Herbert A. Igbanugo, et al., Appellants,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-2029

Herbert A. Igbanugo, et al.,
Appellants,

vs.

Kent Jennings, et al.,
Respondents.

Filed August 12, 2019
Affirmed
Rodenberg, Judge

Hennepin County District Court
File No. 27-CV-16-15663

Herbert A. Igbanugo, Igbanugo Par tners Int’l Law Firm, PLLC, Mi nneapolis, Minnesota
(attorney pro se and for appellants)

Kevin G. Leiran, Leiran Law Offices, LLC, Ponte Verda Beach, Florida (for respondents)

Considered and decided by Reyes, Presiding Judge; Bjorkman, Ju dge; and
Rodenberg, Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
In this appeal from the district court’s order and judgment fo llowing a court trial,
appellants Herbert Igbanugo and Danielle Igbanugo argue that th e district court made
clearly erroneous findings and errors of law and abused its dis cretion by denying their
posttrial motions. We affirm.

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FACTS
Appellants contacted respondent W est Metro Restoration Service s Inc. (d/b/a
SERVPRO of Plymouth), operated by respondent Kent Jennings, abo ut repairing water
damage to their home. Water had been escaping from a bathtub o n the home’s second
floor, causing damage to the main-level ceiling and creating possible mold issues.
The parties disagree about the facts, but the district court fo und—and the record
supports—the following facts. A fter respondents’ employee met with appellants and
prepared a “First Notice of Loss” and “Initial Sketch,” respondents emailed appellants two
different estimates for the propo sed remediation of the problem s. Both estimates
contemplated removing and reatt aching an upper-level bathtub, c ompleting mold
remediation under the tub, fixing the main-level ceiling, and o t h e r r e l a t e d t a s k s . T h e
estimates identified several costs as “TBD,” meaning “to be det ermined,” because
respondents were uncertain about the costs before work began. The only difference
b e t w e e n t h e t w o e s t i m a t e s w a s t h e t y p e o f c e i l i n g f i n i s h . O n e estimate included a
“popcorn” finish, and the other included a “knockdown” finish. Appellants chose the less-
expensive “knockdown” finish and paid respondents a down paymen t of half of the
estimated cost. The parties signed an agreement authorizing respondents to begin work.
Respondents started the work, but encountered unexpected problems that increased
the cost. Crown molding on the main level broke during removal, necessitating purchasing,
staining, and finishing new crown molding. Additionally, the main-level ceiling required
a “smooth skim coat” before texturing because of difficulties in scraping off the old texture.

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The cost further changed when a ppellant purchased a larger, “so aker-type” replacement
bathtub, which required additional plumbing work.
After respondents began work, Da nielle Igbanugo requested an es timate for a
knockdown ceiling on the entire main level of appellants’ home. Respondents prepared a
revised estimate which reflected the changes discussed above and included an estimate of
the cost of the main-level knoc kdown ceiling. Respondents emai led the revised estimate
to Herbert Igbanugo and discussed the changes with him in perso n before continuing the
work. When the work was completed, respondents submitted a final invoice for $4,344.94,
which credited appellants for th e initial down payment and refl ected the agreed-upon
revisions. Appellants refused to pay the balance.
After respondents filed a mechan ic’s lien statement and sued in conciliation court
to recover the amount owed, appellants sued respondents in dist rict court seeking, along
with other relief, discharge of respondents’ mechanic’s lien cl aim and consequential
damages from the assertion of it. The conciliation court actio n was removed to district
court and the cases were consolidated.
The consolidated cases were trie d to the district court. The d istrict court rejected
appellants’ claim that the parties’ agreement was a “flat-fee” contract. It determined that
the parties understood the agree ment to be an estimate. It fur ther found that appellants
waived objections to the additi onal costs by directing responde nts to include them after
agreeing to the additional costs. The district court also concluded that, based on appellants’
involvement in directing and ap proving the changes, appellants w a i v e d t h e c o n t r a c t ’ s
requirement that modifications to the initial agreement must be in writing. Appellants

