author: SANDSTROM, Justice.

text:
    2008 ND 116
    BAUKOL BUILDERS, INC., Plaintiff and Appellant v. COUNTY OF GRAND FORKS, Defendant and Appellee.
    No. 20060120.
    Supreme Court of North Dakota.
    June 9, 2008.

      Aaron Anthony Dean (argued), Fa-byanske, Westra, Hart & Thomson, Minneapolis, MN, and Thomas L. Zimney (on brief), Zimney Foster, P.C., Grand Forks, ND, for plaintiff and appellant.
    Douglas A. Christensen (argued) and Sarah S. Barron (on brief), Pearson Christensen & Clapp, PLLP, Grand Forks, ND, for defendant and appellee.
    John J. Petrik (on brief), Vogel Law Firm, Bismarck, ND, for amicus curiae Associated General Contractors of North Dakota.
   SANDSTROM, Justice.

[¶ 1] Baukol Builders, Inc., the lowest dollar bidder for a public improvement construction contract with Grand Forks County, appeals from a district court judgment dismissing Baukol Builders’ action for injunctive and declaratory relief against the County after the court decided the County’s decision to award the contract to another bidder was not arbitrary, unreasonable, or capricious. Baukol Builders also appeals from orders denying its post-trial motions. Baukol Builders claims the County used unstated and unwritten criteria in awarding the contract to another bidder and the County’s decision violated applicable competitive bidding statutes. We hold the County did not use unstated or unwritten criteria in awarding the contract to another bidder, the County’s decision to award the contract to another bidder did not violate the applicable competitive bidding statutes and was not arbitrary, unreasonable, or capricious, and the court did not abuse its discretion in denying Baukol Builders’ post-trial motions. We affirm.

I

[¶ 2] In 2005, Grand Forks County decided to construct a new regional correctional center to alleviate crowding at its jail facility. Grand Forks County sold about $16 million in bonds to pay for the new correctional center and planned to help finance the new correctional center with revenue from housing additional federal prisoners. According to the correctional facility administrator, the federal government had been paying the County $70 per day to house federal prisoners, but the rate was scheduled to increase to $110 per day per prisoner on October 1, 2005.

[¶ 3] Grand Forks County hired an architect to develop plans and specifications for the new correctional center, and it was decided to solicit bids for the correctional center in a series of three bid packages. On July 23 and 30, and August 6, 2005, the County published an “invitation to bid” in the Grand Forks Herald for Bid Package # 2, which consisted of the exterior shell for the new correctional center. The invitation to bid said bids would be received until August 11, 2005. A “call for bids” said construction would “start immediately” and the County’s “suggested completion date of work [was] July 31, 2006.” The “instructions to bidders” said the County anticipated an immediate award of the contract, and “[a]ll work should be substantially complete as soon as possible and the bidder shall indicate on his bid form the date he proposes to have the Work completed. The Owner’s anticipated substantial completion date is July 31, 2006.” The “bid form” required the bidder to state the number of calendar days in which the bidder agreed to complete the work. A pre-bid conference to consider questions from prospective bidders was held on August 2, 2005. Representatives from two other prospective bidders attended the conference, but no representatives from Baukol Builders attended the conference.

[¶ 4] On August 11, 2005, Grand Forks County opened bids for Bid Package #2 from three bidders: Baukol Builders, Construction Engineers, and Peterson Construction. Baukol Builders’ bid for the project was $3,666,337, with a completion date of July 31, 2006. Construction Engineers’ bid was $3,700,000, with a completion date of 270 calendar days, which the County calculated to be May 7, 2006. Peterson Construction’s bid was $3,853,900, with a completion date of 329 calendar days. The Grand Forks County State’s Attorney advised the County that a bidder’s proposed completion date was a factor the County could consider in awarding the contract, because the bidder’s proposed completion date was stated in the bid specifications, was required on the bid form, and would become the completion date in the contract between the County and the successful bidder. The state’s attorney also advised the County:

The present GFCCC is built to house 80 inmates. As of today, there are 110 inmates, not including work release. The GF County Commission has a right (if not a duty) to consider multiple factors in determining the lowest and best bidder. Given the plain wording of the bid specifications, and given the state of the law in ND as it exists today, the completion date of the project is a factor to be considered. Additional factors that have been considered by the Committee include: 1) cost of continuing to operate in the present GF County Correctional Center; 2) cost of debt/money (in the form of bonds); 3) the ability to generate revenue two months sooner under [Construction Engineers’] proposal as opposed to [Baukol Builders’] proposal; 4) other factors that the architect may deem relevant.
In short, the award of the bid may be based upon other factors besides purely pecuniary factors.

On August 16, 2005, after discussions about the bidders’ proposed completion dates and the potential for increased revenue from housing federal prisoners, the County awarded the contract to Construction Engineers.

[¶ 5] Baukol Builders then sued Grand Forks County to enjoin it from rejecting Baukol Builders’ bid and to preclude the County from awarding the contract to another bidder. Baukol Builders sought a declaration that the County’s decision to award the bid to the second lowest dollar bidder was illegal and void and that Bau-kol Builders was the lowest responsible bidder. The district court denied Baukol Builders’ August 2005 request for a temporary restraining order.

[¶ 6] After a trial to the district court in November 2005, the court dismissed Baukol Builders’ action. The court decided Grand Forks County’s publication of the invitation to bid less than 21 days before opening the bids did not adversely affect Baukol Builders because it made a timely bid. The court concluded the County complied with the “lowest responsible bidder” requirement and the “lowest and best bidder” requirement of the applicable competitive bidding statutes, because those statutes allowed the County to exercise discretion to consider the ability, experience, integrity, efficiency, reputation, and capacity of the bidders. The court concluded each bidder’s estimated completion date was an item of competition and the County was entitled to consider that an earlier completion date would generate additional revenue from the housing of federal prisoners, which could be applied to reduce the County’s obligation on the bonds. The court found the County’s decision to award the contract to Construction Engineers was not the result of favoritism, fraud, collusion, or coercion. The court decided Baukol Builders failed to establish that the County’s decision to award the contract to Construction Engineers was arbitrary, unreasonable, or capricious.

[¶ 7] Baukol Builders appealed. While the appeal was pending, this Court granted Baukol Builders’ motion for a temporary remand to resolve post-trial motions. Baukol Builders then moved for a new trial under N.D.R.Civ.P. 59(b)(4), claiming newly discovered evidence that, contrary to the trial testimony of the correctional facility administrator, the County did not have a signed written contract to house additional federal prisoners at the increased rate of $110 per day beginning on October 1, 2005. The court denied Baukol Builders’ motion for a new trial, concluding the claimed newly discovered evidence would not have changed the result of the trial. The court also granted Baukol Builders’ request for additional discovery from the five county commissioners in office when the bid was awarded to Construction Engineers. After conducting additional discovery, Baukol Builders renewed its post-trial motion. The court denied Baukol Builders’ renewed motion, again concluding the claimed newly discovered evidence would not have changed the outcome of the trial because the County had no reason to believe a rate increase for federal prisoners would not take effect on October 1, 2005. The court decided the County acted in good faith in August 2005 in deciding the anticipated increased jail revenue warranted an earlier completion date for the project. The court concluded the County’s failure to subsequently receive a rate increase did not negate its August 2005 decision to award the contract to Construction Engineers rather than to Baukol Builders.

[¶ 8] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. §§ 27-05-06 and 32-23-01. Baukol Builders’ appeal is timely under N.D.RApp.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. §§ 28-27-01, 28-27-02, and 32-23-07.

II

[¶ 9] Baukol Builders contends Grand Forks County did not comply with the statutory requirement of N.D.C.C. § 48-01.1-03 (1999) for advertising for bids by publishing notice for three consecutive weeks before the date for opening bids. Baukol Builders contends the district court erred in failing to reject or annul the bidding process on that ground.

[¶ 10] At the time of these bids, N.D.C.C. § 48-01.1-03 (1999) provided that, if the estimated cost of a public improvement construction contract was greater than $100,000, “the governing body shall advertise for bids by publishing for three consecutive weeks, the first publication to be at least twenty-one days before the date of the opening of bids.” See N.D.C.C. § 48-01.2-04(1) (Supp.2007) (implementing same 21-day requirement). Grand Forks County does not dispute that its first publication of the advertisement for bids was less than 21 days before the opening of the bids.

[¶ 11] A party cannot seek to enjoy the benefits of a transaction under the law and thereafter challenge the validity of the transaction. Quist v. Best W. Int’l, Inc., 354 N.W.2d 656, 664-65 (N.D.1984); Frieh v. City of Edgeley, 317 N.W.2d 818, 819-20 (N.D.1982). In Frieh, at 819, the City of Edgeley advertised for bids for the collection of garbage. Id. The plaintiffs submitted bids for the contract, but another bidder was awarded the contract. Id. The plaintiffs then challenged the city’s decision, asserting it was improper for the city to engage in a bidding process for obtaining garbage services in the absence of a city ordinance or a resolution authorizing the process. Id. In holding the plaintiffs were precluded from challenging the city’s contracting process, this Court said:

Our Court has repeatedly held that a party seeking to enjoy the benefits under a law cannot thereafter, in the same proceedings, question the constitutionality of the act. We are not aware of any valid reason why the same rationale and concept should not apply to an action challenging the validity of the city’s action as distinguished from an action challenging the legality of the law under which the city acted.
Frieh’s voluntary participation in the city’s bidding process, not only once but twice, without raising any objection as to the city’s authority or proper procedure amounts to consent and he cannot now be heard to complain or object because he did not receive the bid and contract.

Id. at 819-20 (citations omitted).

[¶ 12] The district court decided that opening the bids less than 21 days after the first publication of the advertisement for bids did not adversely affect Baukol Builders, because it made a timely bid. We agree with the district court that Bau-kol Builders did not establish it was harmed by the early opening of bids, and Baukol Builders, after submitting a timely bid, cannot now complain about the early opening of the bids.

Ill

[¶ 13] Baukol Builders argues Grand Forks County used unstated and hidden criteria in its bid solicitation and specifications and awarded the contract to Construction Engineers in violation of the applicable competitive bidding requirements of N.D.C.C. ch. 48-01.1 (1999).

