This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




In the Matter of James T. Fuller, Sr., Conservatee.

Filed July 20, 1999

Affirmed in part and dismissed in part

Halbrooks, Judge

Hennepin County District Court

File No. P2-97-1229

Larry E. Reed, Hassan & Reed, Ltd., 1000 Reed Professional Center, 2311 Wayzata Boulevard, Minneapolis, MN 55405 (for appellants Raymond A. Wood and James T. Fuller, Jr., Conservators)

Timothy L. Piepkorn, 247 Third Avenue South, Minneapolis, MN 55415 (for respondent Nancy Clark, Co-Conservator of the Person)

William R. Kennedy, Calhoun Square, 3001 Hennepin Avenue South, Minneapolis, MN 55408 (pro se attorney respondent)

Considered and decided by Amundson, Presiding Judge, Schumacher, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant conservators seek review of the district court's judgment directing payment of attorney fees, arguing (1) the court abused its discretion by appointing respondent Kennedy as conservatee's attorney; (2) the settlement agreement reached by the parties precludes the payment of fees; (3) Kennedy's retainer was a flat fee agreement and he was bound by it; (4) the fees charged by Kennedy and Piepkorn were unreasonable; (5) conservatee is not responsible for paying Piepkorn's fees; and (6) conservatee should not be required to reimburse Clark because she owes the conservatee several thousand dollars. Respondent Clark argues this appeal is taken from the referee's June 4, 1998 order and should be dismissed as untimely filed. With respect to Kennedy's appointment, we conclude this appeal is untimely and must be dismissed. With respect to the remainder of appellants' issues, we affirm.


On June 25, 1997, James Fuller, Jr. (Fuller Jr.) filed a petition with the district court, seeking to have his daughter Suzanne Fuller-Terrill appointed as conservator for his father James Fuller, Sr. (conservatee) and conservatee's estate. Conservatee had given Fuller Jr. a durable statutory short-form power of attorney in 1994. At the time the petition was filed, Fuller Jr. had already taken action to prevent access to conservatee's bank account and take control of conservatee's business, The Cozy, Inc., d/b/a The Riverview Supper Club, from respondent Nancy Clark, conservatee's longtime companion and manager of the supper club. In his petition, Fuller Jr. alleged Clark had unreasonable control over conservatee and could take advantage of him in his condition. Fuller Jr. arranged to have attorney David Jacobs represent conservatee in the conservatorship proceedings.

Clark filed a petition with the district court on July 3, 1997, seeking to be appointed as conservator. Clark was represented by attorney Piepkorn. Clark contacted respondent attorney Kennedy on July 3, 1997, and arranged for Kennedy to meet with conservatee about representation with respect to the conservatorship petitions. Kennedy met with conservatee on July 7, 1997, and states in his affidavit that conservatee agreed to retain his services. Because conservatee was prevented access to his bank accounts, Clark paid Kennedy's retainer. Kennedy then brought a motion for judicial determination that he was counsel for conservatee.

Reasoning that the conservatee was presumed to possess capacity, Kennedy had a longer relationship with conservatee, Kennedy had already made some significant effort in conservatee's representation, and conservatee chose Kennedy, the court deemed that Kennedy was to represent conservatee in the conservatorship proceedings.

On November 17, 1997, the parties settled the conservatorship proceedings and placed the settlement on the record. Pursuant to the settlement, Clark, Fuller Jr., and an independent professional, Raymond Wood, esq., were appointed as conservators of conservatee's person and Wood and Fuller Jr. were appointed as conservators of conservatee's estate. The settlement did not address the issue of attorney fees, and no issues were reserved for appeal.

Kennedy and Clark subsequently made demands on the conservators for payment of attorney fees incurred in the conservatorship proceedings. The conservators refused payment, and Kennedy and Clark brought separate motions to compel payment. The parties submitted the matter on written submissions and argument of counsel. The district court referee found that the time expended by Piepkorn and Kennedy was necessary and reasonable and that their hourly rates were reasonable. The court, by order dated June 4, 1998, directed the conservators of the estate to pay:

To William R. Kennedy the sum of $ 9,040.50, representing the balance owed for his services;

To Timothy L. Piepkorn and Nancy Clark, the sum of $ 9,672.75, representing the portion of Piepkorn's fees not paid by the initial retainer, with the apportionment of such amount between the two of them to be settled by the them; and

To Nancy Clark, the sum of $ 10,000.00, representing the $ 5,000.00 retainer she paid to Kennedy on behalf of conservatee and the $ 5,000.00 retainer she paid to Piepkorn.

