Suncom, LLC, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1983

Suncom, LLC,
Appellant,

vs.

Robert Feuling, d/b/a West Side Liquors of Sartell, LLC, et al.,
Respondents.

Filed September 4, 2018
Affirmed
Kalitowski, Judge*

Stearns County District Court
File No. 73-CV-14-1147

Ryan Simafranca, Simafranca Law Office, Minnetrista, Minnesota; and

Timothy W. Fafinski, Corporate Counsel, PA, Independence, Minnesota (for appellant)

Gordon H. Hansmeier, Matthew W. Moehrle, Christopher A. Wills, Rajkowski Hansmeier
LTD, St. Cloud, Minnesota (for respondents)

Considered and decided by Florey, Presiding Judge; Halbrooks, Judge; and
Kalitowski, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
KALITOWSKI, Judge
This attorney -fees dispute involves a second appeal from a prolonged, five -year
litigation. Appellant Suncom, LLC, challenges the district court’s award of $15,650 in
attorney fees to appellant, arguing that the district court erred by failing to apply the
lodestar method. Respondent/cross-appellant Robert Feuling, d/b/a/ West Side Liquors of
Sartell, LLC, et al., argues that the district court abused its discretion in awarding attorney
fees based on a percentage of the final judgment. We affirm.
D E C I S I O N
“Generally, we review an award of attorney fees for an abuse of discretion.” Milner
v. Farmers Ins. Exch ., 748 N.W.2d 608, 620 (Minn. 2008). “On appeal from judgment
following a court trial, this court reviews whether the district court’s findings were clearly
erroneous and whether the district court erred as a matter of law.” In re Distrib. of
Attorney’s Fees between Stowman Law Firm, P.A. & Lori Peterson Law Firm, 855 N.W.2d
760, 761 (Minn. App. 2014). “A finding is clearly erroneous if we are left with the definite
and firm conviction that a mistake has been made. We review issues of law de novo.” Id.
(citation and quotation omitted). “[W]e view the record in the light most favorable to the
judgment of the district court.” Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999).
Minnesota courts have adopted the lodestar method for determining the
reasonableness of attorney fees. Cty. of Dakota v. Cameron, 839 N.W.2d 700, 711 (Minn.
2013); Green v. BMW of N. Am., LLC , 826 N.W.2d 530, 535 (Minn. 2013). The lodestar
method first requires a determination of “the number of hours reasonably expended” on the

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litigation, then multiplies the number of hours by “a reasonable hourly rate.” Green, 826
N.W.2d at 536 . The court considers “all relevant circumstances ” when evaluating the
reasonableness of the hours expended by the attorneys and their hourly rates. Id. Relevant
factors include “the time and labor required; the nature and difficulty of the responsibility
assumed; the amount invo lved and the results obtained; the fees customarily charged for
similar legal services; the experience, reputation, and ability of counsel; and the fee
arrangement existing between counsel and the client.” Milner, 748 N.W.2d at 621
(quotation omitted). “ When the reasonableness of the requested attorney fees is
challenged, the district court must provide a concise but clear explanation of its reasons for
the fee award.” Id. (quotation omitted).
Prior Appeal
We previously reversed the district court’s dis missal of appellant’s attorney -fees
claim and remanded for further proceedings, holding that the district court erred in granting
a directed verdict for respondent because appellant was entitled to recover reasonable
attorney fees under the terms of the le ase. Suncom, LLC v. Feuling, No. A16-0625, 2017
WL 474419 (Minn. App. Feb. 6, 2017) ( Suncom I). We “limit[ed] the hearing on remand
to the issues as they were frozen on October 14, 20 15[;]” specifically, the hearing was
limited to determining the reasonable value of appellant’s attorney fees. Id. at *5. And
appellant was limited to presenting testimony through its principal, Stuart Swenson, the
only witness it had identified as of that date, and could not conduct additional discovery.
We also no ted that it was “within the district court’s discretion to determine on remand

