Trosen v. Trosen , 2022 ND 216 ( 2022 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
DECEMBER 8, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 216Brent Trosen, as Personal Representative of the
Estate of Shirley Trosen and as Successor
Trustee for the Trosen Family Trust, Plaintiffs and Appellees
v.
Jeffery A. Trosen, Defendant, Third-Party Plaintiff and Appellant
and
Brent Trosen and Todd Trosen, Third-Party Defendants and Appellees
No. 20220048
Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable M. Jason McCarthy, Judge.
AFFIRMED.
Opinion of the Court by VandeWalle, Justice.
Douglas A. Christensen (argued) and Joseph E. Quinn (on brief), Grand Forks,
ND, for plaintiffs and appellees and third-party defendants and appellees.
DeWayne A. Johnston, Grand Forks, ND, for defendant, third-party plaintiff
and appellant.
Trosen v. Trosen
No. 20220048
VandeWalle, Justice.
[¶1] Jeff Trosen appealed from a judgment and amended judgment awarding
damages for a breach of contract claim to the Estate of Shirley Trosen and the
Trosen Family Trust and dismissing Jeff Trosen’s counterclaim and third-party
complaint. Jeff Trosen argues the district court erred in granting summary
judgment on the breach of contract claim and by dismissing his counterclaim
and third-party complaint. We affirm.
I
[¶2] In 2017, Jeff Trosen began leasing farm land from Shirley Trosen,
individually and as trustee of the Trosen Family Trust. The farm lease covered
the farming seasons of 2017 through 2022. Under the terms of the lease, Jeff
Trosen was to pay annual rent in the amount of $80,725.40 for 1,153.22 tillable
acres.
[¶3] Jeff Trosen paid the rent for the 2017 crop year in February 2017, the
rent for the 2018 crop year in February and March 2018, and the rent for the
2019 crop year in February and April 2019. For the 2020 crop year, Jeff Trosen
made a partial rent payment of $28,000 on December 30, 2020, and had an
unpaid balance of $52,725.40. For the 2021 crop year, Jeff Trosen made a
partial rent payment of $30,000 on April 9, 2021, and had an unpaid balance
of $50,725.40.
[¶4] In February 2021, the plaintiffs, Shirley Trosen, individually and as
trustee of the Trosen Family Trust, and Brent Trosen, as attorney-in-fact for
Shirley Trosen, sued Jeff Trosen seeking damages for breach of the farm lease
and to cancel the lease. The plaintiffs alleged Jeff Trosen breached the lease by
failing to pay the full rent for the 2020 crop year. The complaint was later
amended to add a claim related to the rent for the 2021 crop year. Jeff Trosen
filed an answer, counterclaim, and third-party complaint against Brent Trosen
and Todd Trosen (“third-party defendants”), asserting claims of intentional
interference with a contract and unlawful interference with business.
1
[¶5] On May 12, 2021, while the action was pending, Shirley Trosen passed
away. Brent Trosen, as personal representative of Shirley Trosen’s estate and
as the successor trustee, was substituted as a party.
[¶6] The plaintiffs and third-party defendants moved for summary judgment
dismissal of Jeff Trosen’s counterclaims and third-party complaint. Jeff Trosen
moved to extend the deadline to respond to the motion. The district court
denied Jeff Trosen’s motion. Jeff Trosen did not file a response to the plaintiffs
and third-party defendants’ motion for summary judgment. The district court
granted the plaintiffs and third-party defendants’ motion for summary
judgment and dismissed Jeff Trosen’s counterclaims and third-party
complaint.
[¶7] Jeff Trosen also moved for summary judgment, arguing the 2021 rent
claimed by the plaintiffs must be apportioned to the date of Shirley Trosen’s
death because the date of her death terminates any interest her estate or the
trust has in the rents from the farm property. He requested the plaintiffs’
claims related to the 2021 rent be limited to the period of time prior to Shirley
Trosen’s death and for the district court to declare he has no liability for 2021
rent on land he acquired through Shirley Trosen or the Trosen Family Trust
after her death. The plaintiffs opposed Jeff Trosen’s motion for summary
judgment.