The conservators brought motions for amended findings and for judicial review of the referee's order. The district court sustained the referee's order. Judgment was entered on December 11, 1998. This appeal followed.


1. Timeliness of Appeal

Clark argues that this appeal should be dismissed as untimely filed because she provided appellants written notice of the referee's June 4, 1998 order on June 30, 1998. But appellants moved for amended findings and, after that motion was denied, sought judicial review of the referee's June 4, 1998 findings and order. The time for appeal did not begin to run until those motions were resolved. See Minn. Stat. § 484.70, subd. 7(d) (1998) (providing for judicial review of a referee's order). Therefore, to the extent this appeal is taken from the district court's December 11, 1998 judgment, the appeal was timely filed.

Nevertheless, this appeal does present a jurisdictional issue. Appellants' brief includes three issues dealing with the appointment of Kennedy to represent the conservatee. Those issues were litigated prior to the December 9, 1997 order appointing the conservators pursuant to the parties' settlement. Although the court's initial orders deeming Kennedy attorney for the conservatee were interlocutory orders and not appealable, see Minn. Stat. § 525.71 (1998) (listing appealable probate orders), the order appointing the conservators was appealable. See Minn. Stat. § 525.71, subd. 2 (including orders appointing representatives as appealable orders); Minn. Stat. § 525.80 (1998) (defining representatives to include conservators).

Minn. Stat. § 525.712 (1998) governs time for appeals under chapter 525 and states in pertinent part:

The appeal may be taken by any person aggrieved within 30 days after service of notice of the filing of an order, judgment, or decree appealed from, or if no notice be served, within six months after the filing of the order, judgment, or decree.

Time limits with respect to appeals are jurisdictional. Bongard v. Bongard, 342 N.W.2d 156, 158 (Minn. App. 1983). After the time limit has passed, this court has no jurisdiction to hear the appeal and it must be dismissed. Id. Because appellants did not bring an appeal within six months of the filing of the December 9, 1997 order, the issues regarding the appointment of Kennedy must be, and are, dismissed.

2. Settlement as Precluding Fees

Appellants argue the parties' settlement is binding and precludes payment of attorney fees. A settlement is contractual in nature. Beach v. Anderson, 417 N.W.2d 709, 711 (Minn. App. 1988), review denied (Minn. Mar. 23, 1988). Construction of a contract presents a question of law, which this court reviews de novo. Stowell v. Cloquet Co-op Credit Union, 557 N.W.2d 567, 571 (Minn. 1997); Swanson v. Parkway Estates Townhouse Ass'n, 567 N.W.2d 767, 768 (Minn. App. 1997).

The settlement did not address the issue of attorney fees, nor had the issue been litigated prior to the settlement. Although Kennedy and Piepkorn were able to bind their clients by the settlement, the attorneys were not parties to the settlement personally. Appellants provide no authority for their argument that an attorney must raise the issue of fees when settling a conservatorship proceeding. In fact, the statute specifically allows for the payment of attorney fees. See Minn. Stat. § 525.703, subd. 2 (1998). We conclude the settlement did not preclude payment of attorney fees.

3. Kennedy's Retainer

Appellants argue Kennedy's fee agreement was for a flat fee of $5,000 and he is bound by that agreement. A fee agreement between an attorney and client is a contract. Kittler & Hedelson v. Sheehan Properties, Inc., 295 Minn. 232, 235, 203 N.W.2d 835, 838 (1973). Therefore, this court reviews this issue de novo. Stowell, 557 N.W.2d at 571; Swanson, 567 N.W.2d at 768.

Kennedy's fee agreement provided for a $5,000 retainer fee and "additional fees" at a rate of $125 per hour. Appellant argues the language regarding "additional fees" relates to re-trial or appeal. But those "additional fees" were clearly and unequivocally included in the agreement as fees "required for representation through disposition of Fuller Sr.'s case at the trial court level." In order for the provision regarding "additional fees" to have any meaning, it must refer to fees earned after the retainer is exhausted. We therefore conclude the agreement was not a flat fee agreement.

