In re the Estate of James J. Fiorentino, Deceased.

This opinion is nonprecedential except as provided by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
A22-0014

In re the Estate of James J. Fiorentino, Deceased.

Filed July 25, 2022
Affirmed; motion denied
Ross, Judge

Ramsey County District Court
File No. 62-PR-18-29

William H. Henney, Henney Law, Minnetonka, Minnesota; and

Sally M. Silk, Hvistendahl, Moersch, Dorsey & Hahn, P.A., Northfield, Minnesota (for
appellant Hvistendahl, Moersch, Dorsey & Hahn, P.A.)

Thomas E. McEllistrem, Robert E. McGarry, Collins, Buckley, Sauntry & Haugh,
P.L.L.P., St. Paul, Minnesota (for respondent James J. Fiorentino Foundation)

Alan I. Silver, Mark R. Bradford, Casey D. Marshall, Bassford Remele, P.A., Minneapolis,
Minnesota (for respondent Security Bank & Trust Company)

Considered and decided by Ross, Presiding Judge; Bjorkman, Judge; and Smith ,
John, Judge.
∗
NONPRECEDENTIAL OPINION
ROSS, Judge
This case arises from a dispute between the beneficiary of a trust funded by a
decedent’s will and a law firm seeking to recover attorney fees it claims to have generated

