Traynor Law Firm v. State

Filed 5/14/20 by Clerk of Supreme Court

IN THE SUPREME COURT
STATE OF N OR TH DAK OTA

2020 ND 108

Traynor Law Firm, PC, Plaintiff, Appellant and Cross-Appellee
v.
State of North Dakota,
c/o Governor Doug Burgum; Defendant, Appellee and Cross-Appellant
and
The Board of Ward County Commissioners, Defendant and Appellee

No. 20190310

Appeal from the District Court of Ward County, North Central Judicial
District, the Honorable Gary H. Lee, Judge.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

Opinion of the Court by Crothers, Justice.

Jonathon Yunker (argued) and Jason P. Sayler (on brief), Devils Lake, ND, for
plaintiff, appellant and cross-appellee.

James E. Nicolai, Office of Attorney General, Bismarck, ND, for defendant,
appellee and cross-appellant.

Howard D. Swanson, Special Assistant State’s Attorney, Grand Forks, ND, for
defendant and appellee.
 Traynor Law Firm v. State, et al.
No. 20190310

Crothers, Justice.

[¶1] Traynor Law Firm, PC, appeals the district court judgment awarding 6%
interest on a bill for legal services. The State of North Dakota cross-appeals
and argues Ward County is responsible for paying Traynor’s bill, and the
district court erred awarding any interest. We affirm in part, reverse in part
and remand for further proceedings.

[¶2] Dustin Irwin died on October 6, 2014, in the Ward County jail. The
circumstances of his death led to an investigation and criminal charges against
Ward County Sheriff Steven Kukowski. Initially, Divide County State’s
Attorney Seymour Jordan was appointed to handle the criminal proceeding.
Jordan determined the circumstances justified a petition for removal of Sheriff
Kukowski from office. Governor Jack Dalrymple appointed Jordan as the
special prosecutor for the removal. Ultimately, Jordan requested to withdraw
and Governor Burgum appointed attorney Daniel Traynor as the special
prosecutor. After completion of the removal proceedings, Traynor submitted
his bill to the State on May 1, 2017. The State forwarded the bill to Ward
County. Ward County refused to pay the bill.

[¶3] Traynor sued the State and Ward County to recover the unpaid fees. The
State responded to Traynor’s complaint by filing a motion to dismiss. Ward
County answered Traynor’s complaint and cross-claimed against the State.
The State moved to dismiss Ward County’s cross-claim. Traynor moved for
judgment on the pleadings. The district court entered judgment in Traynor’s
favor against the State, and awarded interest at 6% per annum under Chapter
47-14, N.D.C.C., starting June 1, 2017. The court dismissed Traynor’s claim
against Ward County.

I

[¶4] The State and Ward County do not dispute the amount of Traynor’s fees.
The disputes are who is responsible to pay those fees and whether interest is
recoverable. Therefore, the issue is one of law. Questions of law are reviewed

1
de novo on the entire record. Bladow v. Bladow, 2005 ND 142, ¶ 9, 701 N.W.2d
903. However, the determination of whether a contract existed between
Traynor and either defendant is a mixed question of law and fact. This Court
“fully review[s] conclusions of law and mixed questions of law and fact under
the de novo standard.” Burlington Northern R.R. v. Fail, 2008 ND 114, ¶ 5, 751
N.W.2d 188.

II

[¶5] The State argues Ward County must pay Traynor’s bill because Chapter
44-11, N.D.C.C., fails to address who should pay for the special prosecutor fees
in a county official’s removal proceeding, and therefore the catch-all provision
in N.D.C.C. § 54-12-03 applies. The State argues N.D.C.C. § 54-12-03 mandates
Ward County is responsible to pay expenses incurred in prosecuting any case
resulting from an investigation by the Attorney General.

[¶6] Ward County argues neither Chapter 44-11, N.D.C.C., nor Chapter 54-
12, N.D.C.C., imposes an obligation upon a county to pay the fees of an attorney
appointed by the Governor for proceedings for the removal of a public official.