A

[¶ 14] Baukol Builders claims Grand Forks County’s decision to award the contract was based on three criteria that were not stated in the bid specifications: (1) job schedule and date of completion, (2) potential revenues for housing federal prisoners, and (3) saving interest expenses. Baukol Builders contends the County’s failure to state those criteria in the bid specifications violates this Court’s decisions in Mini Mart, Inc. v. City of Minot, 347 N.W.2d 131 (N.D.1984), and Danzl v. City of Bismarck, 451 N.W.2d 127 (N.D.1990). Grand Forks County responds it did not rely on unstated and hidden criteria in awarding the bid, because the job schedule and date of completion were identified in the instructions to bidders.

[¶ 15] In Mini Mart, 347 N.W.2d at 133, an applicant for a retail beer license challenged a city’s refusal to issue the license. The applicant claimed the city relied upon unwritten criteria of “the demography of the area, the geography, and the public mood respecting driving while under the influence of alcoholic beverages” in denying the license application. Id. This Court affirmed the district court’s decision to grant a writ of mandamus and order the city to issue the license to the applicant, concluding the city could not rely on unwritten standards and criteria in denying the application. Id. at 141.

[¶ 16] Here, Grand Forks County’s “call for bids” and “instructions to bidders” said construction would “start immediately” and “[a]ll work should be substantially complete as soon as possible and the bidder shall indicate on his bid form the date he proposes to have the Work completed.” The bid form specifically required each prospective bidder to state its completion date for the contract. Baukol Builders does not contend a completion date cannot be an item of competition for competitive bidding. We agree with the district court that the language in the call for bids, the instructions to bidders, and the bid form made the completion date a stated item of competition for the contract for the new correctional center and authorized Grand Forks County to consider the prospective bidder’s proposed completion date, which necessarily implicated additional potential revenue from housing federal prisoners and savings on interest expenses. Because the County’s decision to award the contract to Construction Engineers was not based on unwritten criteria, we conclude Baukol Builders’ reliance on Mini Mart is misplaced.

[¶ 17] In Danzl, 451 N.W.2d at 128, this Court considered an appeal in a taxpayer’s action to enjoin a city from constructing an addition to a public building. After bids for the four separate prime contracts for plumbing and heating, ventilation and air conditioning, electrical, and general were opened, the city negotiated with the four low bidders for lower prices based on revisions in the plans and specifications, and contracts were executed on the basis of those revisions. Id. The taxpayer claimed the procedure for renegotiation and revision of plans violated the competitive bidding statutes. Id. This Court described the purpose of the competitive bidding statutes:

Statutory competitive bidding requirements are enacted for the benefit of the public and taxpayers to invite competition; to prevent favoritism, fraud, corruption, improvidence, extravagance, and collusion; and to secure the best work or supplies at the lowest price practicable. Competitive bidding requirements “promote honesty, economy, and aboveboard dealing in the letting of public contracts.”

Danzl, at 130 (citations omitted). This Court concluded the city violated the competitive bidding statutes when it revised specifications to reduce construction costs and negotiated with the four separate low bidders without affording other bidders an opportunity to bid on the revised project. Id. at 131. See also Becker Elec., Inc. v. City of Bismarck, 469 N.W.2d 159, 162 (N.D.1991) (holding contractor not entitled to recover bid preparation costs after court decided city violated competitive bidding statutes). Danzl involved a change in contract plans and specifications after bids were opened and is not controlling because this case does not involve changes in plans and specifications.

[¶ 18] We conclude Mini Mart and Danzl are not controlling, and we consider Baukol Builders’ arguments about the competitive bidding statutes in the context that the completion date was a stated item of competition for the contract.

B

[¶ 19] Baukol Builders asserts it was the “lowest responsible bidder” for the contract under N.D.C.C. § 48-01.1-02 (1999), and the district court erred in deciding Grand Forks County’s award of the contract to Construction Engineers satisfied the requirements of that statute. Baukol Builders argues the plain language of N.D.C.C. § 48-01.1-02 did not give Grand Forks County discretion to weigh a bidder’s relative responsibility in determining the most responsible bidder. Bau-kol Builders asserts the particular language in N.D.C.C. § 48-01.1-02 regarding criteria for awarding contracts controls the general language in N.D.C.C. § 48-01.1-07 (1999) to “award the contract to the lowest and best bidder.”

[¶ 20] Grand Forks County argues N.D.C.C. §§ 48-01.1-02 and 48-01.1-07, when construed together, required a governing body to award a contract to the “lowest responsible bidder” and to the “lowest and best bidder,” not to the lowest dollar bidder. Grand Forks County asserts those statutes, construed together, authorized the County to exercise discretion in awarding the bid and allowed it to consider the ability, capacity, experience, integrity, efficiency, and reputation of the bidder.

[¶ 21] During the bidding procedure for this contract, N.D.C.C. § 48-01.1-02 (1999) authorized a governing body to award a public improvement construction contract to the “lowest responsible bidder” and provided:

A governing body shall award a contract for the construction of a public improvement under this chapter to the lowest responsible bidder. The governing body may reject any bid and readvertise for proposals if no bid is satisfactory, or if it believes any agreement has been entered into by the bidders or others to prevent competition. If the governing body determines that an emergency situation exists, a contract may be made without seeking bids.

Section 48-01.1-07, N.D.C.C. (1999), dealt with awards of public improvement contracts to the “lowest and best bidder” and provided:

At the time and place specified in the notice, the governing body shall open publicly and read aloud all bids received and thereafter award the contract to the lowest and best bidder or reject all bids. The governing body may advertise for new bids in accordance with this chapter until a satisfactory bid is received. The governing body shall require the contractor to whom the contract is awarded to post a bond in accordance with chapter 48-02.

Other statutes in N.D.C.C. chs. 48-01.i (1999) and 48-02 (1999) also referred to the lowest and best bidder or bids. See N.D.C.C. §§ 48-01.1-05(4); 48-01.1-06; 48-02-10.2.

[¶ 22] Statutory interpretation is a question of law, fully reviewable on appeal. In re P.F., 2008 ND 37, ¶ 11, 744 N.W.2d 724. The primary purpose of statutory interpretation is to determine legislative intent. Estate of Elken, 2007 ND 107, ¶ 7, 735 N.W.2d 842. Words in a statute are given their plain, ordinary, and commonly understood meaning, unless defined by statute or unless a contrary intention plainly appears. N.D.C.C. § 1-02-02. Statutes are construed as a whole and are harmonized to give meaning to related provisions. N.D.C.C. § 1-02-07. If the language of a statute is clear and unambiguous, “the letter of [the statute] is not to be disregarded under the pretext of pursuing its spirit.” N.D.C.C. § 1-02-05. If the language of a statute is ambiguous, however, a court may resort to extrinsic aids to interpret the statute. N.D.C.C. § 1-02-39.

[¶ 23] Sections 48-01.1-02 and 48-01.1-07, N.D.C.C., are both general statutes that deal with the “award” of public improvement construction contracts, and when construed together, they do not require a public entity to award a contract to the lowest bidder. Rather, the plain language of those statutes requires the award to the “lowest responsible bidder” and the “lowest and best bidder.” In 2002, the attorney general issued a formal opinion, stating the term “lowest and best bidder” in those competitive bidding statutes was at least as comprehensive as the term “lowest responsible bidder.” N.D. Op. Atty. Gen. 2002-F-04. Relying on Chaffee v. Crowley, 49 N.D. 111, 190 N.W. 308 (1922), and Ellingson v. Cherry Lake Sch. Distr., 55 N.D. 141, 212 N.W. 773 (1927), the attorney general concluded a public entity has discretion to determine the lowest responsible bidder and may consider the bidder’s ability, skill, reputation, integrity, experience, efficiency and capacity. N.D. Op. Atty. Gen. 2002-F-04.

[¶ 24] In Chaffee, 49 N.D. at 114, 190 N.W. at 308, this Court said it was well recognized that an earlier version of the law for awarding public construction contracts to the lowest responsible bidder granted the governing body discretionary authority to consider the bidder’s ability, capacity, reputation, experience, and efficiency. This Court affirmed a decision to award a bid to the prospective bidder with the third lowest dollar bid, stating there was “no showing [the county commissioners] did not exercise their best judgment within the discretion they possessed in selecting the lowest responsible bidder, nor that they acted in bad faith or other than for the best interests of the county.” Id.

[¶ 25] In Ellingson, 55 N.D. at 148, 212 N.W. at 775, this Court reiterated that the word “responsible” in the phrase “lowest responsible bidder” means something more than mere financial responsibility; it means responsibility regarding the duty to be assumed by the contractor under the particular contract and includes all the various elements that bear on the question, such as the integrity of the bidder, and the bidder’s skill, ability, and capacity to perform the particular work. This Court sustained a school board’s award of a contract to a highest dollar bidder, stating there was no claim that the school board acted arbitrarily, fraudulently, or collusively, or that its judgment was influenced by improper motives. Id. at 148-49, 212 N.W. at 776.

[¶ 26] Formal opinions of the attorney general are entitled to respect, and courts should follow them if they are persuasive. Roe v. Doe, 2002 ND 136, ¶ 12, 649 N.W.2d 566. Although not binding on courts, an attorney general’s opinion nevertheless has an important bearing on the construction and interpretation of a statute. Edinger v. Governing Auth. of Stutsman County Corr. Ctr., 2005 ND 79, ¶ 13, 695 N.W.2d 447.

[¶ 27] We conclude the 2002 attorney general’s opinion is persuasive and consistent with this Court’s prior interpretations of lowest responsible bidder and the language of the applicable competitive bidding statutes. We conclude those authorities allowed Grand Forks County to exercise some discretion in awarding the public improvement construction contract to the “lowest responsible bidder” and, when coupled with the use of the date of completion as an item of competition, allowed the County to consider the bidder’s ability, capacity, reputation, experience, and efficiency. See also 64 Am.Jur.2d Public Works and Contracts §§ 67, 70 (2001) (recognizing public authorities have some discretion in awarding public contracts under statutes requiring award to lowest responsible bidder and lowest and best bidder). We therefore hold the district court did not err in construing the applicable competitive bidding statutes to authorize a governing body to exercise some discretion in awarding a public improvement construction contract to the lowest responsible bidder.

C

[¶ 28] Baukol Builders argues that even if Grand Forks County had discretion to award the contract to Construction Engineers, the County abused its discretion.