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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representing the decedent’s guardian and personal representative. After the law firm filed
a $272,834 attorney lien as the estate’s creditor, and the beneficiary challenged the
reasonableness of the attorney fees sought through the lien, the district court awarded the
firm only $12,890. In this appeal in which the law firm challenges the fee-award procedure
employed by the district court, we hold that the district court appropriately treated the
beneficiary as an interested person with a statutory right to challenge the amount of fees
stated in the attorney lien and that the law firm failed to provide an adequate record in
support of its due-process argument arising from the lack of an allegedly promised hearing.
We therefore affirm.
FACTS
This attorney-fee dispute began with a guardianship and probate arrangement
concerning James J. Fiorentino and his great nephew, Gregg Fiorentino. Gregg served as
James’s guardian and conservator during the year preceding James’s death in September
2017 and then afterwards as the personal representative of James’s estate. The law firm of
Hvistendahl, Moersch, Dorsey & Hahn began representing Gregg in January 2018 related
to both his roles, the representation lasting for about four years, until late November 2021.
This lawsuit concerns the firm’s attempt to recover attorney fees it says it incurred
providing that representation.
Gregg has been at the center of various threads of litigation related to his roles as
guardian and personal representative and focused on wealth left by James. James
bequeathed his entire estate—valued at more than $10 million—to a trust for which
respondent Security Bank and Trust Company serves as trustee. The trust instrument
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named two beneficiaries. The first is James’s daughter, to whom the trust instrument
directed $1.5 million and a residence. The second is the respondent foundation (The James
J. Fiorentino Foundation), to which the trust instrument directed the remainder of James’s
wealth. The trust instrument also named four charitable organizations, each of which would
receive an equal share of any trust property not effectively distributed to the two primary
beneficiaries.
Gregg was serving as a foundation board member when James died, but Gregg’s
relationship with the foundation soured. The foundation removed Gregg from the board in
December 2018 and then sued him for breaching his fiduciary duty to the board. The
foundation also urged the district court to remove Gregg as the estate’s personal
representative, asserting that he was moving too slowly to administer the estate and transfer
estate funds to the trust. After litigation related to the guardianship and conservatorship
ended in October 2020, the district court recognized that the law firm had already recovered
$169,940 for attorney fees generated in its representing Gregg. It issued an order for a final
accounting, cautioning that it had then “capped” the firm’s recovery, permitting no more
in attorney fees for “legal work since [James’s] death.” The firm withdrew as Gregg’s
attorney.
The primary focus of this appeal concerns the district court’s treatment of the law
firm’s later effort to recover more in legal fees. About four months after it withdrew from
representing Gregg, the firm filed a “Notice of Attorney Lien” seeking to recover an
additional $272,834 in attorney fees. According to the firm, this was the sum of the amounts
incurred representing Gregg in the guardianship and conservatorship dispute ($137,563),
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incurred representing Gregg in the estate dispute ($107,791), and generated in its effort to
recover attorney fees after withdrawing ($27,479). The foundation opposed the law firm’s
lien at first by moving the district court to sanction the firm for improperly filing the lien
and then, after withdrawing that motion, by moving to dismiss the lien on the pleadings or,
alternatively, for summary judgment dismissing it.
The district court issued an order awarding the law firm only a fraction of its
attorney-fee request. It concluded that the foundation, a named trust beneficiary, had
standing to challenge the firm’s attorney lien as an interested person as defined by
Minnesota Statutes section 524.1-201(33) (2020). And on the same premise it determined
that the foundation could object to the lien under Minnesota Statutes section 524.3-806
(2020) despite not being the personal representative. The district court awarded the law
firm $12,890 of its $272,834 request, consisting of $10,500 for representing Gregg as
guardian and conservator, $790 for representing Gregg as personal representative, and
$1,600 for representing Gregg in the breach-of-fiduciary-duty litigation.
The law firm appealed the district court’s order and, after receiving the foundation’s
responsive brief and addendum, moved this court to strike some of the foundation’s
submissions. We now decide the motion to strike and the merits of the appeal.
DECISION
The law firm offers two procedural arguments urging us to reverse the district
court’s attorney-fee award and remand the case to the district court with instructions to
dismiss the foundation’s objections and to issue an order granting all the firm’s requested
fees. It argues first that the district court errantly treated the foundation as having standing
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to object to the attorney lien. It argues second that the district court violated its right to due
process by issuing the attorney-fee order without firs t conducting an evidentiary hearing.
Before addressing those arguments, we will resolve the law firm’s motion to strike
elements of the foundation’s appeal submission.
The law firm asks us to strike from the foundation’s addendum any documents (and
references to those documents) that were filed only in the foundation’s breach-of-fiduciary-
duty suit against Gregg. It bases this request on its observation that this material is not part
of the record on appeal. The law firm’s observation is correct, and its motion incidentally
calls our attention to additional material similarly outside the record.
In addition to the estate case now on appeal, which is designated district court case
number 62-PR -18-29, material from three other district court files were the subject of
discussion in the district court: (1) case number 62-PR-16-703, which was the guardianship
and conservatorship matter; (2) case number 62-CV-TR-16-40, which was the trust matter;
and (3) case number 62-CV-19-1492, which was the breach-of-fiduciary-duty matter. The
law firm accurately asserts that the foundation’s addendum and brief cites or refers to
