IN THE SUPREME COURT
STATE OF NORTH DAKOTA
| Roland C. Riemers, | |||||||||
| Plaintiff/Appellant, | |||||||||
| Johnathan P. Riemers, | |||||||||
| Plaintiff, | Supreme Ct. No. 20070307 | ||||||||
| v. | District Ct. No. 06-C-00956 | ||||||||
| State of North Dakota, | |||||||||
| Douglas Herman, | |||||||||
| Gerald W. VandeWalle, | |||||||||
| Carol Ronning Kapsner, | |||||||||
| Mary Muehlen Maring, and | |||||||||
| Dale V. Sandstrom, | |||||||||
| Defendants/Appellees. | |||||||||
APPEAL FROM THE DISTRICT COURT
GRAND FORKS COUNTY, NORTH DAKOTA
NORTHEAST JUDICIAL DISTRICT
HONORABLE DEBBIE G. KLEVEN
BRIEF OF DEFENDANTS/APPELLEES
| State of North Dakota | |||||||
| Wayne Stenehjem | |||||||
| Attorney General | |||||||
| By: | Douglas A. Bahr | ||||||
| Assistant Attorney General | |||||||
| State Bar ID No. 04940 | |||||||
| Office of Attorney General | |||||||
| 500 North 9th Street | |||||||
| Bismarck, ND 58501-4509 | |||||||
| Telephone (701) 328-3640 | |||||||
| Facsimile (701) 328-4300 | |||||||
| Attorneys for Defendants/Appellees. | |||||||
TABLE OF CONTENTS
| Table of Authorities | ii | ||||||
| Statement of the Case | 1 | ||||||
| Argument | 1 | ||||||
| I. | The Court of Appeals' decision is res judicata | 1 | |||||
| II. | The State can be awarded attorney's fees | 2 | |||||
| III. | The district court's award of attorney's fees was not an abuse of discretion | 3 | |||||
| A. | The district court did not abuse its discretion by including paralegal fees in the award of attorney's fees | 4 | |||||
| B. | The district court did not abuse its discretion in determining the amount of attorney's fees | 8 | |||||
| IV. | Riemers' due process and Rule 54 arguments fail | 9 | |||||
| A. | The due process and Rule 54 arguments were not raised below | 9 | |||||
| B. | Riemers was not denied due process | 11 | |||||
| Conclusion | 12 | ||||||
TABLE OF AUTHORITIES
| Cases | |||||
| Absher Constr. Co. v. Kent Sch. Dist. No. 415, | |||||
| 917 P.2d 1086 (Wash. Ct. App. 1995) | 6 | ||||
| Baldwin v. Burton, | |||||
| 850 P.2d 1188 (Utah 1993) | 6 | ||||
| Bard v. Bard, | |||||
| 380 N.W.2d 342 (N.D. 1986) | 9 | ||||
| Blair v. Ing, | |||||
| 31 P.3d 184 (Haw. 2001) | 5 | ||||
| City of Medora v. Golberg, | |||||
| 1997 ND 190, 569 N.W.2d 257 | 3 | ||||
| Cline v. Rocky Mountain, Inc., | |||||
| 998 P.2d 946 (Wyo. 2000) | 6, 7 | ||||
| Cont'l Townhouses East Unit One Ass'n v. Brockbank, | |||||
| 733 P.2d 1120 (Ariz. Ct. App. 1986) | 5, 6-7 | ||||
| Ennis v. Berg, | |||||
| 509 N.W.2d 33 (N.D. 1993) | 12 | ||||
| Farguson v. MBank Houston, N.A., | |||||
| 808 F.2d 358 (5th Cir. 1986) | 8 | ||||
| Federal Land Bank v. Ziebarth, | |||||
| 520 N.W.2d 51 (N.D. 1994) | 8 | ||||
| First NH Banks Granite State v. Scarborough, | |||||
| 615 A.2d 248 (Me. 1992) | 6 | ||||
| Flattum-Riemers v. Flattum-Riemers, | |||||
