This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A15-1715, A16-0029
Eric Wong, Respondent,
vs.
Chatterbox Pub Enterprises, Inc., Defendant,
Tyrone Sharpe, Appellant.
Filed August 1, 2016 Affirmed Hooten, Judge
Hennepin County District Court File No. 27-CV-14-2417
Paul R. Hansmeier, Class Justice PLLC, Minneapolis, Minnesota (for respondent)
Susan Dickel Minsberg, St. Paul, Minnesota (for appellant)
Considered and decided by Hooten, Presiding Judge; Halbrooks, Judge; and Jesson,
Judge.
UNPUBLISHED OPINION
HOOTEN, Judge
Following a bench trial on respondent’s claims of discrimination in violation of the
Americans with Disabilities Act (ADA) and the Minnesota Human Rights Act (MHRA),
appellant, the owner of a building leased to codefendant restaurant, challenges the district court’s determinations that respondent had standing to bring this suit, that appellant and his
codefendant violated the ADA and the MHRA, that respondent was the prevailing party
under the ADA and the MHRA, and that remediation had not rendered respondent’s claims
moot. Appellant also challenges the district court’s award of attorney fees and costs to
respondent. We affirm.
FACTS
On January 15, 2014, respondent Eric Wong sued defendant Chatterbox Enterprises,
Inc. (the Chatterbox Pub) and appellant Tyrone Sharpe, alleging violations of the ADA and
the MHRA and seeking injunctive relief. A bench trial was held on April 13, 2015.
The Parties
The Chatterbox Pub is a bar and restaurant located in Minneapolis. Sharpe is the
owner of the building in which the Chatterbox Pub is located, and he leases the building to
the Chatterbox Pub.
Wong has Ehlers-Danlos syndrome and postural orthostatic tachycardia syndrome,
which cause him to experience pain when he moves and to be susceptible to joint
dislocations and dizziness. It is very difficult for Wong to engage in normal daily activities
like showering and leaving his home; his ability to safely move is very restricted, and he
tires quickly. Wong uses a wheelchair and requires a driver when leaving his home. He
has sued other businesses for alleged ADA violations.
November 20, 2013 Visit to the Chatterbox Pub
On November 20, 2013, Wong went to the Chatterbox Pub. He was driven there by
Peter Hansmeier and Angela Van Den Hemel, who are both employed by Wong’s attorney.
2 Wong testified that he went to the Chatterbox Pub that day “to see if [he could] get in and
have a beer.” When they arrived at the Chatterbox Pub, Wong observed from the car that
the main entrance had a six-inch step and did not have a sign indicating that there was
another public entrance accessible to handicapped persons. The group drove to the other
side of the building, where Wong, again from the vantage point of the car, saw an outdoor
patio and a patio entrance that had “about a two or so inch step or a threshold.” Both
Hansmeier and Van Den Hemel testified that the patio entrance threshold height appeared
to be approximately one to two inches, with Van Den Hemel also indicating that it was
“about two inches” and “near [two inches].”
The outdoor patio was enclosed by a metal fence. There was a gate at one end of
the fence, which was closed. Van Den Hemel testified that “it didn’t seem like a public
entrance” because there was no sign on the door. Wong testified that the patio entrance
had a glass door, and he “could easily see” that “there was like a stack of chairs or barstools
. . . up against the glass.” Van Den Hemel testified, “You could see some stools . . . kind
of blocking the door.” Wong did not get out of the car during the trip because it was cold
outside and he “could easily see there was no way for [him] to get in.” Hansmeier and Van
Den Hemel did not get out of the car either.
Subsequent Visits to the Chatterbox Pub
Hansmeier and Van Den Hemel returned to the Chatterbox Pub on several occasions
in 2014 and early 2015, during which they observed the patio entrance, took photographs,
and, on one occasion, measured the patio entrance threshold height. On January 7, 2014,
Van Den Hemel went to the Chatterbox Pub during regular business hours and noticed that
3 the patio gate was open. She went through the gate and tried to open the patio door, but it
was locked. Van Den Hemel also went to the Chatterbox Pub on May 9, 2014, and August
6, 2014, and took photographs of the patio entrance and fence area. On September 15,
2014, Hansmeier returned to the Chatterbox Pub and took photographs of the patio entrance
from inside the Chatterbox Pub.
