Johnson v. Menard , 2021 ND 19 ( 2021 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
FEBRUARY 18, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 19Darlene Jean Johnson, Plaintiff and Appellee
v.
Menard, Inc., Defendant and Appellant
No. 20200126
Appeal from the District Court of Ward County, North Central Judicial
District, the Honorable Richard L. Hagar, Judge.
AFFIRMED AND REMANDED.
Opinion of the Court by VandeWalle, Justice.
Tyler J. Siewert (argued) and Meggi R. Ihland Pelton (on brief), Bismarck, ND,
for plaintiff and appellee.
Lisa M. Six, Williston, ND, for defendant and appellant.
Johnson v. Menard
No. 20200126
VandeWalle, Justice.
[¶1] After a jury trial, Menard, Inc. (“Menards”) appealed from an order
denying a motion for summary judgment, an order denying a motion for
judgment as a matter of law, an order granting attorney’s fees, an order as to
the amount of attorney’s fees recoverable and entry of judgment, and a
judgment. We affirm, but remand for consideration of attorney’s fees for this
appeal.
I
[¶2] On May 6, 2013, Darlene Johnson visited a Menards store in Minot to
exchange an item. A Menards employee directed Johnson to find the exchange
in the store and return to the service counter. Johnson turned toward her right
and started walking away. Almost immediately, Johnson tripped over a flatbed
cart. The cart was one Menards offers its customers to use while in the store.
As a result of the trip and fall, Johnson cracked seven teeth.
[¶3] On August 16, 2017, Johnson filed a negligence action against Menards
in small claims court seeking damages in the amount of $14,818.00. Menards
removed the case to district court. Johnson then amended her claim with the
consent of Menards. In the amended complaint, Johnson sought a jury trial
and “a reasonable amount but not less than $50,000” in damages. Before trial,
Menards moved for summary judgment contesting whether sufficient facts
created a duty of care it owed to Johnson. The court denied the motion. At trial,
Menards moved for judgment as a matter of law at the close of Johnson’s case.
Menards again claimed insufficient evidence existed to require a duty of care
Menards owed Johnson. Alternatively, Menards argued it had met any duty it
owed Johnson. The court denied the motion. Menards did not renew its motion
for judgment as a matter of law at the close of its case or after the jury returned
the verdict.
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[¶4] The jury returned a verdict awarding Johnson $36,392.00 in damages
plus three percent interest. After briefing and argument, the court granted
Johnson $144,476.97 in attorney’s fees under N.D.C.C. § 27-08.1-04.
II
[¶5] Menards argues the district court erred when it denied Menards’ motion
for summary judgment and motion for judgment as a matter of law. “Once a
case proceeds to trial, the question of whether a party has met its burden as to
the elements of a claim must be answered with reference to the evidence and
the record as a whole, rather than by looking to the pretrial submissions alone.”
Berg v. Dakota Boys Ranch Ass’n, 2001 ND 122, ¶ 10, 629 N.W.2d 563. A full
trial renders sufficiency of the evidence issues raised in summary judgment
motions moot. Id. After a full trial, the proper redress for an allegedly
erroneous denial of summary judgment for insufficient evidence is through
subsequent motions for judgment as a matter of law. See id. (citing Pleadings
and Motions, 28 Fed. Proc., L. Ed., § 62:636 (1996)). Therefore, the trial
rendered the issues in Menards’ motion for summary judgment moot and the
proper redress here would be under a motion for judgment as a matter of law.
III
[¶6] Johnson argues Menards failed to preserve the issue of insufficient
evidence for our review by failing to make a motion for judgment as a matter
of law at the close of all the evidence and after the verdict was returned under
N.D.R.Civ.P. 50(b). “The interpretation of a court rule or a statute is a question
of law that we review de novo.” PHI Fin. Serv. v. Johnston Law Office, P.C.,
2016 ND 114, ¶ 17, 881 N.W.2d 216 (quoting State v. Chacano, 2012 ND 113,
¶ 10, 817 N.W.2d 369).
[¶7] A party can make a motion for judgment as a matter of law during trial
under N.D.R.Civ.P. 50(a). Rule 50(b), N.D.R.Civ.P., allows a party to renew a
motion for judgment as a matter of law after trial. This rule states:
If, the court does not grant a motion for judgment as a matter of
law made under subdivision (a), the court may later decide the
legal questions raised by the motion. The moving party may renew
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its request for judgment as a matter of law by serving and filing a
motion no later than 28 days after notice of entry of judgment or,
if the motion addresses a jury issue not decided by a verdict, no
later than 28 days after the jury was discharged . . . .
