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County of Scott v. Johnston

Court of Appeals of Minnesota

December 30, 2013

County of Scott, Respondent,
v.
Terry D. Johnston and Donald W. Johnston, Trustees of the Terry D. Johnston Rev. Trust of 2006 under Agreement dated September 14, 2006 and the Donald W. Johnston Revocable Trust of 2006 under Agreement dated September 14, 2006, Appellants, Stephen F. Kes, Defendant.

Scott County District Court File No. 70CV098440

Patrick J. Ciliberto, Scott County Attorney, Susan K. McNellis, Assistant County Attorney, Shakopee, Minnesota (for respondent)

Dan Biersdorf, Ryan Simatic, Biersdorf & Associates, P.A., Minneapolis, Minnesota (for appellants)

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

SYLLABUS

1. In an eminent-domain proceeding, the fact that a property owner is entitled to an award of reasonable attorney fees and other related fees and expenses under Minn. Stat. § 117.031 (2012), because the final award is more than forty percent greater than the last written offer of the condemning authority, does not preclude the district court from considering evidence of the amount involved and the results obtained in its determination of the reasonableness of the fees and expenses requested.

2. In evaluating the reasonableness of requested attorney fees and related expenses, a district court's findings are clearly erroneous if they are not supported by evidence in the record.

OPINION

STONEBURNER, Judge

Appellants, landowners who are entitled to an award of attorney fees and other related expenses in the underlying eminent-domain proceeding, challenge the district court's reduction of requested attorney and appraisal fees, arguing that, as a matter of law, the district court is precluded from considering the amount involved and results obtained in its determination of the reasonableness of the requested fees. Appellants also argue that the district court's findings of fact are clearly erroneous.

FACTS

Respondent County of Scott (the county) offered appellants Terry D. Johnston, et al.[1] (the Johnstons), $123, 700 for property owned by the Johnstons (the property). The Johnstons rejected the offer, and the county brought a "quick-take, " eminent-domain action under Minn. Stat. § 117.042 (2012) to acquire the property for uses related to extension of a county highway. The district court granted the petition and appointed condemnation commissioners to determine the amount of damages that the Johnstons would sustain as a result of the taking.

The commissioners conducted hearings, viewed the property, and ultimately issued a damages award in the total amount of $220, 000. The commissioners did not make any findings of fact relating to the determination of damages, and there is no transcript of the commissioners' proceedings. Neither the county nor the Johnstons appealed the commissioners' award, and it became final.

Because the final award was more than 40 percent greater than the county's last written offer prior to the filing of the condemnation petition, the Johnstons moved for an award of reasonable attorney fees, litigation expenses, appraisal fees, and other fees and related costs under Minn. Stat. § 117.031.[2] The motion was supported by the affidavit of the Johnstons' attorney, Dan Biersdorf, attesting to his expertise in eminent-domain litigation and setting out the amounts requested for attorney fees and other related expenses. Biersdorf attached to his affidavit the following supporting exhibits: (1) a copy of the representation agreement between Biersdorf's law firm and the Johnstons; (2) a summary of the hours billed by the law firm, supporting the assertion in the affidavit that the Johnstons incurred attorney fees in the amount of $40, 217.50; (3) an invoice from Shenahon Company for appraisal and expert-witness fees in the amount of $30, 592.03; (4) an invoice from MFRA, Inc., for expert planning services totaling $5, 672; (5) billing records of Hosch Appraisal & Consulting, Inc., for an appraisal in the amount of $2, 766.25; and (6) an exhibit detailing other related costs including postage and copying, which totaled $1, 431.14. The Johnstons also sought interest from the date the county took possession until the date of payment.

The county opposed the motion, arguing that reasonable attorney fees for the condemnation proceeding should be limited to $32, 100, representing one-third of the amount by which the commissioners' award exceeded the county's last offer. The county also contested the other litigation expenses as unreasonable, based on the county's assertion of what occurred at the commissioners' proceedings. The county did not submit any affidavits, exhibits, or other evidence rebutting the evidence submitted by the Johnstons. The ...


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