This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
German, Neil & Hasbrouck, Ltd.,
Polk County District Court
File No. C4981097
Terrence J. Fleming, William F. Stute, Lindquist & Vennum P.L.L.P., 4200 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent)
Kenneth F. Johannson, Johannson, Rust, Fagerlund, Yon & Stock, 407 North Broadway, P.O. Box 605, Crookston, MN 56716 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Peterson, Judge, and Harten, Judge.
U N P U B L I S H E D O P I N I O N
Appellant German, Neil & Hasbrouck, Ltd. (GNH), disputes the amount charged by respondent HazTran, Inc., for document restoration services. Appellant contends that the district court: improperly denied its motion for judgment notwithstanding the verdict (JNOV); abused its discretion in awarding respondent attorney fees, interest, and costs; and abused its discretion in preventing appellant’s expert witness from testifying. Appellant also contends the jury verdict should be set aside and that a new trial should be granted because respondent’s attorney made an improper comment concerning appellant during closing argument. We affirm.
Appellant contends that because the agreement between the parties is oral, appellant is not bound by the terms contained in the written agreement signed June 18, 1997, nor required to pay respondent as much money as the jury determined. We disagree. On review, we will not set aside answers to special-verdict questions unless they are “perverse and palpably contrary to the evidence” or unless the evidence is so clear that there is no room for differences among reasonable people. Hanks v. Hubbard Broad., Inc., 493 N.W.2d 302, 309 (Minn. App. 1992) (citation omitted), review denied (Minn. Feb. 12, 1993). Further:
The evidence must be viewed in a light most favorable to the jury verdict. If the jury’s special-verdict finding can be reconciled on any theory, the verdict will not be disturbed.
Id. (citations omitted).
Here, the jury was not asked to determine whether the contract between the parties was oral or written because appellant previously agreed that it owed respondent money for services rendered. Instead, the jury was asked: “What sum of money does [appellant] owe to [respondent] HazTran, Inc.?” Therefore, the dispute at trial was not whether the parties had an enforceable contract, but rather, how much money appellant owed respondent.
During trial, the jury heard testimony that: (1) respondent had advised appellant that its services would cost between $125 and $175 per cubic foot, but because appellant’s documents were extremely dirty, the cost could rise to as much as $95,000; (2) respondent restored 236.5 cubic feet of documents; (3) appellant viewed a sample agreement identical to the agreement it actually signed in June 1997, and the sample did not provide a firm, total cost for services; (4) appellant signed a statement of work completed and did not express concern about not receiving periodic invoices; and (5) when respondent completed the work, it informed appellant that the final bill could be $90,000. Moreover, there was evidence that respondent had put appellant on notice that the cost of its services might be higher than a typical project. Viewing the evidence in the light most favorable to the jury verdict, we conclude there was sufficient evidence to support the jury’s finding that appellant owes respondent $65,542.
Appellant contends the district court improperly denied its motion for JNOV because the jury verdict is contrary to the evidence. We disagree. We review the denial of a motion for JNOV de novo. Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998). Where JNOV has been denied by the district court, on appellate review the denial “must be affirmed, if, in the record, there is any competent evidence reasonably tending to sustain the verdict.” Id. (quotation omitted). “[U]nless the evidence is practically conclusive against the verdict, [this court] will not set the verdict aside.” Id. (quotation omitted).
The evidence must be considered in the light most favorable to the prevailing party and an appellate court must not set the verdict aside if it can be sustained on any reasonable theory of the evidence.
Id. (citation omitted).
Here, appellant argues that, based on document cleaning services in the amount of $175 per 236.5 cubic foot, the most it owes respondent is $41,387.50, less $10,000 it has already paid. But this figure suggests that respondent’s estimate was firm. And to the contrary, the record indicates that respondent informed appellant that because appellant’s documents were extremely dirty, its services could cost twice the amount of the estimate, and possibly reach $95,000. Moreover, respondent’s subcontractor testified that appellant’s documents were among the dirtiest he had seen in 15 years. Considering the condition of appellant’s documents, there is sufficient evidence in the record to support the finding that respondent’s estimate was not firm and that appellant owes respondent more than $41,387.50. Therefore, the district court did not err in denying appellant’s motion for JNOV.
A. Preverdict Interest
Appellant contends the district court erred in calculating preverdict interest and that respondent is only entitled to postverdict interest. We disagree. Minn. Stat. § 549.09, subd. 1(b) (2000), provides:
Except as otherwise provided by contract or allowed by law, preverdict, preaward, or prereport interest on pecuniary damages shall be computed * * * from the time of the commencement of the action * * * or the time of a written notice of a claim, whichever occurs first.
(Emphasis added.) By statute, respondent is at least entitled to preverdict interest from July 30, 1998, the date it filed its claim. See id. But the parties’ written contract provides
[p]ayment to HazTran, Inc. will be made no later than ten (10) days following receipt of HazTran, Inc.’s Invoice. Failure to pay said invoice * * * will result in interest charges incurred at a rate of 1.5% per month.
Appellant received respondent’s invoice on November 24, 1997. Because the parties’ contract specifically authorizes preverdict interest, the district court did not err in calculating such interest from December 3, 1997, to September 11, 2000.
Appellant further contends that an award of preverdict interest to respondent was improper because the parties had an oral agreement which did not provide for preverdict interest. But this argument is not persuasive because a partner of GNH signed the written agreement authorizing preverdict interest.