On February 9, 2015, Hansmeier and Van Den Hemel took photographs of the patio
entrance and measured the patio entrance threshold height. They both testified that the
measurements they took ranged between one and a half and two inches. Van Den Hemel
testified that during each of her visits to the Chatterbox Pub, there were bar stools blocking
the patio entrance doorway from inside the restaurant.
Hansmeier testified that in early April 2015, he visited the Chatterbox Pub and
noticed that the patio entrance had been modified, as there was now a metal ramp that
extended from the patio door to the sidewalk. The ramp ran the length of the door and
extended onto the sidewalk for approximately six inches. Hansmeier testified that, during
each of his visits to the Chatterbox Pub, with the sole exception of the April 2015 visit,
there was no signage anywhere on the building indicating the presence of an accessible
entrance.
On April 12, 2015, the day before trial, Wong was driven to the Chatterbox Pub.
Wong testified that the main door now had a sign indicating that the patio entrance is
accessible, and the patio door now had a handicapped sticker affixed to it. But, he testified
that the patio entrance threshold still looked like it had “two or more inches of elevation.”
4 Wong did not try to open the patio door and apparently did not get out of the car during
this visit.
Testimony of the Chatterbox Pub’s Corporate Representative
Steven Miller, who had operated the Chatterbox Pub for 15 years, testified that
throughout his years of operation, customers in wheelchairs had accessed the Chatterbox
Pub through the patio door. He testified that the patio gate does not have a lock on it. He
also testified that he measured the patio entrance threshold height in late spring of 2014
and that it measured “a little less than half an inch” without the black door mat and
“definitely less than half an inch” with the mat. Miller testified that during the 2014–15
winter, the sidewalk outside the patio entrance “sank” and broke away from the threshold,
due to freezing and thawing. He explained that when Hansmeier and Van Den Hemel took
photographs and measured the threshold on February 9, 2015, the sidewalk had already
broken away from the threshold.
Miller testified that sometime in February or March 2015, approximately one year
after Wong filed the lawsuit, he hired a company to build a ramp at the threshold so that
the patio entrance would comply with the ADA. The company built a ramp, but Miller
later discovered that the ramp was too steep. The company was unwilling or unable to fix
the ramp. Miller then hired someone to “sandjack” the sidewalk, which involves drilling
holes in the sidewalk and pumping pressurized sand underneath in order to lift the sidewalk
up and “level it.” The sandjacking took place April 11, 2015, just two days before trial.
Miller testified that a motorized wheelchair user tested out the threshold after it was
sandjacked and did not have any problem getting over the threshold. Miller testified that,
5 as a result of the sandjacking, “there’s zero gap between the metal on the door and the
sidewalk. There’s no lip there anymore. It’s one hundred percent even with the metal.”
Finally, Miller testified about the interior of the patio entrance and discussed the
photographs that Hansmeier took in September 2014. He explained that one of the
photographs was “a little deceiving” because it made it look like a bar stool was blocking
the aisle near the interior of the patio door. He asserted that another photograph showed
that the aisle from the patio door was accessible and that bar stools were not blocking the
entrance. Miller also testified about a photograph Van Den Hemel took in May 2014 from
outside the patio entrance, which shows a bar stool inside the restaurant, stating that the
bar stool was “not sitting right in front of the door. That’s several feet inside the door.”
District Court Decisions
The district court filed an order in July 2015, concluding that Wong had standing to
sue and that the defendants violated both the ADA and the MHRA. The district court
determined that Wong was the prevailing party and ordered the defendants to remediate
the patio entrance, having rejected their evidence of remediation. The district court filed
another order in December 2015, awarding Wong attorney fees and costs against building
owner Sharpe in the amount of $25,972.25.1 This appeal by Sharpe followed.
1 Attorney fees were not awarded against the Chatterbox Pub because it had filed for bankruptcy.
6 DECISION
I.
