Brothers Fire Protection Co., d/b/a Brothers Fire and Security, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0920

Brothers Fire Protection Co., d/b/a Brothers Fire and Security,
Respondent,

vs.

John B Przymus, et al.,
Appellants.

Filed April 19, 2021
Affirmed in part, reversed in part, and remanded
Jesson, Judge

Mille Lacs County District Court
File No. 48-CV-19-479

Michael P. Coaty, Elizabeth Ridley Scott, Heley, Duncan & Melander, PLLP, Minneapolis,
Minnesota (for respondent)

Richard W. Curott, Curott Law Office, Milaca, Minnesota (for appellants)

Considered and decided by Reyes, Presiding Judge; Wo rke, Judge; and
Jesson, Judge.
NONPRECEDENTIAL OPINION
JESSON, Judge
Appellant John B. Przymus hired respo ndent Brothers Fire Protection Company,
pursuant to an oral agreement without a specified price, to extend an existing fire sprinkler
system on a commercial property that he was developing. Brothers Fire sent Przymus
invoices charging Przymus for the labor and materials used for the project. Przymus made

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partial payments on the invoices but ultimately disputed the amount of the charges and
stopped paying.
Brothers Fire sued Przymus for foreclos ure of its mechanic’s lien against the
property, among other claims. The case proceeded to trial, where the most significant issue
was the reasonable value of the labor and materi als that Brothers Fire contributed to the
property. The district court entered judgment in Brothers Fire’s favor, making findings
regarding the reasonable value of the labor and materials based on the invoices and the
testimony of Brothers Fire employees. The district court awarded interest on the award at
18% per year, purportedly pursuant to the agre ement at issue. Th e court also granted
Brothers Fire’s posttrial motion for attorney fees.
Przymus challenges the district court’ s reasonable-value finding, its award of
interest, and the award of atto rney fees. We affirm the di strict court’s reasonable-value
finding because it is not clearly erroneous. And we affirm the interest award but modify it
to six percent pursuant to Minnesota Statutes section 334.01 (2020). But we reverse the
award of attorney fees and remand to allow Przymus an opportunity to respond to Brothers
Fire’s motion for attorney fees.
FACTS
Przymus is in the process of developi ng a commercial property called the Phoenix
Complex.1 Przymus intended the prop erty to serve several purposes—including assisted
living. In late 2018, Przymus hired Brothers Fire to extend an existing fire sprinkler system

1 Przymus does business as “Phoenix Companies, LLC,” but because Phoenix Companies,
LLC, is not a separate legal entity, we simply refer to Przymus by name.

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on the property to the area that would become the assisted living facility, which did not
have a fire sprinkler system. Their agreement was an oral agreement.
The project had no specifications or known labor and material needs. Based on the
undefined scope of the project, the parties did not agree to a specific price for the project
and instead agreed that Brothers Fire would bill Przymus based on the time and materials
furnished. Billing on a time-and-materials basis meant that Brothers Fire would charge “a
per hour rate for the actual hours used on the j ob and then the price of the materials.” In
other words, Brothers Fire would charge Przymus based on the actual labor and materials
furnished for the project.
As it worked on the project, Brothers Fi re sent Przymus invoices that charged
Przymus separately for labor and materials. The labor charges detailed who contributed
labor, how many hours the person worked on the project, and the hourly labor rate. The
total labor charges at issue in this case were $25,632.50. The materials charges, however,
were not detailed. The invoices each contained only a lump sum for one unit of “materials.”
The total material charges at issue in this case were $17,7 42.76. The bills also included
“trip charges” that the district court did not award and are not at issue in this appeal.
Including the trip charges, the invoices totaled about $45 ,000. Although Przymus made
partial payments on the invoices, he ultimatel y disagreed with the charges and stopped
paying Brothers Fire.
Brothers Fire eventually su ed Przymus for foreclosure of a mechanic’s lien that it
held on the property, among other claims. The case proceeded to a court trial, where the
most significant issue was the reasonable value of the labor and materials furnished.