Appellant also contends the court improperly awarded preverdict interest because this case involves an unliquidated claim. We disagree. The unliquidated nature of a damages claim does not preclude an award of prejudgment interest. Kansas v. Colorado, 121 S. Ct. 2023 (2001) (finding the distinction between liquidated and unliquidated damages unsound).
B. Attorney Fees
Appellant contends the district court abused its discretion in awarding respondent attorney fees. We disagree. “On review, [an appellate] court will not reverse a [district] court’s award or denial of attorney fees absent an abuse of discretion.” Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (Minn. 1987). “Ordinarily, a party may not recover attorney fees unless a statute or contract provision expressly allows such recovery.” State Bank v. Ziehwein, 510 N.W.2d 268, 270 (Minn. App. 1994) (citation omitted), review denied (Minn. Mar. 15, 1994). Where “documents authorize a [party] to recover legal expenses associated with collection, however, Minnesota courts will enforce the provision as long as the fees are reasonable.” Id. (citation omitted) (affirming award of fees to a bank where loan documents authorized the recovery of attorney fees).
Here, appellant signed an agreement authorizing collection costs to be added to the total invoice. Although the agreement does not specifically state that attorney fees are included in costs of debt collection, we conclude that collection costs encompass attorney fees. See Wrenfield Homeowners Ass’n, Inc. v. DeYoung, 600 A.2d 960, 964 (Pa. Super. 1991) (finding attorney fees included in costs of collection even though the agreement did not specifically state that such fees were a part of collection costs). In fact, in certain contexts, the phrase “costs of collection” is synonymous with attorney fees. See Black’s Law Dictionary 351 (7th ed. 1999) (defining “costs of collection” as “[e]xpenses incurred in receiving payment of a note; esp., attorney’s fees created in the effort to collect the note”). Because we find that the phrase “collection costs” is sufficiently broad enough to include attorney fees, the district court did not abuse its discretion. See Minn. Stat. § 176.061, subd. 6(a) (2000) (including attorney fees in reasonable costs of collection).
Appellant argues that even if this court affirms the award of attorney fees, the amount of fees awarded by the district court is unreasonable. We disagree. 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). Many factors should be considered in determining the reasonableness of attorney fees, including the “time and effort required, value of the interest involved, and results secured at trial.” Bloomington Elec. Co. v. Freeman’s, Inc., 394 N.W.2d 605, 608 (Minn. App. 1986) (citation omitted), review denied (Minn. Dec. 17, 1986). Here, because respondent provided thorough documentation of its attorney’s services and fees, the district court did not clearly err in determining that respondent’s attorney fees were reasonable.
Finally, appellant contends the district court abused its discretion in awarding $2,328.03 in costs to respondent. We disagree. A 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). We review an award of costs by the district court under an abuse of discretion standard. Minnesota Council of Dog Clubs v. City of Minneapolis, 540 N.W.2d 903, 904 (Minn. App. 1995), review denied (Minn. Jan. 25, 1996). The district court had detailed billing records on which to base an award of costs, and we do not find that the court abused its discretion in calculating the award.
Appellant contends the district court erred in refusing to allow its expert witness to testify. We disagree. “[E]videntiary rulings, including a decision to exclude expert testimony, lie within the sound discretion of the trial court.” Benson v. Northern Gopher Enters., 455 N.W.2d 444, 445-46 (Minn. 1990) (citation omitted). Here, appellant disclosed the name of its expert witness, Quinton Schwartz, in the fall of 1999, but provided no further information. The district court stated:
The disclosure of the name did take place over a year ago, however, there was nothing more than a name at that time and no documentation or report from the expert was provided at the December trial which was called off at the eleventh hour, again, there was no notice of an expert nor any report. And it was not until the day before this trial is actually starting that notice was given that Mr. Schwartz would be testifying and that he would have a report, but even today we do not have a report. The Court does find that this will prejudice [respondent]. They may have wanted to get a counter-expert. They do not have time to prepare getting the report during the course of trial * * * .
The district court’s explanation for excluding the testimony of appellant’s expert witness, and its determination that allowing the witness to testify would prejudice respondent leads us to conclude the court did not abuse its discretion in suppressing the expert testimony.
Appellant contends it is entitled to a new trial because respondent referred to appellant as collection lawyers during closing argument. Because the district court has the discretion to grant a new trial, we will not disturb its decision absent a clear abuse of that discretion. Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).
A district court has “broad discretion to fashion appropriate curative instructions.” Poston v. Colestock, 540 N.W.2d 92, 94 (Minn. App. 1995) (quotations omitted), review denied (Minn. Jan. 25, 1996). “Issuance of a curative instruction is discretionary and should be upheld unless the misconduct constitutes a miscarriage of justice.” Id. (quotation omitted). “Appellate courts rarely disturb a district court’s response to improper remarks in closing arguments.” Id. (citations omitted).
Here, appellant objected to the remarks made by respondent’s attorney and requested a curative instruction. The district court granted appellant’s request and instructed the jury:
During the final arguments here there was reference to the actions of collection attorneys. I want to instruct you that you are not to consider any evidence * * * or any argument of what collection attorneys may do or not do as there is no evidence concerning that matter.
Because the district court’s curative instruction appropriately responded to the comment made by respondent’s attorney during closing argument, a new trial is not warranted.