MDU v. Behm , 2020 ND 234 ( 2020 )


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  •                                                                       20200122
    FILED
    IN THE OFFICE OF THE
    CLERK OF SUPREME COURT
    NOVEMBER 19, 2020
    STATE OF NORTH DAKOTA
    IN THE SUPREME COURT
    STATE OF NORTH DAKOTA
    
    2020 ND 234
    Montana-Dakota Utilities Co., a Division of
    MDU Resources Group, Inc., n/k/a Montana-
    Dakota Utilities Co., a Subsidiary of MDU
    Resources Group, Inc.,                                  Plaintiff and Appellee
    v.
    Lavern Behm,                                        Defendant and Appellant
    No. 20200122
    Appeal from the District Court of Ward County, North Central Judicial
    District, the Honorable Gary H. Lee, Judge.
    AFFIRMED.
    Opinion of the Court by Tufte, Justice.
    Zachary R. Eiken, Bismarck, N.D., for plaintiff and appellee.
    Lynn M. Boughey, Mandan, N.D., for defendant and appellant.
    MDU v. Behm
    No. 20200122
    Tufte, Justice.
    [¶1] Lavern Behm appeals from a judgment ordering Montana-Dakota
    Utilities Co. (“MDU”) to pay him $17,443 in attorney’s fees and costs incurred
    in an eminent domain action. Behm argues his constitutional rights were
    violated in the eminent domain action and the district court erred by failing to
    award him some of the attorney’s fees he requested. We affirm.
    I
    [¶2] MDU brought an eminent domain action under N.D.C.C. ch. 32-15 to
    acquire an easement across Behm’s property for a 3,000-foot natural gas
    pipeline to service a Burlington Northern Santa Fe railroad switch. The
    district court bifurcated the proceedings between necessity of the taking and
    damages. Following a bench trial, the district court concluded that the
    “proposed pipeline is . . . a use authorized by Section 32-15-02, NDCC,” but
    that a taking of Behm’s property was not necessary for the public use under
    N.D.C.C. § 32-15-05.
    [¶3] MDU appealed, and this Court reversed the district court’s decision that
    the proposed taking was not necessary for public use. Montana-Dakota Utils.
    Co. v. Behm, 
    2019 ND 139
    , ¶ 1, 
    927 N.W.2d 865
    . We remanded “for trial on
    eminent domain damages to be awarded to Behm.”
    Id. at ¶ 19.
    [¶4] 
    Behm petitioned the United States Supreme Court for a writ of certiorari
    asserting various constitutional violations related to the eminent domain
    action. His petition was denied. Behm v. Montana-Dakota Utils. Co., 
    140 S. Ct. 521
    (2019).
    [¶5] On remand, Behm submitted proposed jury instructions and requested
    the court allow the jury to determine in an advisory capacity whether the
    taking was necessary and for a public use. The district court denied Behm’s
    request for the jury instructions, ruling the issue of damages was the only issue
    left to be decided.
    1
    [¶6] The parties stipulated to the valuation of the easement, and the district
    court adopted the stipulation. Behm moved for attorney’s fees and costs in the
    amount of $49,561.78, including the fees incurred for the petition for writ of
    certiorari to the United States Supreme Court. MDU objected to the requested
    fees. The district court ordered MDU to pay Behm $17,443 in fees and costs.
    II
    [¶7] Behm makes various arguments about the constitutionality of the
    eminent domain proceedings. He claims it is a violation of due process and the
    takings clause for the State to allow a private corporation to take property
    through eminent domain, for the State to disregard a finding that the taking
    is not necessary and allow the corporation to take the property on the
    corporation’s finding the taking is necessary, and for the State to disregard
    findings of no public use and allow the corporation to take the property on its
    determination of a public use. He contends it is a violation of due process, the
    takings clause, and the right to a jury to allow a taking without a jury
    determination that the taking is for a public use and that the taking is
    necessary.
    [¶8] The law of the case doctrine and the mandate rule apply to Behm’s
    arguments. This Court has explained:
    Generally, the law of the case is defined as the principle that
    if an appellate court has passed on a legal question and remanded
    the cause to the court below for further proceedings, the legal
    question thus determined by the appellate court will not be
    differently determined on a subsequent appeal in the same case
    where the facts remain the same. In other words, [t]he law of the
    case doctrine applies when an appellate court has decided a legal
    question and remanded to the district court for further
    proceedings, and [a] party cannot on a second appeal relitigate
    issues which were resolved by the Court in the first appeal or
    which would have been resolved had they been properly presented
    in the first appeal. The mandate rule, a more specific application
    of law of the case, requires the trial court to follow pronouncements
    of an appellate court on legal issues in subsequent proceedings of
    the case and to carry the appellate court’s mandate into effect
    2
    according to its terms. . . . and we retain the authority to decide
    whether the district court scrupulously and fully carried out our
    mandate’s terms.
