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Stout v. Fisher Industries12/1/1999
which he should be paid.
The trial court concluded Stout failed to "establish the essential elements of his claim." The court granted Fisher's motion and denied Stout's. The judgment dismissed Stout's amended complaint.
[ ] We briefly review the purposes and standard for summary judgment under N.D.R.Civ.P. 56. Summary judgment is a procedural device for the prompt and expeditious Disposition of a controversy without a trial if there is no genuine issue of material fact, or if the law is such that resolution of factual disputes will not alter the result. Miller v. Kloeckner, 1999 ND 190, 5. Questions of law are fully reviewable. Id. All favorable inferences must be drawn in favor of the party opposing a motion for summary judgment, and we assume the truth of the assertions made by the party opposing the motion. Fleck v. ANG Coal Gasification Co., 522 N.W.2d 445, 448 (N.D. 1994). In ruling on a motion for summary judgment, the trial court must consider the substantive burden of proof at trial. Hurt v. Freeland, 1999 ND 12, 8, 589 N.W.2d 551. A party seeking summary judgment has the burden to clearly demonstrate there is no genuine issue of material fact. Id. A party resisting a motion for summary judgment may not simply rely upon the pleadings or upon unsupported, conclusory allegations, but must present competent admissible evidence by affidavit or other comparable means which 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. Id. Factual assertions in a brief are insufficient to raise an issue of material fact. L.C. v. R.P., 1997 ND 96, 6, 563 N.W.2d 799; Northwestern Equip., Inc. v. Badinger, 403 N.W.2d 8, 10 (N.D. 1987).
I.
[ ] Stout sought to compel discovery of proposed contracts drafted by Orell Schmitz, who then represented Fisher, based upon information Stout provided Schmitz. The trial court concluded the drafts fell under the lawyer-client privilege of N.D.R.Ev. 502(b). Stout contends the trial court "erred in not giving Stout the document prepared by Orell Schmitz or, in the alternative, allowing him the advantage of having the document construed in his favor." A trial court's discovery decisions will not be reversed on appeal absent an abuse of discretion. In re Estate of Schmidt, 1997 ND 244, 7, 572 N.W.2d 430. We need not decide if the drafts are privileged communications. The drafts, which were not approved or executed by Fisher, would only prove what Stout advised Schmitz to include in the employment contract Stout hoped to execute with Fisher. However, in considering Fisher's motion for summary judgment, all favorable inferences must be drawn in Stout's favor and the truth of his assertions is assumed. Fleck v. ANG Coal Gasification Co., 522 N.W.2d 445, 448 (N.D. 1994). Thus, we assume the draft contracts reflect what Stout advised Schmitz to include and reflect Stout's understanding of the employment contract the parties were contemplating. Production of the requested documents or the trial court's drawing of an adverse inference from their nonproduction by Fisher would add nothing for the purpose of summary judgment. The trial court's error, if any, is not reversible error.
II.
[ ] Relying on Jerry Harmon Motors, Inc. v. First Nat'l Bank & Trust Co., 472 N.W.2d 748, 753 (N.D. 1991), Stout contends whether or not the parties intended the September 2, 1995, contract to be the final written contract between the parties is a question of fact precluding summary judgment. However, as Stout said in his brief: "The fact that a subsequent written agreement, a standard employment contract, was prepared by the attorney
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