| 2003 ND 70, 660 N.W.2d 558 | 10 | ||||
| Gill Sav. Ass'n v. Int'l Supply Co., | |||||
| 759 S.W.2d 697 (Tex. Ct. App. 1988) | 6 | ||||
| Gratech Co. v. Wold Eng'g, P.C., | |||||
| 2007 ND 46, 729 N.W.2d 326 | 3 | ||||
| Grey Bear v. N.D. Dep't of Human Servs., | |||||
| 2002 ND 139, 651 N.W.2d 611 | 3 | ||||
| Guinn v. Dotson, | |||||
| 28 Cal. Rpt. 2d 409 (Cal. Ct. App. 1994) | 6, 7 | ||||
| Hofsommer v. Hofsommer Excavating, Inc., | |||||
| 488 N.W.2d 380 (N.D. 1992) | 1, 2 | ||||
| Huber v. Oliver County, | |||||
| 1999 ND 220, 602 N.W.2d 710 | 9 | ||||
| In re Estate of Peterson, | |||||
| 1997 ND 48, 561 N.W.2d 618 | 10 | ||||
| In re Guardianship & Conservatorship of Norman, | |||||
| 524 N.W.2d 358 (N.D. 1994) | 11 | ||||
| John T. Jones Constr. Co. v. City of Grand Forks, | |||||
| 2003 ND 109, 665 N.W.2d 698 | 9 | ||||
| Messer v. Bender, | |||||
| 1997 ND 103, 564 N.W.2d 291 | 10 | ||||
| Missouri v. Jenkins, | |||||
| 491 U.S. 274 (1989) | 4, 6 | ||||
| Morgan v. Kingen, | |||||
| 169 P.3d 487 (Wash. Ct. App. 2007) | 5 | ||||
| O&K Glass Co. v. Innes Constr. Co., | |||||
| 2000 ND 56, 608 N.W.2d 236 | 11 | ||||
| People ex rel. Brown v. Tehama County Board of Supervisors, | |||||
| 56 Cal. Rptr. 3d 558 (Cal. Ct. App. 2007) | 2, 3 | ||||
| Peters-Riemers v. Riemers, | |||||
| 2002 ND 49, 641 N.W.2d 83 | 10 | ||||
| Porter v. Porter, | |||||
| 274 N.W.2d 235 (N.D. 1979) | 11 | ||||
| Riemers v. State, | |||||
| 2007 ND APP 2, 732 N.W.2d 398, | |||||
| review denied (July 3, 2007) | 1, 2 | ||||
| Ritter, Laber & Assocs. V. Koch Oil, Inc., | |||||
| 2007 ND 163, 740 N.W.2d 67 | 3, 4 | ||||
| Roise v. Kurtz, | |||||
| 1998 ND 228, 587 N.W.2d 573 | 10 | ||||
| State v. Haugen, | |||||
| 392 N.W.2d 799 (N.D. 1986) | 8 | ||||
| Specht v. Finnegan, | |||||
| 776 N.E.2d 564 (Ohio Ct. App. 2002) | 5 | ||||
| Taylor v. Chubb Group of Ins. Cos., | |||||
| 874 P.2d 806 (Okla. 1994) | 5 | ||||
| Williams County Soc. Servs. Bd. V. Falcon, | |||||
| 367 N.W.2d 170 (N.D. 1985) | 9 | ||||
| Statutes and other Authorities | ||||
| 42 U.S.C.A. º 1988 | 4, 5 | |||
| 42 U.S.C.A. º 1988(b) | 4 | |||
| N.D.R.App.P. 38 | 3, 4, 12 | |||
| N.D.R.Civ.P. 43(e) | 11 | |||
| N.D.R.Civ.P. 54 | 11, 12 | |||
| N.D.R.Ct. 3.2 | 12 | |||
| N.D.R.Ct. 3.2(b) | 12 | |||
| Black's Law Dictionary 1236 (7th ed. 1999) | 2 | |||
STATEMENT OF THE CASE
Plaintiff Roland C. Riemers (Riemers) filed a Complaint naming the State of North Dakota, Douglas Herman, Gerald W. VandeWalle, Carol Ronning Kapsner, Mary Muehlen Maring, and Dale V. Sandstrom as defendants. On July 27, 2006, Defendants (collectively referred to as "the State") moved for dismissal of the Complaint. The district court issued its Order Granting Motion to Dismiss Amended Complaint on October 11, 2006. An Order for Judgment and Judgment were entered on November 2, 2006.