Sharpe argues that the district court erred by concluding that Wong had standing to
seek injunctive relief, specifically contending that Wong failed to show that he sustained
an injury in fact. The district court determined that Wong sustained an injury in fact
because he encountered two non-accessible entrances to the Chatterbox Pub on November
20, 2013, and he “desire[d] to return to [the] Chatterbox Pub in the near future once the
barriers are remediated.”
Whether a party has standing is a question of law, which we review de novo. See
Fed. Home Loan Mortg. Corp. v. Mitchell, 862 N.W.2d 67, 70 (Minn. App. 2015), review
denied (Minn. June 30, 2015). But, we review the facts underlying a district court’s
determination of standing for clear error. See Porch v. Gen. Motors Acceptance Corp., 642
N.W.2d 473, 477 (Minn. App. 2002) (stating that, on appeal from a bench trial, “[w]e give
the district court’s factual findings great deference and do not set them aside unless clearly
erroneous”), review denied (Minn. June 26, 2002). “Findings of fact are clearly erroneous
only if the reviewing court is left with the definite and firm conviction that a mistake has
been made.” Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999)
(quotation omitted). We defer to the district court’s credibility determinations. Vangsness
v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000).
A. ADA Claim
For purposes of his ADA claim, Wong needed to establish the three basic standing
requirements:
7 First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of . . . . Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
In re Custody of D.T.R., 796 N.W.2d 509, 512 (Minn. 2011) (quoting Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560–61, 112 S. Ct. 2130, 2136 (1992)) (quotation marks omitted);
see Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2000) (analyzing standing in ADA
context). Standing is determined as of the time the lawsuit was commenced. Steger, 228
F.3d at 892.
To satisfy the injury in fact requirement, “[t]he plaintiff must show that he or she
sustained or is immediately in danger of sustaining some direct injury as the result of the
challenged . . . conduct and [that] the injury or threat of injury [is] both real and immediate.”
Id. (alterations in original) (quotation omitted). “Although plaintiffs need not engage in
the ‘futile gesture’ of visiting a building containing known barriers that the owner has no
intention of remedying, they must at least prove knowledge of the barriers and that they
would visit the building in the imminent future but for those barriers.” Id. (citation
omitted). “Intent to return to the place of injury ‘some day’ is insufficient.” Id. at 893
(quoting Lujan, 504 U.S. at 564, 112 S. Ct. at 2138).
The district court found that Wong encountered barriers during his November 20,
2013 visit to the Chatterbox Pub and that he intended to return to the restaurant “in the near
future.” On this record, these findings are not clearly erroneous. Wong testified that he
was unable to enter the Chatterbox Pub because the threshold height at both entrances was
8 at least two inches and that, as set forth in his affidavit, he planned to “definitely return to
the Chatterbox Pub in the future” when “there is a safe and accessible entrance.” Wong
noted that 75% of his friends patronize the Chatterbox Pub and stated that he hoped to go
out for a beer again, as he was trying to go out more often. And, Wong did in fact return
to the Chatterbox Pub on April 12, 2015, the day before trial. Because Wong encountered
architectural barriers on November 20, 2013, and intended to visit the Chatterbox Pub in
the imminent future, the district court did not clearly err by finding that he sustained an
injury in fact, and Wong therefore had standing for purposes of his ADA claim. See id. at
892–93 (analyzing injury in fact requirement).
B. MHRA Claim
Standing for purposes of an MHRA claim requires less of a showing than for an
ADA claim. See Krueger v. Zeman Constr. Co., 781 N.W.2d 858, 862 (Minn. 2010)
(“[W]hen an individual or company violates a civil rights law, the act of discrimination
itself constitutes sufficient injury for the law to provide a remedy, in the absence of
statutory language requiring more.” (emphasis omitted) (quotation omitted)). Because
Wong had standing for purposes of his ADA claim, he also had standing for purposes of
his MHRA claim.
II.
