                Filed 4/11/19 by Clerk of Supreme Court
                       IN THE SUPREME COURT
                     STATE OF NORTH DAKOTA


                                  2019 ND 94


Douglas Candee and Lyla Candee,                           Plaintiffs and Appellees

      v.

Keith Candee,                                            Defendant and Appellant


                                 No. 20180246


      Appeal from the District Court of Stark County, Southwest Judicial District,
the Honorable Rhonda R. Ehlis, Judge.

      REVERSED AND REMANDED.

      Opinion of the Court by Crothers, Justice.

      Nathan M. Bouray, Dickinson, ND, for plaintiffs and appellees.

      Monte L. Rogneby, Bismarck, ND, for defendant and appellant.
                                  Candee v. Candee
                                     No. 20180246


       Crothers, Justice.
[¶1]   Keith Candee appeals from an order entered on remand denying his motion for
contractual attorney fees and costs. Because the parties’ settlement agreement and
mutual release of claims is not “evidence of debt” under N.D.C.C. § 28-26-04, the
district court misapplied the law in holding the parties’ contractual provision
providing for attorney fees was against public policy and void. The court abused its
discretion in its decision denying his motion for attorney fees and we reverse and
remand for further proceedings.


                                            I
[¶2]   This appeal involves the continued litigation between Keith Candee and his
parents, Douglas and Lyla Candee. Relevant facts are set forth in Candee v. Candee,
2017 ND 259, 903 N.W.2d 514, and we will not repeat them except as necessary to
assist in resolving the issues in this appeal.
[¶3]   In Candee, 2017 ND 259, ¶¶ 15, 18, 903 N.W.2d 514, this Court held that
California law applied to the dispute under the parties’ 2013 settlement agreement and
mutual release of claims (collectively referred to as the settlement agreement) and that
Douglas and Lyla Candee were not entitled to a deficiency judgment against Keith
Candee after the foreclosure of California and North Dakota properties. We reversed
and remanded for the district court to enter a judgment dismissing Lyla and Douglas
Candee’s complaint. Id. at ¶¶ 18-19.
[¶4]   On remand, the district court entered judgment in Keith Candee’s favor,
dismissing Douglas and Lyla Candee’s complaint. The court also considered Keith
Candee’s motion seeking attorney fees under the parties’ settlement agreement.
Paragraph 15 of the settlement agreement states:
       “Attorneys’ Fees. In the event of any litigation between the Parties
       hereto, including any appeals arising out of, in connection with or in
                                            1
       any way related to this Agreement, the prevailing party shall recover all
       of its costs in connection therewith, including, without limitation, its
       attorneys’ fees, consultant and expert witness fees, court costs, and any
       other related expenses.”
[¶5]   Douglas and Lyla Candee responded and objected to Keith Candee’s attorney
fee request. After a hearing, the district court entered its order denying his motion.
The court refused to award attorney fees under the settlement agreement, holding the
agreement’s provision allowing for recovery of attorney fees was against public
policy and void under N.D.C.C. § 28-26-04.


                                          II
[¶6]   The dispositive issue is whether the parties’ settlement agreement constitutes
“evidence of debt,” precluding enforcement of the agreement’s attorney fee provision.
See N.D.C.C. § 28-26-04.
[¶7]   “Absent statutory or contractual authority, the American Rule assumes parties
to a lawsuit bear their own attorney fees.” Cheetah Props. 1, LLC v. Panther
Pressure Testers, Inc., 2016 ND 102, ¶ 19, 879 N.W.2d 423 (quoting H-T Enters. v.
Antelope Creek Bison Ranch, 2005 ND 71, ¶ 15, 694 N.W.2d 691). Parties generally
are free to enter into an agreement for payment of attorney fees in a civil action. See
N.D.C.C. § 28-26-01(1). Notwithstanding a contractual provision allowing recovery,
attorney fee provisions in debt instruments are void under N.D.C.C. § 28-26-04. That
section provides:
       “Any provision contained in any note, bond, mortgage, security
       agreement, or other evidence of debt for the payment of an attorney’s
       fee in case of default in payment or in proceedings had to collect such
       note, bond, or evidence of debt, or to foreclose such mortgage or
       security agreement, is against public policy and void.”
N.D.C.C. § 28-26-04 (emphasis added); see also Farmers Union Oil Co. v. Maixner,
376 N.W.2d 43, 48 (N.D. 1985) (stating “attorneys’ fees can be awarded if agreed by
the parties, either expressly or impliedly, [but] such an agreement is limited by
Section 28-26-04.”).