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To establish the reasonable value of the labor and materials furnished, Brothers Fire
introduced its invoices. Brothers Fire employees also testified to both the invoices and the
reasonable value of the labor an d materials furnished. The president of Brothers Fire
testified that the company frequently bills on a time-and-materials basis on projects without
a defined scope. He compiled the time and materials billing for Brothers Fire. He testified
that he believed the amounts listed on the invoi ces reflected a reasonable and fair cost of
labor and materials used on the project. The president further explained that it was possible
to itemize the specific materials used on the project, but that he did not itemize the materials
because Przymus never asked him to do so.2
The project manager who worked on this project testified that the only agreement
that he reached with Przymus regarding price was that Brothers Fire would bill monthly on
a time-and-materials basis. He described the materials used on the project, which included
“CPVC pipe fittings, sprinkler heads, upright s for the heads above the ceiling, pendant
style sprinklers from underneath,” and other ma terials. He believed that the materials
charges were reasonable. He also testified that it was possible to itemize the materials used
on the project.
Brothers Fire had d one work in other areas on the Phoenix Complex in the past, so
the parties were familiar with each other. Przymus testified that he believed, based on
previous work done by Brothe rs Fire and based on an estim ate for the project made by

2 Przymus failed to timely request discovery from Brothers Fire a nd the district court
ordered that Brothers Fire was not required to respond to his untimely request for the
production of documents. Przymus does not contest any discovery order on appeal.

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another project manager years before, that th e total cost of the project would be about
$50,000. He also believed that the projec t was only about 40% done . Consequently, he
believed that the invoices, which totaled almost $45,000, were unreasonable for the amount
of work that had been done by that point.
The district court found Brothers Fire w itnesses credible with respect to the value
of the labor and materials furnished, and specifically found that the reasonable value of the
labor and materials furnished but not yet paid for was $30,935.66.
3 As a result, the court
ordered judgment in Brothers Fire’s favor for $30,935.66, with interest at a rate of 1.5%
per month (or 18% per year) “in accordance with the subject contract.” The district court
further indicated that Brothers Fire was entitled to an attorney-fees award. Brothers Fire
filed a motion requesting attorney fees but did not identify a hearing date for the motion.
Before Przymus filed a response to the motion, and without setting a hearing, the district
court entered an order awarding Brothers Fire the amount of attorney fees it requested.
This appeal follows.
DECISION
Przymus raises three issues on appeal. Th e first, and primary, issue is whether the
district court clearly erred by finding that Brothers Fire proved the reasonable value of the
materials furnished for the project. Przymus also challenges the district court’s decisions

3 The finding is consistent with the amount s billed in the invoic es, less “trip costs”
identified in the invoices, as the district court found that the parties never agreed that
Przymus would pay for trip costs.

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to award attorney fees and interest on the judgment at a rate of 18% per year. We address
each issue in turn.
I. The district court did not clearly err in finding that the invoices reflected the
reasonable value of materials furnished.

Based on the invoices and the credible te stimony of Brothers Fire employees, the
district court found that “the reasonable va lue of labor and materials furnished, which
remains unpaid, is Thirty Thousand Nine Hundred Thirty-Fiv e and 66/100 Dollars
($30,935.66) in principal.” On appeal, Pr zymus only challenges the district court’s
findings with respect to the materials.4 Przymus argues that the district court clearly erred
by finding that the unitemized amounts on Brothers Fire’s invoices reflected the reasonable
value of materials furnished for the project. We review a district court’s findings of fact
for clear error, setting aside findi ngs only when “we are left with the definite and firm
conviction that a mistak e has been made.” Thornton v. Bosquez , 933 N.W.2d 781, 790
(Minn. 2019) (quotation omitted).
We begin our review with the law regard ing the value of a mechanic’s lien. A
person who contributes to improvements of real estate under contract with the owner “shall
have a lien upon the improvement, and upon th e land on which it is situated.” Minn.
Stat. § 514.01 (2020). In cases like this, with no agreed upon price, the amount of the lien

4 At oral argument, Przymus referenced an argument purportedly in his brief concerning
the district court’s reasonable-value finding regarding the cost of labor. We find no such
argument and limit our review to whether the evidence regarding the reasonable value of
materials supports the district court’s finding.

