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Interiors by France v. Mitzel Contractors, Inc.

Supreme Court of North Dakota

June 27, 2019

Interiors by France, Plaintiff and Appellant
v.
Mitzel Contractors, Inc., d/b/a Mitzel Homes, Mitzel Builders, Inc., Leeroy Mitzel, an individual, Defendants and Appellees and Eddy Mitzel, an individual, Defendant

          Appeal from the District Court of Morton County, South Central Judicial District, the Honorable James S. Hill, Judge.

          Andrew L. Askew, Bismarck, ND, for plaintiff and appellant.

          Tyler 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.

          OPINION

          Jensen, Justice.

         [¶1] 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.

         I.

         [¶2] 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.

         [¶3] 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.

         [¶4] 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.

         [¶5] 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 attorney fees.

         II.

         [¶6] 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 ...

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