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Tillich v. Bruce

Supreme Court of North Dakota

February 16, 2017

Joni Tillich, Nichole LaFloe, Shawn Marcellais, Lisa DeCoteau, and Lynn Boughey, Plaintiffs and Appellees
v.
Don Bruce, Vinier "Poin" Davis, and Linda Davis, Defendants and Appellants

         Appeal from the District Court of Rolette County, Northeast Judicial District, the Honorable M. Richard Geiger, Judge.

          Lynn M. Boughey, for plaintiffs and appellees.

          Larry M. Baer, for defendants and appellants.

          OPINION

          KAPSNER, JUSTICE.

         [¶ 1] Don Bruce, Vinier Davis, and Linda Davis ("Defendants") appeal from a judgment granting their motion to dismiss and denying their request for attorney fees. We reverse the district court's denial of the Defendants' request for attorney fees under N.D.C.C. § 28-26-01(2) and remand for calculation of attorney fees based upon accepted factors and order the district court award attorney fees to the Defendants.

         I

         [¶ 2] On January 5, 2015, Joni Tillich, Nicole LaFloe, Shawn Marcellais, Lisa DeCoteau, and Lynn Boughey ("Plaintiffs") filed an action in district court against the Defendants. The complaint alleged a tort claim for abuse of process based upon the Defendants filing an action against the Plaintiffs in Turtle Mountain Tribal Court. The Defendants answered the complaint and raised defenses of lack of subject matter jurisdiction, lack of personal jurisdiction, and alleged the claim to be frivolous. The Defendants also filed a motion to dismiss for lack of subject matter and personal jurisdiction and requested attorney fees and statutory costs for defending the action. The Defendants filed and served several discovery requests and motions including interrogatories, requests for production, notice of deposition, subpoena duces tecum, and motions to command compliance with subpoena and to command attendance at deposition. The case was not assigned to a district court judge until March 11, 2015.

         [¶ 3] After a hearing on the motion to dismiss for lack of subject matter jurisdiction, the district court converted the motion to dismiss into a motion for summary judgment because matters outside the pleadings were presented. The Defendants' argument the district court lacked jurisdiction was based upon the fact the Plaintiffs' action was a tort claim against members of a federally recognized Indian tribe for actions alleged to have occurred between tribal members within the exterior boundaries of the Turtle Mountain Indian Reservation. The parties submitted affidavits and supplemental briefs at the direction of the district court.

         [¶ 4] The district court granted the motion for summary judgment and dismissed the action without prejudice. In its order, the district court found the Plaintiffs' action was frivolous and stated the Defendants were entitled to an award of reasonable costs and attorney fees under N.D.C.C. § 28-26-01(2). In making the determination of amount and reasonableness of attorney fees to be awarded, the court noted the rate and time spent on the billed activities appeared to be appropriate. The court then made an analysis of the reasonableness of attorney fees as something "also... measured in the totality of circumstances relating to the time and resources committed to the motion and the necessity for it[.]" The court weighed conduct by both parties in the proceedings and the presence of another action involving both attorneys and a similar jurisdictional issue. The court ultimately denied the Defendants' request for attorney fees, determining no fees should be awarded in the case after "[t]aking into account fees and expenses previously awarded in the companion case, 40-2015-CV-3." An inaccuracy in the judgment following the district court's order was found and corrected. The district court entered a corrected judgment on May 12, 2016. The Defendants appealed from the corrected judgment entered May 12, 2016.

         II

         [¶ 5] The Defendants argue the district court erred by denying their request for attorney fees after finding the Plaintiffs' claim to be frivolous. Under North Dakota law, the general rule is each party bears its own attorney fees absent statutory or contractual authority. Strand v. Cass Cty., 2008 ND 149, ¶ 9, 753 N.W.2d 872. "The district court has authority to stem abuses of the judicial process, which comes not only from applicable rules and statutes... but from the court's inherent power to control its docket and to protect its jurisdiction and judgments, the integrity of the court, and the orderly and expeditious administration of justice." Estate of Pedro v. Scheeler, 2014 ND 237, ¶ 14, 856 N.W.2d 775 (quoting Federal Land Bank v. Ziebarth, 520 N.W.2d 51, 58 (N.D. 1994)).

         [¶ 6] The Defendants requested attorney fees under N.D.C.C. § 28-26-01(2) at the district court. The Defendants argue N.D.C.C. § 28-26-01(2) requires a district court to award attorney fees once it makes a finding an action is frivolous. Section 28-26-01(2), N.D.C.C., provides:

In civil actions the court shall, upon a finding that a claim for relief was frivolous, award reasonable actual and statutory costs, including reasonable attorney's fees to the prevailing party. Such costs must be awarded regardless of the good faith of the attorney or party making the claim for relief if there is such a complete absence of actual facts or law that a reasonable person could not have thought a court would render judgment in that person's favor, providing the prevailing party has in responsive pleading alleged the frivolous nature of the claim. This subsection does not require the award of costs or fees against an attorney or party advancing a claim unwarranted under existing law, if it is supported by a good-faith argument for an extension, modification, or reversal of the existing law.

         This Court has previously interpreted this statute as granting limited discretion to the district court. "Based upon this statute's language... the district court's decision whether to award attorney's fees is not completely within the court's discretion." Strand, 2008 ND 149, ¶ 12, 753 N.W.2d 872. "The plain language of this statute requires courts in civil actions to award costs and fees, including attorney's fees, upon finding a claim for relief was frivolous, providing the prevailing party pled the alleged frivolousness of the ...


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