documents filed only in the breach-of-fiduciary-duty matter. We have noticed too that both
parties cite documents filed only in the guardianship-and- conservatorship matter, and the
law firm cites documents filed only in the trust matter. We infer that both parties assumed
that the record on appeal included those documents.
This assumption was mistaken. Only “[t]he documents filed in the trial court, the
exhibits, and the transcript of the proceedings” constitute the record on appeal. Minn. R.
Civ. App. P. 110.01. We have considered documents outside the district court file as part
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of the record on appeal if the document is publicly available and the district court took
judicial notice of it. MacDonald v. Brodkorb, 939 N.W.2d 468, 474 (Minn. App. 2020).
But the district court did not take judicial notice of any documents submitted in the other
files. We need not grant the firm’s motion to strike, because we will base our decision only
on records properly before us regardless of whether we formally “strike” documents or
references. We will not consider the documents outside the appellate record in this case or
references to those documents, and this applies to both parties’ submissions.
As to the merits of the appeal, we first consider the law firm’s argument that the
district court wrongly recognized the foundation’s standing to challenge its lien. Whether
a party has standing is a question of law that we review de novo. In re Horton, 668 N.W.2d
208, 212 (Minn. App. 2003). Our de novo review leads us to reject the law firm’s argument.
The law firm maintains that because it filed its attorney-fee request as a creditor
claim against the estate under Minnesota Statutes sections 481.13 and 524.3-804 (2020),
only the estate’s personal representative may object under the limits included in section
524.3-806 (2020). It is true that section 524.3 -806 establishes the process for a personal
representative to challenge a creditor’s claim made against a decedent’s estate. But the law
firm identifies no provision of the statute and cites no other authority supporting its premise
that section 524.3-806 affords the only process through which an interested person can
challenge a request for attorney fees. In contrast to section 524.3-806, which focuses on
potential challenges to claims (generally) that are made by personal representatives
(specifically), section 524.3-721 (2020) focuses on challenges to the reasonableness of
attorney fees incurred by the personal representative (specifically, among other things) that
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are made by any interested person (generally). It provides a means for “all interested
persons” to raise for the district court’s review “the propriety of employment of any person
by a personal representative including any attorney, . . . [or] the reasonableness of the
compensation of any person so employed.” Minn. Stat. § 524.3-721. And section 524.3-
721 does not express or imply that an interested person may not raise—or that the district
court may not consider—the reasonableness of attorney fees that are sought through a
creditor’s claim against the estate. We are confident that the legislature did not provide
section 524.3-806 as a means for attorneys to evade judicial review of their fees under a
different statute that directly authorizes the review.
The remaining question, easily answered, is whether the foundation is an “interested
person” under section 524.3-721. It is. The category of “interested person” is broad,
including any individual or entity “having a property right in or claim against the estate of
a decedent.” Minn. Stat. § 524.1-201(33). And its definition is flexible, “vary[ing] from
time to time . . . according to the particular purposes of, and matter involved in, any
proceeding.” Id. The category specifically includes “heirs, devisees, children, spouses,
creditors, [and] beneficiaries.” Id. (emphasis added); Minn. Stat. § 524.1-201(4) (defining
“beneficiary” to include trust beneficiaries). James’s will directed all his property to the
trust he created, and his trust instrument directed much of that property to the foundation.
Given the trust instrument’s requirement that the trustee convey to the foundation all trust
money remaining after providing $1.5 million to James’s daughter, every nickel the
personal representative pays the law firm in unreasonable fees is a nickel to which the
foundation is entitled. We hold that the district court did not err by considering the
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foundation’s challenge as one raised by an interested person under section 524.3-721. The
district court’s assessment of reasonableness not being before us, we turn to the law firm’s
other procedural challenge.
The law firm argues that the district court did not provide it with due process
because the court issued its order determining the law firm’s attorney fees without holding
a hearing after it allegedly promised one. Whether the district court afforded a party due
process is a question of law subject to our de novo review. Gams v. Houghton, 884 N.W.2d
611, 618 (Minn. 2016). The law firm asserts that the district court asked the parties to “get
together to come up with a scheduling order” so it could conduct a hearing on the question
of attorney fees and that the district court issued its order awarding fees without holding a
hearing. But the appellant bears the burden of providing an adequate record on appeal.
Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn. App. 1995). And the firm bases
its factual assertion on a transcript that, as highlighted by its challenge to extraneous
material outside the record on appeal, is not properly before us.
We add that we doubt that the law firm would prevail on its due-process theory even
if we considered it on the merits. The Minnesota and United States Constitutions prohibit
the state from depriving a person of property without due process of law. Minn. Const.
art. 1, § 7; U.S. Const. amend. XIV, § 1. Adequate process includes notice and an
opportunity to be heard. Sawh v. City of Lino Lakes, 823 N.W.2d 627, 632 (Minn. 2012);
Mathews v. Eldridge, 424 U.S. 319, 333 (1976). Our review of the record informs us that
the law firm was on notice of the foundation’s challenge and that the district court provided
adequate written and oral process to the parties on the issue. The law firm also offers no
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convincing argument that it would have provided the district court any additional
information at a hearing or that a hearing would have affected the district court’s
substantive bases for its fee award.
Affirmed; motion denied.