[¶8] The district court denied Jeff Trosen’s motion for summary judgment and
granted summary judgment in favor of the plaintiffs on their breach of contract
claim. The court concluded the farm lease was a valid contract between Jeff
Trosen, Shirley Trosen, and the Trosen Family Trust; Jeff Trosen breached the
contract by failing to pay the 2020 and 2021 rent; and Shirley Trosen and the
Trosen Family Trust have been damaged in the amount of $103,450.80 plus
interest. The court also ordered termination of the farm lease. Judgment was
entered awarding $51,725.40 to the Estate of Shirley Trosen and $51,725.40 to
the Trosen Family Trust for rent due for the 2020 and 2021 crop years.
[¶9] The plaintiffs moved for an award of attorney’s fees. The district court
determined the plaintiffs were entitled to attorney’s fees and costs pursuant to
2
the terms of the farm lease, and awarded the plaintiffs attorney’s fees in the
amount of $50,329.03.
[¶10] Jeff Trosen filed a notice of lis pendens. The plaintiffs moved to cancel
the lis pendens. The district court granted the plaintiffs’ motion. An amended
judgment was entered.
II
[¶11] The standard for reviewing a district court’s decision on summary
judgment is well established:
Summary judgment is a procedural device for the prompt
resolution of a controversy on the merits without a trial if there
are no genuine issues of material fact or inferences that can
reasonably be drawn from undisputed facts, or if the only issues to
be resolved are questions of law. A party moving for summary
judgment has the burden of showing there are no genuine issues
of material fact and the moving party is entitled to judgment as a
matter of law. In determining whether summary judgment was
appropriately granted, we must view the evidence in the light most
favorable to the party opposing the motion, and that party will be
given the benefit of all favorable inferences which can reasonably
be drawn from the record. On appeal, this Court decides whether
the information available to the district court precluded the
existence of a genuine issue of material fact and entitled the
moving party to judgment as a matter of law. Whether the district
court properly granted summary judgment is a question of law
which we review de novo on the entire record.
Lovro v. City of Finley, 2022 ND 145, ¶ 10, 978 N.W.2d 67 (quoting Simmons
v. Cudd Pressure Control, Inc., 2022 ND 20, ¶ 8, 969 N.W.2d 442).
III
[¶12] Jeff Trosen argues the district court erred in granting summary
judgment in favor of the plaintiffs on their breach of contract claim.
[¶13] The district court granted summary judgment in favor of the plaintiffs
on the breach of contract claim. The court concluded the farm lease was a valid
3
and enforceable contract, the lease did not specify a date the rent was due, but
the court determined the rent was due prior to April 1 each year based on the
parties’ course of conduct. The court stated it was undisputed Jeff Trosen made
partial rent payments for the 2020 and 2021 crop years, there was an
outstanding rent balance of $52,725.40 for 2020 and $50,725.40 for 2021, and
Shirley Trosen died on May 12, 2021. The court stated Jeff Trosen conceded he
was responsible for payment of the 2020 rent, subject only to the potential right
to setoff as outlined in the counterclaim and third-party complaint, which were
dismissed.
[¶14] The district court rejected Jeff Trosen’s apportionment argument,
explaining the right to receive the 2020 and 2021 rent accrued prior to Shirley
Trosen’s death, the right to collect the unpaid rent did not attach to and run
with the land as Jeff Trosen asserted, and the right to collect the unpaid rent
passed to the Estate of Shirley Trosen and the Trosen Family Trust. The court
concluded a valid contract existed between Jeff Trosen, Shirley Trosen, and the
Trosen Family Trust; Jeff Trosen breached the contract by failing to pay the
rent for 2020 and 2021; and Shirley Trosen and the Trosen Family Trust have
been damaged in the amount of $103,450.80 plus interest.
A
[¶15] Jeff Trosen argues the district court erred in interpreting the trust. He
asserts Shirley Trosen was entitled to all of the income derived from the trust
as long as she lived, but the property vested in fee from the trust to the
beneficiaries upon Shirley Trosen’s death and the beneficiaries immediately
perfected their ownership and the apportioned income from the property.