N.D.R.Civ.P. 50(b).
[¶8] In Berg v. Dakota Boys Ranch Ass’n, this Court found an appeal of a
summary judgment motion alleging insufficient evidence moot because the
case went to a full trial. 2001 ND 122, ¶ 11. Instead, this Court reviewed the
motion for judgment as a matter of law stating, “The movant can, however,
preserve for appellate review the same issues raised by the summary judgment
motion by making appropriate motions for judgment as a matter of law at the
close of all the evidence and after the verdict is returned.” Id. at ¶ 10 (quoting
James Wm. Moore, Moore’s Federal Rules Pamphlet, 2001, Part 1: Federal
Rules of Civil Procedure § 56.8[2] (2000)) (emphasis added).
[¶9] In Disciplinary Bd. v. McDonald, this Court discussed the issue of a
renewed motion for judgment as a matter of law. 2000 ND 87, ¶ 16, 609 N.W.2d
418. Although the disciplinary proceeding was quasi-judicial, this Court
interpreted N.D.R.Civ.P. 50(a) stating, “Technically a party waives the right
to a judgment as a matter of law if the motion is made at the close of the
opponent’s case, and thereafter the moving party introduces evidence on its
own behalf.” Id. (quoting 9A Wright & Miller, Federal Practice and Procedure:
Civil 2d § 2534, at p. 322 (1995)).
[¶10] “When a state rule is derived from a corresponding federal rule, the
federal courts’ interpretation of the federal rule may be persuasive authority
when interpreting our rule.” White v. T.P. Motel, L.L.C., 2015 ND 118, ¶ 20,
863 N.W.2d 915. Rule 50, N.D.R.Civ.P., resembles the corresponding federal
rule. Compare N.D.R.Civ.P. 50, with Fed. R. Civ. P. 50. In the context of Rule
50 of the Federal Rules of Civil Procedure, an often-cited authority stated:
There is authority to the effect that a party technically waives the
right to a judgment as a matter of law if the Rule 50 motion is
made at the close of the opponent’s case, and thereafter the moving
party introduces evidence in its own behalf. However, the moving
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party may renew the motion at the close of all the evidence. If the
party fails to renew the motion, that party may not claim error on
appeal from a denial of the motion at the close of the opponent’s
evidence, although some courts have been willing to consider
“plain error.”
9B Wright & Miller, Federal Practice and Procedure: Civil 3d § 2534 (2020).
[¶11] In Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., the U.S. Supreme
Court interpreted Rule 50 of the Federal Rules of Civil Procedure. 546 U.S.
394, 399-407 (2006). Before the matter at issue in Unitherm went to the jury
for deliberation, the defendant moved for a directed verdict claiming
insufficiency of the evidence under Rule 50(a) of the federal rules. Id. at 398.
The district court denied the motion and the jury returned a verdict in favor of
the plaintiff. Id. The defendant did not renew its motion for judgment as a
matter of law under Rule 50(b) of the federal rules after the verdict. Id.[¶12] On appeal, the U.S. Supreme Court held without a Rule 50(b) motion “an
appellate court is without power to direct the District Court to enter judgment
contrary to the one it had permitted to stand.” Unitherm, 546 U.S. at 400-01(quoting Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 218 (1947)).
The Court said, “[A] party’s failure to file a Rule 50(b) motion deprives the
appellate court of the power to order the entry of judgment in favor of that
party where the district court directed the jury’s verdict . . . .” Id. at 401.
Additionally, the Court stated, “A postverdict motion is necessary because
determination of whether a new trial should be granted or a judgment entered
under Rule 50(b) calls for the judgment in the first instance of the judge who
saw and heard the witnesses and has the feel of the case which no appellate
printed transcript can impart.” Id. (quoting Cone, at 216).
[¶13] The U.S. Court of Appeals for the Eighth Circuit has held the Unitherm
opinion is limited to post-trial appeals where sufficiency of the evidence
challenges are made and a party fails to renew their motion for judgment as a
matter of law under Rule 50(b). Linden v. CNH Am., LLC, 673 F.3d 829, 832-
33 (8th Cir. 2012). The Eighth Circuit noted, “Reading Unitherm more broadly
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would dramatically alter the well-accepted rule that an objection at trial
generally preserves an issue for review on appeal.” Id. at 833.
