IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2020 ND 234

Montana-Dakota Utilities Co., a Division of 

MDU Resources Group, Inc., n/k/a MontanaDakota Utilities Co., a Subsidiary of MDU

Resources Group, Inc., Plaintiff and Appellee

v.

Lavern Behm, Defendant and Appellant

No. 20200122

Appeal from the District Court of Ward County, North Central Judicial 

District, the Honorable Gary H. Lee, Judge.

AFFIRMED.

Opinion of the Court by Tufte, Justice.

Zachary R. Eiken, Bismarck, N.D., for plaintiff and appellee.

Lynn M. Boughey, Mandan, N.D., for defendant and appellant.

20200122 FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

NOVEMBER 19, 2020 

STATE OF NORTH DAKOTA
1

MDU v. Behm

No. 20200122

Tufte, Justice.

[¶1] Lavern Behm appeals from a judgment ordering Montana-Dakota 

Utilities Co. (“MDU”) to pay him $17,443 in attorney’s fees and costs incurred 

in an eminent domain action. Behm argues his constitutional rights were 

violated in the eminent domain action and the district court erred by failing to 

award him some of the attorney’s fees he requested. We affirm.

I

[¶2] MDU brought an eminent domain action under N.D.C.C. ch. 32-15 to 

acquire an easement across Behm’s property for a 3,000-foot natural gas 

pipeline to service a Burlington Northern Santa Fe railroad switch. The 

district court bifurcated the proceedings between necessity of the taking and 

damages. Following a bench trial, the district court concluded that the 

“proposed pipeline is . . . a use authorized by Section 32-15-02, NDCC,” but 

that a taking of Behm’s property was not necessary for the public use under 

N.D.C.C. § 32-15-05.

[¶3] MDU appealed, and this Court reversed the district court’s decision that 

the proposed taking was not necessary for public use. Montana-Dakota Utils. 

Co. v. Behm, 2019 ND 139, ¶ 1, 927 N.W.2d 865. We remanded “for trial on 

eminent domain damages to be awarded to Behm.” Id. at ¶ 19.

[¶4] Behm petitioned the United States Supreme Court for a writ of certiorari 

asserting various constitutional violations related to the eminent domain 

action. His petition was denied. Behm v. Montana-Dakota Utils. Co., 140 S. Ct. 

521 (2019).

[¶5] On remand, Behm submitted proposed jury instructions and requested 

the court allow the jury to determine in an advisory capacity whether the 

taking was necessary and for a public use. The district court denied Behm’s 

request for the jury instructions, ruling the issue of damages was the only issue 

left to be decided.
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[¶6] The parties stipulated to the valuation of the easement, and the district

court adopted the stipulation. Behm moved for attorney’s fees and costs in the 

amount of $49,561.78, including the fees incurred for the petition for writ of 

certiorari to the United States Supreme Court. MDU objected to the requested 

fees. The district court ordered MDU to pay Behm $17,443 in fees and costs.

II

[¶7] Behm makes various arguments about the constitutionality of the 

eminent domain proceedings. He claims it is a violation of due process and the 

takings clause for the State to allow a private corporation to take property 

through eminent domain, for the State to disregard a finding that the taking 

is not necessary and allow the corporation to take the property on the 

corporation’s finding the taking is necessary, and for the State to disregard 

findings of no public use and allow the corporation to take the property on its 

determination of a public use. He contends it is a violation of due process, the 

takings clause, and the right to a jury to allow a taking without a jury 

determination that the taking is for a public use and that the taking is 

necessary.

[¶8] The law of the case doctrine and the mandate rule apply to Behm’s 

arguments. This Court has explained:

Generally, the law of the case is defined as the principle that 

if an appellate court has passed on a legal question and remanded 

the cause to the court below for further proceedings, the legal 

question thus determined by the appellate court will not be 

differently determined on a subsequent appeal in the same case 

where the facts remain the same. In other words, [t]he law of the 

case doctrine applies when an appellate court has decided a legal 

question and remanded to the district court for further 

proceedings, and [a] party cannot on a second appeal relitigate 

issues which were resolved by the Court in the first appeal or

which would have been resolved had they been properly presented 

in the first appeal. The mandate rule, a more specific application 

of law of the case, requires the trial court to follow pronouncements 

of an appellate court on legal issues in subsequent proceedings of 

the case and to carry the appellate court’s mandate into effect 
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according to its terms. . . . and we retain the authority to decide 

whether the district court scrupulously and fully carried out our 

mandate’s terms.

Dale Expl., LLC v. Hiepler, 2020 ND 140, ¶ 13, 945 N.W.2d 306 (quoting 

Johnston Land Co., LLC v. Sorenson, 2019 ND 165, ¶ 11, 930 N.W.2d 90).

