from the District Court of Morton County, South Central
Judicial District, the Honorable James S. Hill, Judge.
L. Askew, Bismarck, ND, for plaintiff and appellant.
J. Siewert (argued), Meggi Ihland (appeared), and David D.
Schweigert (on brief), Bismarck, ND, for defendants and
appellees Mitzel Contractors, Inc., d/b/a Mitzel Homes,
Mitzel Builders, Inc., and Leeroy Mitzel.
Interiors by France ("IBF) appeals from a district court
judgment limiting IBF to a recovery of damages from Mitzel
Contractors, Inc. ("MCI") without an award of
attorney fees. IBF contends it was entitled to a recovery of
attorney fees under N.D.C.C. § 27-08.1-04, which
provides for the mandatory recovery of attorney fees to a
prevailing plaintiff following the defendant's removal of
a small claims court case to the district court. We affirm.
IBF initiated a small claims court proceeding on September
28, 2016 naming Mitzel Builders, Inc. ("MBI") and
Leeroy Mitzel as the defendants. IBF alleged it had not been
paid for flooring materials and installation of the
materials. MBI and Leeroy Mitzel filed an answer, and Leeroy
Mitzel elected to remove the action from small claims court
to district court.
On November 16, 2016, after the removal of the case from
small claims court to the district court, IBF amended its
small claims affidavit to add MCI as a defendant. On February
23, 2017, MBI, Leeroy Mitzel, and IBF stipulated to allowing
IBF to file amended pleadings naming MCI as the sole
defendant. IBF amended its pleadings again on November 1,
2017 to allege causes of action against the original
defendants MBI and Leeroy Mitzel, and causes of action
against Eddy Mitzel.
On June 29, 2018, MCI signed a confession of judgment and
agreement authorizing the entry of a judgment against MCI in
the amount of $18, 967.02 in favor of IBF and dismissing,
with prejudice, its claims against MBI, Leeroy Mitzel, and
Eddy Mitzel. The agreement also provided IBF and MCI would
resolve the attorney fees issue through a separate motion to
be filed with the district court. MBI, Leeroy Mitzel, and
Eddy Mitzel were not included in the stipulated schedule for
resolution of the anticipated motion for attorney fees that
was part of the confession of judgment and agreement executed
by the parties.
On July 3, 2018, IBF moved for an award of $66, 968.00 in
attorney fees asserting N.D.C.C. § 27-08.1-04 provides
for the mandatory recovery of attorney fees to a prevailing
plaintiff following the removal of a small claims court
proceeding to the district court. On August 27, 2018, the
district court issued an order denying the motion for
attorney fees. In summary, the court held MCI was not part of
the small claims court proceedings, MCI was not "the
defendant" that elected to remove the case to the
district court, and the clear and unambiguous language of
N.D.C.C. § 27-08.1-04 did not require an award of
attorney fees against a defendant who was not part of the
small claims court proceedings and who did not elect to
remove the proceedings to the district court. A judgment
limited to the damage award provided in MCI's confession
of judgment was entered on August 29, 2018. On appeal, IBF
argues the district court erred in denying its motion for
IBF argues the district court erred in interpreting N.D.C.C.
§ 27-08.1-04 when denying its motion for attorney fees.
Section 27-08.1-04, N.D.C.C., reads as follows:
If the defendant elects to remove the action to district
court, the defendant must serve upon the plaintiff a notice
of the removal and file with the clerk of the court to which
the action is removed a copy of the claim affidavit and the
defendant's answer along with the filing fee, except for
an answer fee, required for civil actions. If the
defendant elects to remove the action from small claims ...