[¶14] We follow the interpretation of the federal courts and apply it to Rule 50
of the North Dakota Rules of Civil Procedure. During trial, a party can make
a motion for judgment as a matter of law alleging insufficient evidence under
N.D.R.Civ.P. 50(a). However, after the jury returns its verdict the party must
renew the motion under N.D.R.Civ.P. 50(b) to preserve the sufficiency of the
evidence issue for our review. Without a renewed Rule 50(b) motion, the
district court has no opportunity to weigh whether all the evidence presented
at trial is insufficient. The district court must have the opportunity to make an
initial determination on whether the motion should be granted.
[¶15] In this case, Menards made a motion for judgment as a matter of law
alleging insufficient evidence at the close of Johnson’s case under N.D.R.Civ.P.
50(a). However, Menards did not renew the motion after the close of all the
evidence and after the jury returned its verdict in favor of Johnson. Therefore,
because Menards failed to renew its motion under N.D.R.Civ.P. 50(b) the issue
was not preserved for our review and we decline to address it.
IV
[¶16] Menards argues the district court erred when it awarded Johnson her
attorney’s fees under N.D.C.C. § 27-08.1-04. Menards claims Johnson is not
entitled to attorney’s fees since Johnson amended her complaint after Menards
removed the action from small claims court to district court. Section 27-08.1-
04, N.D.C.C., allows a defendant to remove an action filed by the plaintiff in
small claims court to district court. The relevant portion of the statute
regarding attorney’s fees states, “If 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.” N.D.C.C. § 27-08.1-04.
Statutory interpretation is a question of law, which is fully
reviewable on appeal. The primary purpose of statutory
interpretation is to determine the intention of the legislation.
Words in a statute are given their plain, ordinary, and commonly
understood meaning, unless defined by statute or unless a
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contrary intention plainly appears. If the language of a statute is
clear and unambiguous, the letter of the statute is not to be
disregarded under the pretext of pursuing its spirit. If the
language of the statute is ambiguous, however, a court may resort
to extrinsic aids to interpret the statute.
Interiors by France v. Mitzel Contractors, Inc., 2019 ND 158, ¶ 9, 930 N.W.2d
133 (quoting Bindas v. Bindas, 2019 ND 56, ¶ 10, 923 N.W.2d 803).
[¶17] A plaintiff’s decision to bring an action in small claims court is
irrevocable. Bell v. Pro Tune Plus, 2013 ND 147, ¶ 3, 835 N.W.2d 858. However,
the defendant’s decision to remove the action to district court is also
irrevocable. Id. Once a case is removed to district court, the rights afforded by
the district court are vested in both parties. Id. at ¶ 5. Before trial, “a party
may amend its pleadings only with the opposing party’s written consent or the
court’s leave.” N.D.R.Civ.P. 15(a)(2). In Van Klootwyk v. Baptist Home this
Court stated, “The plain and commonly understood meaning of an ‘action’ is
‘an ordinary proceeding in a court of justice, by which a party prosecutes
another party for the enforcement or protection of a right, the redress or
prevention of a wrong, or the punishment of a public offense.’” 2003 ND 112,
¶ 16, 665 N.W.2d 679 (quoting N.D.C.C. § 32-01-02).
[¶18] After Johnson filed in small claims court, Menards elected to remove this
action to district court under N.D.C.C. § 27-08.1-04. This removal vested the
rights afforded by the district court in both parties. Rule 15(a)(2), N.D.R.Civ.P.,
allowed Johnson to amend her complaint with Menards’ written consent which
Menards provided. Although Johnson amended her complaint seeking a higher
amount in damages and a jury trial, the amended complaint was for the same
action. Johnson still alleged Menards was liable for her trip and fall injuries
due to the flatbed cart.
[¶19] Menards removed the action to district court, and Johnson prevailed on
her claims at trial. The jury’s verdict made her a prevailing plaintiff. Therefore,
the plain language of the statute required the district court to award Johnson
her attorney’s fees. The district court did not err when it followed the
requirements of the statute.
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V
[¶20] Menards also argues the district court abused its discretion regarding
the amount of attorney’s fees it awarded Johnson. “An award of attorney’s fees
is within the district court’s discretion and will only be disturbed on appeal if
the district court abuses its discretion.” Datz v. Dosch, 2014 ND 102, ¶ 22, 846
N.W.2d 724. “A court abuses its discretion if it acts in an arbitrary,
unreasonable, or unconscionable manner, its decision is not the product of a
rational mental process leading to a reasoned decision, or if it misinterprets or
misapplies the law.” Id. (quoting Wolt v. Wolt, 2011 ND 170, ¶ 26, 803 N.W.2d
534).
