                Filed 6/27/19 by Clerk of Supreme Court
                        IN THE SUPREME COURT
                       STATE OF NORTH DAKOTA


                                   2019 ND 158


Interiors by France,                                          Plaintiff and Appellant

       v.

Mitzel Contractors, Inc., d/b/a
Mitzel Homes, Mitzel Builders, Inc.,
Leeroy Mitzel, an individual,                             Defendants and Appellees

     and

Eddy Mitzel, an individual,                                                Defendant


                                   No. 20180399


       Appeal from the District Court of Morton County, South Central Judicial
District, the Honorable James S. Hill, Judge.

       AFFIRMED.

       Opinion of the Court by Jensen, Justice.

       Andrew L. Askew, Bismarck, ND, for plaintiff and appellant.

       Tyler J. Siewert (argued), Meggi Ihland (appeared), and David D. Schweigert
(on brief), Bismarck, ND, for defendants and appellees Mitzel Contractors, Inc., d/b/a
Mitzel Homes, Mitzel Builders, Inc., and Leeroy Mitzel.
                 Interiors by France v. Mitzel Contractors, Inc.
                                    No. 20180399


       Jensen, Justice.
[¶1]   Interiors by France (“IBF) appeals from a district court judgment limiting IBF
to a recovery of damages from Mitzel Contractors, Inc. (“MCI”) without an award of
attorney fees. IBF contends it was entitled to a recovery of attorney fees under
N.D.C.C. § 27-08.1-04, which provides for the mandatory recovery of attorney fees
to a prevailing plaintiff following the defendant’s removal of a small claims court
case to the district court. We affirm.
                                         I.
[¶2]   IBF initiated a small claims court proceeding on September 28, 2016 naming
Mitzel Builders, Inc. (“MBI”) and Leeroy Mitzel as the defendants. IBF alleged it
had not been paid for flooring materials and installation of the materials. MBI and
Leeroy Mitzel filed an answer, and Leeroy Mitzel elected to remove the action from
small claims court to district court.
[¶3]   On November 16, 2016, after the removal of the case from small claims court
to the district court, IBF amended its small claims affidavit to add MCI as a
defendant. On February 23, 2017, MBI, Leeroy Mitzel, and IBF stipulated to
allowing IBF to file amended pleadings naming MCI as the sole defendant. IBF
amended its pleadings again on November 1, 2017 to allege causes of action against
the original defendants MBI and Leeroy Mitzel, and causes of action against Eddy
Mitzel.
[¶4]   On June 29, 2018, MCI signed a confession of judgment and agreement
authorizing the entry of a judgment against MCI in the amount of $18,967.02 in favor
of IBF and dismissing, with prejudice, its claims against MBI, Leeroy Mitzel, and
Eddy Mitzel. The agreement also provided IBF and MCI would resolve the attorney

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fees issue through a separate motion to be filed with the district court. MBI, Leeroy
Mitzel, and Eddy Mitzel were not included in the stipulated schedule for resolution
of the anticipated motion for attorney fees that was part of the confession of judgment
and agreement executed by the parties.
[¶5]   On July 3, 2018, IBF moved for an award of $66,968.00 in attorney fees
asserting N.D.C.C. § 27-08.1-04 provides for the mandatory recovery of attorney fees
to a prevailing plaintiff following the removal of a small claims court proceeding to
the district court. On August 27, 2018, the district court issued an order denying the
motion for attorney fees. In summary, the court held MCI was not part of the small
claims court proceedings, MCI was not “the defendant” that elected to remove the
case to the district court, and the clear and unambiguous language of N.D.C.C. § 27-
08.1-04 did not require an award of attorney fees against a defendant who was not
part of the small claims court proceedings and who did not elect to remove the
proceedings to the district court. A judgment limited to the damage award provided
in MCI’s confession of judgment was entered on August 29, 2018. On appeal, IBF
argues the district court erred in denying its motion for attorney fees.
                                          II.
[¶6]   IBF argues the district court erred in interpreting N.D.C.C. § 27-08.1-04 when
denying its motion for attorney fees. Section 27-08.1-04, N.D.C.C., reads as follows:
       If the defendant elects to remove the action to district court, the
       defendant must serve upon the plaintiff a notice of the removal and file
       with the clerk of the court to which the action is removed a copy of the
       claim affidavit and the defendant’s answer along with the filing fee,
       except for an answer fee, required for civil actions. 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.
(Emphasis added.)
[¶7]   IBF seeks an award of attorney fees against MCI. MCI is the defendant
subject to the judgment and the only defendant not dismissed from the proceedings

