This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-98-734

Craig Colburn, d/b/a Craig Colburn Carpentry,

Respondent,

vs.

M.A. Fearing Companies, Inc.,

Appellant,

Robert B. Parr, et al.,

Defendants,

Buck Blacktop, Inc.,

Respondent,

and

Glenbrook Lumber & Supply, Inc.,

Respondent,

vs.

M.A. Fearing Companies, Inc.,

Appellant,

Buck Blacktop, Inc.,

Respondent,

Craig Colburn, d/b/a Craig Colburn Carpentry,

Respondent,

Featherstone Excavating, Inc.,

a Wisconsin corporation,

Respondent,

Robert B. Eberhard, d/b/a Eberhard Construction, et al.,

Defendants.

Filed December 22, 1998

Affirmed

Foley, Judge[*]

Washington County District Court

File No. C2-96-2830

Steven H. Berndt, Hance & Iverson, Ltd., 941 Hillwind Road N.E., Ste. 301, Fridley, MN 55432 (for appellant M.A. Fearing Companies)

David W. Thurston, 2853 North Second Street, North St. Paul, MN 55109 (for respondent Glenbrook Lumber & Supply)

Malcolm D. MacGregor, Persian, MacGregor, & Thompson, 1530 International Centre, 900 Second Avenue South, Minneapolis, MN 55402 (for respondent Craig Colburn d/b/a Craig Colburn Carpentry)

David S. Holman, 201 W. Travelers Trail, Suite 225, Burnsville, MN 55337 (for respondent Buck Blacktop)

Craig W. Baumann, Steigauf & Baumann, 1937 Woodlane Drive, Woodbury, MN 55125 (for respondent Featherstone Excavating)

Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Foley, Judge.

U N P U B L I S H E D O P I N I O N

FOLEY, Judge

Respondents Craig Colburn, d/b/a Craig Colburn Carpentry (Colburn), Glenbrook Lumber & Supply, Inc. (Glenbrook), Buck Blacktop, Inc. (Buck Blacktop), and Featherstone Excavating, Inc. (Featherstone), pursued foreclosure of their respective mechanics' liens against appellant M.A. Fearing Companies, Inc. (Fearing) for materials and labor provided to construct the St. Croix Villas at Quasar Court. After a consolidated bench trial, judgment was entered and attorney fees were awarded in favor of Colburn, Glenbrook, Buck Blacktop, and Featherstone. On appeal from denial of a motion for new trial,[1] Fearing argues the trial court erred in its findings of fact, award of judgment, and award of attorney fees. We affirm.

FACTS

A. Buck Blacktop

A contract between Fearing and Buck Blacktop provided that Buck Blacktop would install and pave a road on Quasar Court for a total cost of $22,922. Fearing paid $8,614, leaving a balance of $14,308 on the work completed. Buck Blacktop subsequently assessed $3,063 in additional charges for materials and excavating to correct unforeseen grade elevation problems. After Fearing repeatedly refused to pay the balance, Buck Blacktop filed a mechanics' lien for the balance owed of $17,371. At the time of trial, Buck Blacktop also assessed finance charges under the contract totaling $5,963.32.

B. Featherstone

An oral contract between Fearing and Featherstone provided that Featherstone would install water lines, excavate for footings, install septic systems, and backfill along the curb on the lots in the St. Croix Villas on Quasar Court. Although Featherstone submitted bills to Fearing, a disputed balance remained unpaid for the services provided. Featherstone filed mechanics' liens against two lots in the amount of $3,417 each.

C. Colburn

A contract between Fearing and Colburn provided that Colburn would provide carpentry/labor services in building the homes at St. Croix Villas. With Fearing's knowledge and consent, Colburn ordered construction materials including lumber, shingles, roofing accessories, sheathing products, windows, exterior doors, insulation, and trusses from the supplier, Glenbrook. Fearing and Colburn terminated their relationship prior to the completion of the St. Croix Villas project. Colburn filed separate mechanics' liens in the total amount of $6,373.50 on four lots for services provided.

D. Glenbrook

Glenbrook gave Fearing two estimates for lumber, shingles, roofing accessories, sheathing products, windows, exterior doors, insulation, and trusses for four St. Croix Villas units based upon UBC material lists. Upon request by Colburn, Glenbrook delivered construction materials including lumber, shingles, roofing accessories, sheathing products, windows, exterior doors, insulation, and trusses. In addition to the materials contained in the original estimates, Glenbrook also provided, upon request, skylights, windows, porch construction materials, and other supplies. All requested materials were delivered to the job site, received and incorporated into the construction of Fearing's properties, and invoiced at the end of the month to Fearing. Glenbrook subsequently filed a mechanics' liens in the amount of $68,827.56 on three lots for supplies for which Fearing had not paid.