[¶21] “An itemized bill may be used to establish attorney’s fees.” Riemers v.
State, 2008 ND 101, ¶ 15, 750 N.W.2d 407. See also Tillich v. Bruce, 2017 ND
21, ¶ 11, 889 N.W.2d 899 (holding the predominant factors for determining
reasonable attorney’s fees are the number of hours spent in total and the rate
per hour). In Riemers, this Court reviewed the reasonableness of an attorney’s
fees award in a frivolous lawsuit against the State. 2008 ND 101, ¶ 15. The
State submitted an affidavit with the amount of attorney’s fees, the number of
hours worked, and the hourly rate. Id. This Court upheld the award and noted
that it was clear from the record that the trial court used the affidavit to make
the award. Id.[¶22] The lodestar amount is presumed to be the reasonable fee. Thompson v.
Schmitz, 2011 ND 70, ¶ 18, 795 N.W.2d 913. Menards claims the district court
needed to use the lodestar method to calculate the amount of attorney’s fees.
Menards cites cases requiring the lodestar method of calculating attorney’s
fees under federal fee-shifting statutes. See Palmer v. Gentek Bldg. Prod., Inc.,
2019 ND 306, ¶ 29, 936 N.W.2d 552; Fode v. Capital RV Ctr., Inc., 1998 ND 65,
¶¶ 34-36, 575 N.W.2d 682; Duchscherer v. W.W. Wallwork, Inc., 534 N.W.2d
13, 16 (N.D. 1995). However, these cases require the lodestar amount because
they involve a federal fee-shifting statute. See Duchscherer, at 16 (“Under
federal fee-shifting statutes, the first step in calculating reasonable attorney
fees requires calculation of the lodestar figure that represents the
presumptively reasonable amount.”).
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[¶23] Here, Johnson did not seek attorney’s fees under a federal fee-shifting
statute. Rather, Johnson claimed attorney’s fees under a state statute,
N.D.C.C. § 27-08.1-04. As a result, the district court was not required to do the
lodestar method. Like in Riemers, the court here used an affidavit and the
itemized bill submitted by Johnson’s attorneys. Therefore, the court did not
abuse its discretion by using the affidavit and the itemized bill to make the
award.
VI
[¶24] Johnson argues she is entitled to attorney’s fees for this appeal under
N.D.C.C. § 27-08.1-04. The statute provides, “If 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.” N.D.C.C. § 27-08.1-04. The
statute requires the district court to award attorney’s fees when the party
becomes a prevailing plaintiff in the district court. Id. However, the statute is
silent on whether this includes attorney’s fees when the action continues to an
appeal. Id. It is unclear to us whether the legislature intended to include an
award of attorney’s fees for an appeal.
[¶25] Although the statute is unclear, it would appear inconsistent to disallow
attorney’s fees for this appeal when the statute grants attorney’s fees to a
prevailing plaintiff. When discussing a similar statute in a previous case we
stated, “This Court has decided statutory provisions authorizing an award of
attorney fees to a prevailing party entitle that party to attorney fees in
successfully defending a judgment on appeal . . . . [T]o disallow attorney’s fees
for the appeal may dilute or dissipate the party’s recovery.” Rocky Mountain
Steel Founds., Inc. v. Brockett Co., LLC, 2019 ND 252, ¶¶ 23, 25, 934 N.W.2d
531 (quoting Schwab v. Zajac, 2012 ND 239, ¶ 27, 823 N.W.2d 737). As a result,
a prevailing plaintiff should be awarded reasonable attorney’s fees for the
district court proceedings and for a successful appeal under N.D.C.C. § 27-08.1-
04.
[¶26] “Although we have concurrent jurisdiction with the trial court to award
attorney’s fees on appeal, we prefer the trial court decide the issue.” Reinecke
v. Griffeth, 533 N.W.2d 695, 702 (N.D. 1995). Johnson has not filed any
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documentation with this Court regarding her fees for this appeal. Therefore,
we remand to the district court on this issue to take evidence of and award
reasonable attorney’s fees for this appeal.
VII
[¶27] We affirm the orders and the judgment of the district court. We remand
for consideration of Johnson’s attorney’s fees for this appeal.
[¶28] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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