This opinion will be unpublished and

may not be cited except as provided by

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






Sanborn & Grayson,





Cheri Dietrich,



Filed April 3, 2001


Randall, Judge


Ramsey County District Court

File No. C0002086


Peter C. Grayson, Sanborn & Grayson, 50 East Fifth Street, Suite 201, St. Paul, MN 55101 (for respondent)


Cheri B. Dietrich, 15 East Gilfillan Road, North Oaks, MN 55127 (pro se appellant).


            Considered and decided by Randall, Presiding Judge, Peterson, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

R. A. RANDALL, Judge

            Appellant hired respondent law firm in an attempt to obtain conservatorship rights over appellant's mother.  The subsequent billing dispute between appellant and respondent resulted in a conciliation-court ruling for appellant.  After removing the case to district court, respondent prevailed on a trial de novo.  On appeal, pro se appellant alleges the district court (a) issued an order that is internally inconsistent because it states the estate of appellant's mother should be responsible for the attorney fees but makes appellant responsible for those fees; (b) failed to consider whether a written agreement existed between the parties; (c) misconstrued appellant's defense; (d) made findings unsupported by the record; (e) failed to consider the discharge of counsel; and (f) failed to address appellant’s counterclaim.  We affirm.


            In March 1998, Helen M. Anderson executed a Health Declaration Form naming appellant Cheri Dietrich to act on her behalf if Anderson became incapacitated.  In May 1998, Anderson suffered a stroke, leaving her blind and incapacitated.  Dietrich, Anderson's daughter, placed her in a care center in Minnesota.  Toni Flickinger, Anderson's other daughter and Dietrich's sister, later removed Anderson from the care center in Minnesota and took her to Wisconsin without a doctor's approval or Dietrich's consent.

            Dietrich hired Peter C. Grayson, an attorney working for respondent Sanborn & Grayson,[1] in June 1998, for legal assistance in obtaining conservatorship over Anderson.  No contract for services was signed between the parties.   Grayson provided 57.17 hours of legal services at varying rates.  All fees and costs were itemized in monthly billing statements.  Dietrich paid $1,000 to Grayson in both October and December 1998, but did not pay the remaining $4,033.25 in attorney fees. 

            On May 14, 1999, the district court appointed Dietrich as general conservator of the person and estate of Anderson.  Dietrich returned Anderson to Minnesota, but Grayson did not provide the necessary paperwork to the court regarding the transfer procedures.  On July 9, 1999, Dietrich terminated Grayson's legal services by letter, claiming negligence and incompetence.  These claims were not raised in the district court proceedings. 

            Receiving no further payments from Dietrich, Grayson filed a claim in conciliation court to recover the balance owed in attorney fees ($4,033.25) plus a filing fee ($35).  Dietrich filed a counterclaim seeking to recover from Grayson $6,535, which included the filing fee and attorney fees paid to Grayson ($2,000) and two other attorneys hired for the case ($4,500).  She also stated in her counterclaim that Grayson put the conservatorship in jeopardy by not furnishing the court with requisite information regarding transferring Anderson back to Minnesota. The conciliation court found in favor of Dietrich but denied her counterclaim.  Grayson removed the case to district court.  The case was heard de novo by the district court on May 25, 2000.  The district court found in favor of Grayson and after a 30-day stay, entered judgment on August 15, 2000.  Dietrich has never sought reimbursement for legal fees from the estate.


            Dietrich claims the district court's findings of fact are clearly erroneous, and therefore, the court erred in concluding that she is obligated to pay Grayson attorney fees and costs for services.  She claims that the district court's order contains numerous misrepresentations of facts and inconsistencies and therefore cannot be upheld.   She sets out seven grounds upon which to challenge the district court's findings.

            Findings of fact must be upheld unless they are clearly erroneous.  Minn. R. Civ. P. 52.01.   Findings 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). "If there is reasonable evidence to support the district court's findings, we will not disturb them."  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999) (citation omitted).  This court views "the record in the light most favorable to the judgment of the district court."  Id. (citation omitted).

            First, Dietrich points out that the district court's order states that "Anderson does not contest the time which Grayson spent addressing [the] various matters, either as to the quantity or the rate charged," and that "Grayson denie[d] ever telling Anderson that her responsibility was other than primary or that she was not obligated to make payments for his attorney services."  (Emphasis added.)  Because the court made these statements regarding Anderson, Dietrich argues the court cannot then determine that Dietrich is responsible for making the payment. 

            From testimony in the record, we know that the court meant to state "Dietrich" where it stated "Anderson."  Because Anderson was incapacitated, she never testified in front of the district court.  Only Grayson and Dietrich testified.  The record shows Dietrich did not contest the time and amount of Grayson's services.  She did state that she never received notice of the rate changes from Grayson; however, she did not dispute or object to the quantity of time or amount charged.  Also, Grayson testified that he never told Dietrich that she was not the one responsible for payment.  He testified that he told Dietrich the monies could be recovered from the estate upon receiving conservatorship but that she was responsible until such determination.  He denied ever telling Dietrich that her sister, Flickinger, would pay the fees and costs.

            Because it is clear from the record that the court meant "Dietrich" when it stated "Anderson," the court's statement to the contrary was a de minimis error that does not impact the validity of the findings of fact.  See Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985) (refusing to remand for de minimis error); see also Minn. R. Civ. P. 61 (stating harmless error to be ignored).

