Cheri Glassick v. Wells Federal Bank, Stewart Title Guaranty Company, Northwest Title Agency, Inc., Tim Breuer, Manufacturers Bank and Trust Company, and Stewart Title Guaranty Company, and third party v. Corey Hauer, third party

This opinion will be unpublished and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
A16-0247

Cheri Glassick,
Respondent,

vs.

Wells Federal Bank,
Respondent,
Stewart Title Guaranty Company,
Respondent,
Northwest Title Agency, Inc.,
Respondent,
Tim Breuer,
Respondent,
Manufacturers Bank and Trust Company,
Respondent,
and
Stewart Title Guaranty Company, defendant and third party plaintiff,
Respondent,

vs.

Corey Hauer, third party defendant,
Appellant.

Filed December 19, 2016
Affirmed
Reyes, Judge

Freeborn County District Court
File No. 24CV122308

D. Charles Macdonald, Michelle E. Weinberg, Faegre Baker Daniels L.L.P., Minneapolis,
Minnesota (for respondent Stewart Title Guaranty Company)

Bryan R. Battina Trepanier MacGillis Battina P.A., Minneapolis, Minnesota (for appellant)
 Considered and decided by Jesson, Presiding Judge; Stauber, Judge; and Reyes,

Judge.

UNPUBLISHED OPINION

REYES, Judge

Appellant Corey Hauer argues that the district court erred in granting summary

judgment to respondent Stewart Title Guaranty Company (Stewart Title) by: (1) finding

him liable for respondent Cheri Glassick’s losses; (2) awarding Stewart Title equitable

forms of relief; and (3) awarding Stewart Title attorney fees under an equitable theory of

relief. Because we conclude that the district court’s grant of summary judgment was

proper in all respects, we affirm.

FACTS

Corey Hauer owned a number of rental properties in Freeborn and Mower

Counties from 2006 until sometime in 2011. The property at issue here is located in

Albert Lea, Minnesota (the 514 property). In 2007, Hauer executed a promissory note in

favor of Wells Federal Bank (Wells Federal) in the amount of $460,000.00, secured by a

mortgage granted by Wells Federal on the 514 property, in addition to other properties.

In March 2011, Hauer executed a loan-modification agreement with Wells Federal

on the 514 property. Hauer was never current on payments under the loan agreement.

Later that year, Hauer’s then fiancé, now wife, Cheri Glassick purchased the 514

property, along with five other properties from Hauer. By the express terms of the

purchase agreement, Hauer was required to convey title free and clear of all

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encumberances to Glassick by warranty deed unencumbered by any liens on the

properties. The purchase agreement between Hauer and Glassick obligated Hauer to

furnish an abstract evidencing clear title.

Glassick hired Northwest Title Agency (Northwest) to prepare a title insurance

commitment to identify any liens, encumbrances, or security interests on the 514

property. Northwest issued the commitment but failed to identify the earlier Wells

Federal mortgage as a prior lien. Before closing on the purchase of the 514 property,

Glassick did not review the title commitment from Northwest.

Separately, Glassick purchased an owner’s title insurance policy from Northwest

to be underwritten by Stewart Title. But Northwest did not forward Glassick’s funds to

Stewart Title, nor did Stewart Title have actual knowledge of the title-insurance policy

prior to the initiation of this lawsuit. Northwest never issued Glassick a policy of title

insurance.

Another property Glassick purchased from Hauer, also located in Albert Lea,

Minnesota, (the 102 property), was similarly encumbered by the mortgage. Hauer

requested and obtained a written release from Wells Federal of its interest in the 102

property. Hauer claims that he also asked to obtain a release for the 514 property and

claims Wells Federal verbally agreed to do so. Wells Federal denies this, and there is no

evidence in the record that indicates that Wells Federal agreed to release the 514

property. The district court in its September 20, 2013 order ruled that Wells Federal

possessed a valid security interest in the 514 property.

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 On October 27, 2011, Hauer conveyed the 514 property to Glassick without

exception for the Wells Federal lien. In January 2012, Wells Federal informed Hauer that

its records demonstrated that the 514 property was still listed as security for Hauer’s loan,

which he was not current on. Hauer took no action to obtain a release from Wells Federal

for the 514 property. Hauer did not tell Glassick about Wells Federal’s security interest

in the 514 property until approximately 11 months after Wells Federal contacted him

about its remaining security interest and after Wells Federal gave Glassick notice of

foreclosure proceedings.

In October 2012, Wells Federal initiated foreclosure proceedings. The 514

property was purchased by Wells Federal at the foreclosure sale, subject to a six-month

redemption period.