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moved for a new trial or reopeni ng of the district court’s judg ment. The district court
denied the motions, and awarded respondents their costs and attorney fees. It clarified that,
because appellants failed to present any evidence at trial concerning the mechanic’s lien or
consequential damages because of it, they were not entitled to relief on those issues.
This appeal followed.
D E C I S I O N
“In an appeal from a bench trial, we do not reconcile conflicting evidence.” Porch
v. Gen. Motors Acceptance Corp., 642 N.W.2d 473, 477 (Minn. App. 2002), review denied
(Minn. Jun. 26, 2002). “We give the district court’s factual f indings great deference and
do not set them aside unless clearly erroneous.” Id. A district court’s findings of fact “may
be set aside only if this court on the entire evidence is left with the definite and firm
conviction that a mistake has been made.” Minn. Pub. Interest Research Grp. v. White
Bear Rod & Gun Club, 257 N.W.2d 762, 782-83 (Minn. 1977).
Appellants raised to the district court many of the arguments they assert on appeal.
We explained in a procedural ord er concerning this appeal that we would construe it as
taken from the judgment and the posttrial order denying appella nts relief. “We review a
district court’s decision to grant or deny a new trial for an abuse of discretion.” Christie v.
Estate of Christie, 911 N.W.2d 833, 838 (Minn. 2018). A district court may grant a new
trial for “[e]rrors of law occurring at the trial” or when the decision is not justified by the
evidence or is contrary to law. Minn. R. Civ. P. 59.01.
Contract language is construed according to its plain and ordinary meaning, and we
“give effect to the intentions of the parties as expressed in t he whole of the document.”

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Robert W. Carlstrom Co. v. German Evan gelical Lutheran St. Paul’s Congregation, 662
N.W.2d 168, 171, 173 (Minn. App. 2003). Where the terms of a c ontract are susceptible
to more than one reasonable inter pretation, the contract is amb iguous and a district court
may admit parol, or extrinsic, evidence of the parties’ intent. Staffing Specifix Inc. v.
TempWorks Mgmt. Servs., Inc., 913 N.W.2d 687, 692 (Minn. 2018).
Whether a contract was modified is a question of fact. Brodsky v. Brodsky , 639
N.W.2d 386, 392 (Minn. App. 2002), review denied (Minn. Apr. 23, 2002). Even where a
contract expressly requires modi fications to be approved in wri ting, if the parties later
assent to an oral modification, the modification is effective. Larson v. Hill’s Heating &
Refrigeration of Bemidji, Inc. , 400 N.W.2d 777, 781 (Minn. App. 1987), review denied
(Minn. Apr. 17, 1987); see New Amsterdam Cas. Co. v. Lundquist , 198 N.W.2d 543, 551
n.5 (Minn. 1972) (stating that “[i]t is well established” that a written contract may be
modified by a later oral contract).
Appellants argue that the district court erred by concluding that respondents’ initial
cost estimates were not fixed-fee arrangements and were instead preliminary cost
estimates.
The email from respondents clearl y states that the estimates we re just that—
estimates. The estimates indicate that several costs were to b e determined later.
Respondents could not be certain o f the final cost until they b egan working. Given that
some costs were explicitly so identified in both estimates, the district court did not clearly
err in finding that they were estimates of what the project’s cost might be. See Malmin v.
Grabner, 163 N.W.2d 39, 41 (Minn. 1968) (stating that documents identified as estimates

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for carpentry work were nothing more than approximations of what the project’s cost might
be). On this record, it is diffi cult to see how the district c ourt could have concluded
otherwise.
Appellants also challenge the district court’s finding of fact that the parties orally
agreed to amend the written agre ement despite the writing havin g provided that
amendments must be in writing. As noted above, the law supports this approach when the
parties choose to orally modify a written contract. And here, the record supports the district
court’s finding. See Larson, 400 N.W.2d at 781. To be sure, the evidence at trial was
conflicting, but resolution of such conflicting testimony is for the district court. See Porch,
642 N.W.2d at 477.
Moreover, the district court expressly found that appellants wa ived their right to
modifications in writing because they knowingly received the extra improvements without
objecting to the lack of a writing reflecting the modification. See New Ulm Bldg. Ctr., Inc.
v. Studtmann, 225 N.W.2d 4, 5 (Minn. 1974) (concluding that, despite the te rms of an
original agreement, homeowners were liable for extras and waived requirement of written
notice because owners were fully aware of the fact that extras were being included as the
work progressed). The record also supports this finding.
Appellants also argue that the parties’ written contract should be construed against
the drafter because it was a contract of adhesion. The contrac t was between a lawyer and
a business. On this record, we see no support for appellants’ claim that the contract was
one of adhesion.