[¶ 29] As we have already concluded, the completion date was a stated item of competition for the contract, and this record reflects an early completion date and the additional potential revenue and interest savings were important factors in Grand Forks County’s decision to award the contract to Construction Engineers. The district court found there was no favoritism, fraud, corruption, or collusion in the County’s decision to award the contract to Construction Engineers. See Danzl, 451 N.W.2d at 132 (no allegation of favoritism, fraud, corruption, collusion, or lack of good faith); Ellingson, 55 N.D. at 148, 212 N.W. at 776 (no claim school board acted fraudulently, collusively, or arbitrarily, or its judgment was influenced by improper motives, and record showed school board acted in good faith); Chaffee 49 N.D. at 114, 190 N.W. at 308 (no showing governing authority acted in bad faith or other than in the best interests of the county). The court’s factual findings about no favoritism, fraud, corruption, or collusion are not clearly erroneous under N.D.R.Civ.P. 52(a). On this record, we conclude the district court did not err in deciding Grand Forks County did not abuse its discretion in awarding the contract to Construction Engineers.

IV

[¶ 30] Baukol Builders argues the district court erred in denying its post-trial motions and in not awarding it attorney fees.

A

[¶ 31] Baukol Builders claims Grand Forks County used false testimony and false evidence to further its justification for awarding the contract to Construction Engineers. The claimed false evidence pertains to trial testimony by the correctional facility administrator that there was a federal contract beginning on October 1, 2005, for housing federal inmates in the new jail for $110 per day, which would help pay for the jail and justify an earlier completion day for the project. Baukol Builders asserts Grand Forks County knew there was no federal contract at least by December 2005, which was after the November 2005 trial, and failed to correct the record before the district court issued its decision in February 2006. Baukol Builders asserts this Court should “correct this massive fraud.”

[¶ 32] Under N.D.R.Civ.P. 59(b)(4), a district court may vacate a decision and grant a new trial if there is newly discovered material evidence that the party, with reasonable diligence, could not have discovered and produced at the trial. Before a new trial is granted on the ground of newly discovered evidence, the movant must establish: 1) the evidence was discovered following trial; 2) the mov-ant exercised due diligence in discovering the evidence; 3) the evidence was not merely cumulative or impeaching; 4) the evidence was material and admissible; and 5) the evidence probably would have produced a different result. Johnson v. Johnson, 2001 ND 109, ¶ 6, 627 N.W.2d 779. A motion for a new trial on the ground of newly discovered evidence is addressed to the sound discretion of the district court, and the court’s decision will not be reversed on appeal absent an abuse of discretion. Keyes v. Amundson, 391 N.W.2d 602, 604 (N.D.1986). A court abuses its discretion if its decision is arbitrary, capricious, or unreasonable, or if it misinterprets or misapplies the law. Bertsch v. Bertsch, 2007 ND 168, 1110, 740 N.W.2d 388.

[¶ 33] The district court decided the claimed newly discovered evidence would not have changed the outcome of the trial, because when Grand Forks County made its August 2005 decision to award the contract to Construction Engineers, the County had no reason to believe a rate increase would not take effect on October 1, 2005, and the County’s failure to receive a subsequent rate increase did not negate its earlier decision. There was evidence that when Grand Forks County awarded the contract in August 2005, it believed it would receive a rate increase for additional federal prisoners, effective October 1, 2005. On this record, we cannot say the court’s decision to deny Baukol Builders’ post-trial motions was arbitrary, capricious, or unreasonable, and we therefore conclude the court did not abuse its discretion in denying Baukol Builders’ post-trial motions.

B

[¶ 34] Baukol Builders claims it is entitled to attorney fees under N.D.C.C. § 28-26-31, or Chambers v. NASCO, Inc., 501 U.S. 32, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991).

[¶ 35] Absent statutory or contractual authority, each party to a lawsuit bears its own attorney fees under North Dakota law. Danzl v. Heidinger, 2004 ND 74, ¶ 6, 677 N.W.2d 924. Section 28-26-31, N.D.C.C., authorizes a court to award attorney fees for “Allegations and denials in any pleadings in court, made without reasonable cause and not in good faith, and found to be untrue.” In Chambers, 501 U.S. at 35, 111 S.Ct. 2123, the United States Supreme Court held federal courts have inherent power to assess attorney fees as a sanction for a party’s bad-faith conduct in litigation.

[¶ 36] Here, the district court found Grand Forks County acted in good faith regarding the information about the reimbursement rate for federal prisoners and the later information would not have changed the court’s decision. In view of the district court’s finding about the County’s good faith, we conclude Baukol Builders is not entitled to attorney fees under N.D.C.C. § 28-26-31, or, assuming its rationale is applicable here, under Chambers.

V

[¶ 37] We affirm the judgment and the orders denying Baukol Builders’ post-trial motions.

[¶ 38] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS and MARY MUEHLEN MARING, JJ., and ALLAN L. SCHMALENBERGER, D.J., concur.

[¶ 39] The Honorable ALLAN L. SCHMALENBERGER, D.J., sitting in place of KAPSNER, J., disqualified.

      . Chapters 48-01.1 and 48-02, N.D.C.C., were repealed in 2007, and the current provisions for public improvement bids and contracts are in N.D.C.C. ch. 48-01.2. See 2007 N.D. Sess. Laws ch. 403.

      . The current provisions for public improvement bids and contracts define “lowest responsible bidder” to mean "the lowest best bidder for the project considering past experience, financial condition, past work with the governing body, and other pertinent attributes that may be identified in the advertisement for bids.” N.D.C.C. § 48-01.2-01(19) (Supp. 2007). Seen. 1.


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2008 ND 115
    Eric John PETERSON, Petitioner and Appellee v. Francis G. ZIEGLER, Director, N.D. Department of Transportation, Respondent and Appellant.
    No. 20070275.
    Supreme Court of North Dakota.
    June 9, 2008.

      Mandy R. Maxon (argued), and Timothy Q. Purdon (appeared), Vogel Law Firm, Bismarck, N.D., for petitioner and appel-lee.
    Michael Trent Pitcher, Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for respondent and appellant.
   MARING, Justice.

[¶ 1] The Department of Transportation appeals from a judgment reversing its decision to revoke Eric John Peterson’s driving privileges for 365 days. We con-elude the district court erred in reversing the Department’s decision on the ground that the Department’s brief was not timely filed. Because Peterson was not harmed by the arresting officer’s failure to recite the implied consent advisory before Peterson chose to submit to a blood-alcohol test, we further conclude the test results were properly admitted in evidence and the Department had the authority to revoke Peterson’s driving privileges. We reverse the judgment and reinstate the Department’s decision.

I

[¶ 2] At approximately 11:46 p.m. on March 22, 2007, a Burleigh County deputy sheriff stopped Peterson near Bismarck because his pickup did not have a working rear license plate light. After smelling alcohol on Peterson’s breath, the deputy asked Peterson to submit to field sobriety tests. Peterson failed the tests. The deputy gave Peterson the implied consent advisory regarding the loss of driving privileges if he refused to submit to a test. Peterson took the S-D2 onsite screening test, and the device estimated Peterson’s blood-alcohol concentration to be .10 percent by weight. The deputy placed Peterson under arrest and asked Peterson to submit to a blood-alcohol test, but the deputy did not repeat the implied consent advisory. Peterson consented to the blood-alcohol test, and the results showed Peterson had a blood-alcohol concentration of .09 percent by weight. Following an administrative hearing, the Department suspended Peterson’s driving privileges for 365 days.

[¶ 3] Peterson appealed the Department’s decision to district court. The court summarily reversed the Department’s decision without reaching the merits and restored Peterson’s driving privileges. The court ruled reversal was required because the Department failed “to file a brief within ten days of the service of the appellant’s brief.”

II

[¶ 4] On appeal, the Department argues the district court erred in reversing its decision to revoke Peterson’s driving privileges for 365 days.

[¶ 5] This Court exercises a limited review in appeals involving driver’s license suspensions and revocations. May v. Sprynczynatyk, 2005 ND 76, ¶ 5, 695 N.W.2d 196. We will affirm the Department’s decision unless:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

N.D.C.C. § 28-32^6.

A

[¶ 6] The Department argues the district court erred in reversing its decision on the ground that its brief was not timely filed.

[¶ 7] After Peterson filed his appeal, the District Court Administrator sent the parties letters stating:

The above entitled matter has been assigned to the Honorable BRUCE B. HASKELL. The appellant’s brief must be submitted on or before JULY 3, 2007. The appellee’s brief shall be served and filed within 10 days after service of the appellant’s brief.

Peterson served his brief on July 2, 2007, and it was filed with the district court on July 3, 2007. The Department served its brief on July 18, 2007, and it was filed with the court on July 19, 2007. The Department contends, and Peterson concedes, that if the time computation rules in N.D.R.Civ.P. 6 apply, the Department’s brief was timely filed on July 19, 2007, the same day the court summarily reversed the Department’s decision. Peterson argues the district court had the inherent authority to modify or dispense with the normal time computation rules in N.D.R.Civ.P. 6 and the court did not abuse its discretion in imposing reversal as a sanction for the Department’s failure to follow the court’s scheduling order. See Bachmeier v. Wallwork Truck Ctrs., 544 N.W.2d 122, 125 (N.D.1996) (“Sanctions based on th[e] inherent power [of a district court] will be overturned on appeal only upon a showing of abuse of discretion”).

[¶ 8] Peterson primarily relies on Ringsaker v. North Dakota Workers Comp. Bureau, 2003 ND 122, 666 N.W.2d 448, to support his argument. In Ring-saker, at ¶ 3, the Bureau requested an extension of time to file a brief and included a proposed order stating the Bureau “ ‘shall have until August 2, 2002 in which to file its appellee’s brief in this matter,’ ” which the court signed. The Bureau mailed its brief on August 2, 2002, but the actual filing occurred on August 5, 2002, and the district court entered judgment in favor of the injured worker because the brief was filed late. Id. at ¶ 4. Noting that litigants have an “ ‘unflagging duty to comply with clearly communicated case-management orders,’ ” this Court ruled the failure to timely file the brief was an event for which the district court could impose a sanction, but concluded the court abused its discretion in imposing the sanction because it failed to consider prejudice and the availability of less severe sanctions than requiring the Bureau to accept the injured worker’s claim. Id. at ¶¶ 10, 14 (quoting Rosario-Diaz v. Gonzalez, 140 F.3d 312, 315 (1st Cir.1998)).

