if he recovered any damages.
[¶10] The court dismissed Willis Swenson’s claims to any rent for 2014 through
2016, finding Junietta Swenson’s 2011 lease to Willis Swenson terminated upon her
death, Willis Swenson no longer had a right to sublease the property, and therefore
the lease between Willis Swenson and Mahlum also terminated upon Junietta
Swenson’s death in November 2013. The court also dismissed Willis Swenson’s
claims for payment of the 2013 rent. The court found Lee Alan Swenson advised
Mahlum in 2013 that all future rental payments should be made directly to Junietta
Swenson, Mahlum paid the 2013 rent to Junietta Swenson, and Mahlum is protected
from any claim by N.D.C.C. § 30.1-29-23 because he acted in good faith with Lee
Alan Swenson, as guardian and conservator.
II
[¶11] The third-party defendants argue the appeal should be dismissed because
Mahlum’s claims were dismissed without prejudice, the district court did not certify
the judgment as final under N.D.R.Civ.P. 54(b), and the judgment is not final and
appealable.
[¶12] The right to appeal is governed by statute, and the appeal must be dismissed
if there is no statutory basis to hear the appeal. James Vault & Precast Co. v. B&B
Hot Oil Serv., Inc., 2018 ND 63, ¶ 8, 908 N.W.2d 108. A party may appeal from a
judgment or order in a civil action under N.D.C.C. § 28-27-01. Only judgments and
decrees which constitute a final judgment and orders specified by statute are
appealable. James Vault & Precast, at ¶ 8.
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[¶13] A dismissal without prejudice generally is not appealable. Conrad v.
Wilkinson, 2017 ND 212, ¶ 5, 901 N.W.2d 348. “This Court has noted that, because
either side may commence another action after a civil complaint is dismissed without
prejudice, the order dismissing the action neither ‘determines the action’ nor ‘prevents
a judgment from which an appeal might be taken.’” Bell v. Pro Tune Plus,
2013 ND 147, ¶ 4, 835 N.W.2d 858 (quoting Triple Quest, Inc. v. Cleveland Gear
Co., Inc., 2001 ND 101, ¶ 7, 627 N.W.2d 379). “However, a dismissal without
prejudice may be final and appealable if the plaintiff cannot cure the defect that led
to dismissal, or if the dismissal has the practical effect of terminating the litigation in
the plaintiff’s chosen forum.” Conrad, at ¶ 5 (quoting Rodenburg v. Fargo-Moorhead
Young Men’s Christian Ass’n, 2001 ND 139, ¶ 12, 632 N.W.2d 407).
[¶14] In James Vault & Precast, 2018 ND 63, ¶ 1, 908 N.W.2d 108, the question was
whether the judgment was final for purposes of appeal when some claims were
dismissed without prejudice. There, the district court granted summary judgment
dismissing several of the defendants’ cross-claims. Other claims remained and were
scheduled for trial. To make the case appealable, the parties stipulated to dismissal
of the remaining claims without prejudice, and the court entered judgment conforming
to the stipulation. Id. at ¶¶ 4-5. On appeal we considered the extent of our
jurisdiction where parties voluntarily dismissed claims without prejudice to create a
final judgment for purposes of appeal. Id. at ¶ 11. In reviewing the approaches
federal appellate courts have adopted, we said, “We adopt the bright-line approach to
review appeals where remaining claims are dismissed without prejudice. Under this
approach, if there is a dismissal without prejudice of remaining non-adjudicated
claims to create a final disposition of all claims in a lawsuit, there is not a final
judgment of the rights of the parties.” Id. at ¶ 14.
[¶15] This case is different than James Vault & Precast. Here, after a bench trial, the
district court dismissed Willis Swenson’s claims against Mahlum with prejudice and
dismissed Mahlum’s claims against the third-party defendants without prejudice.
Willis Swenson’s claims against Mahlum were for failure to pay rent due under the
4
farm lease. Mahlum’s unjust enrichment claims against the third-party defendants
were dependent on the court entering judgment against Mahlum on Willis Swenson’s
claims. Because the court found in favor of Mahlum on Willis Swenson’s claims, it
dismissed Mahlum’s claims without deciding the merits of his claims. None of the
parties requested Mahlum’s third-party claims be dismissed without prejudice to
“create” or “manufacture” a final judgment for purposes of appellate jurisdiction.
