955 N.W.2d 27
N.D.2021Background
- On May 6, 2013, Darlene Johnson tripped over a Menards customer flatbed cart in a Minot Menards and cracked seven teeth.
- Johnson sued in small claims court in 2017; Menards removed the case to district court.
- Johnson amended her complaint (with Menards’ consent) to request a jury trial and damages of at least $50,000.
- Menards moved for summary judgment (duty issue) and moved for judgment as a matter of law (JMOL) at the close of Johnson’s case under N.D.R.Civ.P. 50(a); both motions were denied. Menards did not renew a Rule 50(b) postverdict motion.
- A jury awarded Johnson $36,392 plus interest. The district court awarded Johnson $144,476.97 in attorney’s fees under N.D.C.C. § 27-08.1-04.
- The Supreme Court of North Dakota affirmed the district court in all respects, declined to address the unpreserved sufficiency challenge, upheld the fee award methodology, and remanded for determination of reasonable appellate attorney’s fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Menards preserved its sufficiency-of-the-evidence challenge for appeal | Johnson: Menards failed to preserve because it did not file a Rule 50(b) renewed motion; thus appellate review is barred. | Menards: denial of summary judgment and JMOL should be reviewable; sufficiency-of-evidence challenge preserved. | Held: Not preserved. A postverdict Rule 50(b) renewal is required to preserve sufficiency issues for appeal. |
| Whether Johnson is entitled to attorney’s fees under N.D.C.C. § 27-08.1-04 after removal and amendment of pleadings | Johnson: Removal vested district-court rights in both parties; she remained the same prevailing plaintiff and statute mandates fees. | Menards: Amendment after removal means statute should not apply to award fees. | Held: Statute applies. Because Menards removed the small-claims action to district court and Johnson prevailed, the district court was required to award attorney’s fees. |
| Whether the district court abused its discretion in the amount of attorney’s fees awarded | Johnson: Fee affidavit and itemized bill support the award as reasonable. | Menards: Court should have used a lodestar calculation (hours × rate) as required in fee-shifting contexts. | Held: No abuse. State statutory fee award need not use federal lodestar method; the court permissibly relied on affidavit and itemized billing. |
| Whether Johnson is entitled to attorney’s fees for prosecuting this appeal under § 27-08.1-04 | Johnson: Prevailing plaintiffs should recover reasonable fees on appeal; otherwise recovery is diluted. | Menards: Statute silent as to appellate fees; thus appellate fees not necessarily authorized. | Held: Remanded. Court applied precedent favoring appellate fee awards and remanded to the district court to determine reasonable appellate attorney’s fees. |
Key Cases Cited
- Berg v. Dakota Boys Ranch Ass’n, 629 N.W.2d 563 (2001 ND 122) (full trial renders summary-judgment sufficiency issues moot; preserve via Rule 50 motions)
- Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006) (postverdict Rule 50(b) motion is necessary to preserve sufficiency challenge; district court must first rule)
- Linden v. CNH Am., LLC, 673 F.3d 829 (8th Cir. 2012) (Unitherm limited to posttrial sufficiency appeals; preserves standard objections at trial)
- Riemers v. State, 750 N.W.2d 407 (2008 ND 101) (affidavit and itemized billing may support a reasonable attorney’s-fee award)
- Rocky Mountain Steel Founds., Inc. v. Brockett Co., LLC, 934 N.W.2d 531 (2019 ND 252) (statutory fee provisions authorizing fees to prevailing parties include fees for successful appeals)