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Swenson v. Raumin8/18/1998
court. A party is not required to file an affidavit in support of a motion for summary judgment. See N.D.R.Civ.P. 56(a) and (b). Because the information in the affidavit already appeared in the record before the trial court, we conclude any error in relying on the attorney's affidavit is harmless.
C.
[ ] Under N.D.C.C. §§ 9-08-08 and 9-08-09, a person may automatically rescind a personal injury settlement agreement within six months after the date of injury if the settlement agreement was made within 30 days after the injury or if it was made while the injured person remained under disability. The Swensons did not avail themselves of this procedure, and the six-month limitation has long since passed.
[ ] Nevertheless, this Court has held N.D.C.C. §§ 9-08-08 and 9-08-09 provide a remedy in addition to the general rescission statute, N.D.C.C. § 9-09-04, and an action to rescind a personal injury settlement agreement can be brought under the general statute "subject only to the [six-year] statute of limitations contained in Section 28-01-16." Mitzel v. Schatz, 175 N.W.2d 659, 660 Syllabus 5 (N.D. 1970). See also Wock v. Kuhn, 221 N.W.2d 65, 68 (N.D. 1974).
[ ] N.D.C.C. § 9-09-04 provides:
Rules governing rescission. Rescission, when not effected by consent or pursuant to sections 9-08-08 and 9-08-09, can be accomplished only by the use, on the part of the party rescinding, of reasonable diligence to comply with the following rules:
1. He shall rescind promptly upon discovering the facts which entitle him to rescind, if he is free from duress, menace, undue influence, or disability and is aware of his right to rescind; and
2. He shall restore to the other party everything of value which he has received from him under the contract or must offer to restore the same upon condition that such party shall do likewise, unless the latter is unable or positively refuses to do so.
[ ] Although the Wock and Mitzel courts said a general rescission action is "subject only to" the six-year statute of limitations, we reject the Swensons' argument the other requirements for a rescission action are eliminated under N.D.C.C. § 9-09-04 and all they must do is bring their action within the six-year statute of limitations. Not only does the statute refer to the two sections not applicable in this case, but this Court specifically recognized in Schmidt v. Grand Forks Country Club, 460 N.W.2d 125, 128 n.2 (N.D. 1990), prompt rescission is a requirement separate and distinct from any statute of limitations question:
Our case law demonstrates that a waiver of the right to rescind under § 9-09-04 can occur even when the action is commenced well within the running of the six-year statute of limitations. See Lindemann v. Lindemann, 336 N.W.2d 112 (N.D. 1983) [right to rescind waived when action brought approximately two and one-half years after plaintiffs became aware of right to rescind]; Fedorenko v. Rudman, 71 N.W.2d 332 (N.D. 1955) [right to rescind waived when action brought 16 months after plaintiffs became aware of right to rescind].
Thus, rescission is proper only if the party seeking rescission uses reasonable diligence to rescind promptly upon discovery of the facts which entitle the party to rescind, and if the party restores to the other party anything of value which was received under the contract. Holcomb v. Zinke, 365 N.W.2d 507, 510 (N.D. 1985). Even though the Swensons brought this action barely within the six-year statute of limitations, they must also show compliance with the prompt rescission requirements of N.D.C.C. § 9-09-04.
[ ] In Berg v. Hogan, 322 N.W.2d 448, 451 (N.D. 1982
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