None of the claims were dismissed without prejudice “to create a final disposition of
all claims.” Because Mahlum’s third-party claims were dependent on Willis
Swenson’s claims which were dismissed without prejudice, the court’s decision has
the practical effect of terminating the litigation. Therefore, the order and judgment
dismissing Willis Swenson’s claims with prejudice and Mahlum’s claims without
prejudice is appealable.
III
[¶16] Willis Swenson argues the district court erred in dismissing his breach of
contract claim against Mahlum for unpaid rent for the 2013 farm year. He claims a
valid and enforceable lease existed between himself and Mahlum, the lease was not
terminated, and the court erred in finding Mahlum was protected from any claim
under N.D.C.C. § 30.1-29-23. Willis Swenson does not argue the district court erred
in denying his claims for unpaid rent for 2014, 2015, or 2016.
[¶17] 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. W. Energy Corp. v. Stauffer, 2019 ND 26, ¶ 5, 921 N.W.2d 431. A
finding of fact is clearly erroneous if there is no evidence to support it, it is induced
by an erroneous view of the law, or if after reviewing all of the evidence, this Court
is convinced a mistake has been made. Id.
[¶18] The district court found Mahlum was protected from any claim by Willis
Swenson for the 2013 rent on the property. The court explained:
5
“Prior to 2013, Kyle Mahlum dealt with Willis Swenson. He
made payments to Willis Swenson as required by the various farm
leases.
“In 2013, Lee Alan Swenson was appointed as guardian and
conservator for Junietta Swenson. As guardian, and conservator Lee
Alan Swenson advised Kyle Mahlum that all future lease payments
should be made directly to Junietta Swenson only.
“On February 28, 2013, Kyle Mahlum paid $20,016 to Junietta
Swenson as land rent for 2013. The check was endorsed by Junietta
Swenson, and Lee Alan Swenson as guardian. A second check was
issued on December 2, 2013, after Junietta Swenson’s death. The
check was issued to Junietta Swenson in the amount of $11,500. The
check was endorsed by Junietta Swenson by Mary Ann Vig, P.R.
“The two payments total the amount due from Kyle Mahlum for
rental for the land in 2013.
“It does not appear that Willis Swenson was involved in any of
these discussions or decisions regarding the 2013 rental payment. It
further does not appear that he did anything regarding the 2013
payment at the time. The December, 2009 lease between Willis
Swenson and Kyle Mahlum required Kyle Mahlum to pay Junietta
Swenson $10,008 on March 15, and again on October 15. Kyle
Mahlum was also required to pay Willis Swenson $11,006.50, in
March.
“As noted above, Kyle Mahlum made his first payment to
Junietta Swenson on February 28. Willis Swenson made no demand
for his share of that payment pursuant to the lease. He commenced no
action against the guardian, or Kyle Mahlum for any portion of any
payment.
“Willis Swenson was aware of this possible diversion of the
2013 payments as early as November 19, 2012, when attorney John
Steinberger, attorney for Lee Alan Swenson, Guardian, and
Conservator, sent him a letter advising that the guardian had entered
into a new lease with Kyle Mahlum for the 2013 crop year. Yet again,
Willis Swenson did nothing.
“Willis Swenson now seeks to reach back to 2013, and to be
paid by Kyle Mahlum for the 2013 year lease.
....
“There is no suggestion that Kyle Mahlum acted otherwise than
in good faith with Lee Alan Swenson, as guardian and conservator.
Kyle Mahlum is therefore, by [N.D.C.C. § 30.1-29-23], protected from
any claim by Willis Swenson.
“To the extent Willis Swenson may have any claim at all to any
2013 payments, those claims are to be made against the guardian and
conservator, and not Kyle Mahlum. Willis Swenson has made no claim
6
against Lee Alan Swenson as guardian or conservator for Junietta
Swenson. The claim against Kyle Mahlum for any 2013 payment is
therefore DISMISSED.”
[¶19] “The elements for a prima facie case for breach of contract are: (1) the
existence of a contract; (2) breach of the contract; and (3) damages which flow from
the breach.” WFND, LLC v. Fargo Marc, LLC, 2007 ND 67, ¶ 13, 730 N.W.2d 841.
