F I L E D 10/29/19 B Y C L E R K O F S U P R E ME C O U R T

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2019 ND 252

Rocky Mountain Steel Foundations, 

Inc., Plaintiff and Appellant

v.

Brockett Company, LLC; Amber Brockett, Defendants

and

Mitchell's Oilfield Services, Inc., aka

Wood Group; and Travelers Casualty and

Surety Company of America, Defendants and Appellees

No. 20190121

Appeal from the District Court of McKenzie County, Northwest Judicial 

District, the Honorable Robin Ann Schmidt, Judge.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Opinion of the Court by VandeWalle, Chief Justice.

Briana L. Rummel (argued) and Monte L. Rogneby (appeared), Bismarck, ND, 

for plaintiff and appellant.

Nicholas C. Grant (argued) and Allison R. Mann (on brief), Dickinson, ND, for 

defendants and appellees.
1

Rocky Mountain Steel Foundations v. Brockett Company, et al.

No. 20190121

VandeWalle, Chief Justice.

[¶1] Rocky Mountain Steel Foundations, Inc. appealed from an amended 

judgment ordering Mitchell’s Oil Field Services, Inc. and Travelers 

Casualty and Surety Company of America (collectively “Mitchell’s”) to pay 

Rocky Mountain attorney’s fees. Rocky Mountain argues the district court 

erred by failing to award it all of the attorney’s fees it requested. We affirm 

the portion of the judgment awarding Rocky Mountain attorney’s fees 

incurred before the prior appeal, but reverse the portion of the judgment 

denying the attorney’s fees Rocky Mountain requested for the prior appeal 

and on remand. We remand for the court to properly determine a 

reasonable amount of attorney’s fees consistent with this opinion.

I

[¶2] In 2014, Rocky Mountain recorded two oil and gas construction liens. 

Mitchell’s recorded lien release bonds and the liens were attached to the 

bonds. The bonds replaced the oil wells as security for the liens. Rocky 

Mountain filed to foreclose on the liens. 

[¶3] We previously reviewed a district court judgment invalidating Rocky 

Mountain’s oil and gas construction liens and awarding attorney’s fees to 

Mitchell’s. See Rocky Mountain Steel Founds., Inc. v. Brockett Co., LLC, 

2018 ND 96, ¶ 1, 909 N.W.2d 671. We stated the underlying facts in the 

prior appeal, and we will not repeat them here except as necessary to 

resolve the issues raised in the present appeal. Id. at ¶¶ 2-4. On review, 

we concluded the district court erred in interpreting statutory law to

invalidate the liens and by awarding Mitchell’s attorney’s fees. Id. at ¶ 1. 

We reversed the judgment and remanded for proceedings consistent with 

our opinion and a proper award of attorney’s fees. Id. at ¶ 14.

[¶4] On remand, Rocky Mountain moved for attorney’s fees, arguing it was 

entitled to attorney’s fees as the prevailing party in a lien foreclosure action 
2

under N.D.C.C. §§ 35-24-19 and 35-24-13(5). Rocky Mountain requested 

$49,554 for attorney’s fees incurred prior to the appeal, $11,831 for the

appeal, and $9,260.50 for the fees incurred on remand. Mitchell’s opposed 

the motion, arguing Rocky Mountain was not entitled to all of the attorney’s 

fees it requested.

[¶5] The district court found Rocky Mountain was entitled to $19,025 for 

the work it did to pursue the lien claims. The court found it would not award 

any attorney’s fees for the appeal because the remand did not indicate the 

court was to award a proper amount of appellate attorney’s fees and the 

court believed it was proper for both parties to incur the expense of the 

appeal on their own. Amended judgment was entered.

II

[¶6] Rocky Mountain argues the district court erred by failing to award 

Rocky Mountain all of the attorney’s fees it requested. Rocky Mountain 

contends it was entitled to the requested fees under N.D.C.C. §§ 35-24-19 

and 35-24-13(5). 

[¶7] A district court’s decision on attorney’s fees is reviewed under the 

abuse of discretion standard. Lincoln Land Dev., LLP v. City of Lincoln, 

2019 ND 81, ¶ 20, 924 N.W.2d 426. A court abuses its discretion when it 

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

misinterprets or misapplies the law, or when its decision is not the product 

of a rational mental process leading to a reasoned determination. Id. 

A

[¶8] Rocky Mountain argues the district court erred when it failed to 

award Rocky Mountain all of the attorney’s fees it incurred before the prior 

appeal.

[¶9] North Dakota generally applies the “American Rule” for attorney’s 

fees and assumes each party to the lawsuit will bear its own attorney’s fees. 

