Tillich v. Bruce, 889 N.W.2d 899

Background

Plaintiffs (Tillich et al.) sued Defendants (Bruce, V. Davis, L. Davis) in Rolette County district court for abuse of process based on a tribal-court suit; Defendants moved to dismiss for lack of subject-matter and personal jurisdiction and pleaded the claim was frivolous.
The district court converted the dismissal motion to summary judgment, received affidavits and briefing, granted summary judgment and dismissed the action without prejudice, and expressly found the Plaintiffs’ claim frivolous.
The district court initially stated Defendants were entitled to fees under N.D.C.C. § 28-26-01(2), evaluated reasonableness factors, but ultimately denied any fee award, citing (1) fees already awarded in a separate, related case and (2) perceived improper discovery conduct by Defendants’ counsel.
Defendants appealed the denial of attorney fees. Plaintiffs did not file a cross-appeal challenging the frivolousness finding.
The Supreme Court reversed, holding that once a claim is found frivolous and the prevailing party pled frivolousness, the statute requires an award of reasonable attorney fees; remanded for calculation of fees under accepted reasonableness factors.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 28-26-01(2) obligates the district court to award attorney fees after finding a claim frivolous	The district court’s finding of frivolousness was incorrect or, alternatively, the court could permissibly deny fees here (Plaintiffs did not cross-appeal)	Statute requires an award of reasonable attorney fees once claim is found frivolous and frivolousness was pleaded by the prevailing party	Court held statute mandates an award of reasonable attorney fees when claim is found frivolous and the defense pleaded frivolousness; reversed denial and remanded for fee calculation
Whether the district court properly reduced or denied fees based on (a) Defendants’ discovery conduct and (b) fees awarded in a separate companion case	The denial was correct because Defendants’ conduct added unnecessary expense and companion-case awards justify no additional award	Fee denial was improper because reliance on a separate case and discovery critique does not justify a complete denial after statutory mandate	Court held the district court abused its discretion by fully denying fees based on companion-case considerations and counsel’s discovery conduct; such factors may influence amount but cannot negate the statutory duty to award reasonable fees
Scope of appellate review when appellee did not cross-appeal an adverse component of the judgment	Plaintiffs urged affirmance by challenging frivolousness finding on appeal	Defendants noted Plaintiffs failed to cross-appeal and thus cannot attack aspects of the judgment unfavorable to them	Court declined to reconsider the frivolousness finding because Plaintiffs did not cross-appeal the adverse ruling against them

Key Cases Cited

Strand v. Cass Cty., 753 N.W.2d 872 (N.D. 2008) (statute requires award of fees upon frivolousness finding if party pleaded frivolousness)
Estate of Pedro v. Scheeler, 856 N.W.2d 775 (N.D. 2014) (court’s inherent authority to control docket and curb abuses)
Federal Land Bank v. Ziebarth, 520 N.W.2d 51 (N.D. 1994) (inherent power of courts to protect integrity of proceedings)
Service Oil, Inc. v. Gjestvang, 861 N.W.2d 490 (N.D. 2015) (when claim is frivolous, court must award attorney fees under § 28-26-01(2))
Wolt v. Wolt, 803 N.W.2d 534 (N.D. 2011) (district court must award reasonable attorney fees if claim found frivolous)
Sagebrush Res., LLC v. Peterson, 841 N.W.2d 705 (N.D. 2014) (standard of review for discretionary determinations of fees)
Rath v. Rath, 876 N.W.2d 474 (N.D. 2016) (district court has discretion to determine amount but must award fees upon frivolousness finding)
T.F. James Co. v. Vakoch, 628 N.W.2d 298 (N.D. 2001) (N.D.R.Prof. Conduct 1.5(a) factors guide fee reasonableness)
Wahl v. Northern Improvement Co., 800 N.W.2d 700 (N.D. 2011) (trial court is expert in setting attorney fees; lists reasonableness factors)
Bismarck v. Thom, 261 N.W.2d 640 (N.D. 1977) (hours and hourly rate are predominant fee factors)
Meier v. N.D. Dep’t of Human Servs., 818 N.W.2d 774 (N.D. 2012) (statutes construed to avoid rendering language meaningless)