[¶1] Cody Berdahl appeals from a district courts order awarding attorneys fees to Joleen Berdahl. He argues the district court erred by awarding attorneys fees and that a different district court judge should be assigned to this case. We reverse the award of attorneys fees to Joleen Berdahl, remand for explanation whether the court intended to award attorneys fees in its November 5, 2021 judgment, and if so, instruct the court to explain the legal and factual basis for that award. We reject Cody Berdahls request to assign the case to a different judge.
I
[¶2] In Berdahl v. Berdahl, 2022 ND 136, 977 N.W.2d 294 (Berdahl I), we remanded for further proceedings, including the district courts award of $20,000 in attorneys fees. We explained we were unable to ascertain whether the court intended to award attorneys fees, and if so, whether an award would be proper under applicable statutory authority. Id. at ¶ 32. We remanded the case “for further consideration and explanation of the legal basis authorizing the award of attorneys fees.” Id. On remand, Joleen Berdahl submitted a document detailing her attorneys fees. The district court issued an order resolving all remanded issues except attorneys fees. The court asked Joleen Berdahl whether her previous filing was an application for attorneys fees, and if it was, the court provided an opportunity for Joleen Berdahl to file a proper application for attorneys fees. Joleen Berdahl submitted an application for attorneys fees. The court considered the application and, with sparse and general findings on Cody Berdahls ability to pay, awarded Joleen Berdahl $25,000 in attorneys fees ($5,000 more than before the first appeal). Cody Berdahl appeals.
II
[¶3] Cody Berdahl argues the district court erred by not following this Courts mandate in Berdahl I, and by not explaining the basis for awarding attorneys fees. We agree.
[¶4] When this Court has made a legal pronouncement and remanded a case for further proceedings, the parties may not relitigate the issue and the district court is required to follow the terms of our decision. Our clear rules provide:
“Under the doctrine of res judicata, a valid, existing final judgment from a court of competent jurisdiction is conclusive on the parties ․ in all other actions with regard to the issues raised, or those that could have been raised, and determined therein. The law of the case doctrine is based upon the theory of res judicata, and is grounded on judicial economy to prevent piecemeal and unnecessary appeals.
‘The law of the case doctrine applies when an appellate court has decided a legal question and remanded to the district court for further proceedings, and a party cannot on a second appeal relitigate issues which were resolved by the Court in the first appeal or which would have been resolved had they been properly presented in the first appeal.’
“The mandate rule is a more specific application of the law of the case doctrine. The mandate rule requires the district court to follow the appellate courts pronouncements on legal issues in subsequent proceedings in the case and to carry the appellate courts mandate into effect according to its terms. This Court retains the authority to decide whether the district court scrupulously and fully carried out the mandates terms.”
Pennington v. Continental Res., Inc., 2021 ND 105, ¶¶ 9-10, 961 N.W.2d 264 (cleaned up). We must ensure our mandate was “scrupulously and fully carried out.” Id. ¶ 10.
[¶5] The district court has some discretion on the procedures used on remand. However, that discretion is not without bounds and must be exercised within the scope of our decision. When a matter is remanded for explanation of a decision or reconciliation of conflicting rulings, we are not extending to the court an invitation to re-adjudicate matters previously decided, and the remand cannot be utilized as a “do-over” of matters leading up to the first appeal. Carlson v. Workforce Safety & Ins., 2012 ND 203, ¶¶ 17-19, 821 N.W.2d 760 (holding agency acted beyond the scope of remand when it re-adjudicated an individuals employment status rather than calculating his wage as instructed by this Court); see also Invrs Title Ins. Co. v. Herzig, 2013 ND 13, ¶ 13, 826 N.W.2d 310 (holding the district court failed to follow the mandate rule when it decided certain sanctions abated because they were coercive rather than addressing what portion of the sanctions were compensatory as this Court instructed).
[¶6] We are mindful that our cases permit a district court, as a general proposition and unless we say otherwise, to hold further hearings or accept further evidence. Here, the court did not simply receive evidence or hear argument from counsel. Nor did the court follow our directions on remand to explain what it originally intended and to make findings clarifying inconsistencies in its prior order. The scope of our remand and the instructions we provided are clear:
“The district courts order is internally inconsistent. In its conclusions of law, the court stated: ‘Each party shall be responsible for their own attorneys fees.’ In Exhibit A, the court included Joleen Berdahls legal fees in the marital debts, despite noting the debt was incurred post-separation. The district court made no findings regarding either Cody Berdahls ability to pay attorneys fees or Joleen Berdahls need for them. The record lacks any supporting documentation of the attorneys fees incurred by either party. The court also did not explain under which statutory authority it awarded Joleen Berdahl attorneys fees.
“We have previously reversed an award of attorneys fees when we are unable to discern the district courts authority for such an award. On this record, we do not have sufficient information to ascertain whether the attorneys fees were intended to be awarded, or, if intended, whether the fees may be proper under applicable statutory authority. We reverse the courts award of attorneys fees to Joleen Berdahl and remand for further consideration and explanation of the legal basis authorizing the award of attorneys fees.”
Berdahl I, 2022 ND 136, ¶¶ 31-32, 977 N.W.2d 294 (cleaned up).
