We usually don't cover trial court orders, but this one is short, and, we think, worth your time reading.
The issue before the North Dakota District Court (Ward County) was the award of attorneys' fees following a successful necessity challenge by a landowner. In North Dakota, the award of fees and costs to a defendant is within the trial court's discretion.
The condemnor didn't object to the award of fees, but the court undertook its own review to determine the complexity and difficulty of the case. The judge correctly noted that "[i]n most eminent domain cases, the issue of necessity never arises." Order at 7. The order continued:
In his brief in support of his motion for fees, attorney Boughey cites to recent United States Supreme Court authority to support his argument that questioning the necessity of a taking, and standing up to the often heavy-handed authority making the case for an eminent domain taking, is a relatively new and developing area of the law. The Court would tend to agree. Indeed, the Court had to reach back more than 100 years to find an obscure California authority which discussed a challenge to a private taking in any meaningful fashion. (This may be more of a reflection of the Court's limited research ability than anything else.)
Order at 7-8.
We won't quote the next couple of pages from the Order, because we recommend you read it yourself. In our opinion, it accurately captures the essence of what many courts can miss in these situations when evaluating fee requests. Here are a few snippets to get you going:
- "Justice Vogel wrote, in his dissent in Thorn, that a lawyer may spend a lifetime working for that one magnificent hour. When that hour arrives, he deserves more than piecemeal compensation. City of Bismarck v. Thorn, 261 NW2d 640 (ND 1977) J. Vogel, dissent."
- "While attorney Boughey may have had better days in Court, and his one magnificent hour may not yet have arrived, the result in this case would no doubt be considered a good day for attorney Boughey and Lavern Behm."
- "As President Theodore Roosevelt once said, the credit goes to the man in the arena ... who is not numbered among the timid souls who neither know victory, nor defeat."
- "Attorney Broughey was willing to take on a case few have dared."
- "Rather than simply focusing on just compensation, he chose to fight the taking armed with little legal authority, and not much more than Lavern Behm's unwillingness to bend."
Check it out.
Order, Montana-Dakota Utilities Co. v. Behm, No. 51 2016 CIV 1678 (Mont. Dist. Ct., July 14, 2018)