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whether [Swenson] is competent to testify as to the reasonableness of attorney fees.” Id.
at *6.
Reasonableness of Attorney Fees
Appellant argues that Swenson was competent to testify about the reasonableness
of the attorney fees and that the district court abused its discretion in determining that no
evidence was provided about the reasonableness of the claimed attorney fees. At trial, the
district court sustained several obje ctions to Swenson’s testimony as lacking foundation
concerning the reasonableness of appellant’s attorney fees. The district court then found
that “[t]he record before this Court is devoid of competent evidence on the reasonableness
of attorney fees .” We review a district court’s ruling on foundational reliability for an
abuse of discretion. Doe 76C v. Archdiocese of St. Paul , 817 N.W.2d 150, 164 (Minn.
2012). “A witness may not testify to a matter unless evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the matter.” Minn. R. Evid.
602.
Swenson testified that he had little background in litigation and all of his previous
matters had settled out of court. Swenson admitted that he lacks knowledge about litigation
generally, did not know if the various motions and subpoenas filed by his attorneys were
reasonable, and did not pay attention to the “day -to-day details” of this litigation . The
district court, sustaining several objections on the basis of foundat ion, received no
testimony from Swenson that the number of hours charged by appellant’s attorneys were
reasonable. Swenson never provided, and appellant’s attorney failed to lay foundation for,
any opinion concerning the reasonableness of the hours billed. At most, Swenson testified

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that the rate charged by the attorneys was at the “low end” of what he was familiar with.
Based on Swenson’s admitted lack of experience with litigation and lack of personal
knowledge concerning several aspects of th is specif ic litigation, we conclude that the
district court did not abuse its discretion in sustaining objections to any testimony from
Swenson concerning the reasonableness of the hours billed as lacking foundation.
The district court also noted to appellant at t rial that “it was incumbent upon you
. . . to have an expert to testify to these matters,” and stated that , with only Swenson’s
testimony, it did not “have any evidence whatsoever regarding most of the Lo destar
factors.” The district court stated that appellant could not simply submit bills for the court
to determine what was reasonable, and that an expert witness who does similar litigation
should have testified because the district court did not “feel [it] ha[d] any competent
testimony regarding most of the Lodestar factors” and that “the record is severely lacking.”
Appellant contends the district court erred, arguing that under Wojahn v. Faul, 242
Minn. 33, 64 N.W.2d 140 (1954), appellant was not required to produce expert testimony
to support its claim for attorney fees. We disagree. In Suncom I, we recognized that “[t]he
Wojahn holding has since been supplanted by caselaw employing the lodestar method, and
post-Wojahn cases have relied upon expert testimony when determining an attorney -fees
award.” 2017 WL 474419, at *6 n.3. And, although we did not decide whether expert
testimony was per se required for the district court to determine the reasonableness of
attorney fees, we recognized that the district court had the discretion to determine whether
Swenson could provide competent testimony on the key issue of the reasonableness of the
fees. Because appellant “[wa] s not entitled to add witnesses or seek additional discovery

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on remand,” the district court could have determined that Swenson could not competently
testify to the reasonableness of the claimed attorney fees and decline to award any attorney
fees on that basis. Id. at *5.
Appellant also argues that the district court improperly assigned appellant the
burden of proof concerning whether the hours expended during this litigation were
reasonable. But the district court concluded “that whether or not [appellant] bears the
burden of showing the requested fees are reasonable, there is no evidence before the Court
showing that the requested amount of fees are appropriate in this case.” Thus, the district
court’s decision did not rest on whether appellant had failed to meet a burden of proof;
rather, it reflected that there was simply no record evidence available to the district court
that would allow it to apply the lodestar method or determine whether the number of hours
billed by appellant’s attorneys was reasonable.
In conclusion, because the district court determined that there was no evidence from
which to conclude whether the number of claimed hours was reasonable, the district court
did not abuse its discretion in determining that it could not apply the lodestar method.
District Court’s Fee Award
Notwithstanding its inability to a pply the lodestar method, the district court
recognized that appellant’s attorneys “obviously worked for many hours over the course of
this case” and that appellant was entitled to some amount of attorney fees. Thus, rather
than declining to award any attorney fees, the district court explained that it found that a
contingency fee of one-third of the $46,950 judgment awarded to appellant by the jury was
a reasonable award for appellant’s attorneys ’ work . Accordingly, it awarded appellant

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$15,650 for attorney fees and costs. The district court—having been present for all of the
motions, hearings, and trial—is in the best position to determine a reasonable attorney-fees
award. Milner, 748 N.W.2d at 622. We conclude that it was not an abuse of discretion for
the district court to award an amount that it found to be reasonable attorney fees when it
did not have sufficient evidence to apply the lodestar method.
Affirmed.