By Judgment dated April 27, 2007, the North Dakota Court of Appeals affirmed the district court's November 2, 2006, Judgment. The North Dakota Court of Appeals also determined the State was entitled to its attorney's fees on appeal, and remanded the matter to the district court to determine attorney's fees on appeal. Riemers v. State, 2007 ND APP 2, 13, 732 N.W.2d 398, review denied (July 3, 2007); App. 4.
After a hearing, the district court issued its Order for Judgment for Attorney's Fees Awarded on Appeal. App. 9. Riemers was ordered to pay the State $1,752.42 in attorney's fees. Id. A Judgment for Attorney's Fees Awarded on Appeal was entered on August 14, 2007. Id. at 10. Riemers appeals that Judgment.
ARGUMENT
I. The Court of Appeals' decision is res judicata.
Riemers asserts the North Dakota Court of Appeals erred in awarding the State its attorney's fees on appeal. But the decision the State is entitled to attorney's fees is res judicata and cannot be relitigated by Riemers. See Hofsommer v. Hofsommer Excavating, Inc., 488 N.W.2d 380, 383 (N.D. 1992) (the doctrine of res judicata "prohibits the relitigation of claims or issues that were raised or could have been raised in a prior action between the same parties or their privies and which was resolved by final judgment in a court of competent jurisdiction"). Accordingly, the Court need not address this issue.
II. The State can be awarded attorney's fees.
Whether the State can be awarded attorney's fees is also res judicata. The Court of Appeals held "the State is entitled to attorney fees for this appeal." Riemers, 2007 ND APP 2, 13, 732 N.W.2d 398. The Court of Appeals' April 27, 2007, Judgment is the final judgment of a court of competent jurisdiction. Accordingly, Riemers cannot relitigate that issue in this appeal. See Hofsommer, 488 N.W.2d at 383.
Furthermore, Riemers' arguments on this issue are utterly void of merit. The State did not handle the appeal pro se. The State did not represent itself without a lawyer. See Black's Law Dictionary 1236 (7th ed. 1999). The state defendants were represented on appeal by the undersigned counsel, a licensed attorney admitted to practice law in North Dakota. Furthermore, the undersigned counsel was not representing himself in the appeal; the undersigned counsel represented the State of North Dakota, Judge Herman, Chief Justice VandeWalle, Justice Kapsner, Justice Maring, and Justice Sandstrom. The named judicial officers were sued individually and as agents of the State. See Compl. 2 (July 3, 2006). Thus, the undersigned counsel did not appear pro se.
People ex rel. Brown v. Tehama County Board of Supervisors, 56 Cal. Rptr. 3d 558 (Cal. Ct. App. 2007), does not support Riemers' position. In Tehama County, the court held the State of California could not be awarded attorney's fees under section 1021.5 of the California Code of Civil Procedure when California is represented by its Attorney General. Id. at 584. Section 1021.5 permits the award of attorney's fees to litigants enforcing important rights affecting the public interest. Id. at 581. The purpose of the section is to compensate the litigant for the costs of the litigation to the extent it transcends the litigant's personal interest but benefits the public. Id. at 581-82. Because the California Attorney General's interest is in pursuing litigation on behalf of the people, section 1021.5 does not apply to public interest litigation brought by the California Attorney General. Id. at 582-84.
Tehama County has no application to this case. The State was awarded attorney's fees under Rule 38, N.D.R.App.P., not section 1021.5 of the California Code of Civil Procedure. Furthermore, the State did not bring an enforcement action on behalf of its citizens; rather, the State was defending a frivolous appeal in a civil action Riemers brought against it and five of its judicial officers.
The Court of Appeals' decision awarding the State attorney's fees on appeal is res judicata. Furthermore, the State did not handle the appeal pro se, and Tehama County does not support Riemers' position. Riemers' argument the State cannot be awarded attorney's fees should be rejected.
III. The district court's award of attorney's fees was not an abuse of discretion.
"This Court reviews a district court's decision regarding attorney's fees under the abuse of discretion standard." Gratech Co. v. Wold Eng'g, P.C., 2007 ND 46, 18, 729 N.W.2d 326. "The district court is considered an expert in determining an award of attorney fees, and its decision concerning the amount and reasonableness of attorney fees will not be overturned on appeal absent a clear abuse of discretion." Ritter, Laber & Assocs. v. Koch Oil, Inc., 2007 ND 163, 28, 740 N.W.2d 67. A district trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable, manner, or if it misinterprets or misapplies the law. Id.; see also Grey Bear v. N.D. Dep't of Human Servs., 2002 ND 139, 24, 651 N.W.2d 611; City of Medora v. Golberg, 1997 ND 190, 18, 569 N.W.2d 257.
