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North Dakota Department of Transportation v. Rosie Glow, LLC

Supreme Court of North Dakota

May 14, 2018

North Dakota Department of Transportation, Plaintiff and Appellee
v.
Rosie Glow, LLC, an Oregon Limited Liability Company, Defendant and Appellant

          Appeal from the District Court of McKenzie County, Northwest Judicial District, the Honorable Robin A. Schmidt, Judge.

          Scott K. Porsborg, Special Assistant Attorney General, Bismarck, ND, for plaintiff and appellee.

          R. Daniel Lindahl (argued), John R. Osburn (on brief), Portland, OR, and John C. Hughes (on brief), Minneapolis, MN, for defendant and appellant.

          OPINION

          CROTHERS, JUSTICE.

         [¶ 1] Rosie Glow, LLC appeals a district court judgment in an eminent domain action awarding attorney fees of $32, 400.00 and expert fees and litigation costs of $11, 236.41. We affirm the district court's judgment in part, reverse in part, and remand for further proceedings.

         I

         [¶ 2] The North Dakota Department of Transportation ("the DOT") took Rosie Glow's property through an eminent domain quick-take action. The DOT deposited $2, 296, 000.00 for the land and $940, 860.00 for severance damages. Rosie Glow and the DOT disputed the value of the property taken. Rosie Glow's appraiser estimated the total compensation owed to Rosie Glow was $4, 899, 000.00, consisting of $3, 788, 400.00 for the land and $1, 110, 600.00 for severance damages. The jury awarded Rosie Glow $2, 296, 000.00 for property taken and $1, 240, 860.00 in severance damages, totaling $300, 000.00 more than the DOT deposited.

         [¶ 3] Under N.D.C.C. § 32-15-32, Rosie Glow requested attorney fees of $159, 180.33 for John Osburn's work and $18, 277.00 for John Hughes' work. The district court concluded the case was not particularly unique or factually difficult and found the appropriate rate was $300.00 per hour for both attorneys. The district court awarded $30, 000.00 for Osburn's fees, reducing his billed time from 361 hours to 100 hours. The district court awarded $2, 400.00 for Hughes' fees, for a total of $32, 400.00 in attorney fees.

         [¶ 4] Rosie Glow requested $54, 243.26 in costs, predominantly expert witness fees and travel expenses. The district court awarded $11, 236.41, including $5, 625.00 for expert witness Everett Strand's market appraisal and $2, 000.00 for a portion of Strand's time attending trial.

         [¶ 5] The district court entered a judgment awarding Rosie Glow severance damages of $300, 000.00, attorney fees of $32, 400.00, and costs of $11, 236.41 for a total of $343, 636.41 plus interest. Rosie Glow appeals.

         II

         [¶ 6] Rosie Glow argues the district court abused its discretion in reducing the attorney hours awarded and the costs awarded for Strand's fees. The statute providing for recovery of attorney fees and costs in eminent domain cases provides:

"The court may in its discretion award to the defendant reasonable actual or statutory costs or both, which may include interest from the time of taking except interest on the amount of a deposit which is available for withdrawal without prejudice to right of appeal, costs on appeal, and reasonable attorney's fees for all judicial proceedings."

N.D.C.C. § 32-15-32.

         [¶ 7] We review awards of attorney and expert fees for abuse of discretion. "Section 32-15-32, N.D.C.C., authorizes the court, in its discretion, to award a defendant reasonable attorneys fees for all judicial proceedings in an eminent domain action. We review a trial court's decision on attorneys fees under the abuse of discretion standard." City of Medora v. Golberg, 1997 ND 190, ¶ 18, 569 N.W.2d 257 (citation omitted). "A trial court's decision on fees and costs... will not be overturned on appeal unless an abuse of discretion is shown." Lemer v. Campbell, 1999 ND 223, ΒΆ 6, 602 N.W.2d 686. "A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, if its decision is not the product of a rational mental process ...


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