This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).
STATE OF MINNESOTA
IN COURT OF APPEALS
Ora Lee Burrell,
Kubes Dental Care,
Filed July 9, 1996
Ramsey County District Court
File No. C8944416
Patrick M. Hughes, The Hughes Law Firm, 245 West Stevens Street, St. Paul, MN 55107 (for Respondent)
Stephen W. Cooper, 4747 First Bank Place, 601 Second Avenue South, Minneapolis, MN 55402 (for Respondent)
Steve L. Bergeson, 111 South Broadway, Jordan, MN 55352-1505 (for Appellant Kubes Dental Care)
David Kubes, 91 North Snelling Avenue, St. Paul, MN 55104 (Appellant Pro Se)
Considered and decided by Schumacher, Presiding Judge, Lansing, Judge, and Short, Judge.
U N P U B L I S H E D O P I N I O N
Kubes Dental Care and dentist David Kubes (collectively Kubes) appeal the trial court's award of attorney fees to respondent Ora Lee Burrell. We affirm.
Kubes employed Burrell as a dental assistant. On June 29, 1992, Kubes gave a patient a shot using a syringe that had not been sterilized properly. Burrell repeatedly objected to Kubes' use of the nonsterile syringe and questioned his practices. On July 1, 1992, Kubes told Burrell that her employment was just not working out and that she was terminated.
Burrell filed a complaint, alleging (1) violation of the whistleblower statute, Minn. Stat. ' 181.932, subd. 1(c) (1992), (2) violation of Minn. Stat. ' 181.933 (1992), which requires an employer to provide in writing a reason for terminating an employee, (3) intentional infliction of emotional distress, (4) racial discrimination in violation of Minn. Stat. ' 363.03 (1992), and (5) breach of contract. Kubes moved for summary judgment. The trial court granted the motion with respect to the claims for intentional infliction of emotional distress and breach of contract. Burrell withdrew the claim of violation of Minn. Stat. ' 181.933 and it was dismissed.
A five-day jury trial on the remaining two claims was held in June 1995. Two attorneys--Patrick Hughes and Stephen Cooper--represented Burrell at trial. By special verdict, the jury found that Kubes violated the whistleblower statute, but that Burrell was not a victim of racial discrimination. The jury awarded Burrell $2,200 for embarrassment and emotional distress and $12,480 for loss of earnings.
Burrell moved for attorney fees of $36,700 and costs of $1,418.04, based on 77 hours of work by Cooper at a rate of $200 per hour and 142 hours of work by Hughes at $150 per hour. At the hearing, Burrell conceded that eight hours of time spent on a failed motion to amend the complaint should be deducted. After adjusting downward the number of hours the attorneys claimed were reasonably spent on the litigation (15 hours from Cooper's claim and 30 hours from Hughes's total) the trial court awarded attorney fees of $26,400. Costs were denied because there was no supporting evidence. Kubes appeals the award of attorney fees.
D E C I S I O N
1. Burrell argues that this appeal should be dismissed because Kubes failed to provide an adequate record for review. Included in the record on appeal is a transcript of the hearing on the attorney fees motion, but not of the trial itself.
It is elementary that a party seeking review has a duty to see that the appellate court is presented with a record which is sufficient to show the alleged errors and all matters necessary to consider the questions presented.
State v. Carlson, 281 Minn. 564, 566, 161 N.W.2d 38, 40 (1968). When "the record is barren of material necessary for an understanding of the issues," an appeal should be dismissed. Noltimier v. Noltimier, 280 Minn. 28, 29, 157 N.W.2d 530, 531 (1968). Because this appeal involves only the award of attorney fees, we find that the transcript of the hearing on that motion is sufficient to decide the issue. The record contains all that is necessary to review this case. See Minn. R. Civ. App. P. 110.02, subd. 1(a) (appellant must order transcript of those parts of proceedings that "are deemed necessary for inclusion in the record").
2. Kubes contends that the award of attorney fees is excessive and unsupported by the record. We disagree.
Minn. Stat. ' 181.935(a) (1994) authorizes a court to award reasonable attorney fees in claims brought under the whistleblower statute. Absent an abuse of discretion, we will not reverse a trial court's award of attorney fees. Becker v. Alloy Hardfacing & Eng'g Co., 401 N.W.2d 655, 661 (Minn. 1987). "[O]nly rarely will a trial court's decision regarding attorney fees be overturned on appeal." Burns v. Burns, 466 N.W.2d 421, 424 (Minn. App. 1991).
Kubes argues that the billing summary provided by Burrell is too vague. He further contends that this was a simple case, there was no need for two attorneys, and the award amounts to "double billing." Burrell's counsel explained to the trial court that although the case as tried was relatively simple, it began as a more complicated action because Kubes denied things during discovery that he admitted at trial. As a result, Burrell's counsel had prepared to call a number witnesses who were ultimately unnecessary. Cooper also explained to the trial court that he did not bill for any of the hours he spent on the case prior to the week before trial "to make absolutely certain that opposing counsel's contention that there is double billing did not take place."
In federal civil rights actions, the Supreme Court has indicated that a starting point in determining reasonable attorney fees is to ascertain the number of adequately documented hours spent on litigation multiplied by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 1939 (1983); see also Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619, 629-30 (Minn. 1988) (using analytical approach of Hensley for determining attorney fees recoverable under Minnesota Security Act). After this figure is determined, a court must also consider the "results obtained," a factor that is "particularly crucial where a plaintiff is deemed `prevailing' even though he succeeded on only some of his claims for relief." Hensley, 461 U.S. at 434, 103 S. Ct. at 1940. Thus, the results obtained are an important consideration here because Burrell prevailed on only one of the claims tried.
We conclude that the trial court properly considered the results obtained when it reduced Burrell's requested attorney fees. Consistent with the mandates of Hensley, the trial court noted that the reduced award was reasonably related to the results obtained by Burrell. See Hensley 461 U.S. at 437, 103 S. Ct. at 1941 ("When an adjustment is requested on the basis of either the exceptional or limited nature of the relief obtained by the plaintiff, the district court should make clear that it has considered the relationship between the amount of the fee awarded and the results obtained."). The trial court's award is reasonable for a five-day trial with the results achieved here.
Kubes challenges the reasonableness of the attorneys' hourly rates. We note that Cooper reduced his normal fee by $50 per hour, and we conclude that the hourly rates are reasonable. See Minneapolis Star & Tribune v. United States, 713 F. Supp. 1308, 1313 (D. Minn. 1989) (hourly billing rates reasonable if they are within range customarily charged by similarly-situated law firms). As for Kubes's contention that Burrell should not recover fees for attorney time on motions that were denied, we note that Burrell's counsel voluntarily deducted the time spent on one of the motions, and we assume that the trial court took into account the other denied motion when it made its reductions.