[¶16] The interpretation of a trust document is a question of law if the intent
can be ascertained from the document alone. In re Curtiss A. Hogen Trust B,
2018 ND 117, ¶ 18, 911 N.W.2d 305. The general rules of interpretation of
written instruments apply to the interpretation of trust documents. Dwyer v.
Sell, 2021 ND 139, ¶ 9, 963 N.W.2d 292. The language of the document governs
its interpretation if it is clear and does not involve an absurdity. Id.; see also
N.D.C.C. § 9-07-02. The parties’ intent is ascertained from the writing alone if
possible. N.D.C.C. § 9-07-04.
4
[¶17] The Trosen Family Trust states the grantors, Shirley and Duane Trosen,
each own an individual one-half interest in the farm property as tenants in
common, each grantor is entitled to one-half of the income derived from the
farm property, and upon the death of a grantor the surviving grantor is entitled
to “all of the income derived from the Farm Property so long as he or she shall
live.” The trust also states:
Upon the death of a Grantor the deceased Grantor’s
undivided one-half interest in the Farm Property shall vest in each
of the respective Beneficiaries as set forth below, subject to a life
estate in favor of the surviving Grantor. For example, upon the
death of Shirley Trosen, her undivided one-half interest in the
Farm Property shall be deemed vested in the respective
Beneficiary of each parcel of real property set forth below, subject
to a life estate in favor of Duane Trosen.
The trust further states, “Upon the death of the surviving Grantor the Trustee
shall convey each parcel of real property comprising the Farm Property unto
the individual Beneficiary designated above except that the real property
designated for Todd Trosen shall be held in trust subject to the provisions of
Article II.”
[¶18] Duane Trosen died prior to the 2017 farm lease and, under the terms of
the trust, a one-half interest in the farm property vested in the beneficiaries
upon his death, subject to a life estate in favor of Shirley Trosen. As a life estate
holder of a one-half interest in the farm property, Shirley Trosen was entitled
to half of the rental income from the farm property during her life. See
Schroeder v. Buchholz, 2001 ND 36, ¶ 21, 622 N.W.2d 202 (stating a life estate
holder is entitled to rents and profits generated by the property during their
life). The trust also had a one-half interest in the farm property. Under the
terms of the trust, Shirley Trosen was entitled to all income from the farm
property so long as she lived. Under the terms of the trust, the farm property
vests in the beneficiaries after Shirley Trosen’s death. However, Shirley Trosen
was entitled to all of the rental income from the farm property during her life
through her life estate and the trust.
5
B
[¶19] Jeff Trosen argues the district court erred by failing to apply the common
law doctrine of apportionment to determine the amount of rent he owes Shirley
Trosen or the Trosen Family Trust for the 2021 crop year. He contends that he
only owes Shirley Trosen and the trust rent for the portion of the 2021 crop
year prior to Shirley Trosen’s death and that he already paid more than he
owes. He claims the current property owners of the farm property would be
entitled to the rent for the period after Shirley Trosen’s death.
[¶20] The apportionment of rent has been described as “the division of the rent
into parts among several persons entitled thereto; apportionment ordinarily
results where there is a severance, by grant or inheritance, of the estate under
lease and may be had with respect to any rents or benefits that are divisible.”
52A C.J.S. Landlord & Tenant § 1177 (2022 update). “Apportionment of the
rent does not mean abatement of it; in the case of apportionment, the tenant
still remains liable to pay the whole rent but in different parts to different
persons.” Id.
[¶21] We have explained the common law is adopted as the law in this state
where there is no express constitutional or statutory law on the subject. Reese
v. Reese-Young, 2020 ND 35, ¶ 20, 938 N.W.2d 405; see also N.D.C.C. § 1-01-
03(7). “[T]here is no common law in any case in which the law is declared by
the code.” N.D.C.C. § 1-01-06. “The common law, which is based on reason and
public policy, can best be determined by studying the decisions of our federal
and state courts and the writings of past and present students of our country’s
law over all the years of American judicial history.” Reese, at ¶ 21 (quoting In
re Estate of Conley, 2008 ND 148, ¶ 26, 753 N.W.2d 384).