A. The district court did not abuse its discretion by including paralegal fees in the award of attorney's fees.
Rule 38, N.D.R.App.P. 38, provides the court may award "reasonable attorney's fees" if it determines an appeal is frivolous. It is within the discretion of the court to include paralegal fees as part of an award of reasonable attorney's fees.
Although this Court has never directly addressed the issue of whether paralegal fees can be included in an award of attorney's fees, it recently upheld an award of attorney's fees that included paralegal fees. See Koch Oil, 2007 ND 163, 26, 34, 740 N.W.2d 67. Furthermore, numerous courts in other jurisdictions have specifically addressed this issue and held the cost of paralegal services are included as a component of an award of attorney's fees. This Court should follow those well-reasoned decisions and interpret the phrase "reasonable attorney's fees" in accordance with the accepted practice.
In Missouri v. Jenkins, 491 U.S. 274 (1989), the United States Supreme Court upheld compensation awarded for the work of law clerks and paralegals under the Civil Rights Attorneys' Fees Act, 42 U.S.C.A. º 1988. Section 1988 permits the court to grant the prevailing party "a reasonable attorney's fee as part of the costs" in certain federal actions. 42 U.S.C.A. º 1988(b). Examining the statutory language, the Court explained:
Clearly, a "reasonable attorney's fee" cannot have been meant to compensate only work performed personally by members of the bar. Rather, the term must refer to a reasonable fee for the work product of an attorney. . . . We thus take as our starting point the self-evident proposition that the "reasonable attorney's fee" provided for by statute should compensate the work of paralegals, as well as that of attorneys.
Id. at 285.
Recognizing the "widespread custom of separately billing for the services of paralegals," the Supreme Court held that including paralegal fees in a fee request is not only permitted by section 1988, "but also makes economic sense." Id. at 286-88. The Supreme Court explained that encouraging the use of lower cost paralegals rather then attorneys wherever possible encourages cost-effective delivery of legal services. Id. at 288.
Numerous state courts have also held that an award of reasonable attorney's fees includes fees charged for paralegal services. For example, in Continental Townhouses East Unit One Ass'n v. Brockbank, 733 P.2d 1120 (Ariz. Ct. App. 1986), the court addressed whether work performed by legal assistants could be included as a component of an award of attorney's fees. The court reasoned:
Lawyers should not be required to perform tasks more properly performed by legal assistants or law clerks solely to permit that time to be compensable in the event an attorneys' fees application is ultimately submitted. Requiring such a misallocation of valuable resources would serve no useful purpose and would be contrary to the direction to interpret the Rules of Civil Procedure to serve the "just, speedy, and inexpensive determination of every action." Instead, proper use of legal assistants and law clerks should be encouraged to facilitate providing the most cost-effective legal services to the public.