[¶9] Behm submitted proposed jury instructions to the district court, 

requesting the court allow a jury to sit in an advisory capacity and determine 

whether the taking of his property was necessary and for a public use. He 

explained that allowing those issues to be presented to the jury would allow a 

complete record on appeal for the purpose of attempting to change state law. 

The district court denied Behm’s request for the proposed jury instructions. 

The court explained that the issue of the necessity of the taking and whether 

the taking was for a public use were previously tried and appealed and that

the decision was reversed on appeal and the case was remanded for a trial on 

damages. The court concluded it must adhere to the mandate rule on remand,

this Court’s mandate was clear, and the only matter left for determination was 

the issue of eminent domain damages to be awarded to Behm.

[¶10] In the prior appeal, we held the district court correctly concluded the 

proposed pipeline was for a public use, but the court erred in ruling the 

proposed taking was not necessary for a public use. Behm, 2019 ND 139, ¶¶ 10,

18. We reversed the judgment and “remand[ed] for trial on eminent domain 

damages to be awarded to Behm.” Id. at ¶ 19. We did not remand for a new 

trial on the issues of necessity and public use or for new arguments to be raised 

about the prior proceedings. The district court fully carried out our mandate’s 

terms.

[¶11] Furthermore, Behm’s arguments about the constitutionality of the 

eminent domain proceedings and whether a jury should have determined 

certain issues could have been raised in the district court before the prior 

appeal and to this Court in the first appeal. In the prior appeal, this Court 

acknowledged, “Behm lists ten issues in his cross-appeal but does not 

specifically address any of them in his brief. We do not address inadequately 

briefed issues.” Behm, 2019 ND 139, ¶ 19. These ten issues that we declined to 
4

review included, “Whether the district court erred in not finding a violation of 

federal and state constitutional rights by the proposed taking.” The 

constitutional arguments he makes in the current appeal could have been 

resolved in the first appeal had they been properly presented, and therefore 

they are barred by the law of the case doctrine.

[¶12] We conclude Behm’s constitutional arguments are precluded under the 

law of the case doctrine and the mandate rule.

III

[¶13] Behm argues the district court abused its discretion by failing to award 

him attorney’s fees and costs related to his petition for writ of certiorari.

[¶14] We review the district court’s decision on costs and attorney’s fees in an 

eminent domain action for an abuse of discretion. Lincoln Land Dev., LLP v. 

City of Lincoln, 2019 ND 81, ¶ 20, 924 N.W.2d 426. A court abuses its discretion 

if it acts in an arbitrary, unreasonable, or unconscionable manner, if its 

decision is not the product of a rational mental process leading to a reasoned 

determination, or if it misinterprets or misapplies the law. Id.

[¶15] Section 32-15-32, N.D.C.C., provides for costs and attorney’s fees in an 

eminent domain case, stating:

The court may in its discretion award to the defendant reasonable 

actual or statutory costs or both, which may include . . . costs on 

appeal, and reasonable attorney’s fees for all judicial proceedings.

If the defendant appeals and does not prevail, the costs on appeal 

may be taxed against the defendant. In all cases when a new trial 

has been granted upon the application of the defendant and the 

defendant has failed upon such trial to obtain greater 

compensation than was allowed the defendant upon the first trial, 

the costs of such new trial shall be taxed against the defendant.

This Court has said the statute authorizes the district court to award 

reasonable attorney’s fees for all judicial proceedings in an eminent domain 

action. Lincoln Land, 2019 ND 81, ¶ 22. We explained courts should consider 

a number of factors in deciding whether to award fees and costs in an eminent 
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domain case, including the number of hours spent, the rate per hour, the 

character of the services rendered, the results obtained, the customary fee 

charged in the locality, and the ability and skill of the attorney. Cass Cty. Joint 

Water Res. Dist. v. Erickson, 2018 ND 228, ¶ 29, 918 N.W.2d 371; see also City 

of Bismarck v. Thom, 261 N.W.2d 640, 646 (N.D. 1977). We have also said, “[I]t 

is essential that the prevailing party, and the court, if need be, exclude any 

hours that are excessive, redundant, or otherwise unnecessary.” N.D. Dep’t of 

Transp. v. Rosie Glow, LLC, 2018 ND 123, ¶ 11, 911 N.W.2d 334.