                                          2
[¶8]   This Court will not set aside a district court’s decision regarding attorney fees
absent an abuse of discretion. T.F. James Co. v. Vakoch, 2001 ND 112, ¶ 5,
628 N.W.2d 298. A district court abuses its discretion when it acts in an arbitrary,
unreasonable, or unconscionable manner, or when it misinterprets or misapplies the
law. Id.; Berg v. Berg, 2000 ND 37, ¶ 10, 606 N.W.2d 903.
[¶9]   Keith Candee argues the district court erred in concluding the settlement
agreement’s attorney fee provision was void under N.D.C.C. § 28-26-04, and the
provision allows him to recover his attorney fees and costs for defending his parents’
unmeritorious lawsuit against him. He argues, unlike the situation in this case,
N.D.C.C. § 28-26-04 applies when a creditor successfully brings an action against a
debtor concerning a note, bond, mortgage, or security agreement and the creditor
attempts to force the debtor to pay attorney fees based on an attorney fee provision
in the parties’ debt instrument.
[¶10] Douglas and Lyla Candee argue the settlement agreement qualifies as
“evidence of debt” under N.D.C.C. § 28-26-04, because the settlement agreement “is
replete with multiple provisions providing ‘evidence of debt,’” specifically Keith
Candee’s promises to pay them certain sums in installments. Keith Candee responds
the statute does not apply to this case because this Court rejected a broad reading of
N.D.C.C. § 28-26-04 in Vakoch, 2001 ND 112, 628 N.W.2d 298.
[¶11] In Vakoch, 2001 ND 112, ¶¶ 7-16, 628 N.W.2d 298, this Court held the district
court abused its discretion when it refused to enforce an attorney fee provision in a
commercial lease. This Court held a commercial lease is different than a mortgage,
security agreement, bond, note or loan agreement, and declined “to expansively
interpret public policy to void attorney fee agreements in commercial leases.” Id. at
¶ 13. This Court explained the lease agreement contained the terms, conditions, and
obligations of the lessor and lessee and was not “transformed into ‘evidence of debt’
simply because one of its terms requires a party to pay attorney fees if that party fails
to honor the lease conditions.” Id. at ¶¶ 15-16. This Court instructively concluded:
       “We hold that ‘evidence of debt,’ as contemplated by N.D.C.C. §
       28-26-04, relates to a written instrument importing on its face the
                                           3
       existence of debt, an acknowledgment of that debt, and a promise of
       payment. The general term, ‘evidence of debt,’ ‘despite its seeming
       breadth,’ includes only instruments similar to those specifically listed
       in N.D.C.C. § 28-26-04: a note, bond, mortgage, or security agreement.
       See Black’s Law Dictionary 535 (7th ed. 1999) (discussing the principle
       of ejusdem generis, and stating ‘seeming breadth’ is not given effect).
       Evidence of debt is not a ‘catchall rubric embracing any and all
       writings’ including those such as the commercial lease agreement in
       this case. [United States v. Jones, 450 F.2d 523, 524 (5th Cir. 1971)].”
Vakoch, at ¶ 16 (emphasis added).
[¶12] In Orion Fin. Corp. of S.D. v. Am. Foods Grp., Inc., 281 F.3d 733, 745 (8th
Cir. 2002), the parties’ consulting agreement obligated one party to pay fees for grants
and loans procured by the other, and included an attorney fee provision. The court
held the agreement was not “evidence of debt” under a similar South Dakota statute.
The court held the agreement did not “constitute evidence of a debt owed by one party
to the other, but instead create[d] mutual obligations to provide services and payment
therefor.” Id.
[¶13] The court in Orion explained “[t]he phrase ‘evidence of debt’ as used in the
statute refers to debtor-creditor relationships, such as those in bonds, mortgages, and
promissory notes, not to every contract where one party is obligated to pay money to
the other.” 281 F.3d at 745 (emphasis added). “Moreover, the phrase ‘evidence of
debt’ when used elsewhere in the South Dakota Codified Laws is connected with
banking or other debtor-creditor relationships.” Id. Likewise, as this Court explained
in Vakoch, 2001 ND 112, ¶ 16, 628 N.W.2d 298, the phrase “‘evidence of debt,’
‘despite its seeming breadth,’ includes only instruments similar to those specifically
listed in N.D.C.C. § 28-26-04.”
[¶14] Here, the parties’ settlement agreement and mutual release of claims is not
similar to the instruments listed in N.D.C.C. § 28-26-04. While the settlement
agreement contains multiple provisions that obligated Keith Candee to pay
installments to Douglas and Lyla Candee to resolve their litigation claims, the
agreement includes many provisions settling the claims. This does not reflect an
instrument involved in a typical debtor-creditor relationship. Instead, the parties