[¶ 9] Ringsaker is distinguishable because, unlike the situation in that case, the Department did not violate a clearly communicated case-management order. The letter from the District Court Administrator contains no date certain for the Department’s brief to be filed. The letter says only “within 10 days after service of the appellant’s brief,” and does not specify that the time computation rules in N.D.R.Civ.P. 6 do not apply. Generally, N.D.R.Civ.P. 6 applies to an appeal from an administrative agency decision unless the provisions of the rule conflict with a governing statute. See Shafer v. Job Service North Dakota 464 N.W.2d 390, 391-92 (N.D.1990). While a district court may have the inherent authority to shorten time periods or dispense with the time computation rules in N.D.R.Civ.P. 6 under some circumstances, the court must provide notice that it is doing so. The District Court Administrator’s letter did not give notice that the usual time computation rules in N.D.R.Civ.P. 6 do not apply. Moreover, the district court simply reversed the Department’s decision without considering prejudice to Peterson or less severe sanctions.

[¶ 10] We conclude the district court abused its discretion in reversing the Department’s decision on the ground that the Department’s brief was untimely filed.

B

[¶ 11] The dispositive issue on the merits in this case is whether Peterson is entitled to prevail because the arresting officer failed to repeat the implied consent advisory before Peterson consented to a blood-alcohol test. We may decide the question without first remanding to the district court for consideration of the issue. See Peterson v. Director, North Dakota Dep’t of Transp., 536 N.W.2d 367, 370 (N.D.1995).

[¶ 12] This case is controlled by our recent decision in Brewer v. Ziegler, 2007 ND 207, 743 N.W.2d 391. In Brewer, at ¶ 22, the driver argued the arresting officer’s failure to give her the implied consent advisory under N.D.C.C. § 39-20-14 before submitting to an SD-2 screening breath test required exclusion of the preliminary breath test results. At the pertinent time, N.D.C.C. § 39-20-14 provided in relevant part that “[t]he officer shall inform the person that refusal of the person to submit to a screening test will result in a revocation for up to three years of that person’s driving privileges.” (Amended effective August 1, 2007, to allow for revocation up to four years; see 2007 N.D. Sess. Laws ch. 325, § 6). In rejecting the driver’s argument, we reasoned:

The implied consent advisory informs a person that refusal to submit to a screening test will result in revocation of the person’s driving privileges. The advisory is meant to inform a person of the severe consequences of refusing to take a screening test. Here, Brewer consented to take a screening test without the advisory being given to her. Brewer cites no authority to support her argument that preliminary test results must be excluded when a person voluntarily submits to a screening test without being given the implied consent advisory. Because Brewer did not refuse to take the screening test, she was not prejudiced by Arman’s failure to give the advisory, and her argument is without merit.

Brewer, at ¶ 23.

[¶ 13] The same rationale applies in this case. Section 39-20-01, N.D.C.C., similarly provides that “[t]he law enforcement officer shall also inform the person charged that refusal of the person to submit to the test determined appropriate will result in a revocation for up to four years of the person’s driving privileges.” The implied consent advisory under N.D.C.C. § 39-20-01 serves the identical purpose of informing the person of the severe consequences of refusing to take a chemical test. Because Peterson consented to the blood-alcohol test, he was not harmed by the deputy’s failure to repeat the implied consent advisory. Consequently, the blood-alcohol test results were properly admitted in evidence and the Department had the authority to revoke Peterson’s driving privileges.

[¶ 14] We conclude the Department did not err in revoking Peterson’s driving privileges for 365 days.

Ill

[¶ 15] It is unnecessary to address the other arguments raised. We conclude the Department’s findings of fact are supported by a preponderance of the evidence, the conclusions of law are sustained by the findings of fact, and the decision is supported by the conclusions of law. The judgment is reversed and the Department’s decision is reinstated.

[¶ 16] GERALD W. VANDE WALLE, C.J., RICHARD LEE HAGAR, D.J., MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ., concur.

[¶ 17] The Honorable RICHARD LEE HAGAR, D.J., sitting in place of KAPSNER, J., disqualified.


author: KAPSNER, Justice.

text:
    2008 ND 117
    RED RIVER WINGS, INC., Plaintiff and Appellee v. HOOT, INC., Defendant and Appellant. Richard H. Walstad, Hoadley Harris, David Butler, and John Boulger, All individually and on behalf of Canadian Wings Investment Limited Partnership, and Hoadley Harris and David Butler individually and on behalf of Manitoba Wings Investment Limited Partnership, Plaintiffs, Appellees, and CrossAppellants v. Curtis H. Kesselring and Dennis D. Leno d/b/a ME Investments, L.L.P., and Hoot, Inc., Louis Emerson, Arthur Stern, Jerry Baldwin, Patricia Corwin, Clinton L. Emerson, Jill Baldwin, Patricia Corwin Trust, Clinton L. Emerson Trust, Defendants, Appellants, and Cross-Appellees and Corwin-Wilson Management, Neil Clark, John Fercho, Mike Rufer, Data Enterprises, Wings Unlimited and Red River Wings, Inc., Defendants Hoot, Inc., as general partner in Canadian Wings Investment Limited Partnership and Manitoba Wings Investment Limited Partnership, and Louis A. Emerson, Clinton L. Emerson, Clinton L. Emerson Trust, Patricia Corwin, Patricia Corwin Trust, Jill S. Baldwin, Jerry J. Baldwin, Arthur Stern and M.E. Investments, LLP, as derivative action limited partners in Canadian Wings Investment Limited Partnership and/or Manitoba Wings Investment Limited Partnership, Plaintiffs, Appellants, and Cross-Appellees v. Thomas M. Lavelle, Red River Wings, Inc., David Dziedzic, Dyan K. Dockter, and Shelly J. Dockter, Defendants and Appellees and LTM, Inc., LTM, Inc., d/b/a LTM, Ltd., Defendants, Appellees, and Cross-Appellants and Canadian Wings Investment Limited Partnership and Manitoba Wings Investment Limited Partnership, Nominal Defendants.
    Nos. 20070087, 20070088, 20070089.
    Supreme Court of North Dakota.
    June 20, 2008.

      Bruce H. Carlson, McNair, Larson & Carlson, Ltd., Fargo, N.D., for appellees Thomas M. Lavelle, Red River Wings, Inc., Dyan K. Dockter, Shelly J. Dockter, Wings Unlimited and Data Enterprises and appellee and cross-appellant LTM, Inc.
    Ronald H. McLean (argued) and Timothy G. Richard (appeared), Serkland Law Firm, Fargo, N.D., for appellees and cross-appellants Richard H. Walstad, Hoadley Harris, David Butler, and John Boulger, Canadian Wings Investment Limited Partnership, and Manitoba Wings Investment Limited Partnership.
    Timothy R. Thornton (argued), Jonathan P. Schmidt (appeared) and Timothy G. Gelinske (on brief), Briggs & Morgan, P.A., Minneapolis, MN, and Patrick R. Morley (appeared), Morley Law Firm, Ltd, Grand Forks, N.D., for appellants and cross-appellees Curtis H. Kesselring and Dennis D. Leño d/b/a ME Investments, L.L.P., and Hoot, Inc., Louis Emerson, Arthur Stern, Jerry Baldwin, Patricia Cor-win, Clinton L. Emerson, Jill Baldwin, Patricia Corwin Trust, and Clinton L. Emerson Trust.
   KAPSNER, Justice.

[¶ 1] A majority of limited partners in two limited partnerships appeal from a judgment awarding damages and attorney fees to the minority of the limited partners in the limited partnerships and dismissing the majority’s claims against persons and entities involved in a business dispute over two Hooters franchise restaurants in Canada. A former general partner of the limited partnerships and its principals have cross-appealed from the judgment. We affirm in part, reverse in part, and remand for further proceedings.

A

[¶ 2] Thomas M. Lavelle is a Fargo restauranteur who owns and manages restaurants through LTM, Ltd. (“LTM”), a corporation whose only shareholder is La-velle. Dyan Dockter and Shelly Dockter are employed by the company and they oversee LTM’s management duties. In the mid 1990s, Lavelle learned from Arthur Stern, who worked in the restaurant equipment supply business and had a longstanding business relationship with La-velle, that Hooters of America was looking to expand into Canada and there was the potential to acquire a Hooters franchise there. Hooters of America approved La-velle as a franchisee, but as a condition for getting a first franchise in Edmonton, Alberta, Lavelle had to purchase options for three additional franchises in Calgary, Alberta; Winnipeg, Manitoba; and Banff, Alberta. The franchise fee for the first restaurant was $75,000, plus a $10,000 nonrefundable fee for each of the additional option locations.

[¶ 3] Because of the expenses involved and the business risks, Lavelle decided to find investors and sought advice from a friend and retired securities broker, Louis Emerson. Emerson suggested a limited partnership as the best entity to finance and organize the venture and said he believed he could find a sufficient number of investors in the Fargo area. Emerson also recommended an attorney to draft the necessary legal documents. The attorney prepared a private placement memorandum for Canadian Wings Investment Limited Partnership (“Canadian Wings”) and Lavelle formed Red River Wings, Inc. (“Red River Wings”), to serve as the general partner. The private placement memorandum informed potential investors that LTM would provide management services for the restaurants. Ownership units in Canadian Wings were offered for $80,000 per unit, and Emerson sold ten units to various investors. Many of the investors, including Richard Walstad, John Boulger, Hoadley Harris and the Harris Trust, David Butler, and ME Investments, LLP (“ME Investments”), a limited liability partnership formed by Curtis Kesselring and Dennis Leno, invested primarily because of Lavelle’s reputation and involvement in the business. For their services, Stern and Emerson received fees and profits-only interests as special limited partners.

[¶ 4] Lavelle was required by the West Edmonton Mall and Hooters of America to open the first Canadian restaurant as soon as possible. In order to meet the deadline, Lavelle borrowed money to construct the Edmonton Hooters restaurant. Kesselr-ing and Leno did not make their investment, through ME Investments, until August 1996, one month after the restaurant had opened. The Edmonton restaurant was profitable from the beginning and the limited partners received healthy returns on their investments.

[¶ 5] Under the Hooters of America franchise agreement, the option for a second Hooters restaurant in Canada had to be exercised within six months of the opening of the Edmonton restaurant. In December 1996, Lavelle offered to all partners in Canadian Wings the opportunity to invest in Manitoba Wings Investment Limited Partnership (“Manitoba Wings”), a partnership formed to own a Hooters restaurant in Winnipeg. Manitoba Wings was structured in the same manner as Canadian Wings, but the offering price per unit was $56,000 because of lower occupancy costs in Winnipeg. Emerson and Stern undertook their same roles in exchange for profits-only special limited partner interests. Emerson was unable to sell all of the units, however, and Data Enterprises, a partnership consisting of Lavelle and Dyan Dockter, and Wings Unlimited, a partnership consisting of Lavelle, Dyan Dockter, and Shelly Dockter, purchased two of the units to complete the initial offering. ME Investments, David Butler, and Hoadley Harris Trust also purchased units. Lavelle again borrowed money and advanced funds for the construction of the Winnipeg restaurant. Manitoba Wings opened the Winnipeg restaurant in March 1997 shortly before the 1997 Red River flood and in the face of bad pre-opening publicity. Nevertheless, the investors received returns on their investment, but less than the returns from the Edmonton restaurant.