“A breach of contract is the nonperformance of a contractual duty when it is due.”
Bakke v. Magi-Touch Carpet One Floor & Home, Inc., 2018 ND 273, ¶ 13,
920 N.W.2d 726. The party asserting a breach of contract must prove all elements.
WFND, at ¶ 13. Whether a party has breached a contract is a finding of fact which
will not be reversed on appeal unless it is clearly erroneous. Id.
[¶20] The general rules of contract interpretation apply to leases. See Zundel v.
Zundel, 2017 ND 217, ¶ 12, 901 N.W.2d 731; Abelmann v. Smartlease USA, L.L.C.,
2014 ND 227, ¶ 13, 856 N.W.2d 747. “The language of a contract is to govern its
interpretation if the language is clear and explicit and does not involve an absurdity.”
N.D.C.C. § 9-07-02. Words are given their plain, ordinary, and commonly
understood meaning, unless they are used by the parties in a technical sense or special
meaning is given by useage. N.D.C.C. § 9-07-09. If the parties’ intent can be
ascertained from the language alone, the interpretation of the contract to determine
its legal effect is a question of law, which is fully reviewable on appeal. Abelmann,
at ¶ 13; see also N.D.C.C. § 9-07-04.
[¶21] Willis Swenson sued Mahlum for failure to pay rent for the 2013 farm year.
The parties do not dispute they executed the 2009 lease, which covered the 2013 farm
year. The 2009 lease stated:
“Contract for farmland lease between Willis G Swenson &
Dayna L. Johnson, father and daughter and Kyle Mahlum.
....
“Terms of the lease are:
$31,022.50 (thirty one thousand, twenty two and 50/100)
to be paid by March 1st of each year in one annual
payment. In the event of Junietta W. Swensons death,
payments shall be made as follows. Semi annual
7
payments of $10,008 (ten thousand, eight and 00/100) on
March 15 and October 15 to Swenson farm land trust. A
single payment to Willis G. Swenson of $11006.50
(Eleven thousand, six and 50/100) on March 1st of each
year. This contract shall be in effect from March 1, 2010
to October 15, 2019.”
[¶22] Mahlum did not dispute that he used the farmland in 2013 or that he did not
pay rent to Willis Swenson for 2013. Mahlum testified he entered into the lease with
Willis Swenson in December 2009, and he paid rent to Willis Swenson through 2012.
Mahlum testified he paid rent to Junietta Swenson in 2013 because her guardian and
conservator said he needed to lease directly from Junietta Swenson. In January 2013
Mahlum and the conservator signed a new lease. Although Mahlum admitted he
farmed the property in 2013 and did not pay Willis Swenson rent, the district court did
not find Mahlum breached the contract and did not find the contract was terminated.
Rather, the court found Lee Alan Swenson, as guardian and conservator for Junietta
Swenson, advised Mahlum to make lease payments directly to Junietta Swenson;
Mahlum paid all rent due in 2013 directly to Junietta Swenson; and Mahlum is
protected by N.D.C.C. § 30.1-29-23 from any claim by Willis Swenson.
[¶23] Section 30.1-29-23, N.D.C.C., provides protections for people dealing with
conservators, stating:
“A person who in good faith either assists a conservator or deals with
the conservator for value in any transaction other than those requiring
a court order as provided in section 30.1-29-08 is protected as if the
conservator properly exercised the power. The fact that a person
knowingly deals with a conservator does not alone require the person
to inquire into the existence of a power or the propriety of its exercise,
except that restrictions on powers of conservators which are endorsed
on letters as provided in section 30.1-29-26 are effective as to third
persons. A person is not bound to see to the proper application of estate
assets paid or delivered to a conservator. The protection here expressed
extends to instances in which some procedural irregularity or
jurisdictional defect occurred in proceedings leading to the issuance of
letters. The protection here expressed is not by substitution for that
provided by comparable provisions of the laws relating to commercial
transactions and laws simplifying transfers of securities by fiduciaries.”