Glassick brought suit against Wells Federal and other parties to quiet title to the

514 property. Glassick also brought a negligence claim against Northwest and Stewart

Title for failing to issue the title-insurance policy she had purchased. Glassick never

brought a lawsuit against Hauer. Glassick moved for partial summary judgment against

Stewart Title, arguing that Northwest negligently failed to issue her an owner’s title-

insurance policy and that, because Northwest was Stewart Title’s agent, Stewart Title was

vicariously liable for the acts of Northwest. Wells Federal moved for summary judgment

on all claims against it. Stewart Title filed a motion for leave to implead Hauer as a

third-party defendant.

On September 20, 2013, the district court granted summary judgment to Wells

Federal. The district court also granted partial summary judgment to Glassick against

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Stewart Title based on Northwest’s negligence under an agency theory due to

Northwest’s failure to properly issue a title policy.

Subsequently, the district court granted Stewart Title’s motion to implead Hauer.

Stewart Title then initiated a third-party complaint against Hauer alleging that, due to his

breach of warranty deed, he is liable for Glassick’s losses, and it is entitled to recover

from Hauer under the equitable theories of subrogation, indemnification, and

contribution. In lieu of answering the third-party complaint, Hauer moved to dismiss

Stewart Title’s claims. Stewart Title then moved for summary judgment. The district

court denied Hauer’s motion to dismiss and granted Stewart Title’s summary-judgment

motion.1 The court concluded that Hauer is liable to Glassick and that Stewart Title is

entitled to recovery from Hauer due to his failure to convey clear title to Glassick.

In February 2015, Stewart Title reached a preliminary settlement agreement with

Glassick for the sum of $127,650.00. Subsequently, Stewart Title moved for entry of

judgment against Hauer for the same amount, which the district court granted. The

district court also granted Stewart Title’s request for attorney fees in the amount of

$163,900.90. This appeal follows.

1
An amended order was filed on July 10, 2014, (the “July 10 order”) correcting a clerical
error in how Stewart Title’s name appeared throughout the body of the order.

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 DECISION

I. The district court did not err in granting summary judgment to Stewart Title.

A. Standard of Review

On appeal from summary judgment, appellate courts review de novo whether there

are any genuine issues of material fact and whether the district court erred in applying the

law. Ruiz v. 1st Fid. Loan Servicing, LLC, 829 N.W.2d 53, 56 (Minn. 2013). Appellate

courts view the evidence in “the light most favorable to the party against whom summary

judgment was granted.” STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72,

76-77 (Minn. 2002). A genuine issue of material fact exists when there is sufficient

evidence that could lead a rational trier of fact to find for the nonmoving party. DLH,

Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997). If the material facts are not in dispute, the

district court’s application of the law is reviewed de novo. In re Collier, 726 N.W.2d

799, 803 (Minn. 2007) (citing Leamington Co. v. Non-Profits’ Ins. Ass’n, 615 N.W.2d

349, 353 (Minn. 2000)).

B. Hauer has forfeited his argument that genuine issues of material fact
exist.

Hauer argues that summary judgment is inappropriate because “it is reasonable for

a jury to conclude that Hauer had an expectation at closing that not only had the title

insurance been procured, but also that, as a part of procuring the title insurance, a prudent

search for encumbrance[s] had taken place.” Hauer’s argument is without merit.

First, Hauer did not raise this issue to the district court. To the contrary, Hauer

conceded that, for the purposes of summary judgment, there are no genuine issues of

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material fact. By failing to raise the issue, Hauer cannot now argue it because “litigants

are bound [on appeal] by the theory or theories, however erroneous or improvident, upon

which the action was actually tried below.” Annis v. Annis, 250 Minn. 256, 262-63, 84

N.W.2d 256, 261 (1957); see also Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

Second, Hauer failed to properly brief the issue in his initial brief, and instead, raised the

issue in his reply brief. We generally do not consider issues not raised or argued in

appellant’s principal brief when they are raised for the first time in a reply brief.

Moorhead Econ. Dev. Auth. v. Anda, 789 N.W.2d 860, 887 (Minn. 2010). Therefore,

Hauer has forfeited this argument for appeal.

C. Hauer’s breach of the purchase agreement and warranty deed is the
proximate cause of Glassick’s damages.

Hauer argues that he is not liable for Glassick’s losses because he is not the

proximate cause of Glassick’s damages. We are not persuaded.

“Generally, proximate cause is a question of fact for the jury; however, where

reasonable minds can arrive at only one conclusion, proximate cause is a question of

law.” Lubbers v. Anderson, 539 N.W.2d 398, 402 (Minn. 1995) (citation omitted). The

district court concluded that, “[a]s a matter of law, . . . Hauer is at fault for Glassick’s

losses.” The court arrived at this conclusion after highlighting certain undisputed facts:

(1) Hauer conveyed title to Glassick by warranty deed; (2) Hauer did not convey title free

and clear of all encumberances insofar as Wells Federal had a security interest in the 514

property; (3) under the purchase agreement, Hauer was obligated to remove any liens on

the 514 property; (4) Hauer was aware that Wells Federal claimed an interest in the 514

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property almost 11 months before the foreclosure; and (5) Hauer did nothing at the time

to ensure that Glassick was provided clear title. The undisputed facts warrant the

conclusion that Glassick’s losses stemmed directly from the foreclosure of the 514

property, which would never have occurred had Hauer conveyed title free and clear of all

encumberances. Therefore, Hauer’s breach of the purchase agreement and warranty deed

is the proximate cause of Glassick’s damages.