[¶7] Chapter 44-11, N.D.C.C., establishes the procedure for when an officer
is removed by the Governor. Section 44-11-01, N.D.C.C., states, “The governor
may remove from office any county commissioner, sheriff . . . whenever it
appears to the governor by a preponderance of the evidence after a hearing as
provided in this chapter, that the officer has been guilty of misconduct. . . .”
Here, Ward County Sheriff, Steven Kukowski, was the public official to be
removed. Therefore, Chapter 44-11, N.D.C.C., applies to these proceedings.

[¶8] Section 44-11-02, N.D.C.C., provides the process and in pertinent part
states:

“1. The petition against any official authorized to be removed by
the governor must be entitled in the name of this state and must
be filed with the attorney general.
....
4. When the petition is filed, the attorney general shall conduct an
investigation within thirty days. Upon completion of the

2
 investigation, the attorney general shall make a recommendation
to the governor whether a removal proceeding should be conducted
by a special commissioner, and if so, whether the accused officer
should be suspended during the pendency of the proceeding.
5. Upon receipt of the recommendation of the attorney general the
governor shall determine whether to proceed with the
appointment of a special commissioner. . . . If the governor decides
to appoint a special commissioner, the governor shall request that
a prosecutor draft and serve the official complaint against the
officer.
a. When the officer sought to be removed is other than the
state’s attorney, the state’s attorney or other competent
attorney, upon request of the governor, shall appear and
prosecute.”

[¶9] The State argues N.D.C.C. § 54-12-03 applied on its own and mandates
Ward County is responsible to pay Traynor’s fees. Section 54-12-03, N.D.C.C.,
authorizes the attorney general to investigate and prosecute criminal matters
in counties. It states:

“The attorney general may make an investigation in any county in
this state to the end that the laws of the state shall be enforced
therein and all violators thereof brought to trial, when:
1. The attorney general deems it necessary for the successful
enforcement of the laws of the state in such county;
2. Requested by a majority of the members of the board of
county commissioners of the county; or
3. Petitioned by twenty-five taxpaying citizens of the county.
The necessary expenses incurred in making the investigation or in
prosecuting any resulting case, as determined by the attorney
general and not otherwise specifically provided by law, must be
paid by the county out of the state’s attorney’s contingent fund. All
such expenses paid from the state’s attorney’s contingent fund
must be paid by the county treasurer upon the warrant of the
county auditor. The warrant must be executed and delivered by
the auditor in an amount and to the person designated therein
upon the written order of the attorney general.”

[¶10] The district court concluded Chapter 44-11, N.D.C.C., is silent regarding
the payment of special prosecutor fees in a removal proceeding, and it is not

3
necessary or required to import N.D.C.C. § 54-12-03 into Chapter 44-11. The
district court explained:

“The plain language of the Chapter and the Statute do not
support North Dakota’s argument. Section 54-12-03, NDCC,
provides the Attorney General with the authority to make an
investigation when the Attorney General deems it necessary for
successful enforcement of the laws, is requested to do so by a
majority of the members of the Board of County Commissioners,
or is petitioned by twenty-five taxpaying citizens of the county.
None of these events occurred. Chapter 44-11, NDCC, requires the
Attorney General to make an investigation and make a
recommendation to the Governor upon the filing of a petition for
removal of a public officer. Filing a petition of removal required by
Chapter 44-11, NDCC, is not included in Section 54-12-03, NDCC.

“Section 54-12-03, NDCC, authorizes the Attorney General
to conduct investigations, and to charge the fees for the Attorney
General’s expenses. The fees of the investigation is then the
responsibility of the county, and are to be paid [from] the State’s
Attorney’s contingency fund. However, it is the Governor, not the
Attorney General, who makes the decision whether a removal
proceeding should be initiated. Section 4[4]-11-02, NDCC. The
expenses incurred in a removal proceeding are those made
necessary by the actions of the Governor as a result of the exercise
of his powers. The expenses incurred are not the expenses of the
Attorney General, but rather the expenses incurred by the Special
Prosecutor. It would seem therefore that absent some legislative
directive that would shift the cost of the investigation to some
other public entity that the expenses of Special Prosecutor in a
removal proceeding are the responsibility of the Governor.

