This opinion will be unpublished and

may not be cited except as provided by

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






Althea Milisse Willette, et al.,





Deborah J. Smith, et al.,



Filed May 30, 2000


Kalitowski, Judge


Ramsey County District Court

File No. C895012767


Harry T. Neimeyer, Stringer & Rohleder, Ltd., 1200 Norwest Center, 55 East Fifth Street, St. Paul, MN  55101 (for respondents)


J. Brian O’Leary, O’Leary & Moritz Chartered, P.O. Box 76, Springfield, MN  56087 (for appellants)


            Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


On appeal following this court’s remand to the district court for a determination of damages, appellant Archie D. Smith contends the district court erred in awarding damages and attorney fees to respondent Althea M. Willette.  We affirm.


The scope of review on appeal after remand is limited by the law of the case doctrine.  The law of the case doctrine applies when an appellate court has ruled on a legal issue and has remanded the case to a district court for further proceedings.  Mattson v. Underwriters at Lloyds of London, 414 N.W.2d 717, 719-20 (Minn. 1987).  The law of the case doctrine is a discretionary doctrine used to effectuate the finality of appellate decisions.  Loo v. Loo, 520 N.W.2d 740, 744 n.1 (Minn. 1994).  “Issues determined in a first appeal will not be relitigated in the trial court nor re-examined in a second appeal.”  Mattson, 414 N.W.2d at 720.  But the law of the case doctrine should not be applied where, in the time between the two appeals in a case, there has been a change in the law that is entitled to deference.  Brezinka v. Bystrom Bros., Inc., 403 N.W.2d 841, 843 (Minn. 1987).

            This case arose out of respondent’s purchase of real estate from appellant Archie D. Smith and his wife Deborah J. Smith.  The district court originally found that appellant violated the Consumer Fraud Act, Minn. Stat. §§ 325F.68-.70 (1998), in connection with the sale of the property but that there were no damages from the violation.  Respondent appealed the district court’s failure to award damages and attorney fees for appellant’s violation of the act.  This court issued an unpublished decision holding that the district court was “required to determine damages” once it found that appellant had violated the act.  Willette v. Smith, No. CX-97-1410, 1998 WL 171404, at *2 (Minn. App. Apr. 14, 1998).  We accordingly remanded the case for a determination of the amount of damages resulting from the violation and for an award of attorney fees.  Id.

Appellant first contends the Consumer Fraud Act does not apply because respondent did not suffer any actual damages.  But in the previous appeal this court stated it would not consider arguments challenging the application of the act because a notice of review was not filed.  Id. at *2 n.3.  Therefore, under the law of the case doctrine, appellant’s arguments regarding the application of the Consumer Fraud Act are not properly before us.

Appellant also contends we must reverse the district court’s damage award, citing a recent case holding that the Consumer Fraud Act applies only if the fraud or misrepresentation is disseminated to others.  Minh Ly v. Nystrom, 602 N.W.2d 644, 647 (Minn. App. 1999), review granted (Minn. Jan. 25, 2000).  We disagree.  First, the precedential value of Minh Ly is uncertain given that review has been granted.  See State v. Collins, 580 N.W.2d 36, 43 (Minn. App. 1998) (stating that this court’s decisions have no precedential effect until deadline for granting review has expired), review denied (Minn. July 16, 1998); State v. Cornell, 491 N.W.2d 668, 672 n.2 (Minn. App. 1992) (noting that precedential value of Minnesota Supreme Court case was uncertain given that U.S. Supreme Court had granted review).  Moreover, Minh Ly does not require a reversal because there is evidence in the record here indicating that the fraud was disseminated to others.

Thus the only issue properly before us on this appeal is appellant’s argument that the district court’s findings are insufficient to support its award of damages and attorney fees.  On appeal, the district court’s findings of fact “are given great deference” and are not set aside unless clearly erroneous.  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999).  If there is reasonable evidence to support the district court’s findings of fact, a reviewing court will not disturb those findings.  Id.  If underlying findings of fact are sustainable, the district court’s “ultimate” findings must be affirmed in the absence of a demonstrated abuse of the court’s broad discretion.  Maxfield v. Maxfield, 452 N.W.2d 219, 221 (Minn. 1990).  The reasonable value of attorney fees is a question of fact and we must uphold the district court’s findings on that issue unless they are clearly erroneous.  Amerman v. Lakeland Dev. Corp., 295 Minn. 536, 537, 203 N.W.2d 400, 400-01 (1973).

Appellant argues that the district court erred because it did not specify whether the damages were related to the consumer fraud violation or specify how it determined the damages.  We disagree.  First, the district court stated that respondent “suffered out-of-pocket damages of $7495.00 as a result of Defendant Archie Smith’s violation of the Consumer Fraud Act.”  (Emphasis added.)  Second, the district court stated that the damages covered respondent’s expenses of converting the previously commercial area of the building to residential use.  The amount of damages awarded is supported by evidence that respondent spent nearly $6,000 converting the formerly commercial area of the property into residential use and approximately $1,500 making repairs in this same part of the property.

Appellant also argues that the district court erred because it did not specify whether the attorney fees were related to the consumer fraud violation and how it determined the amount of the award.  We disagree.  The district court stated that:  (1) the fees related to the case against appellant as opposed to other parties; and (2) the total amount of attorney fees in the case was $52,000 but that it “believed that the amount awarded herein is justified as to this Defendant.”  (Emphasis added.)  This conclusion is supported by the evidence.  Respondent’s attorney testified that the work was related to appellant because (1) the pre-complaint stage focused on the Smiths; and (2) the summary judgment work pertained to the Smiths’ motion for summary judgment as well as the other defendants’.  Moreover, the basis for the attorney-fee award is supported by the evidence.  The district court cited the appropriate factors in determining the reasonableness of attorney fees and the record indicates that respondent’s estimate of fees was modest.

Finally, because appellants did not submit their own calculations of damages or fees to the district court, it was reasonable for the district court to accept respondent’s evidence and calculations.  We conclude the district court’s findings were sufficient to support its award of damages and attorney fees.