This opinion will be unpublished and

may not be cited except as provided by

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






Judicial Ditch #10,


Lyon County Ditch #7,


Filed June 26, 2001


Stoneburner, Judge


Lyon County District Court

File No. CX97348


Thomas Kramer, Yellow Medicine County Attorney, 132 Eighth Avenue, Granite Falls, MN 56241; and


James H. Malecki, Steven J. Vatndal, Gislason & Hunter, LLP, Suite 250, Hubbard Office Building, 424 North Riverfront Drive, Box 4157, Mankato, MN 56002 (for appellant)


Rick Maes, Lyon County Attorney, 607 West Main Street, Marshall, MN 56258; and


Arvid Wendland, David Wendorf, Wendland Timmerman, 825 East Second Street, Blue Earth, MN 56013; (for respondent)



            Considered and decided by Klaphake, Presiding Judge, Crippen, Judge, and Stoneburner, Judge.


U N P U B L I S H E D  O P I N I O N




            Appellant Yellow Medicine/Lyon County Judicial Ditch #10 (JD10) challenges the district court’s award of $37,785 in expert-witness fees to respondent.  Because we find that the reasoning of State v. Lopez-Solis, 589 N.W.2d 290 (Minn. 1999) does not apply to this case, and the district court did not abuse its discretion in awarding expert-witness fees, we affirm.



This case stems from a dispute between two drainage authorities.  Respondent Lyon County Ditch #7 (LCD7) drains land in Lyon County and runs downstream into JD10.  LCD7 made improvements but did not apply for a permit from JD10.  LCD7 brought a declaratory-judgment action seeking a declaration that it could improve its drainage system without a permit from JD10.  JD10 counterclaimed for an injunction to restrict water flow to pre-improvement levels.  The district court issued a temporary injunction, which this court affirmed.  See VanLerberghe v. Joint Judicial Ditch #10 Drainage Auth., No. C5-98-921, 1999 WL 10258 (Minn. App. Jan. 12, 1999).

After a lengthy trial, the district court found that LCD7 was required to apply for a permit under Minn. Stat. § 103E.401, subd. 2 (1996), but denied permanent injunctive relief because JD10 did not establish irreparable harm, had unclean hands, and had an alternative remedy at law.  This court reversed, finding LCD7 was not required to apply for an outlet permit.  See Stensrud v. Lyon County Ditch #7, 609 N.W.2d 286 (Minn. App. 2000), review denied (Minn. June 27, 2000).

On remand, LCD7 sought $37,785 in costs and disbursements, including expert witness fees.  The court administrator taxed $600 for expert-witness fees.  LCD7 appealed to the district court and submitted invoices and explanatory time reports that detailed the time billed by the project engineer, the project manager, a hydraulic engineer, and their support staff.  These documents indicate that the project engineer billed time in four categories: (1) preparation for and attending a deposition; (2) assisting the attorney in preparing answers to interrogatories; (3) preparation for trial; and (4) attendance at trial.  The project engineer testified at the December 17, 1999 hearing that he kept a separate account for billing work related to the litigation and when specific issues became important in the litigation, he researched and prepared materials on those specific issues.  On January 11, 2000, the district court awarded $37,785 in costs and disbursements to respondent.  JD10 appeals. 



            An award of costs and disbursements by the district court is reviewed for an abuse of discretion.  Kellar v. Von Holtum, 605 N.W.2d 696, 703 (Minn. 2000).  A district court may allow such fees or compensation to expert witnesses as may be just and reasonable.  Minn. Stat. § 357.25 (2000).  A district court may, in its discretion, allow pretrial preparation time in awarding just and reasonable compensation under Minn. Stat.            § 357.25.  Quade & Sons Refrigeration, Inc.  v. Minnesota Mining & Mfg. Co., 510 N.W.2d 256, 260-61 (Minn. App. 1994), review denied (Minn. Mar. 15, 1994).

JD10 urged the district court to extend the reasoning in State v. Lopez-Solis, 589 N.W.2d 290 (Minn. 1999),[1] to prohibit recovery of expert fees as taxable disbursements in a civil action in which the expert is a project engineer performing statutory duties.  LCD7 argued that the fees billed related to the litigation and were not part of the project engineer’s statutory duties.  Although the district court did not make a direct finding on the issue of the engineer’s statutory duties, it found that the fees and compensation outlined in the engineer’s affidavit were just and reasonable.  The district court cited Lopez-Solis for the proposition that Minn. Stat. § 357.25 is the controlling statute regarding the award of costs and fees associated with an expert’s preparation for the testimony at trial, and the legislature afforded district courts discretion in determining what fees are “just and reasonable.”  See id. at 296.

Even if the reasoning in Lopez-Solis were to apply, the case is factually distinguishable.  In Lopez-Solis, Rice County used the services of a Ramsey County assistant medical examiner because it did not employ its own examiner.  Id. at 295.  The supreme court concluded that expenses incurred by medical examiners in conducting an autopsy, preparing an autopsy report, and testifying at trial could not be imposed against a defendant because the coroner’s services were required whether or not the state prosecuted the defendant.  Id.  JD10 argues that the project engineer’s new studies about the adequacy of the outlet should have been performed prior to trial in compliance with his statutory duties under Minn. Stat. §§ 103E.245, subd. 4(3), .261, subd. 5(4) (2000).  But the project engineer testified that he did not perform new studies, rather conducted further studies and research on issues specifically raised in the litigation in anticipation of critical analysis by JD10 of the prior studies.  This research and trial preparation would not have been necessary had JD10 not brought this lawsuit against LCD7.  The district court found this testimony credible, and we will not disturb a credibility finding of the district court.  See State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992) (according “great deference” to district court’s credibility determinations), aff’d, 508 U.S. 366 (1993).

            JD10 also argues that the district court abused its discretion in awarding expert-witness fees based on the expert’s broad and conclusory descriptions of his time billed.  LCD7 provided invoices and itemized listings of time spent by the project engineer and the specialists on his staff, and that documentation designates their hourly fees and their time spent on each aspect of trial preparation.  See Quade, 510 N.W.2d at 261 (finding that detailed breakdown of costs and affidavit specifying time billed was adequate to decide amounts were fair, reasonable, and necessary); Spinett, Inc. v. Peoples Natural Gas Co., 385 N.W.2d 834, 840 (Minn. App. 1986) (remanding due to inadequate evidence of normal hourly charges).  In addition, the project engineer stated that he kept a separate accounting file for litigation expenses. 

The judge who made the award presided over all aspects of this case and a companion case and was aware of the complexity of the technical issues in this case.  The district court heard testimony from the project engineer on his fees and had the discretion to request more detailed records or to reject or modify the fees requested.  Given the court’s familiarity with the case and the amount of documentation and testimony presented, the district court did not abuse its discretion in finding the expert-witness fees were just and reasonable.



[1]JD10 acknowledges that the supreme court limited Lopez-Solis to criminal cases but asserts that because it was decided under the same statute that governs expert fees in civil cases, the reasoning is applicable to this case.