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by IBF. IBF concedes MCI was not part of the small claims court proceedings, and
MCI was not the defendant who elected to remove the case to the district court. IBF
contends the fee-shifting provision of N.D.C.C. § 27-08.1-04 should apply against
MCI, because IBF is a prevailing plaintiff and the recovery of attorney fees is
mandatory. Alternatively, IBF argues MBI and Leeroy Mitzel should be required to
pay IBF’s attorney fees because they were the parties responsible for removing the
action from small claims court to district court.
[¶8]   IBF argues the district court erred in finding N.D.C.C. § 27-08.1-04 to be
unambiguous. IBF asserts because the statute is ambiguous, the court should have
looked to the legislative intent while interpreting N.D.C.C. § 27-08.1-04.
[¶9]   In Bindas v. Bindas, this Court described its rules for statutory interpretation:
       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 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.
2019 ND 56, ¶ 10, 923 N.W.2d 803 (citations and quotations omitted).
[¶10] A statute will be considered ambiguous if it has multiple, reasonable
interpretations. Apple Creek Twp. v. City of Bismarck, 271 N.W.2d 583, 586-87
(N.D. 1978). “We presume the legislature did not intend an absurd or ludicrous result
or unjust consequences, and we construe statutes in a practical manner, giving
consideration to the context of the statutes and the purpose for which they were
enacted.” Chisholm v. State, 2014 ND 125, ¶ 9, 848 N.W.2d 703.
[¶11] IBF promotes an interpretation that is not reasonable under a plain reading of
N.D.C.C. § 27-08.1-04. Section 27-08.1-04, N.D.C.C., provides that a prevailing
plaintiff is entitled to a recovery of attorney fees if “the defendant” elects to remove
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a matter from small claims court to the district court. “The defendant” is used four
separate times within N.D.C.C. § 27-08.1-04. Each time the phrase “the defendant”
is used, it is an unambiguous reference to the defendant in the pending small claims
court proceedings.
[¶12] Construing N.D.C.C. § 27-08.1-04 as applying to MCI would be an absurd or
ludicrous result. The interpretation suggested by IBF would require us to believe the
legislature intended parties who were not named in a small claims court proceeding
and had no control of the removal decision, to be responsible for mandatory attorney
fees.
[¶13] IBF suggests limiting the mandatory recovery to a defendant who elects to
remove a case to the district court could lead to misuse if multiple defendants are sued
by allowing one defendant who may not have liability to elect to remove a case to
protect another defendant with liability. IBF argues that is essentially what happened
in this case, although we note that ultimately all of the small claims court defendants
were dismissed in this case. While in this instance the parties are related, there was
nothing preventing IBF from suing MCI in small claims court. IBF could have
initially sued MCI in small claims court or later dismissed the proceedings to reinitiate
the proceedings in small claims court after its discovery it had sued the incorrect
parties. Instead, IBF chose to amend the complaint to include MCI (and other new
parties) in the district court, and ultimately dismissed all of the small claims court
defendants. If IBF had believed the defendants were somehow acting in concert to
avoid the imposition of attorney fees, it should not have dismissed all of the
defendants, except MCI.




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                                       III.
[¶14] An award of attorney fees to a prevailing plaintiff under N.D.C.C. § 27-08.1-
04 does not extend to parties who were not part of the original small claims court
proceedings. We affirm the judgment of the district court.
[¶15] Jon J. Jensen
      Lisa Fair McEvers
      Daniel J. Crothers
      Jerod E. Tufte
      Gerald W. VandeWalle, C.J.




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