[¶22] Courts have generally held, under the common law doctrine of
apportionment, that rent is not apportionable as to time and does not accrue
from day to day; rather, the person who has the right to possession or
ownership at the time the rent is due has the right to receive the rent. See, e.g.,
Handlan v. Bennett, 51 F.2d 21, 23 (4th Cir. 1931); Musselman v. U.S., 52 Ct.Cl.
436, 438 (1917); In re Lake Austin Ctr. Joint Venture, 106 B.R. 106, 108 (Bankr.
W.D. Tex. 1989); Wilson v. Campbell, 425 S.W.2d 518, 519 (Ark. 1968); Veatch
6
v. Philip J. Lasky, Inc., 477 P.2d 468, 469 (Colo. App. 1970); Cont’l Oil Co. v.
McNair Realty Co., 353 P.2d 100, 108 (Mont. 1960); Moran v. Fifteenth Ward
Bldg. & Loan Ass’n, 25 A.2d 426, 429 (N.J. Ch. 1942); F. Groos & Co. v. Chittim,
100 S.W. 1006, 1010 (Tex. Civ. App. 1907). In Handlan, at 23 (citations and
quotations omitted), the Fourth Circuit Court of Appeals explained:
By the general rule of the common-law, rent was apportioned as to
estate but not as to time. While there may be an apportionment of
rent as to estate, there can be none as to time, for the contract is
entire—the rent for the period of time agreed upon is regarded as
an indivisible item. The rule that rent can not be apportioned as to
time applies only in the absence of a statute. . . . Under this rule
in the absence of express contract or statutory provision, the owner
of the title at the time of the falling due of rent became entitled to
its collection. Instances frequently occurred under which a
landlord at the beginning of the year leased premises, particularly
agricultural lands, for a rental to be paid after the crops were
matured and harvested, and thereafter died before the rent
became due. In such cases, there being no apportionment of rent
as to estate, the successor to the title and not the personal
representative of the landlord became entitled to collect the rent
for the whole term, even though the greater portion had been
earned before the death of the landlord.
The common law rule applies unless it has been modified by statute or there is
an express agreement otherwise. See id.; see also 51 Am. Jur. 2d Life Tenants
and Remaindermen § 141 (2022 update) (stating “The general rule followed in
the absence of a contrary statute and in the absence of an intention in favor of
apportionment appearing from the will or other instrument is that income
consisting of rent money is not apportionable as between persons successively
entitled, when the right of one person ends, and that of another begins, during
a rent period.”).
[¶23] Jeff Trosen cites three Minnesota cases in support of his argument that
the rent should be apportioned under the common law doctrine and he should
only have to pay a proportionate amount for the time up to Shirley Trosen’s
death. However, the cases do not support his argument.
7
[¶24] Jeff Trosen claims in Dutcher v. Culver, 24 Minn. 584, 589 (1877), the
court stated a person who possesses land from which rent is due is liable for
the proportionate amount of rent due from the land in his possession even if
that is only a part of what was originally demised. Although the court said this,
it was discussing a specific statutory provision, not the common law doctrine
of apportionment. Id. Dutcher does not support Jeff Trosen’s argument the rent
should be apportioned based on time under the common law doctrine.
[¶25] Jeff Trosen also cites to Lindeke v. McArthur’s, Inc., 145 N.W. 399 (Minn.
1914), to support his argument. In Lindeke, the leased property was destroyed
by fire before the expiration of the term of the lease and the issue was how
much rent the lessee owed. Id. at 400. The court held the lessor was entitled to
recover a proportionate part of the yearly rent for the period of the lessee’s
occupancy under statute. Id. at 401. The court’s decision was based on
statutory law, not the common law doctrine of apportionment. Furthermore,
the lease terminated because the leased premises was destroyed through no
fault of either party. Id. The court stated rent may be apportioned when the
destruction of the leased premises left nothing of the subject-matter of the
lease. Id.; see also Graves v. Berdan, 26 N.Y. 498, 500 (N.Y. 1863) (holding
under common law, the rent may be apportioned when the leased premises was
destroyed by an act of God). This case is different. Jeff Trosen used the leased
property for the entire 2021 crop year. Lindeke does not support Jeff Trosen’s
argument for apportionment.