8
[¶24] The plain language of N.D.C.C. § 30.1-29-23 states a person who in good faith
assists or deals with a conservator for value in any transaction is protected as if the
conservator properly exercised his power. Cf. Stuber, 2017 ND 198, ¶ 16,
900 N.W.2d 230 (interpreting a similar statute providing protections for people
dealing with personal representatives). The statute allows a person dealing with a
conservator to rely on the conservator being properly appointed and having authority
to act on the protected person’s behalf, subject to any restrictions to the conservator’s
powers endorsed on the conservator’s letters of appointment. The issue in this case
is whether Mahlum breached the lease he had with Willis Swenson. This was not a
transaction dealing with a conservator. The statute does not provide Mahlum with
protection against Willis Swenson’s breach of contract claims.
[¶25] Our application of N.D.C.C. § 30.1-29-23 is consistent with other resources we
have reviewed. Section 30.1-29-23, N.D.C.C., is part of the Uniform Probate Code.
When a uniform statute is interpreted it must be construed to effectuate its general
purpose to make the law uniform in those states which enacted it. Stuber v. Engel,
2017 ND 198, ¶ 15, 900 N.W.2d 230. Section 30.1-29-23, N.D.C.C., is based on the
Uniform Probate Code § 5-423 (1969). The revised Uniform Probate Code § 5-424
(2010) is based on Uniform Probate Code § 5-423 (1969), and contains language
similar to N.D.C.C. § 30.1-29-23. See Unif. Probate Code § 5-424, Official Comment
(2010) (stating the section is based on U.P.C. § 5-422 (1982)); Unif. Probate Code §
5-422, Official Comment (1982) (stating the source of that section is U.P.C. § 5-423
(1969) adopted without substantive change). The Editorial Board Comments for the
uniform provision state:
“The purpose of this section is to facilitate commercial transactions by
negating the traditional duty of inquiry found under the common law
of trusts. Even the third party’s actual knowledge that the third party
is dealing with a conservator does not require that the third party
inquire into the possession of or propriety of the conservator’s exercise
of a power. Nor is the third party, contrary to the common law,
responsible for the proper application of funds or property delivered to
the conservator. But consistent with the emphasis on limited
conservatorship, the protection extended to third parties is not
9
unlimited. Third parties are charged with knowledge of restrictions on
the authority of limited conservators.”
Unif. Probate Code § 5-424, Official Comment (2010). The Uniform Probate Code
Practice Manual further explains:
“The fact that a person knowingly deals with a conservator does not
alone require the person to inquire into the existence of power or the
propriety of its exercise except that restrictions on the conservator’s
powers imposed by the court and endorsed on his letters of
conservatorship are effective against third persons. The protection
accorded to purchasers and others who deal with a conservator or assist
him in a transaction extends to instances in which some procedural
irregularity or jurisdictional defect occurred in proceedings leading to
the issuance of letters of conservatorship. In other words, a person
dealing with a de facto conservator is protected as much as one dealing
with a de jure conservator.”
2 Richard V. Wellman, Uniform Probate Code Practice Manual 546 (2d ed. 1977).
[¶26] The district court found the 2009 lease between Willis Swenson and Mahlum
required Mahlum to pay Junietta Swenson $10,008 on March 15 and October 15, with
the balance of $11,006.50 paid to Willis Swenson in March. The court incorrectly
interpreted the lease. Under the plain language of the lease, each year Mahlum was
required to pay Willis Swenson $31,022.50 by March 1, unless Junietta Swenson
died. In that case Mahlum was to make semi-annual payments of a portion of the rent
to the Swenson farm land trust and a single payment of the remaining rental to Willis
Swenson. The lease did not require any payment to Junietta Swenson.
[¶27] Mahlum testified he made payments under the lease directly to Willis Swenson
in years prior to those at issue in the lawsuit, and other documentary evidence was
presented supporting his testimony. Junietta Swenson died in November 2013, after
the 2013 rental payment was due. Under the lease, Mahlum was required to pay the
entire amount of the annual rent to Willis Swenson on March 1, 2013. The district
court erred in interpreting the lease otherwise.
[¶28] The evidence established the 2009 lease between Willis Swenson and Mahlum
was valid and enforceable, and remained in effect in 2013. Mahlum agreed he farmed
the property in 2013 but did not pay rent to Willis Swenson. The evidence established
10
Mahlum breached the lease by failing to pay Willis Swenson rent in 2013. We
conclude the court’s findings are clearly erroneous and reverse the district court’s
dismissal of Willis Swenson’s breach of contract claim for 2013.