    Dale Expl., LLC v. Hiepler, 
    2020 ND 140
    , ¶ 13, 
    945 N.W.2d 306
    (quoting
    Johnston Land Co., LLC v. Sorenson, 
    2019 ND 165
    , ¶ 11, 
    930 N.W.2d 90
    ).
    [¶9] Behm submitted proposed jury instructions to the district court,
    requesting the court allow a jury to sit in an advisory capacity and determine
    whether the taking of his property was necessary and for a public use. He
    explained that allowing those issues to be presented to the jury would allow a
    complete record on appeal for the purpose of attempting to change state law.
    The district court denied Behm’s request for the proposed jury instructions.
    The court explained that the issue of the necessity of the taking and whether
    the taking was for a public use were previously tried and appealed and that
    the decision was reversed on appeal and the case was remanded for a trial on
    damages. The court concluded it must adhere to the mandate rule on remand,
    this Court’s mandate was clear, and the only matter left for determination was
    the issue of eminent domain damages to be awarded to Behm.
    [¶10] In the prior appeal, we held the district court correctly concluded the
    proposed pipeline was for a public use, but the court erred in ruling the
    proposed taking was not necessary for a public use. Behm, 
    2019 ND 139
    , ¶¶ 10,
    18. We reversed the judgment and “remand[ed] for trial on eminent domain
    damages to be awarded to Behm.”
    Id. at ¶ 19.
    We did not remand for a new
    trial on the issues of necessity and public use or for new arguments to be raised
    about the prior proceedings. The district court fully carried out our mandate’s
    terms.
    [¶11] Furthermore, Behm’s arguments about the constitutionality of the
    eminent domain proceedings and whether a jury should have determined
    certain issues could have been raised in the district court before the prior
    appeal and to this Court in the first appeal. In the prior appeal, this Court
    acknowledged, “Behm lists ten issues in his cross-appeal but does not
    specifically address any of them in his brief. We do not address inadequately
    briefed issues.” Behm, 
    2019 ND 139
    , ¶ 19. These ten issues that we declined to
    3
    review included, “Whether the district court erred in not finding a violation of
    federal and state constitutional rights by the proposed taking.” The
    constitutional arguments he makes in the current appeal could have been
    resolved in the first appeal had they been properly presented, and therefore
    they are barred by the law of the case doctrine.
    [¶12] We conclude Behm’s constitutional arguments are precluded under the
    law of the case doctrine and the mandate rule.
    III
    [¶13] Behm argues the district court abused its discretion by failing to award
    him attorney’s fees and costs related to his petition for writ of certiorari.
    [¶14] We review the district court’s decision on costs and attorney’s fees in an
    eminent domain action for an abuse of discretion. Lincoln Land Dev., LLP v.
    City of Lincoln, 
    2019 ND 81
    , ¶ 20, 
    924 N.W.2d 426
    . A court abuses its discretion
    if it acts in an arbitrary, unreasonable, or unconscionable manner, if its
    decision is not the product of a rational mental process leading to a reasoned
    determination, or if it misinterprets or misapplies the law.
    Id. [¶15]
    Section 32-15-32, N.D.C.C., provides for costs and attorney’s fees in an
    eminent domain case, stating:
    The court may in its discretion award to the defendant reasonable
    actual or statutory costs or both, which may include . . . costs on
    appeal, and reasonable attorney’s fees for all judicial proceedings.
    If the defendant appeals and does not prevail, the costs on appeal
    may be taxed against the defendant. In all cases when a new trial
    has been granted upon the application of the defendant and the
    defendant has failed upon such trial to obtain greater
    compensation than was allowed the defendant upon the first trial,
    the costs of such new trial shall be taxed against the defendant.
    This Court has said the statute authorizes the district court to award
    reasonable attorney’s fees for all judicial proceedings in an eminent domain
    action. Lincoln Land, 
    2019 ND 81
    , ¶ 22. We explained courts should consider
    a number of factors in deciding whether to award fees and costs in an eminent
    4
    domain case, including the number of hours spent, the rate per hour, the
    character of the services rendered, the results obtained, the customary fee
    charged in the locality, and the ability and skill of the attorney. Cass Cty. Joint
    Water Res. Dist. v. Erickson, 
    2018 ND 228
    , ¶ 29, 
    918 N.W.2d 371
    ; see also City
    of Bismarck v. Thom, 
    261 N.W.2d 640
    , 646 (N.D. 1977). We have also said, “[I]t
    is essential that the prevailing party, and the court, if need be, exclude any
    hours that are excessive, redundant, or otherwise unnecessary.” N.D. Dep’t of
    Transp. v. Rosie Glow, LLC, 
    2018 ND 123
    , ¶ 11, 
    911 N.W.2d 334
    .