“The plain language of Section 44-11-01, NDCC, by its scope,
also removes the Chapter from Section 54-12-03, NDCC. As noted
above, Section 44-11-01, NDCC, allows the Governor to remove not
only county officials, but school board members, city officials,
township officials, and other governmental officers. The removal
proceeding is the same for all. That is, a petition for removal is
filed. The Attorney General investigates and makes
recommendations to the Governor. The Governor then determines
whether the removal process should go forward. A Special

4
 Prosecutor is called in. There is no authority in Section 54-12-03,
NDCC, to pass the costs of the Special Prosecutor on to other
governmental entities such as school boards, cities, or townships.
Importing Section 54-12-03, NDCC, into Chapter 44-11, NDCC,
would mean that in a removal proceeding only counties would pay
the expenses of the Special Prosecutor from the State’s Attorney’s
contingency fund[.] All other governmental entities would get a
free pass. North Dakota offers no reasonable explanation for why
the legislature would impose this burden only on the counties, but
not on school boards, cities, townships, or the like.

“Chapter 44-11, NDCC, is silent regarding the payment of
the Special Prosecutor in a removal proceeding. It is not necessary,
or required to import Section 54-12-03, NDCC, into Chapter 44-11,
NDCC.

“When the Code is silent on a particular issue, the common-
law then prevails. Lembke v. Unkie, 171 NW2d 837 (ND 1969);
Estate of Conley, 2008 ND 148, 753 NW2d 384.”

[¶11] We agree with the district court’s determination. Therefore, because
Chapter 44-11 is silent on who pays attorney fees, the analysis must be done
under contract law.

III

[¶12] Traynor argues although no formal “retainer agreement” existed
between it and the State, written instruments, correspondence, and conduct
establish an implied contract. Traynor also argues the silence or inaction of the
State regarding the interest rate on the invoice constituted acceptance or
assent.

[¶13] The State argues the district court conflated the existence of an attorney-
client relationship with an obligation to pay and, without a written agreement,
Traynor is not entitled interest at its purported contract rate of 1.5% per
month.

[¶14] The district court concluded as a matter of contract law an attorney-
client relationship existed between Traynor and the State, but no written

5
contract existed between them, and therefore the 6% per annum interest rate
under Chapter 47-14, N.D.C.C., applied.

[¶15] An attorney-client relationship exists as a matter of common law of
contracts when parties explicitly, or implicitly agree that the attorney will
provide legal services to the client. Veit v. Anderson, 428 N.W.2d 429 (Minn.
Ct. App. 1988). The relationship is established when a party seeks and receives
the assistance of an attorney on legal matters. In re: Disciplinary Action
Against Giese, 2003 ND 82, ¶ 17, 662 N.W.2d 250.

[¶16] A contract requires parties capable of contracting, consent of the parties,
a lawful object, and sufficient consideration. N.D.C.C. § 9-01-02. A contract can
be either express or implied. N.D.C.C. § 9-06-01. “An express contract is one
the terms of which are stated in words. An implied contract is one the existence
and terms of which are manifested by conduct.” Id. In Zirnhelt v. Ransom
Cnty., 137 N.W.2d 785, 789 (N.D. 1965), this Court noted:

“A contract is implied where a person performs services, furnishes
property, or expends money for another, at such other’s request,
and there is no express agreement as to compensation. A promise
to pay for the reasonable value of the service or property so
furnished, or to reimburse for money so expended, may be implied
where, and only where, the circumstances warrant such
implication.”

[¶17] Traynor cites B.J. Kadrmas, Inc. v. Oxbow Energy, LLC, 2007 ND 12,
727 N.W.2d 270, to support its argument that in this case silence and inaction
operated as acceptance. The State argues Oxbow Energy does not control
because the contract at issue in Oxbow Energy was not a bill for legal services
subject to the reasonableness requirements of Rule 1.5(a) of the North Dakota
Rules of Professional Conduct.

