M. Sue Wilson Law Offices, P.A., Respondent, vs. Harvey Grimm, et al., Appellants.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

M. Sue Wilson Law Offices, P.A.,

Respondent,

vs.

Harvey Grimm, et al.,

Appellants.

Sherburne County District Court

File No. C1981809

M. Sue Wilson and Mitchell Scott Paul, M. Sue Wilson Law Offices, P.A., Two Carlson Parkway, Suite 150, Minneapolis, MN  55447 (for respondent)

Matthew P. Franzese, Leuthner Law Office, 1311 Broadway, Suite 2, P.O. Box 637, Alexandria, MN  56308 (for appellants)

            Considered and decided by Crippen, Presiding Judge, Amundson, Judge, and Anderson, Judge.

ANDERSON, Judge

            Appellants challenge the district court's award of $9,419 in costs and legal fees to respondent incurred in collection of a $6,015 judgment for unpaid legal fees.  Appellants also challenge the district court's jurisdiction to award the fees, and claim, in the alternative, that the collection fees were unreasonable and disproportionate to the original judgment.  We affirm.  We also deny respondent's rule 138 motion for attorney fees.

FACTS

            In August 1997, appellants Harvey and Arlene Grimm hired respondent M. Sue Wilson Law Offices to represent them in a custody action.  Appellants signed a retainer agreement setting forth the terms of the agreement and the hourly fee for legal services.  In addition, the retainer agreement stated "[i]f suit is brought to collect any amount due under this agreement, you agree to pay all related costs, disbursements, and reasonable attorneys' fees."  Appellants incurred approximately $11,855 in attorney fees and costs, but only paid $5,870 because they felt that the charges were unfair and unreasonable in light of the outcome of the custody case. 

            Respondent brought suit in conciliation court for outstanding fees in the amount of $5,985.39 plus a $30 filing fee.  The conciliation court awarded respondent $6,015.39.  Appellants then removed the case to the district court and filed a counterclaim.  Respondent then sought collection of the original claim and additional collection fees.  On March 22, 1999, the district court dismissed appellants' counterclaim and granted summary judgment for respondent.  The district court awarded respondent $6,015.39 and $50 for filing fees, but failed to address respondent's request for collection costs.  Judgment was entered on April 30, 1999.

            On June 11, 1999, respondent sent a letter to the district court seeking clarification of the March 22, 1999, order, noting that the district court did not address the issue of collection costs.  In a letter to the parties, the judge explained that she originally thought that respondent planned to proceed separately on the issue of collection fees, but that after reviewing the record, the judge realized that a mistake had been made.  The court indicated that the claim for collection expenses remained "open."

Respondent sent out post-judgment interrogatories and a request for production of documents.  Appellants did not fully respond to the discovery request.  Respondent then made a motion to compel discovery and requested $9,419 in collection fees and expenses and also sought sanctions.  Appellants contended that the $9,419 was disproportionate to the original judgment and that some of the charges were unjustified. 

            In October 1999, the district court ordered appellant to pay an additional $9,419 in costs and attorney fees but the court denied the request for sanctions.  An amended judgment was entered on October 21, 1999,  and this appeal followed. 

Appellants did not file a supersedeas bond and on March 22, 2000, the district court appointed a receiver to collect the judgment and awarded additional attorney fees for seeking that appointment.  Respondent claims that appellants have brought this appeal for the sole purpose of delay and requests an additional $5,973.50 in attorney fees under Minn. R. Civ. App. P. 138.

D E C I S I O N

I.

            As a preliminary matter, appellants challenge the district court's jurisdiction to determine the request for collection fees.  The issue of jurisdiction is a question of law, which this court reviews de novo.  Stanek v. A.P.I., Inc., 474 N.W.2d 829, 832 (Minn. App. 1991), review denied (Minn. Oct. 31, 1991).  Appellants claim that, because the district court did not specifically reserve the issue of collection fees in its March 22, 1999 order, the district court was without jurisdiction and respondent was required to bring a motion to amend under Minn. R. Civ. P. 52.02.    

 A rule 52.02 motion was not necessary in this case because the issue was "open."  When an order adjudicates fewer than all the claims, rights, or liabilities of the parties, the order is "subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties."  Minn. R. Civ. P. 54.02.  Although judgment was entered on April 30, 1999, that judgment was not a full adjudication of all claims, was not immediately appealable, and was subject to amendment.  See Denike v. Western Nat'l Mut. Ins. Co. 473 N.W.2d 370, 373 (Minn. App. 1991) (judgment subject to revision under rule 52.02 when district court did not specify amount of attorney fees, costs, and disbursements awarded to insurance carrier and did not make express determination that there was no just reason for delay).  A rule 52.02 motion was not necessary for the court to resolve the outstanding claim for collection costs.

II.

Appellants also argue that, even if the issue of collection costs was properly before the district court, the court erred in awarding an additional $9,419.  On review, the appellate court will not reverse a district court's award or denial of fees absent an abuse of discretion.  Gully v. Gully, 599 N.W.2d 814, 825 (Minn. 1999).  Appellants claim that the fees were unreasonable because: (1) they were billed for conferences with colleagues at the office; (2) duplicative work was caused by respondent switching the attorney on the case; and (3) respondent billed appellants for "unconscionable" items such as: calling the court to schedule a hearing, reviewing the file prior to closing, and calendering events from the pre-trial order.

At the hearing, appellants objected that the additional $9,419 in fees were "unfair and unreasonable," but the court noted that appellants could not cite any examples of over-billing.  Appellant's objections to the collection fees were mostly general in nature.  Appellants raise two specific objections for the first time on appeal, alleged duplicative work and unconscionable billing.  This court will not consider
matters not argued and considered in the court below.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). 

Appellants did raise a specific objection to the district court concerning hours billed for consultation and case review with other members of the firm.  But the district court rejected this argument, concluding that appellants failed to show that the time spent on consultation was improper.  In this court, appellants have offered no legal authority supporting their assertion that consultation time was inappropriately billed.

Instead of carrying their burden to establish that the district court committed error, appellants ask this court to review the invoices.  Appellants claim that the district court should have adopted the reasonableness test for determining attorney fees as set out in Johns v. Harborage I, Ltd., 585 N.W.2d 853, 863 (Minn. App. 1998).  Although the district court did not make explicit reference to Johns, it did properly review the fee.   While the fees and costs are large in relation to the amount of the original claim, given the lack of authority, evidence, and persuasive argument by appellants, the district court did not abuse its discretion.  The parties agreed to an hourly fee in the retainer agreement and  appellants agreed to pay collection costs.  Appellants were unable to identify any inappropriate costs.  We will not reverse the district court's determination of reasonableness, which is amply supported by the record.

III.

As a final matter, respondent requests additional attorney fees and costs associated with defending this appeal citing Minn. R. Civ. App. P. 138.

If an appeal delays proceedings on a judgment of the trial court and appears to have been taken merely for delay, the appellate court may award just damages and single or double costs to the respondent.

 Minn. R. Civ. App. P. 138; See Sievert v. LaMarca, 367 N.W.2d 580, 590 (Minn. App. 1985), review denied (Minn. July 17, 1985).  It does not appear that appellants filed this appeal for the purpose of delay; indeed, the record reflects that collection efforts have proceeded during this appeal.  While appellants are unhappy with the legal services provided by respondent and the district court's judgment, their appeal did not delay these proceedings because they did not file a supersedeas bond.  Appellants were entitled to appellate review of the district court judgment, and we decline to characterize their appeal as frivolous.  Under these circumstances, we decline to award appellant attorney fees under Minn. R. Civ. App. P. 138.

             Affirmed; motion denied.