Carlson v. Dunn County ( 1987 )

VANDE WALLE, Justice,

concurring in the result.

I concur in the result. I write specially to note it is my understanding we are not departing from the usual rule that the parties each pay their respective attorney fees on appeal. Absent a frivolous appeal or a failure to comply with the appellate rules [see Rule 38, N.D.R.App.P.], there is no authority in our statutes -or rules for a general award of attorney fees to the successful party on appeal. Because Section 11-11-39, N.D.C.C., provided for attorney fees at the trial court level, thus altering the ordinary rule for this particular type of legal action, I agree we are, to carry out the intent of the statute, justified in protecting the award of attorney fees at the trial court level by also awarding attorney fees for successfully defending the appeal. The same rationale applied in Troutman v. Pierce, Inc., 402 N.W.2d 920 (N.D.1987), upon which the majority opinion here relies, wherein a Federal statute provided for attorney fees for successful prosecution of an action under the Magnusson-Moss Act. Absent such specific similar statutes [see, e.g., Section 14-05-23, N.D.C.C.], providing for award of attorney fees at the trial level or on appeal, it is my understanding we remain without authority to award attorney fees for successfully defending an appeal although the fees for defending the appeal have the practical effect of reducing the judgment awarded by the trial court.