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is for the “reasonable value of the work done, and of the skill, material, and machinery
furnished.” Minn. Stat. § 514.03, subd. 1(b) (2020).
At issue in this case is whether Brothe rs Fire introduced sufficient evidence to
support the district court’ s reasonable-value fi nding. Summary bills, even without
underlying support, are admissible to prove the reasonable value of labor and materials
furnished in a mechanic’s lien case. Theissen-Nonnemacher, Inc. v. Dutt, 393 N.W.2d 397,
400 (Minn. App. 1986). In Theissen-Nonnemacher, we concluded that the district court
“did not err in using summary bills supported in part by ba ckup data and in part by
testimony to support a contractor’s claim fo r the reasonable value of his services.” Id. at
401.
Based on the evidence in the record, we cannot conclude that the district court
clearly erred in finding that the unitemized amounts listed on the invoices reflect the
reasonable value of the material s that Brothers Fire furnishe d for this project. Brothers
Fire introduced bills to supp ort the district court’s ultim ate reasonable-value finding.
Brothers Fire employees also testified to the reasonableness of the charges. Their
testimony established the type of materials used, that the qua ntity of materials used was
based on measurements of the area of the pr oject, why more materials were necessary in
this project than in other projects done on the site, and why the cost of materials increased
or decreased throughout the project. Thus, the district court’s finding is supported in part
by the invoices and in part by testimony.
Still, Przymus argues that Theissen-Nonnemacher is distinguishable from this case
because, in Theissen-Nonnemacher, at least some “backup data” was introduced to support

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the amounts reflected in the bills. We agree that this case is distinguishable from
Theissen-Nonnemacher in that no “backup data” was intr oduced at trial to support the
invoices. But Brothers Fire introduced te stimony to support the amounts reflected on the
invoices. We conclude that in this case th e combination of the bills and the testimony of
Brothers Fire employees is sufficient to su pport the district court’s reasonable-value
finding.
Because the district court’s findings ar e not clearly erroneous, we affirm the
judgment for $30,935.66 in Brothers Fire’s favor.5
II. The district court erred by awarding attorney fees without providing Przymus
an opportunity to respond to Brothers Fire’s motion.

Next, Przymus asserts that the district court erred by awarding attorney fees without
setting a hearing on Brothers Fire’s motion, which would have established the time by
which Przymus was required to respond. We re view a district court’s award of attorney
fees for an abuse of discretion. Minn. Humane Soc’y v. Minn. Federated Humane Soc’y ,
611 N.W.2d 587, 590-91 (Minn. 2000).6

5 Because we conclude that the district court did not clearly err in finding that the invoices
reflected the reasonable value of material s furnished based on the invoices and the
testimony that it found credible, we need not reach any argument concerning the theory of
account stated, which was raised to the district court. See Hall-Vesole Co. v. Durkee-
Atwood Co. , 35 N.W.2d 601, 604 (Minn. 1949) (discussing the showing required to
establish an account stated).
6 Brothers Fire also argues that Przymus failed to challenge the attorney fees award to the
district court and therefore forfeited review of the award on appeal. We observe that, in
his posttrial memorandum, Przymus argued that the district court should not allow attorney
fees because, in his view, Brothers Fire failed to prove its claims. Alternatively, Przymus
asserted that the district court should not awar d attorney fees until Brothers Fire filed an
application for costs pursuant to Minnesota Ru le of Civil Procedure 54.04(b). As we
ultimately conclude, Przymus was not afforded a sufficient opportun ity to contest the

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In a mechanic’s lien foreclosure case, a pr evailing plaintiff is entitled to costs and
disbursements. Stiglich Constr., Inc. v. Larson, 621 N.W.2d 801, 803 (Minn. App. 2001)
(quoting Minn. Stat. § 514.14 (1998)), review denied (Minn. Mar. 27, 2001). That award
may include reasonable attorney fees. Id.
To review the district court’s decisi on to award attorney fees under these
circumstances, we look to the applicable rule s. A party seeking more than $1,000 in
attorney fees must make the application by motion. Minn. R. Gen. Prac. 119.01. The
motion must be accompanied by a supporting affidavit and documentation. Minn. R. Gen.
Prac. 119.02. Generally, motions require both written notice and a hearing. Minn. R. Civ.
P. 7.02(a); see also Minn. R. Gen. Prac. 115.02 (provi ding that a party “shall” obtain a
hearing date from the court administrator wh en filing a motion). And although the time
limits established in the Minnesota General Rules of Practice do not apply to posttrial
motions,7 the hearing date is generally what establishes the responding party’s deadline to
respond to the motion. See Minn. R. Gen. Prac. 115.03, .04.
Here, Brothers Fire filed a motion seekin g more than $1,000 in attorney fees,
indicating that it would move for the award “on a date to be determined by the court.” But
the district court never set a hearing date. Instead, approximately three weeks later, the
district court entered an order granting Brothe rs Fire’s motion. There is no indication in

attorney fees motion that Brothers Fire eventually filed. Because Przymus did dispute an
award for attorney fees, and because the di strict court considered the issue, we
conclude that the district court’s attorney fe es award is within the scope of our review.
Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1980).
7 See Minn. R. Gen. Prac. 115.01(c) (“The timing provisions of sections 115.03 and 115.04
of this rule do not apply to post-trial motions.”).