[¶26] Lastly, Jeff Trosen cites McLaughlin v. Minn. Loan & Trust Co., 255 N.W.
839 (Minn. 1934). In McLaughlin, the court interpreted a Minnesota statute
allowing apportionment regarding liability of persons in possession of land for
their portion of rent due. Id. at 839-40. The court said the statute was not
intended to create new liability, but rather to make an existing liability for rent
“divisible as to amount and apportionable as to time a demand which at the
common law was neither.” Id. at 840. The court interpreted statutory law and
did not apply the common law doctrine of apportionment. This case does not
support Jeff Trosen’s arguments.
8
[¶27] Jeff Trosen does not argue there is a similar North Dakota statute or any
agreement that requires apportionment of the 2021 rent as to time. The
common law doctrine of apportionment does not support Jeff Trosen’s
argument that the rent should be apportioned as to time. We conclude the
district court did not err by failing to apply the doctrine of apportionment to
determine the amount of rent for the 2021 crop year.
C
[¶28] The district court concluded Shirley Trosen was entitled to the rents and
profits generated from the farm land until her death, she passed away on May
12, 2021, the 2021 crop year rent was due on April 1, 2021, and the right to the
2021 rent accrued before Shirley Trosen’s death. The court explained the farm
lease did not specify a due date for the rent, but the parties established a
“course of conduct” in which the rent was paid prior to April 1.
[¶29] The nonperformance of a contractual duty when it is due is a breach of
contract. Welch Constr. & Excavating, LLC v. Duong, 2016 ND 70, ¶ 5, 877
N.W.2d 292. A party asserting a breach of contract must prove the existence of
a contract, a breach of the contract, and damages flowing from the breach. Id.Whether a party has breached a contract is a finding of fact. Id. The
construction of a written contract to determine its legal effect is a question of
law. Id. at ¶ 6.
[¶30] The farm lease stated, “[T]he Landlord, in consideration of the rents and
covenants hereinafter mentioned on the part of Tenant to be made and
performed, has leased, and by these presents, does lease unto Tenant, for
agricultural purposes only, the . . . described real estate.” Jeff Trosen was
required to pay rent in the amount of $80,725.40 each year under the terms of
the lease. The farm lease states, “Time shall be of the essence . . . for the
payment of rent,” but it does not contain a specific date the rent is due.
[¶31] Whether a contract is ambiguous is a question of law. Mandan Educ.
Ass’n v. Mandan Pub. Sch. Dist. No. 1, 2000 ND 92, ¶ 9, 610 N.W.2d 64. The
course of dealings and usage may be considered in interpreting a contract
ambiguity. Id. The course of dealing is a question of fact, but “where the
9
evidence on the course of dealing is such that reasonable minds could draw but
one conclusion, the question becomes one of law and summary judgment may
be appropriate.” Id.[¶32] It was undisputed that Jeff Trosen paid the full amount of rent before
April 1 each year in 2017, 2018, and 2019, and that he only paid a partial
amount for 2020 on December 30, 2020. Shirley Trosen filed her breach of
contract action against Jeff Trosen in February 2021. It was also undisputed
Jeff Trosen paid a portion of the rent for the 2021 crop year in April 2021.
[¶33] On appeal, Jeff Trosen argues, “The District Court erred by making
factual determinations of custom when the parties agreed not to set a hard due
date for the yearly rent payments.” He did not provide any further argument,
and he does not point to any evidence in the record about when payment was
due or that would otherwise support his argument. “[A] party waives an issue
by not providing supporting argument and, without supportive reasoning or
citations to relevant authorities, an argument is without merit.” Somerset
Court, LLC v. Burgum, 2021 ND 58, ¶ 13, 956 N.W.2d 392 (quoting In re J.J.T.,
2018 ND 165, ¶ 29, 915 N.W.2d 106). We do not consider arguments that are
not adequately articulated, supported, and briefed. Lovro, 2022 ND 145, ¶ 13.
