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Accap-Hud Homes Tax Credit Limited Partnership, et al v. Minnesota Counties Intergovernmental Trust

April 8, 2013

ACCAP-HUD HOMES TAX CREDIT LIMITED PARTNERSHIP, ET AL., APPELLANTS,
v.
MINNESOTA COUNTIES INTERGOVERNMENTAL TRUST, RESPONDENT.



Ramsey County District Court File No. 62-CV-10-11253

The opinion of the court was delivered by: Kirk, Judge

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).

Affirmed

Considered and decided by Hudson, Presiding Judge; Stoneburner, Judge; and Kirk, Judge.

UNPUBLISHED OPINION

KIRK, Judge

Appellants challenge the district court's taxation of $15,000 in fees for respondent's expert witness, arguing that the district court abused its discretion by awarding such fees and failing to hold an evidentiary hearing. By notice of related appeal, respondent argues that the district court abused its discretion by finding that only a portion of the claimed expert-witness fees is reasonable. We affirm.

FACTS

Appellants ACCAP-HUD Homes Tax Credit Limited Partnership, et al. (the agencies) are 13 community-action agencies and 4 limited partnerships in which a community-action agency is the sole general partner. Respondent Minnesota Counties Intergovernmental Trust (MCIT) is a self-insurance pool which provides group insurance coverage to various governmental entities and political subdivisions. The agencies were all members of MCIT until MCIT terminated the agencies' memberships.

In November 2010, the agencies filed a complaint against MCIT alleging claims for breach of fiduciary duty and promissory estoppel and seeking declaratory and injunctive relief. In December, the district court enjoined MCIT from terminating the agencies' memberships until the end of the 2011 program year. In August 2011, the parties stipulated to the termination of the agencies' membership class effective at the end of 2011. The agencies subsequently filed an amended complaint alleging breach of fiduciary duty, creation of a constructive trust or equitable lien, unjust enrichment, and promissory estoppel, and seeking reimbursement and the payment of dividends.

MCIT moved for summary judgment, and the district court granted summary judgment to MCIT on all claims. This court affirmed. ACCAP-HUD Homes Tax Credit Limited Partnership, et al. v. Minn. Cntys. Intergovernmental Trust, No. A12-0864 (Minn. App. Nov. 19, 2012), review denied (Minn. Jan. 29, 2013).

In April 2012, MCIT applied for $69,702.50 in costs and disbursements, including $68,152 in expert-witness fees. In support of its application, MCIT attached an affidavit from its expert, Mark Doepke, and six invoices from Doepke's actuarial firm, spanning the time period from March 1, 2011, to April 11, 2012. In his affidavit, Doepke explained that he is the president of, and a consulting actuary for, Actuarial Advisors, Inc. He has performed actuarial services for MCIT since 1989 and has been MCIT's primary actuarial consultant since 1991. Doepke stated that, in spring 2011, MCIT asked him to testify as an expert about the actuarial analyses he has performed for MCIT and to analyze the agencies' financial performance during their membership in MCIT. Doepke explained that, in assessing the agencies' claims that they are entitled to damages, his firm was required to perform complex calculations that they had not previously done, organize historical financial data in new ways, and create financial models of the cash flow of individual members from 1991 through 2010. Doepke stated that the calculations his firm performed required a significant amount of time and effort, in part due to the number of agencies involved and the fact that the majority of them had been members of MCIT since 1995. He concluded that "[t]he $68,152.00 charged by my firm for expert witness fees in this litigation is fair and reasonable, given the amount of time required to perform the necessary calculations, the sheer volume of data required to make the calculations, and the nature of the actuarial work required to analyze [the agencies'] claims."

After the agencies filed an objection to the amount of expert-witness fees MCIT requested, the court administrator's office awarded $2,425.50 in costs and disbursements to MCIT, including $1,000 in expert-witness fees. MCIT appealed to the district court, seeking the full amount of expert-witness fees it had requested.

Without holding a hearing, the district court determined that the amount of expert-witness fees that MCIT claimed is "unreasonable and beyond that which might have been necessary in [MCIT's] summary judgment submissions to the [c]court." The district court stated that, "[b]ased on Mr. Doepke's affidavit, it appears he has been the actuary for [MCIT] since 1989 and as such, his investigation into the records should have been less tedious than it would have been for someone unfamiliar with [MCIT]." The district court also noted its belief that some of the fees claimed were for time spent exploring possible counterclaims against the agencies. As a result, the district court found "that the sum of ...


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