Big Pines v. Baker, 940 N.W.2d 616

Phoenix (landlord) and Biron D. Baker Family Medicine PC (tenant) executed a lease on May 3, 2011 that included a contemporaneous personal guaranty by Biron Baker in the same multi-page document.
The lease ran June 15, 2011–June 14, 2016; guaranty language references the attached lease, assigns enforcement to successors/assigns, and permits recovery of "all costs and attorneys' fees" incurred to realize on the guaranty.
In August 2016 Big Pines, LLC purchased the property and on October 13, 2016 Phoenix assigned to Big Pines its "right, title and interest in that certain Lease Agreement dated May 3, 2011," plus claims for property damage; the assignment did not expressly mention the guaranty and the attachment (Exhibit A) was not shown in the record.
Big Pines sued Baker and Baker Medicine for lease breaches causing property damage; a jury found liability and awarded $18,750 in damages.
Big Pines moved for attorney’s fees under the guaranty; the district court denied fees, finding the lease and guaranty were separate, the guaranty was not assigned, and Big Pines could not claim rights under an agreement to which it was not a party.
The North Dakota Supreme Court reversed: it concluded the guaranty was integrated with the lease and assigned to Big Pines, and that the attorney-fees provision in the guaranty is not void under N.D.C.C. § 28-26-04 (the guaranty was contemporaneous with the lease, not an "evidence of debt" for existing debt).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the personal guaranty was assigned to Big Pines with the lease	Assignment of Phoenix's "Lease Agreement" unambiguously included the guaranty because the guaranty is integrated into the lease document	Assignment mentioned only the lease; guaranty was a separate agreement and was not assigned	Court held guaranty was integrated in the lease and Phoenix's assignment of the lease conveyed the guaranty's benefits to Big Pines; reversal and remand for fees
Whether the attorney-fees clause in the guaranty is void under N.D.C.C. § 28-26-04 (prohibition on fees in "evidence of debt")	Fees recoverable under guaranty assigned to Big Pines	Fees clause void as guaranty is an "other evidence of debt" barred by statute	Court held the guaranty was not "evidence of debt" like the instruments covered by § 28-26-04 (it was executed contemporaneously with the lease, not to secure an existing debt), so the fees clause is enforceable
Preservation: whether Big Pines waived assignment issue by not submitting it to the jury	Big Pines argued assignment was a legal question or alternatively ambiguous for jury determination	Defendants argued Big Pines failed to preserve the assignment issue for appeal by not requesting jury findings/instruction	Court resolved assignment as a contract-interpretation question and addressed it on the merits; did not let preservation defeat review

Hallin v. Inland Oil & Gas Corp., 903 N.W.2d 61 (N.D. 2017) (principles of contract interpretation govern assignment interpretation)
THR Minerals, LLC v. Robinson, 892 N.W.2d 193 (N.D. 2017) (contract interpretation rules and intent from writing)
Nichols v. Goughnour, 820 N.W.2d 740 (N.D. 2012) (when contracts are ambiguous, extrinsic evidence may determine intent)
First Nat'l Bank v. Flath, 86 N.W. 867 (N.D. 1901) (several instruments executed in one transaction may be construed together without merging them)
Candee v. Candee, 925 N.W.2d 423 (N.D. 2019) (definition and scope of "other evidence of debt" under § 28-26-04)
Farmers Union Oil Co. v. Maixner, 376 N.W.2d 43 (N.D. 1985) (personal guaranty held to be "other evidence of debt" where guaranty secured an existing debt)