To the extent Jeff Trosen argued the court erred in making findings about
course of conduct, the argument was not adequately supported and briefed and
was therefore waived.
[¶34] Jeff Trosen breached the lease by failing to pay all of the rent before April
1 for the 2020 and 2021 crop years. It is undisputed Shirley Trosen died in May
2021, after the rent for the 2021 crop year was due. Shirley Trosen and the
trust were entitled to all of the rent for the 2020 and 2021 crop years. We
conclude the district court did not err in granting summary judgment in favor
of the plaintiffs on the breach of contract claims and determining the amount
of damages.
IV
[¶35] Jeff Trosen argues the district court erred in dismissing his counterclaim
and third-party complaint. He claims the court abused its discretion by failing
10
to allow him additional time to respond to the plaintiffs’ motion for summary
judgment. He also contends there are disputed factual issues related to the
claims.
[¶36] The district court has discretion in deciding whether to grant a motion
for additional time to respond to a motion for summary judgment. See Alerus
Fin., N.A. v. Lamb, 2003 ND 158, ¶ 6, 670 N.W.2d 351. A court abuses its
discretion when it acts in an arbitrary, unreasonable, or unconscionable
manner. Id.[¶37] Jeff Trosen claimed he had good cause for requesting additional time,
including that he was busy farming, he had heart surgery, and his attorney
was busy with other work and had a trip planned. The district court
determined good cause was not shown. The court explained Jeff Trosen’s
attorney met with him after the motion for summary judgment was filed, was
present when Jeff Trosen was deposed, had possession of the deposition
transcript, and the attorney’s workload was not sufficient to show good cause.
We conclude the court did not abuse its discretion by denying the request for
additional time.
[¶38] We also conclude the district court did not err in granting summary
judgment dismissing the counterclaim and third-party complaint. Jeff Trosen
did not respond to the plaintiffs and third-party defendants’ motion for
summary judgment. The district court granted summary judgment explaining
Jeff Trosen did not respond to the motion for summary judgment, he did not
present any evidence on the essential elements of his claims, and he cannot
satisfy all of the elements of the claims. Under N.D.R.Civ.P. 56(e)(2):
When a motion for summary judgment is properly made and
supported, an opposing party may not rely merely on allegations
or denials in its own pleading; rather, its response must, by
declarations or as otherwise provided in this rule, set out specific
facts showing a genuine issue for trial. If the opposing party does
not so respond, summary judgment shall, if appropriate, be
entered against that party.
The district court did not err in granting summary judgment.
11
V
[¶39] Jeff Trosen argues the district court erred by terminating the farm lease.
He claims the court erroneously concluded the farm lease terminated upon
Shirley Trosen’s death. He also argues the court erred in finding there was a
material breach of the lease because there was a legal offset of the rent and, if
there is no offset, the court did not give him an opportunity to cure the rent
payment.
[¶40] Generally, a material breach by one party gives the non-breaching party
the right to terminate the contract. Riedlinger v. Steam Bros., Inc., 2013 ND
14, ¶ 23, 826 N.W.2d 340. The undisputed evidence established Jeff Trosen did
not pay all of the rent for 2020. The failure to pay rent was a material breach.
The district court did not err in terminating the lease.
VI
[¶41] Jeff Trosen contends the district court erred by awarding attorney’s fees
to the plaintiffs. He claims the farm lease allows a party to collect attorney’s
fees only “to the extent allowed by law,” and therefore there must be statutory
law providing for recovery of attorney’s fees for the court to be able to award
attorney’s fees under this provision.
[¶42] The district court’s decision to award attorney’s fees is reviewed under
the abuse of discretion standard. Berdahl v. Berdahl, 2022 ND 136, ¶ 29, 977
N.W.2d 294. A court abuses its discretion when it acts in an arbitrary,
unreasonable, or unconscionable manner, or when it misinterprets or
misapplies the law. Id.[¶43] Generally, each party to a lawsuit bears its own attorney’s fees, absent
statutory or contractual authority. Danzl v. Heidinger, 2004 ND 74, ¶ 6, 677
N.W.2d 924. Attorney’s fees incurred in litigating a breach of contract action
are not recoverable as an item of damages in the absence of express statutory
or contractual authorization. Id.[¶44] Section 28-26-01(1), N.D.C.C., authorizes attorney’s fees in civil actions
by agreement, stating, “Except as provided in subsection 2, the amount of fees
12
of attorneys in civil actions must be left to the agreement, express or implied,
of the parties.” The statute allows the district court to award attorney’s fees in
civil actions when agreed to in the contract.
