Joni Tillich, Nichole LaFloe, Shawn Marcellais, Lisa DeCoteau, and Lynn Boughey, Plaintiffs and Appellees
Don Bruce, Vinier "Poin" Davis, and Linda Davis, Defendants and Appellants
from the District Court of Rolette County, Northeast Judicial
District, the Honorable M. Richard Geiger, Judge.
M. Boughey, for plaintiffs and appellees.
M. Baer, for defendants and appellants.
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.
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
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.
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.
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 ...