911 N.W.2d 334
N.D.2018Background
- North Dakota DOT quick-took Rosie Glow’s property, depositing $2,296,000 for land and $940,860 for severance; Rosie Glow sought much higher compensation and the jury awarded $2,296,000 (land) + $1,240,860 (severance) = $300,000 more than the deposit.
- Rosie Glow sought attorney fees under N.D.C.C. § 32-15-32: Osburn billed $159,180.33 and Hughes $18,277.00.
- District court set hourly rates at $300 for both attorneys, awarded Osburn $30,000 (100 hours) and Hughes $2,400 (8 hours) for total attorney fees $32,400.00.
- Rosie Glow sought $54,243.26 in costs (mostly expert Everett Strand’s fees); district court awarded $5,625 for Strand’s appraisal and $2,000 for trial attendance (total costs $11,236.41).
- Rosie Glow appealed the reductions of attorney hours (especially Osburn) and the district court’s failure to award fees for Strand’s review of DOT’s appraisal and for his deposition preparation/time.
Issues
| Issue | Plaintiff's Argument (DOT) | Defendant's Argument (Rosie Glow) | Held |
|---|---|---|---|
| Whether fees for multiple attorneys may be recovered | Court may limit to a single attorney’s recoverable fee (citing United Dev.) | Multiple attorneys’ fees are recoverable if reasonable | Court rejected DOT’s argument; district court has discretion to award fees for multiple attorneys |
| Whether district court abused discretion by drastically reducing Osburn’s hours from 361 to 100 | Reduction justified because billing showed excessive time, case not complicated, experienced counsel | Reduction was drastic and inadequately explained; remand required for clearer findings | Majority: reversal as to Osburn — remand for more detailed, comprehensible findings on hours (district court had abused discretion) |
| Whether district court abused discretion reducing Hughes’ hours from 40.2 to 8 | Hours for travel, duplicative work, and limited trial participation justified reduction | Time was reasonable for trial preparation and attendance | Affirmed — district court adequately explained reductions for Hughes |
| Whether district court erred in denying costs for Strand’s review of DOT appraisal and deposition/prep time | District court declined those costs | Rule 26(b)(4)(C) and § 32-15-32 allow recovery of deposition/prep fees when the opposing party deposes your expert; review fee should have been considered | Reversed as to these items — remanded for findings and award for Strand’s review and deposition/prep fees; award for appraisal upheld |
Key Cases Cited
- City of Bismarck v. Thom, 261 N.W.2d 640 (N.D. 1977) (factors and lodestar approach for reasonable attorney fees)
- United Dev. Corp. v. State Highway Dep’t, 133 N.W.2d 439 (N.D. 1965) (court addressed fee recovery for represented landowners)
- City of Devils Lake v. Davis, 480 N.W.2d 720 (N.D. 1992) (remand required where court gave drastic fee cut without adequate explanation)
- Morton County Bd. of Park Comm’rs v. Wetsch, 142 N.W.2d 751 (N.D. 1966) (trial court as expert on reasonable fees; no extra evidence necessary)
- Gissel v. Kenmare Township, 512 N.W.2d 470 (N.D. 1994) (eminent domain cost-shifting provisions are specific; general civil rules may be inapplicable)
- City of Jamestown v. Leevers Supermarkets, Inc., 552 N.W.2d 365 (N.D. 1996) (§ 32-15-32 permits awarding defendant reasonable costs but does not mandate shifting trial court costs to defendant)
- Wahl v. Northern Improvement Co., 800 N.W.2d 700 (N.D. 2011) (factors for determining reasonable expert witness fees)