from the District Court of McKenzie County, Northwest
Judicial District, the Honorable Robin Ann Schmidt, Judge.
Dynneson (argued), Williston, ND, for plaintiff and
J. Kelly, Bozeman, MT, for defendant and appellee; submitted
Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Carol
Ronning Kapsner, Gerald W. VandeWalle, C.J.
Fair McEvers, Justice
[¶1] Cheetah Properties 1, LLC appeals from
a district court judgment finding Panther Pressure Testers,
Inc. did not willfully hold over on a commercial lease
agreement for the purpose of awarding double damages, and
from a district court order denying it an award of reasonable
attorneys' fees. We affirm the district court's
judgment concluding Cheetah was not entitled to an award of
double damages under N.D.C.C. § 32-03-28. We reverse the
district court's order denying attorneys' fees and
remand for proceedings consistent with this opinion.
[¶2] Cheetah Properties 1, LLC and Panther
Pressure Testers, Inc. entered into a commercial lease
agreement with an initial term that commenced on April 15,
2014, and ended on December 31, 2014. The parties negotiated
monthly rent was due on the first of each month. The lease
provided for late fees of $100 per day, starting on the fifth
day of the month, if Panther did not timely pay rent. The
lease contained a renewal provision that provided the lease
shall automatically renew for successive one-year terms,
until either party provided the other with written notice
that the lease shall terminate. The lease provided that the
written notice " must be received no later than the
first day of the month sixty (60) days in advance of the
month in which the Lease shall be terminated by either
party." Among Cheetah's remedies in the event of a
default, the lease agreement provided the tenant agree to pay
the cost of reasonable attorneys' fees in connection with
recovering possession of the property.
[¶3] On January 19, 2015, Cheetah brought an
eviction action to recover possession of the property under
N.D.C.C. § 47-32-01(4).
In the complaint, Cheetah sought damages for: (1) delinquent
charges for late payment of rent owed up to December 31,
2014; (2) for Panther's willful holdover " in an
amount double the yearly value of the Premises for the time
of Defendant[']s withholding" under N.D.C.C. §
32-03-28; and (3) for any physical damage to the property
caused by Panther vacating the premises. Cheetah also sought
an award of reasonable attorneys' fees under the lease.
Panther vacated the property by January 31, 2015.
[¶4] According to testimony, on October 17,
2014, Cheetah provided Panther the required sixty-day notice
under the lease not to extend the lease beyond the initial
term, which ended December 31, 2014. On November 18, 2014,
Panther requested to extend its tenancy four months beyond
the end of the initial term. On December 10, 2014, Cheetah
rejected Panther's request for a four-month extension.
However, Cheetah offered to extend the tenancy for an
additional month to January 31, 2015, on conditions that (1)
Panther bring its delinquent rent current; and (2) Panther
timely make the January 2015 rent payment. Cheetah requested
Panther confirm in writing its agreement to the conditions.
As to the first condition, the letter specifically stated:
" Panther is presently delinquent with the rent payment
for the month of December." The letter did not reference
any delinquency regarding the November rent payment.
Testimony revealed that, as of December 10, 2014, Panther had
not paid rent and late fees for November or December. On
December 31, 2014, Panther delivered two $22,000 checks to
Cheetah. Cheetah applied the payment to delinquent rents for
November and December.
[¶5] According to testimony, Cheetah did not
receive January rent from Panther when it became due. On
January 6, 2015, Cheetah served Panther with notice of intent
to evict. In the notice, Cheetah alleged Panther defaulted
under the terms of the lease by holding over after the
expiration of the lease on December 31, 2014, and demanded
that Panther return possession of the property to Cheetah.
Panther delivered an additional $22,000 check to Cheetah for
January rent. Cheetah held the check, but did not deposit it.
[¶6] At the eviction hearing, Panther argued
it mistakenly held over. According to Panther, it held over
under the belief that making a January rent payment allowed
occupancy until January 31, 2015. The district court returned
lawful possession of the property to Cheetah and awarded it
$22,000 for January 2015 rent and $8,200 for delinquent rent
and fees under the lease. The district court declined to
impose double damages under N.D.C.C. § 32-03-28 based on
its finding that Panther's holding over was not willful.
After the district court entered its order for judgment,
Cheetah moved for an award of reasonable attorneys' fees
under the lease and under N.D.C.C. § 28-26-01(1),
N.D.C.C. § 47-16-13.6, N.D.R.Civ.P. 54(e), and N.D.R.Ct.
3.2. The district court denied Cheetah's request for an
award of reasonable attorneys' fees. Cheetah appeals from
the district court's judgment and the order denying an
award of reasonable attorneys' fees.
[¶7] Cheetah argues the district court's
finding that Panther's holding over was not willful for
the purposes of awarding double damages under N.D.C.C. §
32-03-28 is clearly erroneous. The parties do not dispute
that Cheetah was entitled to possession under N.D.C.C. §
[¶8] " An eviction to recover
possession of land may be maintained when a lessee holds over