Deacon’s Dev., LLP v. Lamb, 2006 ND 172, ¶ 11, 719 N.W.2d 379. 
3

“[S]uccessful litigants are not allowed to recover attorney fees unless 

authorized by contract or by statute.” Id.

[¶10] The district court concluded N.D.C.C. § 35-24-13(5) governed the 

award of attorney’s fees. The court explained it would award the reasonable 

attorney’s fees expended in pursuing the bond claims, but it would not order 

Mitchell’s to pay the fees expended to pursue claims against other 

defendants. The court concluded, “[N.D.C.C. § 35-24-13(5)] does not allow 

the award of attorney fees against Mitchell’s and Travelers for the fees 

[Rocky Mountain] incurred bringing claims other than claims on the bond.” 

The court held: 

[Rocky Mountain] is entitled to $19,025 for the work it did to 

pursue the lien claims. [Rocky Mountain] previously filed 

documents with this court indicating that was the amount of 

fees it incurred to pursue these claims. . . . and this court finds 

that amount to be reasonable and proper. The court does not 

find any reason to reduce the amount of claimed fees of $19,025. 

[¶11] The interpretation of a statute is a question of law, which is fully 

reviewable on appeal. N. Excavating Co., Inc. v. Sisters of Mary of the 

Presentation Long Term Care, 2012 ND 78, ¶ 4, 815 N.W.2d 280. In 

construing a statute, we seek to ascertain the legislature’s intent. Id. We 

give words used in a statute their plain, ordinary, and commonly 

understood meaning, unless they are specifically defined or contrary 

intention plainly appears. Id.; see also N.D.C.C. § 1-02-02. If a statute is 

ambiguous, we may consider extrinsic aids to interpret the statute, 

including the object sought to be attained or the consequences of a 

particular construction. N. Excavating, at ¶ 4; see also N.D.C.C. § 1-02-39. 

“A statute is ambiguous when it is subject to different, but rational 

meanings.” N. Excavating, at ¶ 4 (quoting Hilton v. N.D. Educ. Ass’n, 2002 

ND 209, ¶ 10, 655 N.W.2d 60).

[¶12] The district court concluded N.D.C.C. § 35-24-13(5) governed the 

award of attorney’s fees in this case. Rocky Mountain does not argue on 

appeal that the court erred in its conclusion. Section 35-24-13(5), N.D.C.C., 
4

states, “In case the lienholder recovers in a suit upon the bond, the 

lienholder is entitled to recover a reasonable attorney’s fee, to be fixed by 

the court, which must be taxed as costs in the action.” The plain language 

of the statute states a lienholder is entitled to recover reasonable attorney’s 

fees when the lienholder recovers in a suit upon the bond. 

[¶13] Rocky Mountain claims it is entitled to all of the fees it incurred before 

the first appeal, including the fees it incurred pursuing its claims against 

the other defendants in the action, Brockett Co., LLC and Amber Brockett 

(collectively “Brockett”). Rocky Mountain contends the district court erred 

in determining it was only entitled to fees that were specifically associated 

with its pursuit of the lien claims against Mitchell’s. 

[¶14] In Northern Excavating, 2012 ND 78, ¶¶ 9-12, 815 N.W.2d 280, this 

Court held a property owner was entitled to an award of attorney’s fees in 

a contractor’s action to foreclose on a construction lien under N.D.C.C. § 35-

27-24.1, but the owner was not entitled to attorney’s fees for work on

unrelated claims. Section 35-27-24.1, N.D.C.C., stated, “Any owner that 

successfully contests the validity or accuracy of a construction lien by any 

action in district court must be awarded the full amount of all costs and 

reasonable attorney’s fees incurred by the owner.” See N. Excavating, at ¶ 

6. This Court held the legislature did not intend to award an owner

“literally all of the costs and attorney’s fees arising out of a lawsuit when 

challenging a lien was not the only disputed cause of action.” N. Excavating, 

at ¶ 11. We explained an interpretation allowing the party to recover 

literally all of the costs and attorney’s fees could lead to an absurd result 

because the party who successfully contests the validity of a construction 

lien could be awarded all of their attorney’s fees even if they do not prevail 

on any other claim. Id. We held the attorney’s fees and costs were limited 

to those reasonably expended contesting the lien. Id. We said “a party is 

entitled to attorney’s fees and costs associated with work done to challenge 

a lien, even if such work is also relevant to other causes of action, but not 

for work on unrelated claims.” Id. at ¶ 12. 
5

[¶15] Although the language of N.D.C.C. § 35-24-13(5) is different from the 

statute we interpreted in Northern Excavating, the rationale is the same 

and our reasoning in that case is persuasive. We do not believe the 

legislature intended the lienholder to recover all of the costs and attorney’s 

fees arising out of the lawsuit when the suit upon the bond was not the only 

disputed claim. We conclude a lienholder who recovers in a suit upon the 

bond is limited under N.D.C.C. § 35-24-13(5) to recovering only the 

reasonable attorney’s fees for work associated with pursuing the claim on 

the bond. 