Hauer argues that Glassick’s losses stem not from Hauer’s failure to convey clear

title, but from Stewart Title, “by and through Northwest Title[’s] . . . failure to issue the

owner’s title insurance policy.” It is true that the district court awarded Glassick

damages after finding Stewart Title vicariously liable for Northwest’s negligence.

Stewart Title’s negligence, however, is not a superseding or intervening cause precluding

the district court from finding that Hauer’s failure to convey clear title was the more

immediate cause of Glassick’s damages, regardless of whether Glassick pursued a claim

against him or not. Cf. Lennon v. Pieper, 411 N.W.2d 225, 228 (Minn. App. 1987) (“A

superseding, intervening cause of harm acts as a limitation on a defendant’s liability . . . .

It breaks the chain of causation set in operation by a defendant’s negligence. . . .”).

D. The district court did not err in determining that Stewart Title was
entitled to equitable relief.

Hauer asserts that the district court erred in granting Stewart Title equitable relief

under the theories of subrogation, indemnification, and contribution. Hauer relies on the

well-settled principle that “one may not seek a remedy in equity when there is an

adequate remedy at law.” Southtown Plumbing, Inc. v. Har–Ned Lumber Co., 493

8
N.W.2d 137, 140 (Minn. App. 1992). Stewart Title entered into a preliminary settlement

agreement with Glassick for her losses. But Stewart Title was only vicariously liable for

Glassick’s losses through the negligence of Northwest. As such, it could bring a claim

against Northwest. However, we have also concluded that Hauer’s breach was the

proximate cause of Glassick’s losses and Northwest’s negligence is not a superseding or

intervening cause absolving Hauer from liability. Due to Stewart Title’s unique position

here, it has no legal claim it can bring against Hauer, who caused Glassick’s losses.

Therefore, because Stewart Title does not have an adequate remedy at law against Hauer,

it is entitled to seek equitable relief.

E. The district court correctly determined that Stewart Title could
recover under a theory of indemnification.

Hauer next argues that Stewart Title is not entitled to recover its settlement

amount with Glassick under a theory of indemnification. Hauer further argues that

Stewart Title is not morally innocent and, as a result, indemnification should not apply.

“[I]ndemnity is . . . an equitable doctrine which does not lend
itself to hard-and-fast rules. Being an equitable doctrine, its
application is particularly appropriate in a case . . . where it is
invoked to protect one who is legally liable but morally
innocent against one whose wrongful conduct or omission has
caused liability to be imposed on him.”

Larson v. City of Minneapolis, 262 Minn. 142, 148, 114 N.W.2d 68, 73 (1962).

In Tolbert v. Gerber Indus., Inc., 255 N.W.2d 362, 366 (Minn. 1977), the supreme

court stated that a party may be entitled to indemnification when “the party seeking

indemnity is without personal fault, but is exposed to liability because of the failure of

another to perform a duty which he was legally or contractually obligated to perform.”

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Id. (footnote omitted). This rule “provides a just result . . . [as] [i]ts application insures

that liability for damages is borne by the negligent party. It prevents those only

vicariously liable from bearing an unfair burden thrust upon them by others.” Id. at 367.

The district court granted summary judgment for Stewart Title on the basis of

indemnification stating that “[t]he balance of equities weighs in Stewart Title’s favor.”

Here, the record reflects that Stewart Title had no knowledge of the transaction involving

the 514 property until after Glassick filed suit. Stewart Title, the party seeking

indemnity, is without fault. Stewart Title was exposed to liability because Hauer failed to

fulfill a legal and contractual obligation to Glassick. In other words, Stewart Title was

found only vicariously liable for losses caused by Hauer, not its own. Therefore, Stewart

Title is entitled to indemnification to prevent it from bearing an unfair burden due to

Hauer causing Glassick’s losses.

Because we find that indemnification is an appropriate ground upon which to

award Stewart Title, we need not discuss the other equitable grounds upon which the

district court based its decision.

II. Attorney fees

Hauer argues that Stewart Title is not entitled to attorney fees on the basis of

subrogation or indemnification because Stewart Title was negligent in its own right and

did not tender defense to Hauer. Hauer further argues that the amount of attorney fees

awarded by the district court was unreasonable. We are not persuaded.

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 A. The district court did not abuse its discretion in awarding attorney
fees.