Id. at 1127 (citation omitted). The court also noted the fee-shifting objective of awarding attorney's fees would not be accomplished if compensation is not obtained for legal assistant services. Id. See also Morgan v. Kingen, 169 P.3d 487, 497 (Wash. Ct. App. 2007) ("A party is entitled to compensation for a paralegal's services for legal work performed as long as the rate reflects a reasonable hourly rate."); Specht v. Finnegan, 776 N.E.2d 564, 571 (Ohio Ct. App. 2002) ("Paralegal fees are compensable as an element of attorney fees."); Blair v. Ing, 31 P.3d 184, 191 (Haw. 2001) (holding, "in appropriate cases, a request or award of attorneys' fees may include compensation for separately billed legal services performed by a paralegal, legal assistant, or law clerk"); Taylor v. Chubb Group of Ins. Cos., 874 P.2d 806, 809 (Okla. 1994) (holding paralegal services are properly included as a component of attorney's fees if the work would have otherwise had to be performed by a licensed attorney); Guinn v. Dotson, 28 Cal. Rpt. 2d 409, 414 (Cal. Ct. App. 1994) (holding "attorney's fees" as used in statute "includes as a compensable element thereof reasonable paralegal fees"); Cline v. Rocky Mountain, Inc., 998 P.2d 946, 950 (Wyo. 2000) (holding "reasonable paralegal expenses" can "be included in attorney's fees awards"); Baldwin v. Burton, 850 P.2d 1188, 1201 (Utah 1993) (finding "it was proper for the trial court to include services provided by the paralegal in its award of attorney fees"); First NH Banks Granite State v. Scarborough, 615 A.2d 248, 251 (Me. 1992) (upholding award of attorney fees which included the expense of paralegals); Absher Constr. Co. v. Kent Sch. Dist. No. 415, 917 P.2d 1086, 1088-89 (Wash. Ct. App. 1995) (finding award of attorney's fees includes cost of services performed by non-lawyer personnel who perform legal services under the supervision of an attorney); Gill Sav. Ass'n v. Int'l Supply Co., 759 S.W.2d 697, 702 (Tex. Ct. App. 1988) (holding "compensation for a legal assistant's work may be separately assessed and included in the award of attorney's fees if a legal assistant performs work that has traditionally been done by any attorney").
As noted by the Supreme Court, including the services of paralegals as a component of an award of attorney's fees "makes economic sense." Jenkins, 491 U.S. at 288. Absent the use of a paralegal, "the attorney would have had to perform the[ ] services himself at a presumably higher billing rate." Baldwin, 850 P.2d at 1200-01. Including the services of paralegals as a component of an award of attorney's fees permits lawyers to delegate legal tasks that can be properly delegated to paralegals, reducing the ultimate expense of the litigation. Since an attorney would have performed and billed for the legal services if the services had not been assigned to a paralegal, it makes sense that those services be included as a component of an award of attorney's fees. See Cont'l Townhouses, 733 P.2d at 1127 ("They are instead properly considered as a component of attorneys' fees, since an attorney would have performed these services if a legal assistant was not employed instead"); Cline, 998 P.2d at 950 ("By allowing reasonable paralegal expenses to be included in attorneys' fees awards in appropriate cases, we encourage efficient and cost-effective legal services and give the trial courts greater discretion in fashioning reasonable awards."). Furthermore, because the efficient use of paralegal services reduces the overall cost of providing legal services, the party ordered to pay the prevailing party's attorney's fees is benefited by the prevailing party's use of paralegals. See Cline, 998 P.2d at 950 ("The rationale for allowing paralegal expenses is to mitigate the costs associated with litigation and to improve the efficiency of the attorneys.").
Including the services of paralegals as a component of an award of attorney's fees also furthers the goal of compensating the prevailing party for the cost of the litigation. "An award of attorney's fees which does not compensate for paralegal service time would not fully compensate the attorney." Guinn, 28 Cal. Rptr. 2d at 414. See also Cont'l Townhouses, 733 P.2d at 1127 (noting the fee-shifting objective of awarding attorney's fees would not be accomplished if compensation is not obtained for legal assistant services). If paralegal services are not a component of an award of attorney's fees, the prevailing party is penalized for efficiently using paralegal services to reduce the cost of litigation.
The district court did not abuse its discretion by including the costs of paralegal services in the award of attorney's fees. Absent the use of the paralegal, the attorney would have performed and charged for the services. Furthermore, if the cost of paralegal services is not included in the award of attorney's fees, Risk Management is not fully compensated for the costs of defending Riemers' frivolous appeal. Finally, the deterrent effect of awarding attorney's fees is minimized if Riemers is not required to pay the full cost of his frivolous appeal. See State v. Haugen, 392 N.W.2d 799, 805 n.4 (N.D. 1986) (explaining it is "not a crime to bring a frivolous lawsuit against a public official. Rather, the 'punishment' for such abuses of process is the imposition of appropriate monetary sanctions against the party bringing the frivolous action."). No litigant, including Riemers, has "'license to harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets.'" Federal Land Bank v. Ziebarth, 520 N.W.2d 51, 58 (N.D. 1994) (quoting Farguson v. MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986)). He should not be permitted to do so with impunity.