            Second, Dietrich claims the district court erred in not weighing the fact that there was no written contract between the parties.  She supports her argument by stating that an express or implied agreement of an attorney-client relationship is essential to the attorney having the right to recover compensation for services rendered.

            The court stated in its memorandum that Dietrich retained Grayson for the conservatorship matter.  This was supported by testimony that Dietrich received monthly bills from Grayson; that Grayson was successful in obtaining conservatorship for Dietrich; and that Dietrich paid Grayson $2,000 toward services.  While a written contract is certainly helpful, such a contract is not necessary to establish an attorney-client relationship if there is other evidence supporting the relationship's existence.  See In re Conservatorship of Nelsen, 587 N.W.2d 649, 651 (Minn. App. 1999) (stating Minnesota law recognizes contract theory (express or implied) and tort theory for establishing attorney-client relationship).  We conclude that an attorney-client relationship existed until Dietrich terminated the representation in July 1999.

            Third, Dietrich claims the court misrepresented the facts by stating that "Dietrich's defense is that Grayson told her that his bill would be paid by the estate of Anderson, either the conservator's estate or the decedent's estate."  The court found that Grayson did make the statement that the fees could be paid for out of the estate if they were successful in making Dietrich conservator of the estate.  But, this was not Dietrich's defense in the district court.  She actually testified several times that she expected her sister to pay regardless of the outcome.  Thus, Dietrich switched theories on appeal.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (concluding party generally may not obtain review by raising issue under different theory than was argued in district court).  We also note that Dietrich herself made two $1,000 payments to Grayson in October and December 1998.

            Fourth, Dietrich claims that the court erred in stating that Grayson's testimony was more credible than hers regarding whether Anderson's estate contained sufficient funds to pay Grayson's attorney fees.

            Both Grayson and Dietrich testified that they were uncertain about how much money was in Anderson's estate since Flickinger did not turn over necessary financial statements during discovery.  Dietrich has not resolved the issue of misused funds from the estate by Flickinger.  Dietrich made several different statements regarding her belief of who has the duty to pay Grayson and her reasons for making payments to Grayson.  A district court's determination of credibility is given due regard.  On this inconsistent record, we defer to the district court's credibility determination.  Minn. R. Civ. P. 52.01; See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (requiring appellate courts to defer to district court's credibility determinations).

            Fifth, Dietrich claims the court misrepresented the facts when it stated that "Dietrich clearly understood that she, in hiring Grayson, was obligated to make payments to him."  This is the court's conclusion based on the testimony and evidence presented to the district court.  Dietrich testified, when asked why she made payments to Grayson in October and December that, "Mr. Grayson wanted to be reimbursed for his costs and legal fees."  While Dietrich also stated that she thought her sister would pay the fees regardless of the outcome, when the evidence and testimony is viewed as a whole, it is reasonable that the court concluded that Dietrich understood she was obligated to pay Grayson for the services rendered.

            Sixth, Dietrich claims the court failed to consider the evidence that Grayson was terminated on July 9, 1999.  In making this argument, Dietrich raises the issue of Grayson jeopardizing her conservatorship status by not submitting necessary documents to the court regarding transferring her mother back to Minnesota.  Nowhere in the district court record is this issue raised, although it is mentioned in her counterclaim brought in conciliation court.  Review of the cases from other jurisdictions that Dietrich relies on in her brief does not support her argument.

            Finally, as Dietrich's seventh claim, she contends that the district court failed to address her counterclaim.  She does not support this claim with argument or authority.  The issue of her counterclaim, recovering the $6,500 of paid legal fees, was not raised in the district court, at least as reflected by the record.  Generally, issues not raised and addressed in district court are not reviewed on appeal.  Thiele, 425 N.W.2d at 582.  Further, arguments not supported by argument or authority are generally waived on appeal.  Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971).  Dietrich's sixth and seventh claims were not properly raised in district court.  Thus, we need not address them on appeal.  However, in the interests of justice and because appellant's claims are numerous and overlap, we will briefly address the last two.  See Minn. R. Civ. App. P. 103.04 (stating appellate court may address any issue as justice requires).

            Regarding Dietrich's claim of Grayson placing the conservatorship in jeopardy, the district court did not address any such claim of negligence or incompetence by Grayson.  Most importantly, the letters from the judges which Dietrich referred to in her brief that support her argument of negligence are dated after Dietrich terminated Grayson's representation on July 9, 1999.  Thus, those letters do not support any basis for a change in our legal conclusion.  Dietrich's last claim is that the district court failed to address her counterclaim.  We conclude that the record supports a finding that all claims were heard.  Dietrich cites no authority as to why she has a right to recover all the attorney fees from Grayson, including those paid to the other attorneys.  Grayson performed legal services for Dietrich by obtaining conservatorship of her mother's estate and, thus, earned payment for those services.

            We conclude the district court properly handled all the issues.


[1]  The initial suit was brought by the law firm Sanborn & Grayson and Grayson was not a named party.  But, Grayson represented the firm and testified at trial, and the district court referred to him individually in its decision.  Accordingly, for ease of reference, we will hereafter refer to respondent as Grayson.