D E C I S I O N

Denial of a motion for a new trial is independently appealable. Minn. R. Civ. App. P. 103.03(d). The granting of a new trial, however, rests largely within the discretion of the trial court and will not be overturned absent a clear abuse of discretion. Jack Frost, Inc. v. Engineered Bldg. Components Co., 304 N.W.2d 346, 352 (Minn. 1981).

I. Findings of Fact

A trial court's findings of fact shall not be set aside unless clearly erroneous and due regard shall be given to the trial court's opportunity to judge credibility of witnesses. Runia v. Marguth Agency, Inc., 437 N.W.2d 45, 48 (Minn. 1989) (quoting Minn. R. Civ. P. 52.01); see also Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987) (stating trial court's findings of fact will be reversed only if, upon review of entire evidence, reviewing court is "left with the definite and firm conviction that a mistake has been made"). In actions tried without a jury, we must affirm the district court's findings as long as they "are reasonably supported by the evidence as a whole, or not manifestly contrary to the weight of the evidence." Foster v. Bergstrom, 515 N.W.2d 581, 585 (Minn. App. 1994) (citing Northern States Power Co. v. Lyon Food Prods. Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975)).

Buck Blacktop

The trial court found, in part, that respondent Buck Blacktop completed the work in a good and workmanlike manner and was entitled to judgment in the amount of $23,334.32 on the lien and finance charges. Fearing argues the trial court erred in its findings of fact and award because Buck Blacktop's work was defective, and the award should be reduced at least by the cost to repair the defects.

The trial court's findings of fact are not clearly erroneous. The record shows the road passed various density tests and inspections. However, particular areas of the pavement did not adequately drain water; the small ponding areas, called "birdbaths," and are common during cold weather paving. Buck Blacktop acknowledged responsibility for these birdbaths and repeatedly tried to communicate with Fearing to resolve the situation. Fearing, however, hired another company to fix the birdbaths and testified the cost of repair was approximately $2,000, but did not call witnesses, submit a proposal, or submit a bill from that company.

The trial court's findings of fact that Buck Blacktop's work was completed in a good and workmanlike manner, and that insufficient evidence was provided as to the cost of repairing the birdbaths are supported by the record and not clearly erroneous; therefore, the award under the mechanic's lien is proper.

B. Featherstone

The trial court found, in part, that respondent Featherstone was entitled to judgment in the amount of $6,918.23 ($6,348 on the lien plus $570.23 in interest). Although Fearing does not directly challenge the trial court's award to Featherstone, we address its argument that the dispute only amounted to a total of $2,000 for final grading on lots 4 and 5.

The parties stipulated the amount remaining due on lots 1, 2, and 3 was $1,997, plus interest; the parties also stipulated appellant over-paid on lot 17 by $683. However, the balance owed on lots 4 and 5 remained in dispute. The record shows that, between September 1995 and October 1996, Featherstone billed Fearing a total of $5,617 for services performed on lot 4; Fearing paid $2,000. The record also shows that, between September 1995 and October 1996, Featherstone billed Fearing $5,417, for services performed on lot 5; Fearing paid $4,000. With all bills and credits, the total balance owed was $6,348.

The trial court's findings of fact and award are supported by the record and not clearly erroneous.

C. Colburn

The trial court found, in part, that respondent Colburn completed the work in a good and workmanlike manner, did not incorrectly order the trusses, and was entitled to judgment in the amount of $6,802.97 on the liens and interest. Fearing argues the trial court erred in its findings of fact.

At trial, Fearing's witness, Schwarz, testified that the fireplace was uneven, the front window was off center, there was a hole in the bathroom wall, the shower door was not hung properly, the kitchen cupboards were improperly installed, the wrong rafters were installed, the trim stain was marred, and the windows needed to be re-nailed. However, testimony indicated Colburn was not responsible for these alleged flaws. For example, the trim was pre-stained by another company, the windows were installed to manufacturing specifications, another company installed the shower door, and the kitchen cupboards either were or should have been measured by the company hired to build the cabinets. Furthermore, during Schwarz's cross-examination, he acknowledged he was dating Fearing's sister, could not testify to the number of hours he worked, had no bills prepared on his work, and could not break down his work into the corrective work and the finishing work for which he was hired.