Sharpe argues that the district court erred by concluding that he and the Chatterbox
Pub violated the ADA and the MHRA. Whether the defendants violated the ADA or the
MHRA is a question of law, which we review de novo. See Gieseke ex rel. Diversified
Water Diversion, Inc. v. IDCA, Inc., 844 N.W.2d 210, 214 (Minn. 2014) (“We review
9 questions of law de novo, giving no deference to the district court’s conclusions of law.”).
But, we review the district court’s findings of fact for clear error, Porch, 642 N.W.2d at
477, and we defer to the district court’s credibility determinations, Vangsness, 607 N.W.2d
at 472.
Under Title III of the ADA, “[n]o individual shall be discriminated against on the
basis of disability in the full and equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations of any place of public accommodation by any
person who owns, leases (or leases to), or operates a place of public accommodation.” 42
U.S.C. § 12182(a) (2012). Discrimination includes the “failure to remove architectural
barriers . . . in existing facilities, . . . where such removal is readily achievable.” 42 U.S.C.
§ 12182(b)(2)(A)(iv) (2012). The ADA grants a private right of relief, including injunctive
relief, “to any person who is being subjected to discrimination on the basis of disability.”
42 U.S.C. §§ 2000a-3(a), 12188(a)(1) (2012).
Congress has given the United States Attorney General the authority to promulgate
regulations that implement Title III of the ADA. 42 U.S.C. § 12186(b) (2012). Under this
authority, the Department of Justice promulgates the ADA Standards for Accessible
Design (ADA Standards). See 28 C.F.R. pt. 36, App. D (2015). The ADA Standards
“provide valuable guidance for determining whether an existing facility contains
architectural barriers.” Pascuiti v. N.Y. Yankees, 87 F. Supp. 2d 221, 226 (S.D.N.Y. 1999).
In order to prevail on his ADA claim, Wong was required to establish that he has a
disability within the meaning of the ADA; that the defendants own, lease, or operate a place
10 of public accommodation; and that the defendants discriminated against him within the
meaning of the ADA. Roberts v. Royal Atlantic Corp., 542 F.3d 363, 368 (2d Cir. 2008).
The parties stipulated at trial that Wong has a disability within the meaning of the ADA
and that the Chatterbox Pub is a place of public accommodation. It was also undisputed
that the defendants owned, leased, or operated the Chatterbox Pub. Thus, the only
contested issue on appeal is whether the defendants discriminated against Wong under the
ADA.
To demonstrate discrimination, Wong must show that (1) he encountered an
architectural barrier; (2) the respondents failed to remove the architectural barrier; and (3)
removal was readily achievable. See 42 U.S.C. § 12182(b)(2)(A)(iv) (defining
discrimination); Gathright-Dietrich v. Atlanta Landmarks, Inc., 452 F.3d 1269, 1273 (11th
Cir. 2006) (stating that ADA plaintiff has initial burden of production to show that
architectural barrier exists and that removal is readily achievable). The district court
concluded that Wong satisfied all three requirements and that the defendants discriminated
against him within the meaning of the ADA.
1. Wong encountered architectural barriers due to his disability.
The district court found that when Wong visited the Chatterbox Pub on November
20, 2013, both the main entrance and the patio entrance had threshold heights that did not
comply with the ADA Standards. See ADA Standards § 404.2.5 (2010) (“Thresholds, if
provided at doorways, shall be ½ inch (13 mm) high maximum.”). Specifically, the district
court found that the main entrance threshold height was approximately six inches, and the
patio entrance threshold height was approximately two inches. The district court also
11 found that, on November 20, “the patio entrance gate was closed, the patio entrance door
was locked, and the doorway was blocked by bar stools.” Finally, the district court found
that Wong was unable to use the patio entrance due to his disability. Sharpe argues that
the district court’s finding that Wong encountered architectural barriers on November 20
is clearly erroneous for three reasons.
First, Sharpe argues that it was clear error for the district court to find that the patio
door was locked on that date. Van Den Hemel testified that the patio door was locked
when she visited the Chatterbox Pub in January 2014, but nobody testified that the patio
door was locked on November 20, 2013, as Wong, Hansmeier, and Van Den Hemel stayed
in the car during that visit. The district court’s finding that the patio door was locked on
November 20, 2013, is clearly erroneous.
