This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Valley Rich Co., Inc.,






Holmes Park Village Apartments, et al.,


Minnesota Housing Finance Agency,


John Doe, et al.,




Filed February 13, 2001

Affirmed as modified.

Toussaint, Chief Judge


Hennepin County District Court

 File No. LN999595



Stuart E. Gale, Elder-Jones Building, Suite 101, 9301 Bryant Avenue South, Bloomington, MN 55420  (for respondent)


John C. Provinzino, 501 St. Germain, P.O. Box 1556, St. Cloud, MN 56302 (for appellants Holmes Park Village Apartments)


Karl J. Herman, Attorney for Minnesota Housing Finance Agency, Office of the Attorney General, 400 Sibley Street, Suite 300, St. Paul, MN 55101-1998 (for appellant Minnesota Housing Finance Agency)

            Considered and decided by Toussaint, Chief Judge, Anderson, Judge, and Mulally, Judge.*


U N P U B L I S H E D  O P I N I O N


TOUSSAINT, Chief Judge

            Appellants Holmes Park Village Apartments, et al., appeals the trial court’s mechanic’s lien foreclosure award and attorney fees to respondent Valley Rich Co., Inc.  Appellants argue that the trial court (1) erred because the evidence did not support the award; and (2) abused its discretion by awarding attorney fees exceeding the amount of the mechanic’s lien.  Because there was sufficient evidence to support the award of the full amount of the mechanic’s lien, we affirm.  But because the trial court abused its discretion in awarding attorney fees to respondent even though its summary judgment motion was dismissed, we affirm as modified.


            On November 10, 1998, appellant Holmes Park Village Apartments’ resident manager, Melissa Stanton, a representative of appellant Kuefler Properties, contacted respondent and requested an estimate of the cost to repair a water main leak.  Respondent indicated that the work would be performed on an hourly basis and not on a bid basis.  Respondent quoted a price of approximately $2,000 to $2,400 per day, and sent a price sheet summarizing labor and materials to Stanton. 

            Stanton gave respondent the go-ahead to begin the repair work on November 17th.  On November 20th, respondent notified Gopher State Utilities that utility lines needed to be marked.  Gopher State requires 48-hour notice to mark utilities in a non-emergency situation.  Respondent had to declare the leak as an emergency before Gopher State would arrive to mark the utility lines on November 20th.  Respondent waited two hours for the utilities to be marked before beginning work on the leak.  Respondent began its work with a crew consisting of four individuals and a backhoe. For safety reasons, warning lights and a lite shield were also used.          

Respondent’s original itemized statement totaled $5,473.90 including 22 hours of labor and 8.5 hours of overtime, but that was adjusted due to credit for the warning lights and the lite shield.  The adjusted itemized statement totaled $4,411.97.

            Both parties took part in settlement negotiations, but respondent rejected appellants’ settlement offer of $2,500.  Subsequently, a mechanic’s lien statement was filed and a mechanic’s lien foreclosure was commenced.  On December 22, 1999, respondent filed a motion for summary judgment.  The trial court denied the motion on the same day.  The trial was held in February 2000.  An order was issued granting respondent the full amount of the mechanic's lien, $4,411.97, and attorney fees for $3,200.  After a hearing on a motion for amended findings, the trial court reaffirmed its mechanic’s lien judgment and increased attorney fees to $13,200.  This appeal followed. 


            “Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous.  Due regard shall be given to the opportunity of the trial court to judge credibility of the witnesses.”  Minn. R. Civ. P. 52.01.  In applying Minn. R. Civ. P. 52.01, “we view the record in the light most favorable to the judgment of the district court.”  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999) (citation omitted).  This court will not reverse the trial court’s judgment merely because we view the evidence differently.  Id.  Rather, the trial court’s factual findings must be clearly erroneous or “manifestly contrary to the weight of the evidence as a whole” to warrant reversal.  Id.  (quotation omitted).  “Findings of fact are clearly erroneous only if the reviewing court is left with the definite and firm conviction that a mistake has been made.”  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted).  And “[i]f there is reasonable evidence to support the district court’s findings, we will not disturb them.”  Rogers, 603 N.W.2d at 656 (citation omitted).


