2000 ND 45 - Braunberger v. Interstate Engineering, Inc.

How this case has been cited

Cited by 18 later decisions — most recently August 2023

17 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

¶1ON PETITION FOR REHEARING

NEUMANN, Justice,

¶2on petition for rehearing.

¶3Filed May 11, 2000.

¶4[¶ 23] The Braunbergers filed a petition for rehearing, arguing a prevailing party determination reviewed applying an abuse of descretion standard.

¶5[¶ 24] Our previous opinions may not have explicitly stated a prevailing party determination under N.D.C.C. § 28-26-06 is a question of law. See Lemer v. Campbell, 1999 ND 223, ¶¶ 6, 11, 602 N.W.2d 686; Huber v. Oliver County, 1999 ND 220, ¶¶ 22, 25, 602 N.W.2d 710; Vogel v. Pardon, 444 N.W.2d 348, 352-53 (N.D.1989); Andrews v. O’Hearn, 387 N.W.2d 716, 732-33 (N.D. 1986).. However, a close reading of these opinions will show this Court has distinguished between the legal question of whether a party is a prevailing party entitled to necessary disbursements, and the factual question of whether the awarded costs and their amounts were proper. Id.Accord, Warner v. Independent School Dist. No. 625, 134 F.3d 1333, 1336 (8th Cir. 1998); Driver Music Co., Inc. v. Commercial Union Ins. Co., 94 F.3d 1428, 1432 (10th Cir. 1996); Turnbow v. K.E. Enterprises, Inc., 155 Or.App. 59, 962 P.2d 764, 769 (1998); Klinke v. Mitsubishi Motors Corp., et al., 219 Mich.App. 500, 556 N.W.2d 528, 539 (1996); First Southwestern Financial Services v. Sessions, 875 P.2d 553, 554 (Utah 1994). Cf. Chenery v. Agri-Lines Corp., 106 Idaho 687, 682 P.2d 640, 645-46 (Ct. App. 1984) (examining the determination as a factual question under Idaho Rule of Civil Prode-dure 54(d)(1)(B)). Determination of a prevailing party under N.D.C.C. § 28-26-06 is a question of law.

¶6[¶25] The petition for rehearing is denied.

¶7[¶ 26] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, CAROL RONNING KAPSNER, DALE V. SANDSTROM, JJ., concur.