[¶16] Rocky Mountain requested the district court order Mitchell’s to pay 

all of the fees Rocky Mountain incurred before the appeal, including the fees 

it incurred to pursue its claims against Brockett. It alleged it had incurred 

$30,508.50 in attorney’s fees to pursue its claims against Brockett, and 

$19,025 in fees to pursue its claims against Mitchell’s. Rocky Mountain 

sued Brockett for breach of contract, quantum meruit, and to enforce a 

personal guaranty. The district court previously ordered Brockett to pay 

Rocky Mountain $49,533.50 in attorney’s fees. The $49,554 in attorney’s 

fees Rocky Mountain requested the court order Mitchell’s to pay included 

all of the attorney’s fees it incurred before it filed the notice of appeal for 

the prior appeal, including those fees Brockett was already ordered to pay 

and that were incurred to pursue claims against Brockett. 

[¶17] Rocky Mountain claims the work that was required to litigate the 

claims against the different defendants was effectively the same for all of

the claims. It contends the issues against the different defendants were 

virtually identical, requiring “thoughtful parsing of the same statutory 

scheme with only slight factual differences.” A similar argument was made 

in Northern Excavating, and we said:

[A] party is entitled to attorney’s fees and costs associated with

work done to challenge a lien, even if such work is also relevant

to other causes of action, but not for work on unrelated claims.

To that extent, [the party entitled to fees] is entitled to

attorney’s fees and costs incurred as part of contesting the
6

accuracy of the lien, which includes the reasonable value of time 

and materials.

N. Excavating, 2012 ND 78, ¶ 12, 815 N.W.2d 280. Rocky Mountain is

entitled to the attorney’s fees incurred in pursuing its claim on the bond, 

but it is not entitled to attorney’s fees under N.D.C.C. § 35-24-13(5) for work 

on unrelated claims.

[¶18] The district court rejected Rocky Mountain’s argument that it was 

entitled to attorney’s fees under N.D.C.C. § 35-24-13(5) for its claims 

against all of the defendants. We agree. Other than a conclusory argument 

that the work litigating all of the claims overlapped and was essentially the 

same, Rocky Mountain has not explained how its work on the suit on the 

bond was relevant to its breach of contract and quantum meruit claims or 

its claim to enforce a personal guaranty. 

[¶19] The district court explained it would award reasonable attorney’s fees 

expended to pursue the bond claims, but it would not order Mitchell’s to pay 

attorney’s fees that were incurred bringing other claims. The court noted

Rocky Mountain filed documents indicating that it incurred $19,025 to 

pursue the bond claims and found that amount was reasonable. The district 

court did not misapply the law and it did not act in an arbitrary, 

unreasonable, or unconscionable manner. We conclude the court did not 

abuse its discretion in awarding the attorney’s fees incurred before the prior 

appeal. 

B

[¶20] Rocky Mountain argues the district court erred by denying its 

request for the attorney’s fees it incurred on appeal. Rocky Mountain 

contends the plain language of N.D.C.C. § 35-24-13(5) does not limit the 

recovery of attorney’s fees to the fees incurred before the district court and 

the appeal is part of the case.

[¶21] The district court denied Rocky Mountain’s request for attorney’s fees 

incurred on appeal. The court stated this Court’s remand did not indicate 
7

the district court was to award appellate attorney’s fees. The court further 

explained:

Based on the posture of this case, simultaneous summary 

judgment motions based on stipulated facts, both parties were 

aware this issue would be appealed no matter what the district 

court decided. It was necessary to finally determine the parties’ 

rights. Although this court was reversed on appeal, the same 

fees and expenses would have been incurred either way. This 

court believes it is proper for both parties to incur the expense 

of appeal on their own.

[¶22] In remanding the case to the district court, this Court said, “We 

reverse the judgment and remand for proceedings consistent with this 

opinion and a proper award of attorney fees.” Rocky Mountain, 2018 ND 

96, ¶ 14, 909 N.W.2d 671. We did not limit the attorney’s fees Rocky 

Mountain could request on remand. 