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the record that Przymus was no tified that the district court would enter the order without
setting a hearing date or providing an opportunity to respond.
We are mindful that Brothers Fire filed its motion for attorney fees in the spring of
2020, in the midst of the global COVID-19 pa ndemic. At that time, the Chief Justice of
the Minnesota Supreme Court ordered that dist rict courts conduct most hearings (with
some exceptions not applicable here) by remote technology or by revi ew of the parties’
submissions without oral argument. See Order Governing the Continuing Operations of
the Minnesota Judicial Branch Under Emergency Executive Order No. 20-48 ,
No. ADM20-8001 (Minn. May 1, 2020). Thus, it is understandable that the district court
sought to determine the attorney fees issue without setting a hearing on the matter. But by
doing so without notifying Przymus that he could file a response by a given date, the district
court made it unclear when Przymus was required to submit his response to the motion.
We conclude that the district court abused its discretion by awarding attorney fees
under these circumstances. We reverse the award and remand to the district court to allow
Przymus an opportunity to object to the reque st. We leave the decision as to whether a
hearing is necessary to resolve the issue to the district court’s discretion.
III. The district court erred by awarding interest at 18% per year.
Finally, Przymus argues that the district court erred by awarding interest at 18% per
year, contrary to Minnesota Statutes section 334.01, which sets the interest rate of all legal
indebtedness at six percent “unless a different rate is contracted for in writing.”8 Brothers

8 We note that Przymus challenges the interest rate awarded, but not the award of interest
generally.

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Fire argues that Przymus has forfeited review of the interest-rate issue because he failed to
challenge the interest rate before the district court.
Generally, we only consider issues that were presented to and considered by the
district court. Thiele, 425 N.W.2d at 582. We also typi cally do not review an issue that
was raised generally before the district court but argued under a different theory. Id.
Nevertheless, we retain the discretion to revi ew any issue “as the in terests of justice may
require.” Minn. R. Ci v. App. P. 103.04; s ee also Harms v. Indep. Sch. Dist. No. 300 ,
450 N.W.2d 571, 577 (Minn. 1990) (indicating that an appellate court may decide an issue
not determined by the district court when the question is “dec isive of the entire
controversy,” and when the facts are undisputed).
Turning to the scope of our review in this case, we consider that the district court
addressed the interest-rate issue by awarding in terest pursuant to Brothers Fire’s request.
While Przymus did not challenge the interest award with the district court, as noted above,
there was a truncated period of time to address posttrial motions in this case. As a result,
because there are no genuinely disputed material facts 9 and the issue is purely legal, we
exercise our discretion to review the district court’s interest award.

9 In its brief, Brothers Fire argued that the pa rties agreed to an 18%-per-year interest rate
but conceded that there is no evidence in the record to support that the parties made such
an agreement. But even if that were true, it would not be material to this issue because
Minnesota Statutes section 334.01 sets the interest rate for oral contracts at six percent. At
oral argument, Brothers Fire asserted that the agreement between the parties was actually
a partially written agreement, not a wholly oral agreement. But neither the district court’s
findings nor the record support that assertion. The district court found that the agreement
was oral. And the testimony and evidence introduced at trial unequivocally demonstrated
that the agreement was oral.

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Here, while the district court found that th e parties entered into an oral agreement,
there is no evidence in the re cord that a specific intere st rate was contracted for. 10 By
operation of section 334.01, therefore, the dist rict court should have determined that the
interest rate for the oral agreement was six percent per year. Accordingly, we modify the
interest award to six percent pursuant to section 334.01. See Pearson-Berke,
Inc., v. McIntosh, 350 N.W.2d 378, 379 (M inn. 1984) (reversing district court’s eight
percent interest award based on Minnesota Statutes section 334.01).
Affirmed in part, reversed in part, and remanded.

10 Brothers Fire complains that it was not put on notice that the intere st rate would be at
issue at trial. But as the plaintiff, Brothers Fire bore the burden of proving its damages and
chose not to submit any evidence regarding the purported interest-rate agreement. See
Canada by Landy v. McCarthy, 567 N.W.2d 496, 507 (Minn. 1997).