[¶ 6] In spring 1998, Stern became disturbed with Lavelle over projects other than the Edmonton and Winnipeg Hooters restaurants. Stern was upset that he was not hired as a consultant for the remodeling of one of Lavelle’s restaurants in Billings, Montana, and was unhappy with La-velle’s offer regarding his involvement in the development of a Hooters restaurant in Calgary. Stern sent faxes to several of the partners accusing Lavelle of dishonesty. Meanwhile, Lavelle’s relationship with Emerson was also becoming strained. Emerson informed Lavelle that he had no investor prospects for the Calgary Hooters restaurant, and Lavelle decided to not use Emerson as the broker. Kesselring and Leno were also pressuring Emerson because the distributions from Manitoba Wings were not meeting his projections.

[¶ 7] ME Investments, Emerson, Stern, Jerry Baldwin, Jill Baldwin, Patricia Corwin, and Clinton Emerson held a majority of the interests in the limited partnerships. Because the majority limited partners were dissatisfied with the performance of the Winnipeg restaurant, a meeting was held in May 1998 and their concerns were addressed by an accountant. In summer 1998, the majority limited partners hired a certified public accountant to investigate the financial records of Canadian Wings and Manitoba Wings, but no evidence of wrongdoing was found. The majority limited partners were not satisfied with the report and decided to take over the management of the two partnerships. They consulted with a law firm about removing Red River Wings from the partnerships and installing a new general partner. At the suggestion of Stern, they also contacted Texas Wings, a company that managed many Hooters restaurants in the United States, about taking over the management duties of LTM. The law firm responded that if Red River Wings was removed as the general partner, the limited partnerships would terminate unless a substitute general partner was appointed in accordance with N.D.C.C. § 45-10.1-47.

[¶ 8] On October 25, 1998, the majority limited partners, through written action and without notice to minority limited partners, removed Red River Wings as the general partner of the two limited partnerships and appointed Hoot, Inc. (“Hoot”), as the replacement general partner. Hoot was a corporation formed by Kesselring and Leno for the sole purpose of serving as the replacement general partner for the limited partnerships. The majority partners also terminated the management contracts the partnerships had with LTM. Lavelle, who was aware of the majority partners’ dissatisfaction, offered to amend the partnership agreements by changing the distribution allocations between the limited partners and the general partner which would have been financially beneficial to the limited partners. Lavelle’s offer was not received until the day after the takeover, and the majority partners refused to reverse their decision to oust Red River Wings and LTM from the partnerships and the business ventures. The minority limited partners, which included Walstad, Boulger, Harris, and Butler, protested the takeover.

[¶ 9] After executing the written action disposing of Red River Wings as the general partner, Stern and a representative of Texas Wings traveled to Edmonton to physically take control of the Canadian Wings restaurant. At the same time, Emerson and Swede Stelzer, the sole officer, director, and shareholder of Hoot and an employee of Kesselring and Leno, traveled to Winnipeg to take over the Manitoba Wings restaurant. The majority partners had made prior arrangements with the landlords and locksmiths for the physical takeover. Stern’s expenses were paid by the partnerships.

[¶ 10] Texas Wings performed poorly as the manager of the Edmonton and Winnipeg Hooters restaurants. After Hoot became the general partner, the limited partners did not receive distributions from Canadian Wings for almost two years, and the limited partners received no distributions from Manitoba Wings for almost three years. Within less than one year, Texas Wings voluntarily terminated its services after Stelzer informed Texas Wings of the limited partners’ dissatisfaction with its poor performance. The majority partners, without input from the minority partners, hired UD Consulting to manage the Edmonton and Winnipeg restaurants.

[¶ 11] The majority partners eventually sued Lavelle, Red River Wings, LTM, Shelly Dockter, Dyan Dockter and others in federal court seeking damages allegedly caused by Lavelle and his group. After the majority partners spent more than two years in litigation and about $350,000 in fees and costs, the federal court in 2002 dismissed the lawsuit without prejudice for lack of standing. On October 3, 2002, the majority partners voted to continue the lawsuit against Lavelle as a partnership claim and for the partnerships to assume the costs of the prior and future litigation. Minority partners objected, but those objections were ignored.

[¶ 12] The minority partners responded by seeking a temporary restraining order in state court to prevent the majority partners from taking the funds from the partnerships. The district court issued a restraining order against Hoot, and eventually appointed a receiver for both Canadian Wings and Manitoba Wings. Hooters of America was reluctant to deal with the receiver because of the majority partners’ actions. The majority partners removed Red River Wings as the general partner without obtaining the required consent of Hooters of America, and Canadian Wings, under the majority partners’ control, had sued Hooters of America. Hooters of America demanded from the receiver that any franchise must involve Lavelle and the only general partner it would accept must involve Lavelle. However, the majority partners refused to compromise, and Hooters of America terminated the franchises with Canadian Wings and Manitoba Wings and issued the franchises to Lavelle. The remaining assets of the partnerships, including their equipment, inventory, and liabilities, were purchased by Lavelle in a sale approved by the district court. The partnerships were liquidated and the receivership terminated.

[¶ 13] Three cases, which were consolidated for trial, arose from this scenario. The minority limited partners, consisting of Walstad, Harris, Butler, and Boulger, sued the majority limited partners derivatively and individually for breach of the partnership agreements and breach of fiduciary duties, and sought dissolution and an accounting of the partnerships. The majority partners, consisting of Hoot, Emerson, Clinton Emerson, Corwin, Jill Baldwin, Jerry Baldwin, Stern, and ME Investments, refiled their dismissed federal court action against Red River Wings, LTM, Lavelle, and his associates in state court. Lavelle, through Red River Wings, also sued Hoot, the replacement general partner, for damages for wrongfully withholding distributions.

[¶ 14] Following a lengthy bench trial, the district court awarded damages to the minority group and Lavelle from the majority group for breach of fiduciary duties and awarded them a partial award of attorney fees. The court dismissed the majority partners’ claims against Red River Wings, LTM, Lavelle, and his associates. The court also awarded LTM and Lavelle damages for services provided up to the date of the takeover against the majority partners and Hoot. These appeals followed.

II

[¶ 15] Relatively early in these proceedings, the district court in December 2002 granted a partial summary judgment holding as a matter of law that Canadian Wings and Manitoba Wings were dissolved on October 25, 1998, when the majority partners voted to remove Red River Wings as the general partner. The majority partners argue the court ignored the partnership agreements and limited partnership law in ruling the limited partnerships were dissolved unless unanimous approval was given by all limited partners to have Hoot appointed to serve as the successor general partner.

[¶ 16] Summary judgment is a procedural device for promptly resolving a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Superior, Inc. v. Behlen Mfg. Co., 2007 ND 141, ¶ 6, 738 N.W.2d 19. Whether a grant of summary judgment was proper is a question of law reviewed de novo by this Court. Hsu v. Marian Manor Apartments, Inc., 2007 ND 205, ¶ 7, 743 N.W.2d 672. This dispute involves interpretation of the limited partnership agreements. A contract is interpreted to give effect to the mutual intentions of the parties at the time of contracting. N.D.C.C. § 9-07-03. The mutual intention of the parties to a contract is to be ascertained from the writing alone, if possible. N.D.C.C. § 9-07-04. Unambiguous contracts are particularly amenable to summary judgment. Hsu, at ¶ 8.

[¶ 17] The limited partnership agreements provided in relevant part:

13. Dissolution, Liquidation, Winding Up, Withdrawal and Removal of General Partner.
13.1 Removal of General Partner. Fifty-one percent (51%) in aggregate investment interest of the Investor and Profits Interest Limited Partners, in a special meeting of said Limited Partners, may remove and terminate the General Partner for any reason, with or without cause. The General Partner’s interest in the profits and distributions of the Partnership shall not be extinguished or otherwise affected by the election of a new General Partner(s). In the event of the removal of a General Partner, the Partnership shall have the right to acquire the interest of the former General Partner upon terms and conditions agreed to or established by an independent appraiser, whose determination shall be subject to court review as to fairness and final approval.
• 13.2 Dissolution.
(a) The Partnership shall be dissolved upon the first to occur [of] the following:
(i) Subject to Sections 13.3 and 13.7 hereof, an event of withdrawal (as defined under North Dakota law) of the General Partner; ...
(c) At any time, the Limited Partners holding at least fifty-one percent (51%) of the Interests then held by all Limited Partners may elect to take any one or more of the following actions:
(i) remove the General Partner with or without cause effective as of the later of (A) the date notice of such election is given as provided in this paragraph (c) below, (B) such later date as may be specified in such notice or (C) upon the final resolution of any dispute, as provided in this paragraph (c) below; or
Any election referred to in clause (i) above shall be made in writing and shall be effective when notice of such election, in the form of a copy (or counterparts) of such election executed by fifty-one percent (51%) or more in interest of the Limited Partners, is given to the General Partner.
13.3 Resignation, Dissolution or Bankruptcy of General Partner. The General Partner shall have the right to resign from the Partnership at any time upon 60 days’ notice to the Limited Partners. The resignation, dissolution or bankruptcy of the General Partner shall dissolve the Partnership unless within 90 days after notice of such event is delivered to the Limited Partners, 51% in aggregate investment interest of the Limited Partners agree in writing to continue the business of the Partnership and appoint a successor General Partner. In the event that the Limited Partners so agree to continue the Partnership, the interest of the former General Partner shall be terminated in accordance with Sections 13.2 and 13.7.

[¶ 18] The partnership agreements provide in section 13.1 that 51 percent “in aggregate investment interest” of the partners “may remove and terminate the General Partner for any reason, with or without cause.” Section 13.1 does not address replacing a general partner. The majority partners had the authority to remove Red River Wings as the general partner with or without cause under the agreements. Under section 13.3, the “resignation, dissolution or bankruptcy of the General Partner shall dissolve the Partnership unless within 90 days after notice of such event is delivered to the Limited Partners, 51% in aggregate investment interest of the Limited Partners agree in writing to continue the business of the Partnership and appoint a successor General Partner.” Red River Wings did not resign, was not dissolved, and was not the subject of a bankruptcy proceeding. Section 13.3 does not address the situation where the general partner is removed by a vote of the limited partners. Under section 13.2(a)(i) of the agreements, the partnerships “shall be dissolved upon ... an event of withdrawal (as defined under North Dakota law) of the General Partner.”

