Twete v. Mullin, 952 N.W.2d 91

Richard Twete sued Clinton Mullin alleging a confidential relationship and breach of trust; a jury found Mullin breached his duty and caused damages.
In the first appeal (Twete I), the Supreme Court affirmed the breach finding but reversed the award of attorney’s fees and remanded for the district court to explain the legal basis for awarding fees.
On remand the district court again awarded Twete his attorney’s fees, reasoning equitable common-law principles (including making a beneficiary "whole" and trustee misconduct) authorized fees even absent statute or contract.
Mullin appealed, arguing North Dakota’s adoption of most of the Uniform Trust Code and omission of U.T.C. §1004 (authorizing fees) foreclosed fee awards, and that common-law exceptions did not apply here.
The Supreme Court held the district court misinterpreted the law: statutory authority or a recognized exception is required and the common-fund exception does not apply when the plaintiff is the sole beneficiary.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether attorney's fees may be awarded absent statutory or contractual authority	Twete: common-law equity and the court's constructive trust power allow fees to make a successful beneficiary whole	Mullin: American Rule applies; omission of U.T.C. §1004 shows legislature did not authorize such fees	Court: No; award must rest on statutory/contractual basis or an applicable common-law exception; district court misapplied the law
Whether the common-fund (or common-benefit) exception permits fees here	Twete: his suit benefited the entire trust; as sole beneficiary he represents the common fund	Mullin: common-fund doctrine applies to class-wide benefits, not a single beneficiary	Court: Common-fund doctrine does not apply where plaintiff is the sole beneficiary; policy behind exception is absent
Effect of North Dakota's partial adoption of the Uniform Trust Code (omission of §1004)	Twete: (implicit) equitable rules supplemented U.T.C. to allow fees in trust misconduct cases	Mullin: omission of U.T.C. §1004 indicates legislature did not authorize fee awards in trust disputes	Court: Omission leaves common-law rule undisturbed; but common law does not authorize fees for a class of one; U.T.C. omission does not create authority for fees

Twete v. Mullin, 931 N.W.2d 198 (N.D. 2019) (prior appeal affirming breach but remanding on attorney-fees legal basis)
Mills v. Electric Auto-Lite Co., 396 U.S. 375 (U.S. 1970) (articulates common-fund exception to the American Rule for class or group benefits)
Hall v. Cole, 412 U.S. 1 (U.S. 1973) (discusses exceptions to American Rule including class-benefit fee awards)
Allard v. Johnson, 724 N.W.2d 331 (N.D. 2006) (noted but attorney-fee issue not appealed)
In re Estate of Hass, 643 N.W.2d 713 (N.D. 2002) (fee award grounded in statutory authority)
In re Estate of Rohrich, 496 N.W.2d 566 (N.D. 1993) (awarded fees where beneficiaries/classes benefited)
Matter of Sturdevant, 340 N.W.2d 888 (N.D. 1983) (declined fees when action benefited only the plaintiff)
State v. Kostelecky, 906 N.W.2d 77 (N.D. 2018) (standard of appellate review for legal issues and abuse of discretion)