    [¶16] Behm requested $49,561.78 in attorney’s fees and costs for fees related
    to the prior appeal, the petition for writ of certiorari to the United States
    Supreme Court, and to resolve the issue of damages. The district court
    previously awarded Behm $22,150 in attorney’s fees and costs before the prior
    appeal, and the court found MDU tendered payment for all fees associated with
    the initial phase of the trial. The court awarded Behm $17,443 of the
    $49,561.78 total request, including the fees and costs incurred for the prior
    appeal and subsequent proceedings in the district court. The court denied the
    attorney’s fees requested for contacts with individuals who were strangers to
    the proceedings and for communications between Behm’s attorney and office
    staff about billing matters and other financial matters. The court also denied
    any fees related to the petition for writ of certiorari. The court concluded
    N.D.C.C. § 32-15-32 allows for fees for all judicial proceedings, but that term
    does not include “a side trip” to a federal court, and the statute limits the
    recovery of attorney’s fees to legal services related directly to the condemnation
    proceeding alone. The court explained the petition to the United States
    Supreme Court was “an improvident act,” N.D.C.C. § 32-15-32 does not
    contemplate a recovery for all fees incurred for any proceeding not directly
    contemplated by the chapter, and therefore the fees would not be allowed.
    [¶17] Section 32-15-32, N.D.C.C., gives the district court discretion to award
    “reasonable actual or statutory costs” and “reasonable attorney’s fees for
    all judicial proceedings.” We have limited recovery of attorney’s fees to
    litigation of claims asserting condemnation or inverse condemnation. United
    Power Ass’n v. Moxness, 
    267 N.W.2d 814
    , 817 (N.D. 1978) (reversing fee award
    for proceedings before the public service commission); Arneson v. City of
    5
    Fargo, 
    331 N.W.2d 30
    , 39 (N.D. 1983) (affirming fee award limited to inverse
    condemnation and excluding litigation of negligence issues); Gissel v. Kenmare
    Twp., 
    512 N.W.2d 470
    , 478 (N.D. 1994) (affirming as reasonable the district
    court’s reduction of requested attorney’s fees due to “overextended conferences
    and an improvident appeal”). Although the court explained its reasoning that
    the petition was an “improvident” “side trip” and therefore unreasonable to
    that extent, it further stated that Behm’s “petition to the United States
    Supreme Court is not a proceeding contemplated in Chapter 32-15.” If
    otherwise reasonable, the district court may award attorney’s fees for “all
    judicial proceedings,” including a petition for certiorari to the United States
    Supreme Court asserting takings claims under the United States Constitution.
    N.D.C.C. § 32-15-32. We will not set aside a correct result merely because part
    of the reasoning supporting that result was incorrect. Schmidt v. City of Minot,
    
    2016 ND 175
    , ¶ 16, 
    883 N.W.2d 909
    . We conclude the district court did not
    abuse its discretion by denying as unreasonable the attorney’s fees and costs
    Behm requested related to the petition for writ of certiorari.
    IV
    [¶18] MDU requests an award of costs and fees on appeal under N.D.R.App.P.
    38 for defending against the constitutional issues raised in the appeal. MDU
    contends Behm failed to properly raise the constitutional issues in the prior
    appeal, he did not adequately brief the issues in this appeal, he did not address
    current case law on these issues, and he wasted the Court’s and MDU’s
    resources with his unsupported arguments. In the previous appeal, we held
    that the district court erred in concluding the proposed taking was not
    necessary for a public use, and remanded for trial on eminent domain damages.
    Montana-Dakota Utils. Co. v. Behm, 
    2019 ND 139
    , ¶¶ 18-19, 
    927 N.W.2d 865
    .
    [¶19] Rule 38, N.D.R.App.P., provides, “If the court determines that an appeal
    is frivolous, or that any party has been dilatory in prosecuting the appeal, it
    may award just damages and single or double costs, including reasonable
    attorney’s fees.” An appeal is frivolous “if it is flagrantly groundless, devoid of
    merit, or demonstrates persistence in the course of litigation which could be
    seen as evidence of bad faith.” Frontier Fiscal Servs., LLC v. Pinky’s
    6
    Aggregates, Inc., 
    2019 ND 147
    , ¶ 21, 
    928 N.W.2d 449
    (quoting Witzke v. City of
    Bismarck, 
    2006 ND 160
    , ¶ 19, 
    718 N.W.2d 586
    ). Behm’s appeal of issues we
    decided in the first appeal and beyond the scope of the remand for trial on
    damages meets this standard.
    [¶20] We award MDU single costs and attorney’s fees in the amount of $500.
    V
    [¶21] We affirm the judgment.
    [¶22] Jon J. Jensen, C.J.
    Daniel J. Crothers
    Jerod E. Tufte
    Allan L. Schmalenberger, S.J.
    David Nelson, S.J.
    [¶23] The Honorable Allan L. Schmalenberger and the Honorable David
    Nelson, Surrogate Judges, sitting in place of VandeWalle, J., and McEvers, J.,
    disqualified.
    7