[¶ 19] At the pertinent times in this case, limited partnerships were governed by the provisions of former N.D.C.C. ch. 45-10.1, rather than the provisions of N.D.C.C. ch. 45-10.2. Section 45-10.1-26(3), N.D.C.C., provided “a person ceases to be a general partner of a limited partnership upon the happening of any of the following events: ... The general partner is removed as a general partner in accordance with the partnership agreement.” This event occurred when the majority partners voted to remove Red River Wings as the general partner under the terms of the partnership agreements. Section 45-10.1^17(4), N.D.C.C., provided that “[a] limited partnership is dissolved and its affairs must be wound up upon the happening of ... [a]n event of withdrawal of a general partner unless ... within ninety days after the withdrawal, all partners agree in writing to continue the business of the limited partnership and to the appointment of one or more additional general partners if necessary or desired.” It is undisputed that only the majority partners, not all of the partners, agreed in writing to the appointment of Hoot as the replacement general partner within 90 days after Red River Wings was removed as the general partner.

[¶ 20] The terms of the partnership agreements and the relevant statutes are clear and unambiguous. The district court correctly concluded that unanimous written consent of all of the limited partners to appoint a new general partner was required within 90 days of the majority partners’ removal of Red River Wings to avoid dissolution of the limited partnerships and that unanimous consent was not acquired. However, we disagree with the district court’s conclusion that the limited partnerships were dissolved on October 25, 1998. Under the partnership agreements, the majority partners acted within their rights by removing Red River Wings on October 25, 1998, with or without cause. Under N.D.C.C. § 45-10.1-47(4), the majority partners had 90 days after October 25, 1998, to avoid dissolution by acquiring the written consent of all of the limited partners. Therefore, dissolution of the partnerships occurred not on October 25, 1998, but on January 23, 1999, when the 90-day period expired.

[¶21] We conclude the district court did not err in granting summary judgment and declaring that Canadian Wings and Manitoba Wings were dissolved as a matter of law because of the majority partners’ actions, but we conclude the date of dissolution was January 23, 1999, rather than October 25,1998.

Ill

[¶ 22] The majority limited partners raise numerous arguments in support of their contention that the district court erred in holding them liable for breach of fiduciary duties.

A

[¶ 23] The majority partners argue they cannot be held liable under the circumstances of this case because of N.D.C.C. § 45-10.1-22(1), which provided in relevant part:

[A] limited partner is not liable for the obligations of a limited partnership unless the limited partner is also a general partner or, in addition to the exercise of the limited partner’s rights and powers as a limited partner, the limited partner participates in the control of the business. However, if the limited partner participates in the control of the business, the limited partner is liable only to persons who transact business with the limited partnership reasonably believing, based upon the limited partner’s conduct, that the limited partner is a general partner.

The majority partners claim that under this statute a limited partner can be liable only if the limited partner participated in control of the business, and that liability is limited to third parties who transacted business with the limited partnership reasonably believing that the limited partner was the general partner.

[¶24] We reject the majority partners’ argument. This Court has said that “in a limited partnership, general partners, with unlimited liability, manage the business; limited partners contribute only investment capital without participating in the business and without liability beyond capital contributed.” Pear v. Grand Forks Motel Assocs., 553 N.W.2d 774, 780 n. 2 (N.D.1996). However, N.D.C.C. § 45-10.1-22(1) does not address fiduciary duties owed to a partnership and to limited partners, but addresses only the liability of a limited partner for the “obligations of a limited partnership.” Fiduciary duty claims are not obligations owed by the partnership. Section 45-10.1-27, N.D.C.C., retained fiduciary responsibilities by providing “a general partner of a limited partnership has the rights and powers and is subject to the restrictions and liabilities of a partner in a partnership without limited partners.” Section 45-16-04, N.D.C.C., sets forth the standards of a partner’s conduct:

1. The only fiduciary duties a partner owes to the partnership and the other partners are the duty of loyalty and the duty of care set forth in subsections 2 and 3.
2. A partner’s duty of loyalty to the partnership and the other partners is limited to the following:
a. To account to the partnership and hold as trustee for it any property, profit, or benefit derived by the partner in the conduct and winding up of the partnership business or derived from a use by the partner of partnership property, including the appropriation of a partnership opportunity;
b. To refrain from dealing with the partnership in the conduct or winding up of the partnership business as or on behalf of a party having an interest adverse to the partnership; and
c. To refrain from competing with the partnership in the conduct of the partnership business before the dissolution of the partnership.
3. A partner’s duty of care to the partnership and the other partners in the conduct and winding up of the partnership business is limited to refraining from engaging in grossly negligent or reckless conduct, intentional misconduct, or a knowing violation of law.
4. A partner shall discharge the duties to the partnership and the other partners under chapters 45-13 through 45-21 or under the partnership agreement and exercise any rights consistently with the obligation of good faith and fair dealing.
5. A partner does not violate a duty or obligation under chapters 45-13 through 45-21 or under the partnership agreement merely because the partner’s conduct furthers the partner’s own interest.

See also Pear, at 780 n. 2 (“In a limited partnership, a general partner has obligations, powers, and rights like those of a partner in a regular partnership”). The statute imposes upon partners the duties of loyalty and care and the obligations of good faith and fair dealing.

[¶ 25] Other courts have similarly indicated that limited partners who participate in the business of the partnership or act in concert with the general partner are subject to the fiduciary duties of loyalty and care and the obligations of good faith and fair dealing applicable to partners in a general partnership. See In re Villa West Assocs., 193 B.R. 587, 593 (Bkrtcy.D.Kan.1996) (although limited partner is like corporate shareholder who does not, solely by virtue of his interest in partnership, become a fiduciary to other limited partners, fiduciary responsibility develops when one takes a role in management and acts to dominate, interfere with, or mislead others in exercising their rights); Welch v. Via Christi Health Partners, Inc., 281 Kan. 732, 133 P.3d 122, 139-40 (2006) (recognizing majority limited partners owe fiduciary duty to minority limited partners under some circumstances); Anthony v. Padmar, Inc., 320 S.C. 436, 465 S.E.2d 745, 752 (App.1995) (“relationship of [limited] partners is fiduciary and partners are held to high standards of integrity in their dealings with each other,” and “[p]arties in a fiduciary relationship must fully disclose to each other all known information that is significant and material”).

[¶ 26] In Svihl v. Gress, 216 N.W.2d 110, 111 Syll. 1 (N.D.1974), this Court stated:

The conduct of partners during liquidation as well as during any transaction connected with the formation or conduct of the partnership is governed by a fiduciary duty which requires every partner to act with the utmost good faith and integrity in the dealings with one another with respect to partnership affairs ....

This Court has further recognized that a partner has a fiduciary duty of loyalty to the partnership and other partners. Akerlind v. Buck, 2003 ND 169, ¶26, 671 N.W.2d 256. Fiduciary duties and obligations exist between limited partners and a general partner. See Sandvick v. LaCrosse, 2008 ND 77, ¶¶ 15-16, 747 N.W.2d 519.

B

[¶ 27] The majority limited partners argue the district court erred in ruling they breached their fiduciary duties.

[¶ 28] Whether a person has breached a fiduciary duty is a finding of fact subject to the clearly erroneous rule under N.D.R.Civ.P. 52(a). Akerlind, 2003 ND 169, ¶¶ 26-27, 671 N.W.2d 256. A finding of fact is clearly erroneous under N.D.R.Civ.P. 52(a) if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, this Court is left with a definite and firm conviction a mistake has been made. Intercept Corp. v. Calima Fin., LLC, 2007 ND 180, ¶ 12, 741 N.W.2d 209.

[¶ 29] Here, the district court found “[l]imited partners Emerson, Stern, Kesselring and Leno ... were acting in concert with Hoot,” “Emerson and Stern were deeply involved with the takeover and with the restaurant operation after the takeover,” “Kesselring and Leno ... controlled Hoot ... and acted in concert by way of their controlling actions through the purported general partner,” and “[Tin-stalling Hoot ... as general partner for both partnerships and running the partnerships under their own terms was a breach of the [majority] defendants’ fiduciary duties to the minority partners.” The court found the majority limited partners breached their fiduciary duties based on: 1) their “reckless action” of terminating the management contracts for both partnerships; 2) their knowledge that termination of the management contract with LTM would pose potential liability; 3) their “affirmative action to dominate and interfere with the partnership^” by taking them over and installing Hoot, a shell corporation controlled by Kesselring and Leno, as a general partner; 4) their authorizing reimbursement to the majority partners for attorney fees and expenses incurred in the federal litigation against Lavelle and his companies; 5) their causing the loss of the Hooters franchise and thereby significantly reducing the value of the two restaurants; 6) their refusals to cooperate with the court-appointed receiver; and 7) their taking these actions without calling meetings as required by the partnership agreements.

[¶ 30] From our review of the record, we cannot say the district court’s findings of fact are clearly erroneous. The evidence reflects that the majority group planned a takeover of the limited partnerships and proceeded to do so in a reckless manner. They sought legal advice for the takeover from Kesselring and Leno’s attorneys, but failed to secure unanimous consent for a new general partner after having been advised that unanimous consent was necessary. Emerson and Stern attempted to find reasons to remove Lavelle and his companies from the limited partnerships and traveled to the restaurants to accomplish the takeover. The majority disposed of Red River Wings without the required notice or consent of Hooters of America and later sued the franchiser. They hired two replacement management companies, Texas Wings and UD Management, without notice or a vote of all of the limited partners. After the takeover, Kesselring and Leno directly controlled Hoot, and Emerson and Stern were directly involved in controlling the partnerships. Hoot has no assets, no employees, and no separate office, and Stelzer, its sole officer, director, and shareholder, acted on behalf of and at the direction of his employers, Kesselring and Leno. Kesselring and Emerson’s control of the partnerships was obvious to Lavelle and the minority limited partners, who dealt directly with Kes-selring and Emerson after the takeover in an attempt to resolve the disputes. The majority limited partners authorized reimbursement from the limited partnerships for attorney fees and expenses in the federal lawsuit. Moreover, after the district court appointed a receiver for the limited partnerships, the majority limited partners continued to refuse to surrender control, forcing the receiver to seek a court order to gain control of the partnerships’ Canadian bank accounts. The majority limited partners were ultimately held in contempt of court.