Appellants argue that because the findings are without substantial evidentiary support, the trial court erred in awarding respondent the full amount of the mechanic’s lien.  A mechanic’s lien shall be for “the reasonable value of the work done, and of the skill, material, and machinery furnished.”  Minn. Stat. § 514.03, subd. 1(b) (2000).

First, appellants argue that they were double billed for the work of respondent’s employee as the backhoe operator and as a laborer.  The trial court found that respondent had “sustained its burden of proof as to the reasonable and proper charge for the services performed, labor and materials furnished, and skills involved.”  The trial court also noted that appellants have failed to show that the amounts claimed by respondent are unreasonable in light of the job and safety concerns.  Respondent’s project manager testified that he and appellant Kuefler reviewed the bill, after credits were given, and agreed that the bill was fair and reasonable. 

Further, appellants argue that they should have been given credit for two hours of work performed by respondent’s work crew on the morning of November 20th.  Respondent waited two hours for the utilities to be marked before it could start to dig.  The trial court found that the “utilities were marked on the morning of November 20, 1998.  This was accomplished in a reasonable manner.”  Appellants only argue that those two hours wasted could have been avoided if the utility company was notified on November 17th and had their 48-hour notice to mark the utilities in a non-emergency situation instead of notifying the utility company on November 20th.  Appellants have introduced no evidence to suggest that respondent’s work was unreasonable, and not performed on time and material basis pursuant to appellants’ request.  Therefore, the trial court did not err in awarding respondent the full mechanic’s lien of $4,411.97. 


Reasonable attorney fees may be awarded to a successful claimant under Minn. Stat. § 514.14 (1998), as part of its foreclosure costs.  Obraske v. Woody, 294 Minn. 105, 108, 199 N.W.2d 429, 431 (1972); Automated Bldg. Components, Inc. v. New Horizon Homes, Inc., 514 N.W.2d 826, 831 (Minn. App. 1994), review denied (Minn. June 15, 1994).  The award is within the trial court's discretion, exercised after due consideration of the evidence presented on the issue and of the trial court's observations of services rendered.  Obraske, 294 Minn. at 109, 199 N.W.2d at 432.  The factors to be considered are:

time and effort required, novelty or difficulty of the issues, skill and standing of the attorney, value of the interest involved, results secured at trial, loss of opportunity for other employment, taxed party's ability to pay, customary charges for similar services, and certainty of payment.


Jadwin v. Kasal, 318 N.W.2d 844, 848 (Minn. 1982). 

Appellants argue that the trial court abused its discretion in awarding respondent $13,200 in attorney fees.  This court rejects any argument that the fees are excessive merely because they exceed the mechanic’s lien amount.  Kirkwold Construction Co. v. M.G.A. Construction, Inc., 498 N.W.2d 465, 470 (Minn. App. 1993).  Here, the trial court found that the itemized statement of respondent’s counsel was reasonable and necessary taking into account the time spent, his skill, the difficulty of the issues, the results obtained, and the customary charges for similar services.  We will not reverse an award of attorney fees absent an abuse of discretion.  Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (Minn. 1987); see also Automated Bldg. Components, 514 N.W.2d at 831 (affirming attorney fees award because even in absence of specific findings relating to award, record contained detailed time reports and explanatory affidavit which supported amount of award).

But, the trial court abused its discretion when it awarded respondent attorney fees for a motion for summary judgment that was denied.  The district court shall allow reasonable costs to a prevailing party in a district court action.  Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn. 1998).  According to the record, respondent’s counsel worked 27.35 hours in preparation for and attendance at its summary judgment hearing at a total cost of $4,252.50.  Therefore, after subtracting $4,252.50 from the total amount of fees awarded, $13,200, respondent’s counsel is awarded $8,947.50 in attorney fees. 

            Affirmed as modified.

*  Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.