910 N.W.2d 874
N.D.2018Background
- The North Dakota DOT quick-took Schmitz’s property and deposited $973,380; Schmitz appealed the amount and proceeded to jury trial.
- Trial was rescheduled multiple times; Schmitz retained three experts (two appraisers testified; an architect prepared hypothetical development plans but did not testify).
- Jury awarded Schmitz $659,547 more than the DOT’s deposit; Schmitz then sought $263,866.97 in attorney fees, $154,172.12 in expert fees, and $17,224.31 in litigation costs (total $567,317.36).
- The district court awarded $137,347.50 in attorney fees, $35,930.96 in expert fees, and $8,027.38 in costs (total $181,305.84).
- Schmitz appealed, arguing the district court abused its discretion by reducing attorney fees, expert fees, and excluding certain litigation/travel costs under N.D.C.C. § 32-15-32 and ch. 28-26.
- The Supreme Court affirmed the reductions to attorney and expert fees but reversed and remanded the exclusion/reduction of certain litigation and travel costs for proper application of § 32-15-32.
Issues
| Issue | Plaintiff's Argument (DOT) | Defendant's Argument (Schmitz) | Held |
|---|---|---|---|
| Reasonableness of attorney fee award | District court’s lodestar approach and reductions were proper | Contingent-fee contract and submitted hours justify the requested one-third fee and higher associate rate | Affirmed: court did not abuse discretion; hourly rates and hours supported for lead and associate attorneys |
| Award of fees for preparing the fee petition | No mandatory additional award for fee-application work; court has discretion | Fees for preparing the fee application are compensable and should be awarded | Affirmed: court acted within discretion to include reasonable hours for the action but decline separate mandatory fee for fee-motion preparation |
| Expert witness fees (including non-testifying architect) | Reduce fees substantially; exclude non-testifying expert’s fee | Requested full expert fees; claimed entitlement to nontestifying expert fees and travel expenses | Affirmed: court reasonably excluded non-testifying architect and explained reductions for appraisers using applicable factors (Wahl/Arneson) |
| Taxability of litigation/travel costs under § 32-15-32 | Certain travel and meal costs not taxable; district court excluded them | § 32-15-32 permits award of reasonable actual costs including travel; district court misapplied law by excluding them categorically | Reversed and remanded: district court abused discretion by misapplying law; must reconsider travel and other listed costs under § 32-15-32 |
Key Cases Cited
- City of Bismarck v. Thom, 261 N.W.2d 640 (N.D. 1977) (lodestar factors for attorney fee awards)
- Wahl v. Northern Improvement Co., 800 N.W.2d 700 (N.D. 2011) (seven non-exclusive factors for expert fee reasonableness)
- Arneson v. City of Fargo, 331 N.W.2d 30 (N.D. 1983) (district court must explain substantial reductions in expert fees)
- Golberg v. City of Medora, 569 N.W.2d 257 (N.D. 1997) (abuse-of-discretion standard for attorney fee awards in eminent domain)
- Uren v. Dakota Dust-Tex, Inc., 643 N.W.2d 678 (N.D. 2002) (attorney travel expenses generally not taxable under ch. 28-26)
- Braunberger v. Interstate Eng’g, Inc., 607 N.W.2d 904 (N.D. 2000) (attorney travel and meal expenses usually borne by client, not taxed as costs)