[¶ 31] We conclude that the district court’s findings that the majority limited partners took control and dominated the partnerships for their own interests and in doing so violated the fiduciary duties of good faith, fair dealing, loyalty, and care are not clearly erroneous.

C

[¶ 32] The majority limited partners argue the district court erred in holding them personally liable because the court failed to perform an “entity piercing analysis.” They contend the court was required to “pierce the limited partnership veil” before Stern, Emerson, and ME Investments could be held individually liable.

[¶ 33] The majority partners are incorrect in their assertion that the “limited partnership veil[s]” of Canadian Wings and Manitoba Wings needed to be “pierced” in order to hold Stern, Emerson, and ME Investments individually liable. This Court has held in the context of a close corporation, that minority shareholders are entitled to bring a direct action against majority shareholders for breach of fiduciary duties. See Schumacher v. Schumacher, 469 N.W.2d 793, 798-99 (N.D.1991). Likewise, the majority limited partners who controlled or acted in concert with the general partner in this case can be held personally liable to the minority limited partners for damages for breach of fiduciary duties. See, e.g., Anthony, 465 S.E.2d at 755. Emerson, Stern, and ME Investments, through Kesselring and Leno, clearly participated in the takeover and installation of Hoot as the general partner, which the district court found “was an affirmative action to dominate and interfere with the partnership^].”

[¶ 34] We also are not persuaded by the majority partners’ argument that Kesselring and Leno cannot be held personally liable because ME Investments was actually the limited partner in the partnerships. ME Investments, a limited liability partnership, was the vehicle used by Kesselring and Leno to invest in Canadian Wings and Manitoba Wings. It is obvious from the district court’s decision that the court believed ME Investments to merely be the alter ego of Kesselring and Leno because the court refers to the limited liability partnership and the individuals as being one and the same. Principles for piercing a corporate veil apply to limited liability partnerships. See N.D.C.C. § 45-22-09(1). To apply the alter ego doctrine, “there must be such a unity of interest and ownership between the corporation and its equitable owner that the separate personalities of the corporation and the shareholder do not in reality exist,” and “there must be an inequitable result if the acts in question are treated as those of the corporation alone.” Sonora Diamond Corp. v. Superior Court, 83 Cal.App.4th 523, 99 Cal.Rptr.2d 824, 836 (2000); see also Axtmann v. Chillemi, 2007 ND 179, ¶¶ 12-15, 740 N.W.2d 838; Jablonsky v. Klemm, 377 N.W.2d 560, 563-67 (N.D.1985); Hilzendager v. Skwarok, 335 N.W.2d 768, 774-75 (N.D.1983). Given the evidence of Kes-selring and Leno’s participation in the takeover and their direct control and actions in concert with Hoot through their employee, Stelzer, we agree with the district court’s implicit finding that it would be inequitable if Kesselring and Leno’s acts were treated as those of the limited liability partnership alone. We conclude that the district court did not err in holding Kesselring and Leno individually responsible under these circumstances.

D

[¶ 35] The majority limited partners also argue Kesselring and Leno’s actions are protected by the business judgment rule.

[¶ 36] In the analogous context of corporations, this Court has noted “ ‘the business judgment rule prohibits judicial inquiry into actions of corporate directors taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate purposes.’ ” In re Conservatorship of Sickles, 518 N.W.2d 673, 681 (N.D.1994) (quoting Lili v. Cavalier Rural Elec. Coop., 456 N.W.2d 527, 580 (N.D.1990)). “ ‘Normally, the good faith acts of corporate directors within the power of the corporation and in the exercise of honest business judgment are considered valid and the courts generally will not interfere with or regulate the conduct of the directors in the reasonable and honest exercise of their judgment and duties where their judgment is uninfluenced by personal consideration.’ ” Dixon v. McKenzie County Grazing Ass’n, 2004 ND 40, ¶ 17, 675 N.W.2d 414 (quoting Lill, 456 N.W.2d at 530). “Under the business judgment rule, corporate directors are shielded ‘from all liability except for self-dealing, willful misconduct or gross negligence.’” In re Conservatorship of Sickles, 518 N.W.2d at 680-81 (citation omitted).

[¶ 37] Although Kesselring and Leno claim they acted in good faith and exercised honest business judgment, the district court’s findings reflect the majority group’s actions were reckless, were undertaken in bad faith, and were for the purpose of furthering the group’s own perceived interests. Evidence supports the court’s finding that the majority partners acted recklessly by installing Hoot as the general partner on a majority vote after being advised that unanimity was required and by terminating LTM’s management contracts without cause after being advised that cause was necessary. Bad faith is evidenced by the court’s finding that the majority partners’ reasons for the removal of Red River Wings and termination of the LTM management contracts were concocted after the fact to justify their actions. The majority partners’ refusal to relinquish control of the limited partnerships to the court-appointed receiver and their attempt to use the partnerships’ assets to finance the failed federal court action also evidence bad faith. The court specifically found Kesselring, Leno, Emerson, Stern, and Hoot “were acting in what they believed to be their own best interest or for their own reasons when they removed [Red River Wings] and LTM and ran the partnerships through Hoot, Inc., an entity that Kesselring and Leno controlled.” We conclude these findings are supported by the evidence in the record and render the majority group’s reliance on the business judgment rule unavailing.

IV

[¶ 38] The majority limited partners contend the district court erred in dismissing their claims against Lavelle, Red River Wings, LTM, and Dyan and Shelly Dock-ter for breach of fiduciary duty, breach of contract, and fraud.

[¶ 39] The majority partners attempted to establish at trial that Lavelle and Red River Wings breached fiduciary duties by “plundering partnership property and opportunities, such as the future restaurant options and calendar sales,” by “wrongfully inflating] the rent guarantee compensation and mafking] an unapproved $109,000 advance to an unrelated restaurant,” by “commingling funds,” by “conducting partnership affairs capriciously and inconsistently with the limited partners’ reasonable business expectations,” and by taking “advantage of the partners in bad faith by usurping significant profits derived from the calendars and the franchise option opportunities.” The majority limited partners asserted Lavelle and Red River Wings breached both partnership agreements and Manitoba Wings’ subscription agreement “by failing to secure 51% limited partner approval for the sale of calendars and transfer of franchise options,” by “failing to make the required 1% capital contribution,” by “commingling funds,” and by “taking more than $80 as compensation for the rent personal guarantee.” They asserted Lavelle and Red River Wings committed fraud by “not disclosing [Canadian Wings’] ownership of the options and appropriating the options for [their] own gain,” by “inducing investors to enter into a subscription agreement based upon the representation that [Red River Wings] would make the required capital contribution,” and by “agreeing to be paid $80 per month for guaranteeing the rent but in fact taking $800 per month.”

[¶ 40] The district court found “[t]here was no credible evidence to support these claims.” Lavelle and Red River Wings presented evidence that partnership investor funds were accounted for and spent for partnership purposes, that the calendar proceeds benefitted the partnerships, and that the majority group never attempted to sell the options. There was no evidence the late payment of the general partner’s 1% investment caused any losses to the partnerships. The task of weighing the evidence and judging the credibility of witnesses belongs to the trier of fact, and we do not reweigh credibility or resolve conflicts in the evidence. McKechnie v. Berg, 2003 ND 136, ¶ 19, 667 N.W.2d 628. We conclude the district court’s finding is not clearly erroneous and the court did not err in dismissing these claims.

V

[¶ 41] The majority group contends the district court erred in calculating damages.

[¶ 42] Section 32-03-20, N.D.C.C., provides that “[f|or the breach of an obligation not arising from contract, the measure of damages, except when otherwise expressly provided by law, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.” “In the breach of a partnership contract by wrongful dissolution, the damages recoverable include the value of the profits which the plaintiff otherwise would have received, or the value to him or her of the continuance of the agreement during the term provided by contract, meaning the prospective or anticipated profits of the partnership, or the profits that would have accrued to the injured partner had the partnership not been wrongfully dissolved.” 59A Am.Jur.2d Partnerships § 358, at p. 448 (2003) (footnotes omitted); see also Karrick v. Hannaman, 168 U.S. 328, 337, 18 S.Ct. 135, 42 L.Ed. 484 (1897) (“A partner who assumes to dissolve the partnership, before the end of the term agreed on in the partnership articles, is liable, in an action at law against him by his copartner for the breach of the agreement, to respond in damages for the value of the profits which the plaintiff would otherwise have received”). Damages for lost profits are recoverable when they are reasonable and not speculative. Langer v. Bartholomay, 2008 ND 40, ¶ 27, 745 N.W.2d 649. “Evidentiary imprecision on the amount of damages does not preclude recovery.” Keller v. Bolding, 2004 ND 80, ¶ 21, 678 N.W.2d 578. The amount of damages to which a party is entitled is a question of fact, and this Court will not reverse the district court’s finding on damages unless that finding is clearly erroneous. WFND, LLC v. Fargo Marc, LLC, 2007 ND 67, ¶ 28, 730 N.W.2d 841. This Court will sustain an award of damages if it is within the range of the evidence presented to the trier of fact. Id.

[¶ 43] The district court awarded derivative damages under N.D.C.C. § 45-10.1-59 based on an analysis by the minority limited partners’ expert witness who calculated the reasonable profits and distributions that could have been realized if the majority limited partners had not breached their fiduciary duties and dissolved the partnerships. The expert witness looked at the prior performance of the partnerships, projected future profits based on that performance, and calculated the value of the partnerships on a per unit basis as of the date of the takeover on October 25, 1998. The expert witness calculated the per unit value of the partnership as of October 1998, and calculated the actual damage as of the date of trial to be $188,036 per unit in Canadian Wings and $147,685 per unit in Manitoba Wings. Because the partnerships had been dissolved and liquidated, the district court performed an accounting to award the minority limited partners their individual damages. See Ritter, Laber and Assocs. v. Koch Oil, Inc., 2004 ND 117, ¶31, 680 N.W.2d 634 (court may assume jurisdiction for an accounting if there is a basis for equitable jurisdiction). Before deducting the per unit share of the balance remaining in the court-appointed receiver’s account, the district court awarded the following damages to the minority limited partners in Canadian Wings: David Butler, $94,018; John Boulger, $188,036; Hoadley Harris/Harris Trust, $188,036; and Richard Walstad, $94,018. The court awarded the following damages to the minority limited partners in Manitoba Wings: David Butler, $147,685; Hoadley Harris Trust, $73,842.50; Data Enterprises, $73,842.50; and Wings Unlimited, $221,527.50.