[¶18] In Oxbow Energy, Petrosearch and Oxbow contracted with Oil for
America (OFA) to drill wells on land OFA leased or sought to lease. 2007 ND
12, ¶ 2, 727 N.W.2d 270. Robert Angerer from OFA met with Bev Kadrmas to
discuss having her company perform title searches on various lands. Id. He
asked her to make separate agreements with him on behalf of OFA, Dan

6
Denton for Petrosearch, and Tony Martin for Oxbow. Id. OFA and Petrosearch
signed contracts with Kadrmas and paid for their portion of the title work.
Oxbow did not. Id. Kadrmas testified Martin told her to proceed with Oxbow’s
share during a telephone conversation. That same day she sent Martin a letter
memorializing the conversation with him and enclosing a contract for Martin
to sign. Id. at ¶ 3.

[¶19] The district court concluded an implied contract existed between the
parties. Oxbow Energy, 2007 ND 12, ¶ 14, 727 N.W.2d 270. The surrounding
circumstances and conduct of the parties were relevant to ascertain whether
they intended to form a binding legal agreement. Id. In the written contract
Kadrmas explained her daily labor rate, additional expenses charged, and the
land tracts to be searched. Id. at ¶ 15. Kadrmas hired additional workers and
incurred substantial expenses based on the conduct of the parties. Id. Kadrmas
dutifully kept Martin informed on the progress of the work she did on his
company’s behalf, she emailed him for correct contact information, explained
that additional landmen were hired, and informed Martin he would receive
title reports “soon.” Martin also updated Kadrmas with his contact information
and did not dispute any of the invoices. Id. at ¶¶ 16-17. This Court concluded
the district court’s findings of fact were not clearly erroneous, and its
conclusions of law were supported by its findings. Id. at ¶ 18.

[¶20] This case is like Oxbow Energy because the conduct of Traynor and the
State support the conclusion that the parties mutually intended to form a
binding legal obligation. All communications prior to the commencement of the
representation were between the State and Traynor. The Governor sent
Traynor an appointment letter and work on the removal began at the direction
of the Governor. David Owens, an associate at Traynor Law Firm, testified
services and fees were discussed at a meeting with the Bureau of Criminal
Investigation (BCI), the attorney general, and deputy attorney general, and
conversations regarding the removal happened between Traynor and the
State. Upon conclusion of its services, Traynor sent the invoice to “Governor
Doug Burgum, State of North Dakota.” Based on these facts, the district court
did not err in finding a contract existed for legal services between Traynor and
the State.

7
 IV

[¶21] Traynor argues the district court erred by awarding 6% per annum
interest instead of the 1.5% monthly interest rate stated on its bill. We agree.

[¶22] The district court concluded in the absence of a written contract which
specifies the amount of interest to be charged, the legal rate of interest stated
in N.D.C.C. § 47-14-05 applies. Chapter 47-14, N.D.C.C., relates to loans of
money. Section 47-14-01, N.D.C.C., defines “loan of money” as “a contract by
which one delivers a sum of money to another and the latter agrees to return
at a future-time a sum equivalent to that which the person borrowed. A loan
for mere use is governed by chapter 47-12.”

[¶23] Traynor delivered legal services to the State and billed it for those
services. There was no contract where one person agreed to loan money and
another agreed to return money at a future time. Therefore, no loan of money
existed. Because Chapter 47-14, N.D.C.C., applies to “loans of money” and
there was no loan for money, the district court improperly applied the 6% per
annum interest rate in N.D.C.C. § 47-14-05.

[¶24] Traynor argues Chapter 13-01.1, N.D.C.C., applies because Traynor falls
within the plain meaning of a “business” in N.D.C.C. § 13-01.1-01. Traynor
further argues the State’s reliance on Johnson v. North Dakota Workers
Compensation Bureau, 428 N.W.2d 514 (N.D. 1988), is not applicable in this
matter because the Johnson Court applied Chapter 13-01.1, N.D.C.C., to
Section 65-02-08, and this claim does not involve Title 65.

[¶25] The State responds by arguing the district court erred in awarding
Traynor any interest on the underlying bill for legal services, and the Court’s
holding in Johnson excluding legal services from the word “business” in
N.D.C.C. § 13-01.1-01 in reference to worker’s compensation cases, applies
with equal force for legal services provided under Chapter 44-11, N.D.C.C. The
State argues in the alternative that Traynor is prohibited under the North
Dakota Rules of Professional Conduct from charging interest at 1.5% per
month.