Second, Sharpe argues that it was clear error for the district court to find that the
patio doorway was blocked by bar stools on November 20, 2013. Both Wong and Van
Den Hemel testified that, from their vantage point in the car, it looked like bar stools were
blocking the patio entrance from inside the Chatterbox Pub. The district court explicitly
credited Wong’s testimony on this point. Hansmeier added that he could see a barstool
“just on the other side of the [patio] door.” The district court’s finding that bar stools were
blocking the patio doorway on November 20, 2013, is not clearly erroneous.
Third, Sharpe argues that it was clear error for the district court to find that the patio
entrance threshold height was approximately two inches on November 20, 2013. Sharpe
points out supposed inconsistencies in Wong’s and Van Den Hemel’s testimony in their
affidavits and at trial. Wong stated in his affidavit that the threshold height “exceeded ½
12 inch,” and he stated at trial that the threshold height was “about . . . two or so inch[es].”
These statements are not inconsistent, and they support the district court’s finding. Van
Den Hemel stated in her affidavit that the threshold height was “at least one inch,” and she
stated at trial that the threshold height was “one to two inches.” These statements are also
not inconsistent, and they support the district court’s finding. In addition, Hansmeier
testified that the threshold height “was about one to two inches.” The district court’s
finding that the patio entrance threshold height on November 20, 2013, was approximately
two inches is not clearly erroneous.2
Because the evidence supports the district court’s findings that bar stools were
blocking the patio entrance and that the patio entrance threshold height exceeded one-half
inch, we conclude that the district court’s finding that Wong encountered architectural
barriers on November 20, 2013, due to his disability is not clearly erroneous.
2 Sharpe argues that, even if the patio entrance threshold height failed to comply with the ADA Standards on November 20, this does not automatically mean that there was an architectural barrier in violation of the ADA, relying on Brown v. County of Nassau, 736 F. Supp. 2d 602, 616–17 (E.D.N.Y. 2010). But, Brown is distinguishable legally, factually, and procedurally from this case. In Brown, a disabled individual brought a claim against the county as the owner of a professional sports facility, arguing that the facility was not “readily accessible” for programs or activities by disabled persons under Title II of the ADA. Id. at 603–04. In denying the parties’ summary judgment motions, the court reasoned that one individual barrier to access, by itself, did not necessarily mean the entire facility and its programs were inaccessible to persons with disabilities within the meaning of Title II as a matter of law. Id. at 616–617. Here, Wong brought this action under Title III, which requires that he prove that there was an architectural barrier which defendants failed to remove even though its removal was readily achievable. 42 U.S.C. § 12182(b)(2)(A)(iv). After a trial on the merits, the district court, using the ADA standards, found that Wong met his burden of proof under Title III.
13 2. The defendants failed to remove the architectural barriers.
The district court found that by April 12, 2015, the day before trial, the defendants
had not removed, or “remediated,” the architectural barriers. Specifically, the district court
found that the patio doorway was still blocked by bar stools and that the evidence was
insufficient to determine whether the defendants had remediated the patio entrance
threshold height. Sharpe does not challenge the district court’s finding that bar stools
continued to block the patio doorway, and we note that the photographs relied upon by
Miller at trial depict bar stools inside the patio door that appear to block the patio entrance.
As to the patio entrance threshold height, there is no dispute that the first attempted
remediation, installing a metal ramp outside the patio door, was unsuccessful. And, the
district court found that the second attempted remediation, the sandjacking, was
unsuccessful because the credible evidence introduced at trial indicated that the threshold
height still did not comply with the ADA Standards. Sharpe argues that this finding is
clearly erroneous because Miller’s testimony, along with “the clear photographic
evidence,” proved that the second attempted remediation was successful. Miller testified
that after the sandjacking was performed, there was “zero gap between the metal on the
door and the sidewalk” and that the concrete slab was “flat right up to the door,” relying
on four photographs depicting the patio doorway area. Although post-remedial
photographs depicting the threshold after the sandjacking were received into evidence, the
defendants did not introduce any evidence or measurements of the threshold at the time of
14 trial specifically indicating whether the second attempted remediation was in compliance
with the ADA Standards.
