[¶ 1] Laura Jean Entzel appeals a district court opinion awarding her a partial refund of her prepaid rental fee and a district court order denying her request for attorney fees. We reverse the district court judgment’s award of a refund to Entzel, because we hold the force majeure clause of the parties’ contract relieved Moritz Sport and Marine (“Moritz”) of liability for nonperformance and allocated the risk of loss to Entzel. We affirm the district court judgment’s denial of Entzel’s request for attorney fees, concluding Ent-zel was not a prevailing plaintiff in this case.
I
[¶ 2] On December 16, 2010, Entzel entered into a Boat Space Rental Agreement with Moritz. Entzel pre-paid Moritz $612 for use of a marina boat slip at Marina
[¶ 3] Entzel sued Moritz in small claims court alleging breach of contract and seeking to recover the $612 slip rental fee. Moritz removed the action to district court, arguing a force majeure clause in the contract relieved Moritz from liability, and Entzel moved for attorney fees. Following a bench trial, the district court found that the parties’ contract provided, in part:
10. The LANDLORD will not be responsible for delays in hauling, launching, winter lay-up or commissioning, occasioned by inclement weather or any other circumstances beyond its control.
(Hereinafter “paragraph 10”). The district court held “While Paragraph 10 of the written contract between the parties relieved Moritz of its responsibility to perform under the contract, it also excused Ms. Entzel from payment for services which were not provided.” The district court found Entzel had use of the slip from May 15-26, and from mid-June to the end of the contract period. The district court found that, while Entzel was not notified of the latter availability, “it should have been obvious to her had she wanted to make use of the slip at least by July 1.” The court also found that, while Entzel rented the space because she wanted access to the river during the summer of 2011, access to the river was not guaranteed by the contract.
[¶ 4] The district court concluded that the fair value of the slip during the summer of 2011 was “two-thirds of the amount charged, or $408.” It therefore ordered Moritz to refund Entzel the difference of $204. However, the district court found that “[b]oth parties prevailed to some extent,” and the court therefore denied Ent-zel’s motion for attorney fees.
II
[¶ 5] Entzel appeals from a district court opinion and a district court order. “An attempted appeal from an order for judgment will be treated as an appeal from a subsequently entered consistent judgment, if one exists.”
Lund v. Lund,
[¶ 6] On appeal, Entzel argues Moritz breached the contract and the district court erred by not awarding the full amount of requested damages. In its cross-appeal, Moritz argues the court’s finding that the force majeure clause in paragraph 10 relieved Moritz of its responsibility to perform under the contract should be affirmed and the court erred in awarding damages to Entzel. A trial court’s findings of fact will not be reversed on appeal unless they are clearly erroneous.
Sanders v. Gravel Products, Inc.,
[¶ 7] Breach of contract consists of “nonperformance of a contractual duty when it is due,” and the issue of whether a party breached a contract is a finding of fact.
Sanders,
[A] force majeure clause relieves one of liability only where nonperformance is due to causes beyond the control of a person who is performing under a contract. An express force majeure clause in a contract must be accompanied by proof that the failure to perform was proximately caused by a contingency and that, in spite of skill, diligence, and good faith on the promisor’s part, performance remains impossible or unreasonably expensive.
Id. at 366.
[¶ 8] In determining the scope and effects of a clause within a contract, we apply basic rules of contract construction to leases, and a lease is usually construed most strongly against the lessor.
Langer v. Bartholomay,
Contracts are construed to give effect to the parties’ mutual intent at the time the contract was formed, and if possible, we look to the writing alone to determine the parties’ intent. Interpretation of a contract is a question of law, if the parties’ intent can be determined from the language of the contract alone.
Id. (citations omitted). Words “are to be understood in their ordinary and popular sense rather than according to their strict legal meaning, unless used by the parties in a technical sense, or unless a special meaning is given to them by usage.... ” N.D.C.C. § 9-07-09.
Whether a contract is ambiguous is a question of law, which we review independently. A contract is ambiguous if rational arguments can be made for different interpretations. If a contract is ambiguous, extrinsic evidence may be considered to determine the parties’ intent, and the terms of the contract and the parties’ intent become questions of fact.
Danger, at ¶ 12 (citations omitted).
[¶ 9] In this case, paragraph 10 stated: “The LANDLORD will not be re
[¶ 10] To determine which party bears the risk of loss, we look to the provisions of the contract itself.
See Mayville-Portland Sch. Dist. No. 10 v. C.L. Linfoot Co.,
[¶ 11] Paragraph 10 references only the landlord’s relief from liability. According to the first sentence of the contract, the landlord refers to Marina Bay, the marina owned by Moritz, while Entzel is referred to as the tenant. The plain language of paragraph 10 relieves Moritz of liability and does not relieve Entzel of liability for nonperformance due to the flood. Paragraph 10 is not at odds with the other provisions of the contract; several other paragraphs disclaim liability on behalf of Moritz, should alternative scenarios arise. Because the effect of a force majeure clause is to allocate the risk of loss, we conclude paragraph 10 had the effect of allocating the risk of loss to Ent-zel for nonperformance that occurred as a result of the flood.
[¶ 12] Although Moritz characterizes the judgment as an award of damages to Entzel, this is an incorrect characterization. Rather, the district court erroneously interpreted the contract to relieve Entzel of her payment obligation for the period the slip was unavailable. The contract does not provide such relief to Entzel. Rather than damages, the court incorrectly ordered Moritz to refund a portion of the prepaid rental fee. We reverse the district court judgment’s award of a $204 refund to Entzel.
Ill
[¶ 13] Entzel also argues the district court erred by finding Entzel was not a prevailing party and was not entitled to attorney fees. Under N.D.C.C. § 27-08.1-04, “[i]f the defendant elects to remove the action from small claims court to district court, the district court shall award attorney’s fees to a prevailing plaintiff.” Because we determined paragraph 10 was a force majeure clause which relieved Moritz from liability for nonperformance and allocated the risk of loss to Entzel, Entzel is not a prevailing plaintiff in this matter and is not entitled to attorney fees.
[¶ 14] We reverse the district court judgment’s award of a refund to Entzel. The district court judgment’s denial of Entzel’s request for attorney fees is affirmed.