B. The district court did not abuse its discretion in determining the amount of attorney's fees.
The State's request for attorney's fees was adequately supported by the record. The State provided, under oath, information regarding the hourly rate billed the North Dakota Risk Management Fund by the Office of Attorney General for services performed by assistant attorneys general and paralegals. App. 5. For the time period of the appeal, the hourly rate for attorney services was $53.66 and the hourly rate for paralegal services was $31.26. Id. The State also provided, under oath, the number of hours billed for the appeal by attorneys and paralegals. The Office of Attorney General billed the Risk Management Fund for 25.9 hours of attorney time ($1,389.80) and 11.6 hours ($362.62) for services performed by a paralegal. Id. at 5-6. Thus, the Office of Attorney General billed the Risk Management Fund a total of $1,752.42 for legal services defending the appeal of the district court's November 2, 2006, Judgment. Id. at 6.
Based on the submitted evidence, the district court, which is considered an expert in determining an award of attorney's fees, reasonably determined the hourly rate and hours billed were reasonable. Cf. Huber v. Oliver County, 1999 ND 220, 23, 602 N.W.2d 710 (stating "receipts and personal attestation by witnesses" is not required to prove expert costs). Although the hourly rates charged by the Office of Attorney General is the same for all attorneys and paralegals, the undersigned counsel, who represented the State on appeal, is an attorney with over sixteen years of civil litigation and appellate experience. Based on the district court's knowledge of the typical rates charged in the community, the district court reasonably determined $53.66 per hour1 was more than a reasonable rate for legal services performed by an experienced litigator.2 Based on the numerous issues raised by Riemers in his appeal, the district court also reasonably determined the hours expended defending the appeal were reasonable. This is especially true when Riemers provided no factual evidence or arguments to oppose the State's affidavit.3
IV. Riemers' due process and Rule 54 arguments fail.
A. The due process and Rule 54 arguments were not raised below.
"'It is axiomatic that an issue or contention not raised or considered in the lower court cannot be raised for the first time on appeal from judgment.'" John T. Jones Constr. Co. v. City of Grand Forks, 2003 ND 109, 18, 665 N.W.2d 698 (quoting Bard v. Bard, 380 N.W.2d 342, 344 (N.D. 1986)); see also Williams County Soc. Servs. Bd. v. Falcon, 367 N.W.2d 170, 176 (N.D. 1985) ("It is well settled that one of the guidelines for an appeal on any issue or contention is that the issue on appeal was adequately raised in the lower court."). As explained by
this Court, "'[t]he purpose of an appeal is to review the actions of the trial court, not to grant the appellant the opportunity to develop and expound on new strategies or theories.'" Roise v. Kurtz, 1998 ND 228, 9, 587 N.W.2d 573 (quoting In re Estate of Peterson, 1997 ND 48, 19, 561 N.W.2d 618).
The rule that an issue cannot be raised for the first time in an appeal is not a mere technicality. There are sound reasons for the rule. "The rule limiting appeal to issues raised in the trial court is based upon the principle that it is 'fundamentally unfair to fault the trial court for failing to rule correctly on an issue it was never given the opportunity to consider.'" Id. (quoting Messer v. Bender, 1997 ND 103, 10, 564 N.W.2d 291). The Supreme Court has observed that "it is unfair to allow a party to choose to remain silent in the trial court in the face of error, taking a chance on a favorable outcome, and subsequently assert error on appeal if the outcome in the trial court is unfavorable." Messer, 1997 ND 103, 10, 564 N.W.2d 291 (quoting 5 Am. Jur. Appellate Review º 690 (1995)).
Riemers has the burden to demonstrate the issues he raises on appeal were adequately raised below. Riemers provides no evidence his due process or Rule 54 arguments were raised below.
This Court has previously cautioned Riemers about the risks inherent in failing to provide a transcript on appeal. See Flattum-Riemers v. Flattum-Riemers, 2003 ND 70, 8, 660 N.W.2d 558; Peters-Riemers v. Riemers, 2002 ND 49, 9, 641 N.W.2d 83. Specifically, Riemers was told "[a]n appellant assumes the risks and consequences of failing to file a sufficient transcript, and [the Court] will decline to review an issue if the record on appeal does not allow meaningful and intelligent review of the trial court's alleged error." Flattum-Riemers, 2003 ND 70, 8, 660 N.W.2d 558. The Court also explained "[t]his principle applies equally to pro se litigants." Id.