4. Reasonable Fees

Appellants argue both Kennedy and Piepkorn charged unreasonable and excessive fees. They further charge the district court erred by failing to take testimony on the issue of fees. An attorney providing necessary services for the benefit of a conservatee is entitled to reasonable compensation from the estate of the conservatee. Minn. Stat. § 525.703, subd. 2. The allowance of fees is within the district court's discretion, and the "reasonable value of services is a question of fact." In re Conservatorship of Mansur, 367 N.W.2d 550, 552 (Minn. App. 1985), review denied (Minn. July 11, 1985). This court reviews questions of fact under a clearly erroneous standard. Minn. R. Civ. P. 52.01.

"[A] court's determination of reasonableness must be based either upon its observation of the services performed or proof of their value." Ryan v. Bigos Properties, 351 N.W.2d 680, 681 (Minn. App. 1984) (citation omitted). Parties must be given an adequate opportunity to contest the facts regarding fees. Roehrdanz v. Schlink, 368 N.W.2d 409, 412 (Minn. App. 1985) (emphasis added).

The district court found

[t]he parties were asked how they desired to submit the matter of the fees, and the parties indicated to the court that the fee question should be deemed submitted on the basis of the submissions and oral comments by the attorneys. No request for the taking of testimony or the submission of other evidence was made. The court deemed the matter submitted.

Having been given the opportunity to proceed in a manner of their own choosing, appellants cannot now argue the district court erred by not taking testimony. This issue was waived. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (issues not argued and considered below are waived on appeal); see also Ganguli v. University of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (declining to address allegations unsupported by legal analysis or citation).

Furthermore, the district court's determination that the fees were reasonable was based on the court's observation of the services performed and the court's review of the statements of Kennedy and Piepkorn. Given the district court's familiarity with the case, we conclude its findings were not clearly erroneous.

5. Responsibility for Piepkorn's Fees

Appellants further argue the district court had no authority to require the conservatee to pay fees Piepkorn charged Clark for his representation of her in the conservatorship proceedings. Although appellants do not cite any legal authority, Minn. Stat. § 525.703 (1998) governs a conservatee's payments to attorneys. The allowance of fees is within the district court's discretion. Mansur, 367 N.W.2d at 552.

Minn. Stat. § 525.703, subd. 2, provides in relevant part:

In proceedings under sections 525.54 to 525.702 a lawyer * * * rendering necessary services with regard to the appointment of a * * * conservator * * * shall be entitled to reasonable compensation from the estate of the * * * conservatee * * * .

The district court found Piepkorn's services were necessary to the appointment of the conservators and the administration of the conservatorship. The court further found the conservatee benefited from Clark's appointment as a conservator, accomplished through Piepkorn's representation of Clark. The district court had authority to direct payment of Piepkorn's fees under Minn. Stat. § 525.703, subd. 2. The court's findings are supported by the record and its order for payment was not an abuse of discretion.

6. Clark's Alleged Debt

Appellants further argue the order for payment of attorney fees for Clark should be reversed because Clark is indebted to the conservatee in the amount of $51,000. The district court specifically found in its September 15, 1998 order that "[t]he alleged debts of Clark to [conservatee] were not before the court."

The record on appeal consists of "[t]he papers filed in the trial court, the exhibits, and the transcript of proceedings." Minn. R. Civ. App. P. 110.01. "The court will strike documents included in a party's brief that are not part of the appellate record." Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff'd, 504 N.W.2d 758 (Minn. 1993); see also AFSCME, Council No. 14 v. Scott County, 530 N.W.2d 218, 222-23 (Minn. App. 1995) (holding a court may selectively disregard improper references to evidence outside the record without striking the entire brief), review denied (Minn. May 16 and June 14, 1995).

In support of their argument, appellants cite to documents reproduced in their appendix that are not part of the appellate record. We therefore disregard those documents and any reference to them. The issue of this alleged debt was not presented to the district court until after the court's June 4, 1998 order directing payment of fees. The district court aptly concluded that the issue of any debt owed by Clark was not properly before the court. Nevertheless, the court provided that if the debt was established by agreement or litigation, it would serve as a set-off to amounts owed to Clark. We find no error in the district court's judgment, and conclude appellant's argument is without merit.

Affirmed in part and dismissed in part.