Although Miller’s testimony may have supported the defendants’ claim that the
threshold was remediated to comply with the ADA standards, the district court, in finding
that there was insufficient evidence submitted by the defendants regarding the remediation,
explicitly credited Wong’s testimony as to the patio entrance threshold height on April 12,
2015, i.e., that it “appeared too high for him to traverse in his wheelchair.” This court will
not reweigh the district court’s credibility determinations. Vangsness, 607 N.W.2d at 472.
Sharpe contends that the district court should have relied on an affidavit of the
defendants’ expert that the defendants submitted with their posttrial brief, which stated that
the second attempted remediation complied with the ADA Standards. But, the affidavit
was dated May 9, 2015—more than three weeks after the trial. Accordingly, the affidavit
was not part of the trial record, and it was proper for the district court not to consider the
affidavit. See Wear v. Buffalo-Red River Watershed Dist., 621 N.W.2d 811, 816 (Minn.
App. 2001) (stating that arguments raised for first time in posttrial brief are “not adequately
raised in the district court”), review denied (Minn. May 15, 2001).
We conclude that the district court’s finding that, as of April 12, 2015, the
defendants failed to remove the architectural barriers, is not clearly erroneous.
3. Removal of the architectural barriers was readily achievable.
Sharpe does not appear to challenge the district court’s finding that remediation was
readily achievable. In any event, on this record, this finding is not clearly erroneous. It is
self-evident that removing bar stools from the patio doorway is readily achievable. And,
15 the Department of Justice has indicated that installing an entrance ramp is a “modest
measure[]” that is “likely to be readily achievable.” 28 C.F.R. pt. 36, App. C (2015).
Because the record supports the district court’s findings that Wong encountered
architectural barriers, that the defendants failed to remove the architectural barriers, and
that removal was readily achievable, the district court did not err by concluding that the
defendants violated the ADA.
The district court concluded that, because Wong’s MHRA claim was “co-extensive”
with his ADA claim, the defendants also violated the MHRA. See Fenney v. Dakota,
Minn., & E. R.R. Co., 327 F.3d 707, 711 n.5 (8th Cir. 2003) (noting that “the MHRA
parallels the ADA” and concluding that the district court “properly treated [plaintiff’s]
MHRA claim as co-extensive with his ADA claims”); see also Roberts ex. rel Rodenberg-
Roberts v. KinderCare Learning Ctrs., Inc., 86 F.3d 844, 846 n.2 (8th Cir. 1996) (assuming
that analysis of ADA claim applies equally to MHRA claim); Kolton v. County of Anoka,
645 N.W.2d 403, 410 (Minn. 2002) (finding federal court ADA interpretations “useful” in
resolving MHRA claim where relevant language of ADA and MHRA was “similar”).
Wong brought his MHRA claim under Minn. Stat. § 363A.11, subds. 1–2 (2014), and the
relevant language of this statute is similar to 42 U.S.C. § 12182(a). Therefore, the district
court did not err by concluding that the defendants violated the MHRA.
III.
Sharpe argues that the district court erred by designating Wong as the prevailing
party for attorney fee purposes. Both the ADA and the MHRA provide that a district court,
16 in its discretion, may award reasonable attorney fees to the prevailing party. 42 U.S.C.
§ 12205 (2012); Minn. Stat. § 363A.33, subd. 7 (2014). To qualify as a prevailing party
under the ADA, “a plaintiff must obtain relief on the merits that directly benefits him or
her through an enforceable judgment.” See Pedigo v. P.A.M. Transp., Inc., 98 F.3d 396,
397–98 (8th Cir. 1996). This is precisely what Wong obtained: an enforceable judgment
on the merits ordering the defendants to remediate the Chatterbox Pub’s patio entrance
within six weeks of the order and to file an affidavit of compliance. Sharpe has provided
no apposite authority supporting his argument that Wong is not a prevailing party for
purposes of the ADA or the MHRA. See Rogers Grp., Inc. v. City of Fayetteville, 683 F.3d
903, 910 (8th Cir. 2012) (involving preliminary injunction standard in non-ADA case);
Baer v. J.D. Donovan, Inc., 763 N.W.2d 681, 683 (Minn. App. 2009) (noting that MHRA
does not provide general definition of “aggrieved party,” one requirement of being
considered “prevailing party,” but MHRA specifically defines “aggrieved party” for
purposes of employment application discrimination cases). We conclude that the district
court did not err by designating Wong as the prevailing party.
