Pat Peasha, Appellant, vs. Wensmann Realty, Inc., Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-96-2007

Pat Peasha,

Appellant,

vs.

Wensmann Realty, Inc.,

Respondent.

Filed April 15, 1997

Affirmed

Klaphake, Judge

Dakota County District Court

File No. C6-95-9184

Barbara R. Kueppers, Ksenia Rudensiuk, 3033 Excelsior Boulevard, Suite 300, Minneapolis, MN 55416 (for Appellant)

Russell L. Streefland, 260 Skyline Square Building, 12940 Harriet Avenue South, Burnsville, MN 55337 (for Respondent)

Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

KLAPHAKE, Judge

After she was fired, appellant Pat Peasha sued respondent Wensmann Realty, Inc. for unpaid commissions and salary. Her complaint alleged "failure to pay commissions promptly * * * [under] Minn. Stat. § 181.145," breach of employment contract, unjust enrichment, quantum meruit, equitable estoppel, promissory estoppel, waiver, and constructive trust. A jury awarded Peasha $29,364 in damages; that award was set aside when the court granted Wensmann a new trial due to defective jury instructions. The parties settled for $26,000 immediately prior to the second trial.

Peasha thereafter moved for $4,499.01 in costs and disbursements, and $64,194.50 in attorney fees under Minn. Stat. § 181.145, subd. 4(b) (1994) (employer shall pay reasonable attorney fees incurred by salesperson not promptly paid commissions earned through last day of employment). She appeals from the judgment ordering Wensmann to pay her $14,550 in attorney fees and $2,199.76 in costs and disbursements. Because the trial court's decision was well within its discretion, we affirm. Peasha also moves for attorney fees, costs, and disbursements incurred in bringing this appeal. Because Peasha is not a prevailing party, we deny her motion.

D E C I S I O N

1. A trial court's decision on the reasonableness of attorney fees is subject to an abuse of discretion standard. See Giuliani v. Stuart Corp., 512 N.W.2d 589, 596 (Minn. App. 1994); Meyer v. Meyer, 359 N.W.2d 74, 77 (Minn. App. 1984). A trial court's findings of fact will not be set aside unless clearly erroneous. See Minn. R. Civ. P. 52.01; Bucko v. First Minn. Sav. Bank, F.B.S., 471 N.W.2d 95, 99 (Minn. 1991). While Peasha argues that we may review the issues here de novo and that we need not defer to the findings made by the trial judge because he did not preside during trial or posttrial motions, findings made by a judge other than the judge presiding must still be affirmed unless clearly erroneous or "manifestly or palpably contrary to the evidence." Bicanic v. J.C. Campbell Co., 220 Minn. 107, 113-14, 19 N.W.2d 7, 10 (1945), cert. denied, 327 U.S. 787, 66 S. Ct. 805 (1946).

In determining the proper amount of attorney fees to award, a trial court should utilize the analysis set forth in Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933 (1983). Contrary to Peasha's argument, Hensley does not mandate that a trial court award a successful plaintiff fees based on all of the time expended by her attorney. Rather, Hensley acknowledges that a trial court must exercise its discretion to determine what fee is "reasonable." Id. at 429, 433, 103 S. Ct. at 1937, 1939. The starting point for this analysis is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. Id. at 433, 103 S. Ct. at 1939. The court "also should exclude from this initial fee calculation hours that were not 'reasonably expended'" or that are "excessive, redundant, or otherwise unnecessary." Id. at 433-34, 103 S. Ct. at 1939-40. And in cases involving unrelated claims, no fee may be awarded for services expended on unsuccessful claims; "[t]hat the plaintiff is a 'prevailing party' * * * may say little about whether the expenditure of counsel's time was reasonable in relation to the success achieved." Id. at 436, 103 S. Ct. at 1941. In some cases, a fee award based on the actual number of hours expended on the entire litigation may be excessive in light of the relief obtained.

Although the trial court here did not specifically cite Hensley, its findings and reasoning may be read in light of Hensley. The trial court reduced the requested amount of fees based on its determination that Peasha's attorney had no authority to hire a second chair to assist her at trial; that the hours spent by Peasha's attorney were excessive, given that there were no difficult issues and her attorney claimed she was experienced in the employment area; and that Peasha's attorney failed to limit her fee request to time spent on Minn. Stat. § 181.145 claims. The trial court's findings are not clearly erroneous, and we cannot conclude that the court abused its discretion in its award of attorney fees. See Bucko, 471 N.W.2d at 99 (supreme court affirmed trial court's reduction of requested fees because reasonably based on trial court's specific finding that attorney claimed excessive hours).

2. Peasha requested $4,499.01 in disbursements and $400 in statutory costs, and the trial court awarded $2,199.76 plus $400 for double costs. The trial court made sufficient findings, disallowing some disbursements as unrelated to Minn. Stat. § 181.145 claims and others as unnecessary or unreasonable. See Beniek v. Textron, Inc., 479 N.W.2d 719, 724 (Minn. App. 1992) (trial court must make sufficient findings regarding reasonableness and necessity of requested costs and disbursements), review denied (Minn. Feb. 19 & 27, 1992). We cannot conclude that the trial court abused its discretion in its award of costs and disbursements. See Carlson v. Mutual Serv. Casualty Ins. Co., 527 N.W.2d 580, 584 (Minn. App. 1995) (trial court's award of costs reviewed under abuse of discretion standard), review denied (Minn. Apr. 27, 1995).

3. Finally, Peasha requests $8,577.84 in attorney fees, costs, and disbursements for bringing this appeal. She argues that such fees are allowable under Minn. Stat. § 181.145, subd. 4(b). Because we are affirming the trial court's decision, Peasha is not a prevailing party and we cannot conclude that her fees on appeal were reasonably incurred. We therefore deny her request for fees, costs, and disbursements incurred in connection with this appeal.

Affirmed and motion for attorney fees on appeal denied.