                                           4
freely negotiated the settlement agreement, and the agreement contains mutual
obligations and mutual releases of claims.         Therefore, the parties’ settlement
agreement is not “evidence of debt” as contemplated under N.D.C.C. § 28-26-04, and
the district court misapplied the law by holding the parties’ attorney fees provision
was against public policy and void.
[¶15] The district court abused its discretion in denying Keith Candee’s motion for
attorney fees and costs, and refusing to enforce the contractual attorney fee provision.
We reverse and remand for an award of attorney fees and costs under the provision.


                                           III
[¶16] The district court order is reversed, and the case remanded for further
proceedings.
[¶17] Daniel J. Crothers
      Lisa Fair McEvers
      Jon J. Jensen
      Jerod E. Tufte

       VandeWalle, Chief Justice, dissenting.
[¶18] In Candee v. Candee, 2017 ND 259, 903 N.W.2d 514, I reluctantly concurred
in the result because I was concerned about the choice-of-law provision in a loan
agreement governing a foreclosure proceeding in North Dakota. However, under the
facts of the case, I agreed that California law applied. Consistently and equitably, I
believe the California law should apply to this phase of the litigation as well. I do not
know whether California law would allow the award of attorney fees in this instance
but I would reverse and remand to the district court with the instruction to apply
California law in determining whether or not to award attorney fees.
[¶19] Alternatively, if North Dakota law is to be applied in this case, I would affirm
the district court.
[¶20] Section 28-26-04, N.D.C.C., provides:
             Any provision contained in any note, bond, mortgage, security
       agreement, or other evidence of debt for the payment of an attorney’s

                                           5
       fee in case of default in payment or in proceedings had to collect such
       note, bond, or evidence of debt, or to foreclose such mortgage or
       security agreement, is against public policy and void.1
(Emphasis added). It is apparent that by including “other” evidence of debt, the
Legislature did not intend to restrict the award of attorney fees to only those
instruments named in the statute.
[¶21] In Farmers Union Oil Co. of New England v. Maixner, 376 N.W.2d 43, 49
(N.D. 1985), we held a personal guarantee was evidence of debt, stating:
       “Other evidence of debt” includes the personal guarantee agreement at
       issue in this case because the guarantee relates to the payment of debt.
       As the attorneys’ fees were awarded because of the personal guarantee,
       and as the personal guarantee is a document relating to the payment of
       a debt, the attorneys’ fees were awarded in violation of Section 28-26-
       04, N.D.C.C.
[¶22] In T.F. James Co. v. Vakoch, 2001 ND 112, ¶¶ 15, 16, 628 N.W.2d 298
(citations omitted), we held:
               In this case, the lease agreement—unlike a personal
       guarantee—set forth the terms, conditions, and obligations of the lessor
       and lessee. A lease agreement is not transformed into “evidence of
       debt” simply because one of its terms requires a party to pay attorney
       fees if that party fails to honor the lease conditions. In each of this
       Court’s cases declaring an attorney fee provision to have violated
       public policy under N.D.C.C. § 28-26-04, there existed a written note,
       mortgage, or guarantee to pay a debt. If we were to embrace the district
       court’s expansive interpretation of “evidence of debt,” virtually
       anything could demonstrate evidence of debt.