IV.
Sharpe argues that, because the defendants “remediated the alleged violations prior
to any judicial action, Wong’s ADA [and MHRA] claims are moot.” As ordered by the
district court, Sharpe filed an affidavit of compliance on August 5, 2015, by re-filing his
expert’s affidavit. Sharpe appears to argue that, because Wong failed to object to the
affidavit of compliance, this court should give the affidavit retroactive effect and conclude
that the defendants remediated the violation prior to trial. This argument is unpersuasive
17 because the defendants failed to prove at the time of trial that the second attempted
remediation was successful. Sharpe has not shown that remediation rendered Wong’s
claims moot.
V.
Sharpe argues that the district court abused its discretion by awarding attorney fees
to Wong. After prevailing at trial, Wong requested attorney fees and costs in the amount
of $77,145. The district court concluded that Wong was entitled to attorney fees and costs,
but awarded a reduced amount of $25,862.25 in attorney fees and $110 in costs, for a total
award of $25,972.25. Sharpe argues that Wong was not entitled to any attorney fees and
that the district court “did not fully consider the requisite factors in its analysis.”3
“[Appellate courts] review an award of attorney fees for an abuse of discretion.” Green v.
BMW of N. Am., LLC, 826 N.W.2d 530, 534 (Minn. 2013) (quotation omitted).
Minnesota courts generally apply the lodestar method to determine the
reasonableness of statutory attorney fees. Id. at 535. “The lodestar method requires the
[district] court to determine the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate.” Id. (quotation omitted). In determining “the
reasonable value of the legal services,” the district court should consider “all relevant
circumstances.” State v. Paulson, 290 Minn. 371, 373, 188 N.W.2d 424, 426 (1971). The
circumstances informing a district court’s determination of reasonableness include “the
3 Sharpe also argues that the district court erred by accepting Wong’s allegedly untimely fee request, but this argument is waived for lack of citation to authorities. In re Estate of Rutt, 824 N.W.2d 641, 648 (Minn. App. 2012), review denied (Minn. Jan. 29, 2013).
18 time and labor required; the nature and difficulty of the responsibility assumed; the amount
involved and the results obtained; the fees customarily charged for similar legal services;
the experience, reputation, and ability of counsel; and the fee arrangement existing between
counsel and the client.” Green, 826 N.W.2d at 536 (quotations omitted).
The district court reduced Wong’s requested attorney fees and costs by nearly two-
thirds, from $77,145 to $25,972.25. The district court reduced the requested hourly rate of
Wong’s counsel (from $350 per hour to a range of $200 to $300 per hour), the requested
hourly rate of paralegal work (from $220 per hour to $100 per hour), and the total requested
hours (from 234.08 to 120.08 hours). The district court indicated that, in determining the
award, it considered counsel’s legal experience, the difficulty of the work performed, and
the reasonableness of the activities undertaken. As an example, the district court stated
that it reduced the rate and hours requested for drafting the complaint because the complaint
was a form complaint used in over a dozen of Wong’s other cases. The district court also
took into account “the nature and reasonableness of [the defendants’] opposition in this
case.” Notably, the district court found that the defendants unreasonably extended the
litigation by not making a good faith effort to remediate the patio entrance threshold height
“until the eve of trial.”
We conclude that the district court properly considered “all relevant circumstances”
in making its attorney fee award. Paulson, 290 Minn. at 373, 188 N.W.2d at 426. The
district court reduced the total award by two-thirds and provided several well-reasoned
19 bases for this significant reduction of the requested award. On this record, the district court
did not abuse its discretion by awarding Wong attorney fees.
Affirmed.