These considerations are required to correctly calculate damages, and costs and disbursements awards. See Reisenauer v. Schaefer, 515 N.W.2d 152, 156 (N.D. 1994) (providing no-fault benefits must be excluded from the damages award to prevent double recovery); Vogel v. Pardon, 444 N.W.2d 348, 352 (N.D. 1989) (providing Rule 68 offers influence costs and disbursements awards). See Reisenauer v. Schaefer, 515 N.W.2d 152, 156 (N.D. 1994) (providing no-fault benefits must be excluded from the damages awarded to prevent double recovery); Vogel v. Pardon, 444 N.W.2d 348, 352 (N.D. 1989) (providing Rule 68 offers influence costs and disbursements awards).

Wells Fargo's right to enforce liability and the obligation of Diamond Point as a result of waste simply do not impose upon Wells Fargo a duty to notify Diamond Point and afford it an opportunity to cure waste, a condition it allowed to actualize. Diamond Point cites a North Dakota case, Vogel v. Pardon, el at, 444 N.W.2d 348 (N.D. 1989), and our decision in a divorce proceeding, Coutant v. Coutant, 86 Md.App. 581, 595, 587 A.2d 1125 (1991), for the proposition that the only damages it should be liable for, assuming that it is responsible for waste, are the actual damages to the property as a result of waste, not any expenses to repair or replace the property. The North Dakota Court's holding in Vogel, in our opinion, does not buttress Diamond Point's argument because there, the court affirmed the lower court's refusal to find that Pardon and other appellees did not commit waste; although there was water damage due to the leaking roof, "the roof had simply reached the end of its useful life through ordinary wear and age. . . ."

See Whiting v. Adams, 66 Vt. 679, 687, 30 A. 32, 33 (1894). Indeed, it has been applied in other jurisdictions to precisely the situation confronted here: when a purchaser defaults on payments for a contract for deed, the seller may bring an action for waste for damage to the property during the purchaser's occupation of such. See, e.g., Vogel v. Pardon, 444 N.W.2d 348, 349 (N.D.1989). The crux of plaintiffs' disagreement with the trial court's order, then, is not that they could not have committed waste, but rather that there was no evidence of the diminution in value of the property, the measure of damages for waste.

The district court is in a much better position than this Court to determine the amount, reasonableness, and necessity of the costs and disbursements sought by the prevailing party. Vogel v. Pardon, 444 N.W.2d 348, 353 (N.D. 1989). [¶ 35] We have previously found no abuse of discretion where an expert's fee included time spent observing portions of a trial.

The trial court "is in a much better position to determine the reasonableness and necessity of the costs and disbursements sought by the prevailing party." Vogel v. Pardon, 444 N.W.2d 348, 353 (N.D. 1989). "A trial court's decision on fees and costs under N.D.C.C. § 28-26-06 will not be overturned on appeal unless an abuse of discretion is shown." Lemer v. Campbell, 1999 ND 223, ¶ 6, 602 N.W.2d 686. Under Braunberger andLemer, the question of who is a prevailing party for an award of disbursements under N.D.C.C. § 28-26-06 is a question of law, subject to de novo review, while the question of the amounts to be allowed for disbursements is one of fact, subject to an abuse-of-discretion standard of review.

The amount of fees to be allowed for an expert witness is left to the sound discretion of the trial court, which is in a much better position to determine the reasonableness and necessity of the costs and disbursements sought by the prevailing party. Vogel v. Pardon, 444 N.W.2d 348, 353 (N.D. 1989). The trial court rejected the Hubers' argument, and they have not convinced us the trial court abused its discretion in doing so.

Feist testified he did not do fall plowing in 1994 and 1995 because he did not have time and because of excessive moisture. [¶ 16] Whether waste has occurred is a question of fact subject to the "clearly erroneous" standard of Rule 52(a), N.D.R.Civ.P. Vogel v. Pardon, 444 N.W.2d 348, 349 (N.D. 1989). The trial court found Ehrman failed to establish Feist's farming practices constituted waste.

We agree. "An appeal is frivolous if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which evidences bad faith." Adolph Rub Trust v. Rub, 473 N.W.2d 442, 446 (N.D. 1991) (citing Vogel v. Pardon, 444 N.W.2d 348, 353 (N.D. 1989)). The frivolousness of Duane's appeal is especially extraordinary in light of footnote 2, In re Admin. By First Trust Co. of N.D., 490 N.W.2d at 487, where this Court explicitly directed that the prior judgment was res judicata as to the propriety of cancellation of the contract for deed, and directed that Duane was not entitled to relitigate those issues in these trust proceedings.

The Trust seeks costs and attorney fees under Rule 38, N.D.R.App.P., asserting that Duane's appeals are frivolous. An appeal is frivolous if it is "flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which evidences bad faith." Vogel v. Pardon, 444 N.W.2d 348, 353 (N.D. 1989). While several of Duane's arguments are "so devoid of merit that he should have been aware of the impossibility of his success on appeal" [ Mitchell v. Preusse, 358 N.W.2d 511, 514 (N.D. 1984)], we cannot say the same about his issues concerning jury trial and adequacy of the redemption period. Accordingly, we deny the request for costs and attorney fees.

The Trust seeks to impose costs and attorney's fees on appeal, pursuant to Rule 38, N.D.R.App.P. The Trust asserts Rub's appeal is frivolous. "An appeal is frivolous if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which evidences bad faith." Vogel v. Pardon, 444 N.W.2d 348, 353 (N.D. 1989) (citing Mitchell v. Preusse, 358 N.W.2d 511, 514 (N.D. 1984)). In light of the fact that Rub has also filed an appeal from the judgment, we decline to impose sanctions pursuant to Rule 38 of N.D.R.App.P.