[¶7] The district court has not yet complied with our mandate, which was for the court to explain the legal basis for the attorneys fees award it already made, and to articulate how it reached the amount awarded. Instead of explaining its decision, the court went beyond the scope of our mandate by allowing a new proceeding—an application for attorneys fees—and making an additional award of attorneys fees. The court violated both the law of the case doctrine and the mandate rule by not following our direction and acting beyond the scope of our remand. We again reverse for the court to follow our narrow directive—and not to make findings on newly argued grounds for awarding attorneys fees under an application filed after the first remand.
III
[¶8] Cody Berdahl requests we assign this case to a new judge because the current judge showed bias by allowing Joleen Berdahl to file an application for attorneys fees and then ruled in her favor. We decline his request to reassign the case. See Rath v. Rath, 2016 ND 105, ¶ 13, 879 N.W.2d 735 (“Adverse or erroneous rulings do not, by themselves, demonstrate bias.”).
IV
[¶9] We reverse the order awarding attorneys fees to Joleen Berdahl, remand for explanation whether the district court intended to award attorneys fees in its November 5, 2021 judgment, and if so, instruct the court to explain the legal and factual basis for an award.
[¶11] I join the majority opinion because the district court exceeded the scope of this Courts remand in Berdahl I.
[¶12] I was not a member of the Court when Berdahl I was decided. I take no position regarding whether the Court should have remanded the attorneys fees issue for further consideration and explanation when Joleen Berdahl did not request attorneys fees; Joleen Berdahl did not present evidence supporting the amount of her attorneys fees; the district court specifically found, “Each party shall be responsible for their own attorneys fees”; the court made no findings regarding either Cody Berdahls ability to pay attorneys fees or Joleen Berdahls need for them; and the record lacked any supporting documentation of the attorneys fees incurred by either party. 2022 ND 136, ¶¶ 28, 31, 977 N.W.2d 294.
[¶13] Douglas A. Bahr
[¶14] I respectfully disagree with the majoritys conclusion that the district court exceeded the scope of our mandate on remand in Berdahl I.
[¶15] “We have repeatedly held that, when we remand for redetermination of an issue without specifying the procedure to be followed, the district court may decide the issue based on the evidence already before it or may take additional evidence.” Taszarek v. Lakeview Excavating, Inc., 2021 ND 237, ¶ 5, 968 N.W.2d 146 (internal quotations omitted) (quoting Sorenson v. Slater, 2011 ND 216, ¶ 9, 806 N.W.2d 183). When we do not provide instruction to the district court, the court has discretion on whether to “hold further hearings or accept further evidence.” Frisk v. Frisk, 2006 ND 165, ¶ 18, 719 N.W.2d 332. We review a district courts procedure on remand for abuse of discretion. Taszarek, 2021 ND 237, ¶ 5, 968 N.W.2d 146.
[¶16] In Berdahl I, Joleen Berdahl had requested attorneys fees by placing the request in Exhibit A, outlining her proposed property distribution, which the district court adopted. 2022 ND 136, ¶ 31, 977 N.W.2d 294. Cody Berdahl appealed, arguing it was not the proper procedure for awarding attorneys fees. Id. at ¶ 28. We explained a court abuses its discretion “by awarding attorneys fees unsupported by proper documentation upon which the court can determine the reasonableness or legitimacy of the requested fees.” Id. at ¶ 30. We explained: “The record lacks any supporting documentation of the attorneys fees incurred by either party. The court also did not explain under which statutory authority it awarded Joleen Berdahl attorneys fees.” Id. at ¶ 31. We remanded for “further consideration and explanation of the legal basis authorizing the award of attorneys fees.” Id. at ¶ 32. On remand, the district court corrected Exhibit A and removed attorneys fees from the final distribution.
[¶17] The district court then considered an application for attorneys fees under N.D.C.C. § 14-05-23. We did not clearly limit the procedure the district court could use to resolve the issue of attorneys fees because we were unsure if the district court intended to award attorneys fees or otherwise consider attorneys fees in making its property distribution. Berdahl I, 2022 ND 136, ¶ 32, 977 N.W.2d 294. Further, N.D.C.C. § 14-05-23 allows for an application at any time while the separation or divorce proceeding is pending. See Siewert v. Siewert, 2008 ND 221, ¶ 32, 758 N.W.2d 691 (explaining the district court may under N.D.C.C. § 14-05-23 award attorneys fees at any time a divorce is pending, including while an appeal on unrelated issues is pending). Our remand was not a narrow directive to the district court to explain its decision based on the existing record but allowed “further consideration” of the issue of attorneys fees. I would conclude our mandate and statute permitted the court discretion to allow Joleen Berdahl to submit an application for attorneys fees.
[¶18] Although I agree the district court still must make specific findings on Cody Berdahls ability to pay any award of attorneys fees, I do not agree that this Courts mandate in Berdahl I was as limiting as the majority reads it, nor did our mandate foreclose consideration of a future application for attorneys fees under N.D.C.C. § 14-05-23. (It is not clear to me it could.) I would permit the court on remand to complete its findings on Cody Berdahls ability to pay regarding the application for fees submitted on remand.
Crothers, Justice.
[¶10] Jon J. Jensen, C.J.
Daniel J. Crothers
Douglas A. Bahr