[¶ 44] We cannot say the method used to determine damages for lost profits was unreasonable and speculative. However, we agree with the majority limited partners that the damages should have been valued 90 days after Red River Wings was removed as the general partner in the partnerships on October 25, 1998. As we have concluded, the limited partnerships were dissolved as a matter of law on January 23, 1999, rather than on October 25, 1998. Valuation of partnership interests should be as of the date of dissolution. See Lonning v. Kurtz, 291 N.W.2d 438, 439-40 (N.D.1980); 68 C.J.S. Partnership § 345 (1998). We therefore reverse the award of damages and remand for a determination of the damages resulting from the dissolution of the limited partnerships on January 23, 1999.

VI

[¶ 45] The majority limited partners argue the district court erred in awarding Red River Wings its distributions from Hoot because Red River Wings did not fulfill its obligation under the partnership agreements to contribute 1 percent of the total capital raised by the partnerships.

[¶ 46] In addressing this issue, the district court found:

While [Red River Wings] did not make a timely payment of its one (1) percent contribution to [Manitoba Wings] this was de minimis and. for most of the period of time the one (1) percent was outstanding, considerably more money than the one (1) percent was owed to [Red River Wings], Lavelle or LTM by [Manitoba Wings]. There was no evidence that the delay in booking the one (1) percent contribution for either partnership caused any damage. It was paid but paid late.

[¶ 47] We cannot say the district court erred in awarding Red River Wings its distributions from Hoot.

VII

[¶ 48] In their cross-appeal, the minority limited partners argue the district court erred in awarding them only $104,130 in attorney fees rather than the $222,734 they had requested.

[¶ 49] Section 45-10.1-62, N.D.C.C., provided “[i]f a derivative action is successful, in whole or in part, or if anything is received by the plaintiff as a result of a judgment, compromise, or settlement of an action or claim, the court may award the plaintiff reasonable expenses, including reasonable attorney’s fees, and shall direct the plaintiff to remit to the limited partnership the remainder of those proceeds received by the plaintiff.” “[I]t is well established that district courts are considered experts in determining what is a reasonable amount of attorney fees and we will not reverse the court’s decision about the amount and reasonableness of the attorney fees absent a clear abuse of discretion.” Lynch v. Sweeney, 2007 ND 81, ¶ 10, 732 N.W.2d 377. A district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or if it misinterprets or misapplies the law. Id.

[¶ 50] The minority limited partners contend it was arbitrary for the district court to disallow any attorney fees incurred before September 26, 2002, which was the date they filed their case, because they had commenced their action in March 2000, discovery had begun in the federal court action between the majority limited partners and Lavelle, and discovery was conducted jointly due to the intertwined issues. In refusing to award the minority partners the entire amount requested, the district court reasoned:

In response to the Court’s request to submit itemized billing statements for those portions of the claim which the Court deemed derivative, the ... plaintiffs submitted what has to be viewed as essentially their entire bill from 1999, three (3) years prior to actually filing the case to the Post Trial Brief. The time entries alone consisted of eighty-one (81) pages seeking Two Hundred Twenty-two Thousand Seven Hundred Thirty-four and 00/100 Dollars ($222,-734.00).
The Court has carefully reviewed the Amended Statement of Attorney’s Fees and Expenses. The Court recognizes that the derivative claims in this matter were intertwined with other claims that were asserted in this matter. However, not all of the efforts spent on all of the claims were directly or even indirectly related to those derivative matters. The Court, having reviewed the billing statement has eliminated time entries which as presented do not indicate to the Court that they were related in any meaningful or substantial way to the derivative claims, or were duplicative of efforts of others or not reasonable.

[¶ 51] We conclude the district court did not abuse its discretion in awarding the minority limited partners $104,130 in attorney fees.

VIII

[¶ 52] In its cross-appeal, LTM argues the district court erred in dismissing its counterclaim against the majority limited partners for intentional interference with a contractual relationship by improperly terminating its management agreements with Canadian Wings and Manitoba Wings.

[¶ 53] Intentional interference with a contractual relationship is a recognized tort in this state. Peterson v. Zerr, 477 N.W.2d 230, 233 (N.D.1991). To establish a prima facie case of intentional interference with a contract, the plaintiff must prove: (1) a contract existed; (2) the contract was breached; (3) the defendant instigated the breach; and (4) the defendant instigated the breach without justification. Van Sickle v. Hallmark & Assocs., Inc., 2008 ND 12, ¶24, 744 N.W.2d 532. Whether interference with a contractual relationship is justified is a question of fact. Blair v. Boulger, 336 N.W.2d 337, 342 (N.D.1983).

[¶ 54] The management agreements between LTM and the two limited partnerships provided:

Termination for Cause — Notwithstanding Section 3.1 hereof, the engagement and retainer of the Manager by the Partnership pursuant to this Agreement may be terminated by the Partnership for cause, at any time, without payment of any compensation either by way of anticipated earnings or damages of any kind. For purposes hereof, the term “cause” shall be;
(a) fraud, felonious conduct or dishonesty of the Management Company
(b) willful misconduct or gross negligence by the Management Company in the performance of its duties hereunder; or
(c) breach by the Manager of any material provisions of this Agreement

[¶ 55] In its decision, the district court found that “[i]n addition to removing [Red River Wings] as the general partner, the [majority] defendants, through Hoot ... terminated the management contracts of Lavelle’s management company, LTM, with each of the restaurants.” The court found the “Majority took control of both partnerships after the vote to remove [Red River Wings] and to terminate the LTM Contract[s]. The [majority] defendants dictated the actions of each partnership through their control of Hoot ... and by boldly asserting their claimed right to take control to third parties.” The court further found “the termination of the LTM Management Contract[s] brought the potential for liability and the Majority Group was well aware of that fact,” the “reasons put forward by the Majority to remove [Red River Wings] as the general partner and terminate the LTM contract were, for the most part, concocted from information received after the termination,” and “[n]either Lavelle nor LTM committed any act that would be a ‘cause’ that would justify the termination of the contracts. The alleged ‘causes,’ most of which were discovered after the termination, were either inconsequential or were not supported by credible evidence.” The court, however, dismissed the intentional interference claim, reasoning the “dissolution of the partnerships destroyed the object of the LTM management contracts.”

[¶ 56] It is unclear whether the district court based its dismissal on the doctrine of frustration of purpose or the doctrine of impossibility. The doctrines are closely related. See Island Dev. Corp. v. District of Columbia, 933 A.2d 340, 349 (D.C.Cir.2007). Frustration of purpose “occurs when ‘after a contract is made, a party’s principal purpose is substantially frustrated without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made.’ ” Tallackson Potato Co., Inc. v. MTK Potato Co., 278 N.W.2d 417, 424 n. 6 (N.D.1979) (quoting Restatement (Second) of Contracts § 285 (Tent. Draft No. 9) (1974) (emphasis added)). The doctrine of impossibility or impracticality is similarly described as “[w]here, after a contract is made, a party’s performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary.” Restatement (Second) of Contracts § 261 (1981) (emphasis added). Neither doctrine applies if either the frustration or the impossibility is caused by a party to the contract. See Charter Fed. Sav. Bank v. Director, Office of Thrift Supervision, 773 F.Supp. 809, 824 (W.D.Va.1991), aff'd in part, reversed in part on other grounds, 976 F.2d 203 (4th Cir.1992); see also Cavalier County Mem’l Hosp. Ass’n v. Kartes, 343 N.W.2d 781, 784 (N.D.1984) (“There is an implied condition of every contract not to prevent the other party from performing and not to render performance impossible”). If a party to a contract who causes frustration or impossibility cannot rely on the doctrines as defenses in a breach of contract action, we do not believe a third party who causes the frustration or impossibility in a contract between others may rely on the doctrines as defenses in an action for intentional interference with that contract. If, as the district court found, the majority limited partners caused the dissolution of the partnerships, the dissolution of the partnerships is no defense to LTM’s intentional interference with contractual relations claim.

[¶ 57] We reverse the district court’s dismissal of LTM’s counterclaim and remand for findings on whether the majority limited partners are liable for damages for intentional interference with contractual relations.

IX

[¶ 58] LTM also argues the district court erred in awarding it prejudgment interest for unpaid management fees at the rate of 3 percent from December 21, 2005.

[¶ 59] Section 32-03-04, N.D.C.C., provides that “[e]very person who is entitled to recover damages certain or capable of being made certain by calculation, the right to recover which is vested in the person upon a particular day, also is entitled to recover interest thereon from that day....” LTM’s right to recover its unpaid management fees vested on October 25, 1998, when its management contracts with Canadian Wings and Manitoba Wings were improperly terminated, not on December 21, 2005, the date the district court “granted motions to dismiss all remaining claims against Shelly Dockter and Dyan Docker and, further, directed the dismissal of civil conspiracy and RICO claims as to all Defendants.” Furthermore, when an agreement does not specify an interest rate, the interest rate for “any legal indebtedness” is 6 percent rather than 3 percent. N.D.C.C. § 47-14-05; Kaler v. Kraemer, 1999 ND 237, ¶ 24, 603 N.W.2d 698.

[¶ 60] We reverse and remand to the district court to award LTM prejudgment interest on its unpaid management fees at the rate of 6 percent from October 25, 1998.

X

[¶ 61] We reverse the award of damages to the minority limited partners and remand for a determination of the damages resulting from the dissolution of the limited partnerships on January 23, 1999. We reverse the district court’s dismissal of LTM’s counterclaim for intentional interference with contractual relations and remand for further findings. We also reverse and remand for entry of an order awarding LTM prejudgment interest at the rate of 6 percent from October 25, 1998. The judgment is otherwise affirmed.

[¶ 62] GERALD W. VANDE WALLE, C.J., ROBERT W. HOLTE, BRUCE E. BOHLMAN, S.JJ., and DONOVAN J. FOUGHTY, D.J.

[¶ 63] The Honorable DONOVAN JOHN FOUGHTY, D.J., the Honorable ROBERT W. HOLTE, S.J., and the Honorable BRUCE E. BOHLMAN, S.J., sitting in place of SANDSTROM, J., CROTHERS, J., and MARING, J., disqualified.