[¶23] As previously discussed, Rocky Mountain was entitled to attorney’s 

fees under N.D.C.C. § 35-24-13(5) as a lienholder recovering in a suit upon 

a bond. The district court did not apply N.D.C.C. § 35-24-13(5) in denying 

Rocky Mountain’s request for attorney’s fees on appeal. There is no 

language in N.D.C.C. § 35-24-13(5) that explicitly limits the attorney’s fees 

to those incurred in the district court proceedings. This Court has 

considered whether a statute authorizing attorney’s fees also authorizes 

fees for an appeal, and we said:

“[T]his Court has decided statutory provisions authorizing an 

award of attorney fees to a prevailing party entitle that party 

to attorney fees in successfully defending a judgment on appeal. 

Troutman v. Pierce, Inc., 402 N.W.2d 920, 925 (N.D. 1987) 

(holding ‘[A] prevailing consumer’s attorney-fee award under 

the Magnuson-Moss Act at the trial level should [not] be 

dissipated by uncompensated costs, expenses and attorney fees 

in successfully defending a judgment on appeal.’).” 

Schwab v. Zajac, 2012 ND 239, ¶ 27, 823 N.W.2d 737. 
8

[¶24] Mitchell’s argues only a party who is successful at the district court 

and successfully defends that judgment on appeal may be entitled to recover 

attorney’s fees for the appeal to prevent dilution of recovery. Mitchell’s cited 

Troutman, 402 N.W.2d 920 (N.D. 1987), Hoge v. Burleigh Cty. Water Mgmt. 

Dist., 311 N.W.2d 23 (N.D. 1981), and other cases in support of its argument 

that a party may be awarded attorney’s fees on appeal only if the party is 

successful at the district court and successfully defends that judgment on 

appeal. 

[¶25] Although the party who was awarded appellate attorney’s fees in 

those cases was the prevailing party before the district court and on appeal, 

we explained that to disallow attorney’s fees for the appeal may dilute or 

dissipate the party’s recovery. See, e.g., Troutman, 402 N.W.2d at 925; 

Hoge, 311 N.W.2d at 32. Similarly, a lienholder, who successfully appeals

a district court’s judgment and ultimately recovers in a suit upon the bond 

as a result of the appeal, is entitled to attorney’s fees for the district court 

proceedings under N.D.C.C. § 35-24-13(5) and also should not have their 

recovery diluted by the costs of the attorney’s fees on appeal. The purpose 

of the statute would be undermined if the recovery could be diluted by the

attorney’s fees incurred on appeal.

[¶26] Rocky Mountain successfully appealed the district court’s prior 

decision invalidating the liens, and was entitled to attorney’s fees for the 

prior appeal under N.D.C.C. § 35-24-13(5). The district court misapplied 

the law and abused its discretion by failing to award Rocky Mountain 

reasonable appellate attorney’s fees for the prior appeal. 

C

[¶27] Rocky Mountain argues it was also entitled to the attorney’s fees it 

incurred on remand under N.D.C.C. §§ 35-24-19 and 35-24-13(5).

[¶28] Rocky Mountain requested $9,260.50 in attorney’s fees it incurred on 

remand after the first appeal. The district court did not award any of the 

requested fees, and it did not make any findings explaining its decision. 
9

[¶29] When the district court does not make any specific findings of fact or 

give any explanation providing the evidentiary and theoretical basis for its 

decision and the basis is not otherwise ascertainable in the record, we are 

unable to properly review the issue because we are left to speculate the basis 

for the court’s decision and whether the law was properly applied. See

Gratech Co., Ltd. v. Wold Engineering, P.C., 2007 ND 46, ¶ 19, 729 N.W.2d 

326; Hagel v. Hagel, 2006 ND 181, ¶ 9, 721 N.W.2d 1. If the district court 

does not provide a rationale for its decision, we are unable to determine 

whether the court abused its discretion. Gratech, at ¶ 20. 

[¶30] The district court did not provide any explanation for failing to award 

Rocky Mountain any of the attorney’s fees it incurred on remand, and 

therefore we are unable to determine whether the district court abused its 

discretion. We reverse the district court order and remand for the court to 

determine a reasonable amount of attorney’s fees or to explain why none 

were awarded. 

III

[¶31] We affirm the portion of the judgment awarding Rocky Mountain 

attorney’s fees incurred before the prior appeal, but reverse and remand the 

portion of the judgment denying the attorney’s fees requested for the prior 

appeal and on remand. On remand, the district court must properly 

determine the reasonable amount of attorney’s fees Rocky Mountain is 

entitled to consistent with this opinion. 

[¶32] Gerald W. VandeWalle, C.J.

 Jon J. Jensen

 Lisa Fair McEvers

 Daniel J. Crothers

 Jerod E. Tufte