8
[¶26] Section 13-01.1-01, N.D.C.C., requires prompt payment and states:

“Every state agency . . . which acquires property or services
pursuant to a contract with a business shall pay for each complete
delivered item of property or service on the date required by
contract between such business and agency or, if no date for
payment is specified by contract, within forty-five days after
receipt of the invoice covering the delivered items or services . . . .”

Section 13-01.1-02, N.D.C.C., states when an interest payment is required:

“Interest must accrue and be made on payments overdue under
section 13-01.1-01 at the rate of one and three-fourths percent per
month, unless a different rate is specified within the contract upon
which the claim is based. Interest must accrue beginning on the
day after payment is due, if payment due date is specified by
contract, or on the day of receipt of the invoice covering the
delivered goods or services, if payment is not made within forty-
five days. Interest ceases to accrue on the date payment is made.”

[¶27] Section 13-01.1-03, N.D.C.C., states when interest must compound,
noting, “Any interest which remains unpaid at the end of any forty-five-day
period or which remains unpaid at the end of any specified period provided by
contract must be added to the principal amount of the debt and must thereafter
accumulate interest.”

[¶28] This Court discussed Chapter 13-01.1 in Johnson v. North Dakota
Workers Compensation Bureau, 428 N.W.2d 514 (N.D. 1988). In Johnson,
Margaret Johnson argued she was not fully reimbursed for the expenses of
traveling to and from medical and rehabilitation treatments. She requested
twenty cents per mile for the cost of driving her own vehicle and a per diem
allowance for food and lodging at the same rate as state employees. Id. at 515.
Johnson argued the Bureau must “pay interest on bills or legal services which
were not timely paid as provided by Chapter 13-01.1.” Id. at 519. This Court
explained that on its face Chapter 13-01.1 makes no reference to payment for
legal services and the term business “may imply an ambiguity.” Id. at 519. The
Court looked at the legislative history for Chapter 13-01.1 and determined,
“the legislation is intended to stimulate governmental entities to make prompt

9
payment to the small retail businesses which provide them goods and services.”
Id. at 519-520 and n.6. This Court stated, “[w]e decline to broaden the
Legislature’s interpretation of ‘business’ as used in Chapter 13-01.1 to include
legal services rendered to Worker’s Compensation claimants. We therefore
conclude that Chapter 13-01.1, N.D.C.C., does not compel the Bureau to pay
interest on attorneys’ fees.” Id. at 520.

[¶29] This case is different than Johnson. 428 N.W.2d 514. Johnson sought
reimbursement of attorney fees from a third party, the Workers Compensation
Bureau. The Bureau was required to pay Johnson’s attorney fees. Id. at 519.
Here, Traynor was not seeking reimbursement and interest from a third party.
Rather, it sought payment from a client. Therefore, Johnson v. North Dakota
Workers Compensation Bureau, 428 N.W.2d 514 (N.D. 1988), must be limited
to the facts in that case.

[¶30] “Interpretation of a statute is a question of law fully reviewable on
appeal. Our primary goal in statutory construction is to ascertain the intent of
the legislature, and we first look to the plain language of the statute and give
each word of the statute its ordinary meaning.” PHI Fin. Servs., Inc. v.
Johnston Law Office, P.C., 2020 ND 22, ¶ 10, 937 N.W.2d 885. In 1985 when
Chapter 13-01.1 was enacted, Black’s Law Dictionary defined “business” as:

“Employment, occupation, profession, or commercial activity
engaged in for gain or livelihood. Activity or enterprise for gain,
benefit, advantage or livelihood . . . . That which habitually busies
or occupies or engages the time, attention, labor, and effort of
persons as a principal serious concern or interest or for livelihood
or profit.”

BUSINESS, Black’s Law Dictionary (5th ed. 1979) (internal citations omitted).

[¶31] The evidence here shows Traynor was engaged in a commercial activity
for gain or livelihood. David Owens, an associate at Traynor Law Firm,
testified:

“[P]racticing law at this firm is my livelihood. I have no other
source of income from ancillary employment or what can be

10
 considered a part-time job. I believe the same can be said of many
of my colleagues. We engage in commercial activities of providing
legal services through our trade of practicing law.”