       We hold that “evidence of debt,” as contemplated by N.D.C.C. §
       28-26-04, relates to a written instrument importing on its face the


       1
        Keith Candee asserts the provisions of N.D.C.C. § 28-26-04 apply only when
the creditor brings a successful action against the debtor and attempts to collect
attorney fees from the debtor under their agreement. However, the plain language of
the statute contains no such limitations. We do not disregard the wording of the
statute under the pretext of pursuing its spirit. N.D.C.C. § 1-02-05. Here Douglas
and Lyla Candee brought “proceedings . . . to collect such . . . evidence of debt”
against Keith Candee. The statute applies to the proceeding and does not depend
upon which party is successful in order for it to apply.
                                          6
       existence of debt, an acknowledgment of that debt, and a promise of
       payment.2
Here, the agreement states in part:
       The Guaranteed Settlement Sum. Defendants, jointly and severally,
       will pay the sum of Two Million Two Hundred Thousand Dollars
       ($2,200,000) (the “Guaranteed Settlement Sum”) to Plaintiffs in full
       upon the occurrence of the earlier of the following events: (a) four (4)
       years after April 23, 2013, which is the date when the Parties executed
       this Agreement (the “Execution Date”), namely, on or prior to April 23,
       2017; or (b) the “Transfer” of the Clinton Keith Property. The
       Guaranteed Settlement Sum shall be paid as follows:

       Defendants shall pay the sum of Three Hundred Twelve Thousand Five
       Hundred Dollars ($312,500) to Plaintiffs as follows: . . .

       Defendants shall pay the sum of Seven Hundred Twenty Thousand
       Dollars ($720,000) to Plaintiffs as follows: . . .

       The payment of any portion of the Down Payment and Monthly
       Installments described herein, shall be applied to reduce the Guaranteed
       Settlement Sum in direct proportion to such payments. . . . shall become
       immediately due . . . .
[¶23] It seems that a settlement agreement in which one party agrees and is obligated
to pay the other party a specified sum of money is as much, if not more,“evidence of
debt” than is a personal guarantee in which the guarantor promises to pay only if the
primary obligor does not pay as required. Furthermore, the settlement agreement here
is vastly different than the consulting agreement at issue in Orion Fin. Corp. of S.D.
v. Am. Foods Grp., Inc., 281 F.3d 733, 745 (8th Cir. 2002), in which the court held
that the consulting agreement “does not constitute evidence of a debt owed by one
party to the other, but instead creates mutual obligations to provide services and
payments therefor.”


       2
        Unless the term “on its face” is so narrowly construed to mean the title of the
instrument, here I believe that “on its face” the settlement agreement is evidence of
debt. The term “face” is defined in Black’s Law Dictionary, 708 (10th ed. 2014), to
mean “the apparent or explicit part of a writing or record <the fraud must appear on
the face of the record>.”
                                          7
[¶24] Because the Agreement contains “other evidence of debt” the provision for the
award of attorney fees is against public policy and void in North Dakota. Therefore,
if North Dakota, rather than California law, applies, I would affirm the judgment of
the district court.
[¶25] Gerald W. VandeWalle, C.J.




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