[¶16] Behm requested $49,561.78 in attorney’s fees and costs for fees related 

to the prior appeal, the petition for writ of certiorari to the United States

Supreme Court, and to resolve the issue of damages. The district court 

previously awarded Behm $22,150 in attorney’s fees and costs before the prior 

appeal, and the court found MDU tendered payment for all fees associated with 

the initial phase of the trial. The court awarded Behm $17,443 of the 

$49,561.78 total request, including the fees and costs incurred for the prior 

appeal and subsequent proceedings in the district court. The court denied the 

attorney’s fees requested for contacts with individuals who were strangers to 

the proceedings and for communications between Behm’s attorney and office 

staff about billing matters and other financial matters. The court also denied

any fees related to the petition for writ of certiorari. The court concluded 

N.D.C.C. § 32-15-32 allows for fees for all judicial proceedings, but that term 

does not include “a side trip” to a federal court, and the statute limits the 

recovery of attorney’s fees to legal services related directly to the condemnation 

proceeding alone. The court explained the petition to the United States 

Supreme Court was “an improvident act,” N.D.C.C. § 32-15-32 does not 

contemplate a recovery for all fees incurred for any proceeding not directly 

contemplated by the chapter, and therefore the fees would not be allowed.

[¶17] Section 32-15-32, N.D.C.C., gives the district court discretion to award 

“reasonable actual or statutory costs” and “reasonable attorney’s fees for 

all judicial proceedings.” We have limited recovery of attorney’s fees to 

litigation of claims asserting condemnation or inverse condemnation. United 

Power Ass’n v. Moxness, 267 N.W.2d 814, 817 (N.D. 1978) (reversing fee award 

for proceedings before the public service commission); Arneson v. City of 
6

Fargo, 331 N.W.2d 30, 39 (N.D. 1983) (affirming fee award limited to inverse 

condemnation and excluding litigation of negligence issues); Gissel v. Kenmare 

Twp., 512 N.W.2d 470, 478 (N.D. 1994) (affirming as reasonable the district 

court’s reduction of requested attorney’s fees due to “overextended conferences 

and an improvident appeal”). Although the court explained its reasoning that 

the petition was an “improvident” “side trip” and therefore unreasonable to 

that extent, it further stated that Behm’s “petition to the United States 

Supreme Court is not a proceeding contemplated in Chapter 32-15.” If 

otherwise reasonable, the district court may award attorney’s fees for “all 

judicial proceedings,” including a petition for certiorari to the United States 

Supreme Court asserting takings claims under the United States Constitution. 

N.D.C.C. § 32-15-32. We will not set aside a correct result merely because part 

of the reasoning supporting that result was incorrect. Schmidt v. City of Minot, 

2016 ND 175, ¶ 16, 883 N.W.2d 909. We conclude the district court did not 

abuse its discretion by denying as unreasonable the attorney’s fees and costs 

Behm requested related to the petition for writ of certiorari.

IV

[¶18] MDU requests an award of costs and fees on appeal under N.D.R.App.P. 

38 for defending against the constitutional issues raised in the appeal. MDU 

contends Behm failed to properly raise the constitutional issues in the prior 

appeal, he did not adequately brief the issues in this appeal, he did not address 

current case law on these issues, and he wasted the Court’s and MDU’s 

resources with his unsupported arguments. In the previous appeal, we held 

that the district court erred in concluding the proposed taking was not 

necessary for a public use, and remanded for trial on eminent domain damages. 

Montana-Dakota Utils. Co. v. Behm, 2019 ND 139, ¶¶ 18-19, 927 N.W.2d 865.

[¶19] Rule 38, N.D.R.App.P., provides, “If the court determines that an appeal 

is frivolous, or that any party has been dilatory in prosecuting the appeal, it 

may award just damages and single or double costs, including reasonable 

attorney’s fees.” An appeal is frivolous “if it is flagrantly groundless, devoid of 

merit, or demonstrates persistence in the course of litigation which could be 

seen as evidence of bad faith.” Frontier Fiscal Servs., LLC v. Pinky’s 
7

Aggregates, Inc., 2019 ND 147, ¶ 21, 928 N.W.2d 449 (quoting Witzke v. City of 

Bismarck, 2006 ND 160, ¶ 19, 718 N.W.2d 586). Behm’s appeal of issues we 

decided in the first appeal and beyond the scope of the remand for trial on 

damages meets this standard.

[¶20] We award MDU single costs and attorney’s fees in the amount of $500.

V

[¶21] We affirm the judgment.

[¶22] Jon J. Jensen, C.J.

Daniel J. Crothers

Jerod E. Tufte

Allan L. Schmalenberger, S.J.

David Nelson, S.J.

[¶23] The Honorable Allan L. Schmalenberger and the Honorable David 

Nelson, Surrogate Judges, sitting in place of VandeWalle, J., and McEvers, J., 

disqualified.