This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2006).






Jerold O. Nelson,





Douglas J. Nill,



Filed February 13, 2007

Reversed and remanded
Klaphake, Judge


Hennepin County District Court

File No. 27-CV-05-016733


Lewis A. Remele, Jr., Charles E. Lundberg, Bassford Remele, A Professional Association, 33 South Sixth Street, Suite 3800, Minneapolis, MN† 55402-3707(for appellant)


Douglas J. Nill, Douglas J. Nill, P.A., 1100 One Financial Plaza, 120 South Sixth Street, Minneapolis, MN† 55402-1801 (respondent and attorney pro se)


††††††††††† Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Shumaker, Judge.

U N P U B L I S H E D†† O P I N I O N


††††††††††† Appellant, attorney Jerold O. Nelson, challenges the district courtís grant of summary judgment in his action to enforce the terms of a written agreement he entered into with respondent, attorney Douglas J. Nill.† Because their agreement is ambiguous and reasonably susceptible to more than one interpretation, we conclude that genuine issues of material fact remain unresolved, and the district court erred by granting summary judgment.† We therefore reverse and remand.


††††††††††† Summary judgment is appropriate when there are no genuine issues of material fact and either party is entitled to judgment as a matter of law.† Minn. R. Civ. P. 56.03.† The reviewing court views the evidence in the light most favorable to the nonmoving party.† Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 672 (Minn. 2001).

††††††††††† Whether a contract exists is generally a question for the fact finder.† Morrisette v. Harrison Intíl Corp., 486 N.W.2d 424, 427 (Minn. 1992).† But whether a contract is ambiguous is a question of law, which the appellate court reviews de novo.† Blackburn, Nickels & Smith, Inc. v. Erickson, 366 N.W.2d 640, 643 (Minn. App. 1985), review denied (Minn. June 24, 1985).† The parties here do not deny the existence of a contract, but rather contest whether the district court erred by determining that the contract was not ambiguous.

††††††††††† A contract is ambiguous if it is reasonably susceptible of more than one interpretation, based on the language of the contract.† Metro. Sports Facilities Commín v. General Mills, Inc., 470 N.W.2d 118, 123 (Minn. 1991).† The question of ambiguity is important because when the language of the contract is plain and unambiguous, there is no need for construction; the district court can divine the intent of the parties by examining the document itself, without resorting to extrinsic sources.† City of Virginia v. Northland Office Prop Ltd., 465 N.W.2d 424, 427 (Minn. App. 1991), review denied (Minn. Apr. 18, 1991). †ďWhere a written contract is unambiguous, the court must deduce the partiesí intent from the language used.† A party cannot alter unequivocal language of a contract with speculation of an unexpressed intent of the parties.Ē† Metro. Sports Facilities Commín, 470 N.W.2d at 123 (citations omitted).† ††

††††††††††† When reviewing a contract, we ďattempt to harmonize all clauses of [a] contract.Ē† Banbury v. Omnitrition Intíl, Inc,533 N.W.2d 876, 880 (Minn. App. 1995) (quotation omitted).† We are unable to reconcile the language of this agreement, which states:

††††††††††† This Agreement acknowledges that Jerold O. Nelson has advanced the sum of $20,000 to Douglas J. Nill.† As security for repayment of this loan and in recognition of the considerable time Nelson has expended assisting and counseling Nill in the prosecution of that class action litigation [BASF], Nelson will be entitled to a sum equivalent to ten percent (10%) of Nillís fifty percent (50%) entitlement to any court approved attorney fee awarded to Nill as a result of judgment or settlement in [the BASF litigation].


††††††††††† * * * *

††††††††††† Nill and Nelson recognize and agree that there is a risk that [the BASF litigation] can result in an unfavorable judgment, with no attorney fees awarded . . ., which would result in no repayment and constitute a complete forgiveness and satisfaction of the $20,000 loan.


This contract language is neither a straightforward loan agreement nor a recognizable attorney fee retainer.† To find that this agreement is merely a loan agreement, we must ignore the language that acknowledges Nelsonís legal assistance to Nill; to view this as a retainer agreement, we must ignore the reference to repayment of a loan.†

††††††††††† We therefore conclude that the agreement here is reasonably susceptible of more than one interpretation, thus rendering the agreement ambiguous.† The interpretation of an ambiguous contract is a question of fact, which can be resolved by consideration of extrinsic evidence.† City of Virginia, 465 N.W.2d at 427.†† Because genuine issues of material fact remain unresolved, the district court erred by granting summary judgment.

††††††††††† Reversed and remanded.