Owens testified Traynor Law Firm is a professional corporation that is
registered with the secretary of state, and that the North Dakota Business
Corporation Act states a corporation may be incorporated under the chapter
for any lawful business purpose or purposes. He testified, “my reading leads
me to believe that ‘incorporation’ has general business purposes and there is a
presumption to that.”

[¶32] Under the facts in this case, Traynor is a “business” under N.D.C.C. §
13-01.1-01. Because the State and Traynor had an implied contract, and
Traynor’s activities fall within the plain meaning of “business,” N.D.C.C. § 13-
01.1-01 applies.

[¶33] Here, the State has not made a payment. Therefore, the State’s
payments are overdue under N.D.C.C. § 13-01.1-01 and N.D.C.C. § 13-01.1-02
applies. It states, “Interest must accrue and be made on payments overdue
under section 13-01.1-01 at the rate of one and three-fourths percent per
month, unless a different rate is specified within the contract upon which the
claim is based.” Here, an implied contract existed. Traynor’s invoice noted a
1.5% monthly interest rate. Therefore, a different rate is specified, and the
1.75% interest rate does not apply. Under N.D.C.C. § 13-01.1-03, any interest
which remains unpaid at the end of 45 days must be added to the principal
amount of the debt and must thereafter accumulate interest. As a matter of
law the State is responsible to pay 1.5% interest compounded after 45 days as
required by N.D.C.C. §§ 13-01.1-02 and 13-01.1-03.

[¶34] The State argues Rule 1.5 of the North Dakota Rules of Professional
Conduct prohibits Traynor from charging 1.5% monthly interest because the
invoice charging 1.5% interest after 30 days is a unilateral attempt to charge
a client interest on a delinquent account.

[¶35] Rule 1.5 of the North Dakota Rules of Professional Conduct in pertinent
part states:

11
 “(a) A lawyer shall not make an agreement for, charge, or collect
an unreasonable fee or an unreasonable amount for expenses. The
factors to be considered in determining the reasonableness of a fee
include the following:

(1) the time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal
service properly;

(2) the likelihood, if apparent to the client, that the acceptance of
the particular employment will preclude other employment by the
lawyer;

(3) the fee customarily charged in the locality for similar legal
services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the
circumstances;

(6) the nature and length of the professional relationship with the
client;

(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services; and

(8) whether the fee is fixed or contingent.

(b) When the lawyer has not regularly represented the client, the
basis, rate, or amount of the fee and expenses for which the client
will be responsible shall be communicated to the client, preferably
in writing, before or within a reasonable time after commencing
the representation.”

[¶36] Rule 1.5 of the North Dakota Rules of Professional Conduct is clear when
the lawyer does not regularly represent the client, as was the case here, the
basis, rate, or amount of fee and expenses should be communicated to the client
preferably in writing. No writing was provided. However, Traynor was
appointed as special prosecutor under statute. See Ch. 44-11, N.D.C.C. When

12
the bill must be paid also is controlled by statute. N.D.C.C. § 13-01.1-01. If the
bill is not timely paid, the rate of interest is stated in N.D.C.C. § 13-01.1-02.
The fact that Traynor requested less than the statute authorizes indicates the
rate of interest is reasonable under Rule 1.5 of the North Dakota Rules of
Professional Conduct. Interest at that rate may be collected after 45 days as
permitted by N.D.C.C. § 13-01.1-02, rather than after 30 days as stated on
Traynor’s statement.

V

[¶37] We affirm in part and reverse in part, and remand for further
proceedings consistent with this opinion.

[¶38] Daniel J. Crothers
Jerod E. Tufte
Dann E. Greenwood, D.J.
Daniel D. Narum, D.J.
Jon J. Jensen, C.J.

[¶39] The Honorable Dann E. Greenwood, D.J., sitting in place of VandeWalle,
J., disqualified.

[¶40] The Honorable Daniel D. Narum, D.J., sitting in place of McEvers, J.,
disqualified.

13