Riemers did not argue to the district court that the State was required to file a motion under Rule 54, N.D.R.Civ.P. Riemers also did not raise due process arguments to the district court. This Court cannot review the transcript to determine whether Riemers raised these issues below because Riemers did not provide a transcript. The burden is on Riemers to show he did raise the issues below, and Riemers suffers the consequences of not providing a transcript. These arguments should not be considered by the Court because they were never raised to or addressed by the district court.
B. Riemers was not denied due process.
Riemers asserts the State should not have been permitted to submit an affidavit as evidence. Rule 43(e), N.D.R.Civ.P., however, specifically provides motions can be heard on affidavits. Although Rule 43(e) allows district courts to hear motions on oral testimony, the district court is not required to do so. Porter v. Porter, 274 N.W.2d 235, 244 (N.D. 1979). "[W]hether testimony is allowed on a motion is within the sound discretion of the court." O&K Glass Co. v. Innes Constr. Co., 2000 ND 56, 12, 608 N.W.2d 236. "Clearly, in the absence of a request and showing a need for an evidentiary hearing, a trial court cannot be said to have abused its discretion by considering a motion on briefs, affidavits, and arguments." In re Guardianship & Conservatorship of Norman, 524 N.W.2d 358, 361 (N.D. 1994). Riemers has not demonstrated he made a showing to the district court of a need for an evidentiary hearing.
Furthermore, Riemers has not demonstrated the district court denied him an evidentiary hearing. Riemers requested and was provided a hearing. Riemers chose not to call any witnesses. Had he chosen, Riemers could have testified, called an expert, or called the undersigned counsel and conducted cross-examination. Prior to the hearing Riemers also could have requested the State's affiant be subpoenaed. He chose not to do so and cannot complain about that decision now.
The district court also has discretion to hold the hearing telephonically. Rule 3.2(b), N.D.R.Ct., specifically provides "a hearing may be held using electronic means, including telephonic conference or interactive television." "Nothing in Rule 3.2," this Court has explained, "requires the hearing be conducted at the courthouse. Rule 3.2 specifically provides such hearings can be held by telephone conference." Ennis v. Berg, 509 N.W.2d 33, 38 (N.D. 1993). In light of the nature of the issue, and the distance from Bismarck to Grand Forks, the district court did not abuse its discretion by permitting the State to appear telephonically at the hearing.
Riemers' argument the State did not comply with Rule 54, N.D.R.Civ.P., is also without merit. Rule 54, N.D.R.Civ.P., which addresses costs and disbursements allowed by a statute as part of a district court judgment, does not apply to Rule 38, N.D.R.App.P., which provides for attorney's fees on appeal. Even if it did, however, Riemers' argument should be rejected because he was not prejudiced by the lack of a formal motion. The State sent a written request for attorney's fees. Riemers requested and the district court held a hearing. Thus, Riemers received the same process he would have received had the State filed a motion.
Riemers' due process and Rule 54 arguments were not raised below and, thus, should not be considered by this Court. Even if they were, however, a hearing was provided in accordance with the rules and due process.
CONCLUSION
For the above reasons, the State of North Dakota respectfully requests that this Court affirm the district court's August 14, 2007, Judgment for Attorney's Fees Awarded on Appeal.
Dated this ___ day of January, 2008.
| State of North Dakota | |||||||
| Wayne Stenehjem | |||||||
| Attorney General | |||||||
| By: | |||||||
| Douglas A. Bahr | |||||||
| Solicitor General | |||||||
| State Bar ID No. 04940 | |||||||
| Office of Attorney General | |||||||
| 500 North 9th Street | |||||||
| Bismarck, ND 58501-4509 | |||||||
| Telephone (701) 328-3640 | |||||||
| Facsimile (701) 328-4300 | |||||||
| Attorneys for Defendants/Appellees. | |||||||
1 Interestingly, Riemers, who is not an attorney, requested $100 per hour in attorney's fees for representing himself pro se. Attach. 1.
2 The findings and analysis provided by the district court at the hearing are not available because Riemers did not request a transcript.
3 Riemers' arguments below were legal, not factual. Riemers' primary arguments were the State was pro se so it was not entitled to attorney's fees, and that paralegal costs cannot be included in an award of attorney's fees.