North Dakota Department of Transportation, Plaintiff and Appellee
Rosie Glow, LLC, an Oregon Limited Liability Company, Defendant and Appellant
from the District Court of McKenzie County, Northwest
Judicial District, the Honorable Robin A. Schmidt, Judge.
K. Porsborg, Special Assistant Attorney General, Bismarck,
ND, for plaintiff and appellee.
Daniel Lindahl (argued), John R. Osburn (on brief), Portland,
OR, and John C. Hughes (on brief), Minneapolis, MN, for
defendant and appellant.
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.
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
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.
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
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, ¶ 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