The trial court's finding that Colburn ordered the correct trusses is not clearly erroneous. Testimony indicated the order for trusses was based upon a meeting between Colburn and Engineered Building Components (EBCO) using the floor plan. After the trusses were ordered in accordance with the floor plan on November 28, 1995, and delivered by EBCO on December 4, 1995, Fearing changed the floor plan on December 7. Colburn warned Fearing the changes would not be compatible with the already ordered trusses. Because no decision had been articulated that a new floor plan superseded the old floor plan, Colburn installed the trusses according to the original plan with no complaint from Fearing.

Because the trial court had the opportunity to judge witness credibility and the record supports the findings of fact, the findings and award are not clearly erroneous.

D. Glenbrook

Fearing argues the trial court erred in finding, in part, that although respondent Glenbrook's prices for materials exceeded its proposals, the differences in price were justifiable, the correct trusses were shipped, and Glenbrook was entitled to judgment in the amount of $86,101.46 on the liens and interest. However, the trial court's findings of fact that the differences between the estimated prices and the actual prices were justifiable and are not clearly erroneous. The record shows the two estimates clearly stated they were only estimates and not guaranteed to build or complete any specific job. They also stated that any clerical errors were subject to correction, and pricing may be void 10 days after the estimate. Despite this, Colburn requested, on behalf of Fearing, that Glenbrook deliver construction materials including lumber, shingles, roofing accessories, sheathing products, windows, exterior doors, and insulation. In addition to the materials contained in the original estimates, Glenbrook also provided, upon request, skylights, windows, porch construction materials, and other supplies because the floor plans changed. All requested materials were delivered to the job site, received and incorporated into the units, and invoiced at the end of the month to Fearing.

In addition, the trial court's finding of fact that Glenbrook shipped the correct trusses is not clearly erroneous. Glenbrook provided, upon Colburn's request, the trusses for the units by subletting truss construction and delivery to EBCO and billing Fearing directly. The trusses were delivered to the job site, received and incorporated into the units, and invoiced at the end of the month to Fearing. Because the record supports the findings of fact, the trial court's findings of fact and award are not clearly erroneous.

II. Attorney Fees

Reasonable attorney fees may be awarded to a successful claimant under Minn. Stat. § 514.14 (1996) 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). Although award of attorney fees as part of a mechanics' lien foreclosure claim is discretionary, the trial court should review (1) time and effort required, (2) novelty or difficulty of the issues, (3) skills and standing of the attorney, (4) value of the interest involved, (5) results secured at trial, (6) loss of opportunity for other employment, (7) taxed party's ability to pay, (8) customary charges for similar services, and (9) certainty of payment. Jadwin v. Kasal, 318 N.W.2d 844, 848 (Minn. 1982); Asp v. O'Brien, 277 N.W.2d 382, 385 (Minn. 1979). However, attorney fees awards should be in proportion to the mechanics' lien judgment. Asp, 277 N.W.2d at 385. 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).

A. Buck Blacktop

Buck Blacktop was awarded $8,375 in attorney fees and $313.74 in costs. Fearing argues the trial court erred in its attorney fee award.

The record, through testimony and itemized billing statements, reflects the time spent by Buck Blacktop's attorney on the one lien at issue (71 hours, including trial time); the value of the interest involved ($23,334.20 in lien and interest); the results at trial (judgment award of $23,334.32); and the customary charges for similar services ($125 per hour for each of the attorneys). See Jadwin 318 N.W.2d at 848 (dictating factors to be reviewed). The court averaged the attorney hours of service for Featherstone (62.95 hours) and Buck Blacktop (71 hours) and then multiplied that average (67 hours) by $125 per hour for a total award of $8,375, plus $313.74 in costs. Although the record is unclear why the trial court averaged Buck Blacktop and Featherstone's attorney hours, the average is actually an underestimate of Buck Blacktop's actual attorney services because Featherstone's attorney did not estimate trial time, and Buck Blacktop's attorney hours were reduced by the averaging with Featherstone. Furthermore, the award is only $8,688.74, which is proportional to the overall award on the liens of $23,334.32. See Asp, 277 N.W.2d at 385 (reducing award that was not proportional). The trial court's findings of fact are not clearly erroneous and it did not abuse its discretion in its attorney fees award to Buck Blacktop.

B. Featherstone

The trial court awarded Featherstone $8,375 in attorney fees and $244.80 in costs. Fearing argues the trial court erred in awarding attorney fees to Featherstone.

