Jodi Madsen, as Co-Trustee for the Heirs and Next-of-Kin of Jenna Hegstrom, Deceased, Respondent, vs. Larry Hanson, as Co-Trustee for the Heirs and Next-of-Kin of Jenna Hegstrom, Deceased, et al., Appellants, vs. State Farm Insurance Company, Defendant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1872

 

 

Jodi Madsen, as Co-Trustee for the Heirs

and Next-of-Kin of Jenna Hegstrom, Deceased,

Respondent,

 

vs.

 

Larry Hanson, as Co-Trustee for the Heirs

and Next-of-Kin of Jenna Hegstrom, Deceased, et al.,

Appellants,

 

vs.

 

State Farm Insurance Company,

Defendant.

 

 

Filed June 15, 2004

Affirmed

Toussaint, Chief Judge

 

Dakota County District Court

File No. C6-01-8224

   

Michael R. Fargione, Brian Love, Hauer, Fargione, Love, Landy, McEllistrem, P.A., 5901 Cedar Lake Road, Minneapolis, MN 55416 (for respondent Jodi Madsen)

 

John E. Mack, Mack & Daby, P.A. 26 Main Street, P.O. Box 302, New London, MN 56273 (for appellants)

 

            Considered and decided by Toussaint, Chief Judge; Kalitowski, Judge; and Wright, Judge.
 

U N P U B L I S H E D  O P I N I O N

 

TOUSSAINT, Chief Judge

 

Appellants challenge the trial court's order allocating attorney fees in a wrongful death action.  They argue that the trial court improperly applied and interpreted this court's order of remand and erred in concluding that the one-third contingency fee agreement was excessive. Because (1) the trial court's determination was consistent with the remand order; (2) determining the reasonableness of attorney fees was within the trial court's discretion; and (3) the evidence reasonably supports the trial court's determination that the one-third contingency fee agreement was excessive, we affirm.    

D E C I S I O N

This case concerns attorney fees in a lawsuit filed regarding the death of nine-year-old Jenna Hegstrom, who was killed in a car accident.  The two co-trustees entered into fee agreements with their respective counsel who litigated the underinsured motorist lawsuit against State Farm Insurance Company.  On the first appeal, this court determined the validity of the one-third contingent fee arrangement between appellants Larry Hanson and Mack & Daby, P.A. (Mack & Daby).  Hanson v. Madsen, No. CX-02-1620 (Minn. App. May 27, 2003).  This second appeal, after remand, challenges the trial court's allocation of fees between the two law firms.  Appellants argue that the trial court exceeded the scope of remand by determining that the one-third contingency fee was excessive. 

Whether the trial court exceeded the mandate of the court of appeals on remand is a question of law, which we review de novo.  Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minn., 671 N.W.2d 213, 217 (Minn. App. 2003), review denied (Minn. Jan. 20, 2004).

"It is well established that a trial court may not vary the mandate of an appellate court or decide issues beyond those remanded."  Harry N. Ray, Ltd. v. First Nat'l Bank of Pine City, 410 N.W.2d 850, 856 (Minn. App. 1987).  "A trial court's duty on remand is to execute the mandate of the remanding court strictly according to its terms."  Duffey v. Duffey, 432 N.W.2d 473, 476 (Minn. App. 1988).  But, "when the trial court receives no specific directions as to how it should proceed in fulfilling the remanding court's order, the trial court has discretion in handling the course of the cause to proceed in any manner not inconsistent with the remand order."  Id. 

The first appeal arose out of the trial court's ruling that the one-third contingency fee agreement between appellants Larry Hanson and Mack & Daby was not binding because it was signed before Hanson was appointed as a trustee.  Hanson v. State Farm Ins. Co., 661 N.W.2d 659 (Minn. App. 2003) (Hanson I).  This court determined that the fee agreement was valid, because Hanson's status as court-appointed trustee "related back" to the time when he signed the agreement with Mack & Daby.  The trial court had also approved the 20% fee between respondent and co-trustee Jodi Madsen and the law firm representing her, Hauer, Fargione, Love, Landy & McEllistrem, P.A.  This court expressly stated that this ruling was not affected by the first appeal and remanded the matter for the trial court to calculate fees.

This court's confirmation of the validity of the Mack & Daby fee agreement did not determine how the trial court was to allocate attorney fees on remand.  This court's opinion did not provide the trial court with any specific directions for applying either fee agreement.  Additionally, this court did not decide with finality that the Mack & Daby fee was reasonable.  We remanded the matter, requesting that the trial court allocate and determine the reasonableness of the attorney fees.

Appellants also argue that they are entitled to additional attorney fees because the trial court erred in determining that the one-third fee was excessive.  We review the trial court's award of attorney fees under an abuse of discretion standard.  Becker v. Alloy Hardfacing & Eng'g co., 401 N.W.2d 655, 661 (Minn. 1987).  What constitutes reasonable attorney fees for legal services is a question of fact and findings of fact shall not be set aside unless clearly erroneous.  Id.  Accordingly, we will review the entire record and reverse only if we are left with a firm and definite conviction that a mistake has been made.  City of Minnetonka v. Carlson, 298 N.W.2d 763, 766 (Minn. 1980). 

In determining the reasonableness of attorney fees, the trial court had discretion to consider the contingency fee agreements.  "In actions for personal injury or death by wrongful act, brought by persons acting in a representative capacity, contracts for attorney's fees shall not be regarded as determinative of fees to be allowed by the court."  Minn. R. Gen. Pract. 143.  Therefore, it was also within the trial court's discretion to consider factors other than the contingency fee agreements in making its determination. 

While there is nothing inherently unreasonable about a one-third contingency fee agreement in a wrongful death lawsuit, the issue is whether the one-third fee was reasonable under the circumstances of this case.  Even a customary contingent fee may be invalid if the fee is excessive.  See Holt v. Swenson, 252 Minn. 510, 514, 90 N.W.2d 724, 727-28 (1958); Thomton, Sperry & Jensen, Ltd. v. Anderson, 352 N.W.2d 467, 468-69 (Minn. App. 1984).  Factors to be considered in determining the reasonableness of attorney fees include: (1) time and labor required; (2) the nature and difficulty of the responsibility assumed; (3) the amount involved and the results obtained; (4) the fees customarily charged for similar legal services; (5) the experience, reputation, and ability of counsel; and (6) whether the fee arrangement existing between counsel and the client is fixed or contingent.  Carlson, 298 N.W.2d at 765. 

Considering these factors, the record reasonably supports the trial court's determination that the one-third fee was excessive.  Here, liability was undisputed, and State Farm Insurance Company had already offered $100,000 in settlement.  Additionally, the record reasonably supports the fact that the Mack & Daby law firm did not invest a significant amount time or labor in the underinsured motorist lawsuit since the matter was tried to a jury in two days and Mack was not present for the second day of trial.  The trial consisted of direct examination of lay witnesses, and the testimony of the Hegstrom family was prepared and presented by the Hauer firm.  Accordingly, we will not disturb the trial court's award of attorney fees.

Finally, appellants argue that respondent was collaterally estopped from arguing that the one-third contingency fee agreement was not valid because a district court judge had already enforced that agreement, determining that it was reasonable.  Appellants made a collateral estoppel argument at the initial distribution hearing and on the first appeal.  But, because appellants' collateral estoppel issue is unsupported by legal authority or legal analysis necessary for appellate review, we decline to further address this issue.  See Stephens v. Bd. of Regents, 614 N.W.2d 764, 770 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000). 

Affirmed.