IV
[¶29] Willis Swenson argues he should be awarded at least $31,022.50 in damages
for Mahlum’s breach of contract. He contends a damage award of $31,022.50 would
put him in the same position he would have been in if the lease had been performed
according to its terms.
[¶30] The district court ruled any damages Willis Swenson was entitled to if his
claims were successful were limited. The court explained:
“Willis Swenson seeks $31,022.50 for the years of 2013, and
through the term of the lease. . . . [A]ccording to the lease between
Junietta Swenson and Willis Swenson, of the above stated amount,
$20,016 was first to be paid to Junietta Swenson. The most Willis
Swenson would ever receive under the lease would be $11,006.50 per
year.
“Section 32-03-36, NDCC, provides that no person can recover
a greater amount in damages for breach of an obligation than that
person would have gained by full performance. Full performance
would have netted Willis Swenson $11,006.50 per year. His damages,
if any, must be limited accordingly.”
[¶31] Section 32-03-09, N.D.C.C., governs damage awards for breach of contract,
and states:
“For the breach of an obligation arising from contract, the measure of
damages, except when otherwise expressly provided by the laws of this
state, is the amount which will compensate the party aggrieved for all
the detriment proximately caused thereby or which in the ordinary
course of things would be likely to result therefrom.”
“The general rule in the case of a breach of contract is that the measure of damages
is the amount which will compensate the injured person for the loss which a
fulfillment of the contract would have prevented or the breach of the contract now
requires.” Bakke, 2018 ND 273, ¶ 23, 920 N.W.2d 726. “The person injured is, as
far as it is possible to do so by monetary award, to be placed in the position he would
11
have been in had the contract been performed.” Id. (quoting Vallejo v. Jamestown
Coll., 244 N.W.2d 753, 758 (N.D. 1976)).
[¶32] The contract required Mahlum to pay Willis Swenson $31,022.50 in 2013.
Although Willis Swenson had a separate lease with Junietta Swenson for the property
that required him to pay her $20,016, Willis Swenson’s lease with Mahlum did not
require any of the rental payment to be paid directly to Junietta Swenson. The only
issues in this case were whether Mahlum breached his lease with Willis Swenson, and
whether the third-party defendants were unjustly enriched. Any amounts Willis
Swenson may owe Junietta Swenson or her estate for the 2013 rent are unrelated to
the issues in this case. There were no claims in this case related to the Willis
Swenson and Junietta Swenson lease. The district court’s finding that Willis
Swenson’s damages for his 2013 breach of contract claim were limited to $11,006.50
because “$20,016 was first to be paid to Junietta Swenson” was clearly erroneous.
[¶33] Mahlum argued Willis Swenson failed to mitigate his damages in 2013.
Whether a party made a good faith effort to mitigate damages is a question of fact.
See Ruud v. Larson, 392 N.W.2d 62, 63 (N.D.1986). The district court did not
directly address this argument. On remand, the court must decide the amount of
damages Willis Swenson is entitled to recover for his breach of contract claim against
Mahlum for unpaid rent in 2013, including whether Willis Swenson failed to mitigate
those damages.
V
[¶34] Mahlum argues the district court erred in dismissing his claim against the third-
party defendants. The district court did not decide Mahlum’s claim. Mahlum’s claim
was dependent on the court entering judgment against him on Willis Swenson’s claim.
Because we are reversing the court’s order and judgment on Willis Swenson’s 2013
breach of contract claim, we also reverse the court’s order and judgment dismissing
Mahlum’s claim against the third-party defendants. On remand, the court must decide
Mahlum’s claim against the third-party defendants.
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VI
[¶35] The remaining issues are without merit or unnecessary to our decision. We
reverse the district court’s order and judgment dismissing Willis Swenson and
Mahlum’s claims, and remand for further proceedings consistent with this decision.
[¶36] Daniel J. Crothers, Acting C.J.
Lisa Fair McEvers
Jon J. Jensen
Jerod E. Tufte
Benny Graff, S.J.
[¶37] The Honorable Benny Graff, S.J., sitting in place of VandeWalle, C.J.,
disqualified.
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