The record, through testimony and itemized billing statements, reflects the time spent by Featherstone's attorney on the two liens at issue (62.95 hours without trial time); the value of the interest involved ($6,834 in liens plus interest); the results at trial (judgment award of $6,918.23); and the customary charges for similar services ($125 per hour for each of the attorneys). See Jadwin 318 N.W.2d at 848 (dictating factors to be reviewed). The trial court averaged the attorney hours of service for Featherstone (62.95 hours) and Buck Blacktop (71 hours) and then multiplied that average (67 hours) by $125 per hour, for a total award of $8,375 plus $313.74 in costs. Although the record is unclear why the trial court averaged Buck Blacktop and Featherstone's attorney hours, the average is actually an underestimate of Featherstone's actual attorney services because Featherstone's attorney did not estimate trial time, and his hourly fee was reduced from $150 to $125 per hour. The attorney fee award is large when compared to the overall award ($8,375 in attorney fees compared to $6,918.23 award). See Asp, 288 N.W.2d at 385 (reducing award that was not proportional). However, we cannot say the trial court abused its discretion in awarding generous attorney fees to Featherstone due to the other factors considered such as complexity of the multi-party, multi-lien case, Fearing's failure to limit recovery, and trial time for which the attorney was not compensated.

C. Colburn

Fearing argues the trial court erred in awarding Colburn $9,812.50 in attorney fees and $646.04 in costs.

The record reflects: the experience of the attorney (27 years experience in mechanics' liens); the time spent by Colburn's attorney on the four liens at issue (60 hours, including trial time); the value of the interest involved ($6,373.50 in liens plus interest); the results at trial (judgment award of $6,802.97); and the customary charges for similar services ($125 per hour for each of the attorneys). See Jadwin 318 N.W.2d at 848 (dictating factors to be reviewed). Although the attorney estimated 60 hours, the court stated Colburn's attorney billed 56 hours through the end of trial and added 14 hours for additional trial time and preparation of findings of fact, conclusions of law, and order for judgment. The trial court then averaged its estimated fees for Glenbrook (86.64 hours) and Colburn (70 hours); the court multiplied that average (78.5 hours) by $125 per hour for a total award of $9,812.50. Therefore, although Colburn's attorney testified he estimated 60 hours of services through the close of trial, the attorney fees award was actually based on 78.5 hours. Additionally, the attorney fee award is large when compared to the overall award ($9,812.50 in attorney fees compared to $6,802.97 award). See Asp, 277 N.W.2d at 385 (reducing award that was not proportional). However, we cannot say the trial court abused its discretion in awarding Colburn generous attorney fees due to the other factors considered such as complexity of the multi-party, multi-lien case, Fearing's failure to limit recovery, and the experience of the attorney.

Glenbrook

The trial court awarded Glenbrook $9,812.50 in attorney fees and $1,106.88 in costs. Appellant argues the trial court erred in its award of attorney fees.

The record, through testimony and itemized billing statements, reflects: the experience of the attorney (35 years experience in lien foreclosures); the time spent by Glenbrook's attorney on the three liens at issue (91.64 hours); the value of the interest involved ($68.827.56 in liens and interest); the results at trial (judgment award of $86.101.46); and the customary charges for similar services ($125 per hour for each of the attorneys). See Jadwin 318 N.W.2d at 848 (dictating factors to be reviewed). The trial court averaged its estimate for Glenbrook (86.64 hours) and Colburn (70 hours) and then multiplied that average (78.5 hours) by $125 per hour for a total award of $9,812.50. This award is actually an underestimation of the attorney fees because, although the Glenbrook attorney testified he estimated 91.64 hours of services through the close of trial, the attorney fee award was actually based on 78.5 hours. In addition, the attorney fee award is proportional when compared to the overall award ($9,812.50 in attorney fees compared to $86,101.46). See Asp, 277 N.W.2d at 385 (reducing award that was not proportional). We cannot say the trial court abused its discretion in awarding attorney fees to Glenbrook.

Affirmed.

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

[1] On November 6, 1997, the trial court denied Fearing's motion for a new trial. On April 27, 1998, Fearing appealed the denial of motion for a new trial. Although on November 20, 1997, Glenbrook sent notice of filing order to Fearing, Colburn, Buck Blacktop, and Featherstone, all proceedings, including the time to take this appeal, were stayed until April 9, 1998, because Fearing was in bankruptcy. See 11 U.S.C. § 362(a)(1) (1994); Farley v. Henson, 2 F.3d 273, 275 (8th Cir. 1993) (automatically staying appeal brought by debtor from judgment obtained against it as defendant during bankruptcy proceedings).