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Appellants argue that the district court erred by failing to ad dress their claim for
damages by reason of respondent’s filing of a mechanic’s lien statement and by failing to
make a finding as to whether the project was an improvement or a repair to the property.
As the district court noted and as the record supports, appellants did not raise the issue of
the validity of the claimed mech anic’s lien at trial and failed to provide any testimony or
evidence at trial of consequentia l damages they suffered as a r esult of the lien. See
Eisenschenk v. Eisenschenk, 668 N.W.2d 235, 243 (Minn. App. 2003) (stating that “a party
cannot complain about a district court’s failure” to rule in th e party’s favor “when one of
the reasons it did not do so is because that party failed to provide the district court with the
evidence that would allow the district court to fully address the question”), review denied
(Minn. Nov. 25, 2003).
Having not argued this theory at trial, and having produced no evidence to support
such an argument, the district c ourt correctly determined that appellants are foreclosed
from adopting that theory posttrial. See Minn. Mut. Fire & Cas. Co. v. Retrum, 456 N.W.2d
719, 723 (Minn. App. 1990); Ness v. Ylvisaker , 412 N.W.2d 769, 769-70 (Minn. App.
1987). We have stated that “a party may not raise an issue for the first time in a new-trial
motion.” Ellingson v. Burlington N. R.R. Co. , 412 N.W.2d 401, 405 (Minn. App. 1987),
review denied (Minn. Nov. 13, 1987).
Moreover, respondents released t heir mechanic’s lien claim befo re trial after
appellants deposited with the district court sufficient funds to cover the claim in the event
that respondents prevailed at tri al. Respondents made no furth er lien claim. The district
court acted within its discretion in denying appellants’ motion for a new trial on this basis.

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Appellants also argue that the district court erred in awardin g attorney fees to
respondents because the contract providing for such recovery is unenforceable. The district
court found that the contract specifically provided for an awar d of attorney fees, and the
record supports that finding. See Barr/Nelson, Inc. v. Tonto’s, Inc. , 336 N.W.2d 46, 53
(Minn. 1983) (stating that attorney fees are not recoverable in litigation unless there is a
specific contract permitting or a statute authorizing such recovery).
We construe appellants’ challenge as relating generally to the amount of fees
awarded because we construe this appeal as being taken from the district court’s posttrial
order. “We review an attorney fee award for an abuse of discre tion.” 650 N. Main Ass’n
v. Frauenshuh, Inc. , 885 N.W.2d 478, 494 (Minn. App. 2016), review denied ( M i n n .
Nov. 23, 2016). The reasonable value of an attorney’s work is a question of fact, and the
district court’s findings will be upheld unless they are clearl y erroneous. County of Scott
v. Johnston, 841 N.W.2d 357, 361 (Minn. App. 2013). The district court is most familiar
with the litigation below, from its inception through posttrial motions, and it is therefore
best situated to evaluate the reasonableness of attorney fees. 650 N. Main Ass’n , 885
N.W.2d at 494.
The supreme court has approved the use of the lodestar method f or determining
reasonable attorney fees. Milner v. Farmers Ins. Exch., 748 N.W.2d 608, 620-21 (Minn.
2008). The lodestar method requires the district court to “det ermine the number of hours
reasonably expended on the litigation multiplied by a reasonabl e hourly rate.” Id. at 621
(quotation omitted). In determining the reasonableness of the hours and the hourly rates,
the district court must consider “all relevant circumstances.” Id. (quotation omitted).

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Here, the district court used the lodestar method to determine attorney fees and
reviewed invoices and billings submitted by respondents. The r ecord reflects that the
district court analyzed the proper factors and acted within its discretion in determining the
reasonableness of the attorney fees, and in awarding attorney fees. See City of Maple Grove
v. Marketline Constr. Capital, LLC, 802 N.W.2d 809, 819 (Minn. App. 2011). The district
court also awarded costs and disbursements.1
Finally, appellants argue that they are entitled to relief unde r the private attorney
general statute, Minn. Stat. § 8.31, subd. 3a (2018). Appellan ts did not bring this action
under that statute, nor have they shown benefit to the public should they prevail. See Ly v.
Nystrom, 615 N.W.2d 302, 314 (Minn. 2000) (“[T]he Private AG Statute a pplies only to
those claimants who demonstrate that their cause of action bene fits the public.”).
Appellants are foreclosed from now adopting this theory. See Antonson v. Ekvall , 186
N.W.2d 187, 189 (Minn. 1971) (holding that where a complaint in cludes vague language
which could be read to include a particular theory but the party does not actually raise that
theory at trial, the theory cannot be raised for the first time after trial).
We see no clear error or abuse of the district court’s discretion.
Affirmed.

1 Appellants make no argument that the district court abused its discretion in awarding
costs and disbursements.