[¶45] The farm lease states:
If the Tenant defaults in performing any of the duties agreed to in
this Lease, the Landlord shall have the right to collect from the
Tenant, to the extent allowed by law, all the costs reasonably
incurred in enforcing this Lease, including but not limited to,
attorney fees, seeding, plowing, or cultivation costs, chemical
application and ditch maintenance.
[¶46] The farm lease allows the plaintiffs to recover attorney’s fees if Jeff
Trosen defaults in performing any of the duties agreed to under the lease. Jeff
Trosen breached the lease by failing to pay all of the rent for the 2020 and 2021
crop years. The court did not err in awarding attorney’s fees.
[¶47] Jeff Trosen also argues the district court erred in the amount of fees it
awarded. He contends the hours were not adequately documented.
[¶48] The district court is “considered an expert in determining the amount of
attorney fees.” Riemers v. State, 2008 ND 101, ¶ 8, 750 N.W.2d 407. The court’s
decision regarding the amount and reasonableness of the attorney’s fees will
not be overturned on appeal absent a clear abuse of discretion. Id.[¶49] The plaintiffs filed an affidavit with exhibits supporting their request for
attorney’s fees. The district court reduced the requested fees explaining some
of the services were duplicated and multiple attorneys worked on the same
documents and attended the same hearings. The court also determined Jeff
Trosen’s actions contributed to the plaintiffs’ high attorney’s fees. The court
found the fees are reasonable. We conclude the court did not abuse its
discretion in determining the amount and reasonableness of attorney’s fees to
award.
13
VII
[¶50] Jeff Trosen argues the district court erred by relying on its order
terminating the lease as authority to justify cancelling the lis pendens.
[¶51] The district court has authority to cancel a lis pendens under N.D.C.C. §
28-05-08, which states:
The court in which the action was commenced, at any time, on
application of any person aggrieved and on good cause shown and
on such notice as directed or approved by the court, may order the
notice authorized by section 28-05-07 to be canceled of record in
whole or in part . . . and such cancellation must be made by an
endorsement to that effect on the margin of the record which shall
refer to the order.
This Court has said, “[A] lis pendens may not be predicated on an action that
does not affect the title to real property and seeks merely to recover a money
judgment[.]” Conrad v. Wilkinson, 2017 ND 212, ¶ 20, 901 N.W.2d 348. The
filing of a notice of lis pendens is not appropriate when the cause of action does
not directly affect title or right of possession of real property. Id. The purpose
of a notice of lis pendens is to let the world know there is an action pending.
Inv’rs Title Ins. Co. v. Herzig, 2010 ND 169, ¶ 26, 788 N.W.2d 312.
[¶52] The district court cancelled the lis pendens explaining Jeff Trosen did
not assert a claim which affected title to the real property, the farm lease was
cancelled, he has no further rights under the lease, and the lease must be
cancelled so the trust beneficiaries can lease their respective parcels to parties
of their own choice. The court determined the litigation does not affect title to
real property, the action was for recovery of money damages, and the lease was
terminated because of the material breach.
[¶53] Because we affirm the summary judgments, including termination of the
lease, Jeff Trosen’s argument that the district court erred in cancelling the lis
pendens is moot. See Hogen v. Hogen, 2019 ND 17, ¶ 18, 921 N.W.2d 672(holding any issue about whether the lis pendens was wrongfully discharged
was moot because the summary judgment quieting title was affirmed).
14
VIII
[¶54] We have considered the parties’ remaining arguments and conclude they
are either without merit or unnecessary to our decision. We affirm the
judgment and amended judgment.
[¶55] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
15