“We will not reverse the district court’s decision on attorney fees absent an abuse

of discretion.” Carlson v. SALA Architects, Inc., 732 N.W.2d 324, 331 (Minn. App.

2007) (citation omitted), review denied (Minn. Aug. 21, 2007). Minnesota has adopted

the American rule “that attorney fees are not recoverable in litigation unless there is a

specific contract permitting or a statute authorizing such recovery.” Dunn v. Nat’l

Beverage Corp., 745 N.W.2d 549, 554 (Minn. 2008) (quotation omitted). Here, no

contract or statute authorizes such recovery.

But, as a matter of equity, a district court may award attorney fees when “the one

seeking indemnity has incurred liability because of a breach of duty owed to him by the

one sought to be charged.” United Prairie Bank–Mountain Lake v. Haugen Nutrition &

Equip., LLC, 813 N.W.2d 49, 56 n.2 (Minn. 2012) (quotation omitted); O’Connell v.

Jackson, 273 Minn. 91, 96, 140 N.W.2d 65, 69 (1966) (noting that indemnification

includes attorney fees when “a party has incurred liability for damages by the tortious act

or breach of duty of another and is called upon to defend an action for such damages”)

(citations omitted). Under this third-party litigation exception, a district court is

permitted to award attorney fees as damages “if the defendant’s tortious act thrusts or

projects the plaintiff into litigation with a third party.” Kallok v. Medtronic, Inc., 573

N.W.2d 356, 363 (Minn. 1998) (citation omitted).

The district court determined that Stewart Title could recover attorney fees under a

theory of indemnification, through the third-party litigation exception to the American

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rule, because Hauer’s failure to deliver clear title and failure to pay his debt to Wells

Federal was wrongful conduct that forced Stewart Title into the litigation. Here, had it

not been for Hauer’s breach and his failure to pay off his loan with Wells Federal,

Glassick would not have suffered her losses. If not for that specific reason, Glassick

would not have brought a lawsuit for her losses and Stewart Title would not have been

“thrust” into this litigation. See id.

Hauer further argues that Stewart Title should not be able to recover the full

amount of attorney fees they expended prior to bringing Hauer into the litigation since

Stewart Title was brought into the lawsuit due to its own fault. Hauer relies on Sorenson

v. Safety Flate, Inc., 306 Minn. 300, 306, 235 N.W.2d 848, 852 (1975), for the

proposition that a party seeking indemnity should not be entitled to recover if its own

wrongful conduct caused it to be brought into the litigation. However, that case is

inapposite because, there, the wrongful conduct of the person seeking the indemnity was

one and the same as the wrongful conduct of the party it was seeking indemnity from. Id.

at 302-03, 235 N.W.2d at 850. Here, Stewart Title’s liability is vicarious and a result of

the negligence of Northwest and Hauer’s breach. Stewart Title’s liability cannot be

considered one and the same as Hauer’s conduct. Furthermore, Hauer’s actions caused

Glassick’s losses, not Stewart Title’s. See Prior Lake State Bank v. Groth, 259 Minn.

495, 499, 108 N.W.2d 619, 622 (1961) (“[W]here the natural and proximate consequence

of a person’s tortious act projects another into litigation with a third person, attorneys’

12
fees and expenses . . . may be recovered. . . . ). Therefore, the district court did not abuse

its discretion in awarding Stewart Title the full amount of its attorney fees.2

B. The amount of attorney fees awarded by the district court was
reasonable.

Hauer next argues that the amount of attorney fees awarded was unreasonable.

“To allow attorney[] fees in any amount requires a determination of reasonable value

based upon proof thereof or the court’s observation of the services performed.” Larson–

Roberts Elec. Co. v. Burdick, 267 Minn. 486, 489, 127 N.W.2d 163, 165 (1964). District

courts have wide discretion in deciding a reasonable amount of attorney fees. See Dixon

v. Johnson, 430 N.W.2d 253, 256 (Minn. App. 1988) (“A trial court’s finding as to the

reasonableness of an attorney’s services is a question of fact and will not be disturbed

unless clearly erroneous.”).

In contesting the reasonableness of the attorney fees, Hauer does not challenge the

district court’s use of the lodestar method. While the lodestar method is usually used in

statutory-based recovery of attorney fees, we find no reason not to allow its use here.

Under the lodestar method, attorney fees are calculated by multiplying the number of

hours reasonably expended by the reasonable hourly rate. See Green v. BMW of N. Am.,

826 N.W.2d 530, 536 (Minn. 2013) (citation omitted). Nonetheless, in determining

reasonableness, the district court should consider all relevant factors. See State v.

2
Hauer’s claim that Stewart Title should not be able to recover since it did not properly
tender defense is not properly before the court because Hauer failed to raise it to the
district court. Generally, “litigants are bound [on appeal] by the theory or theories,
however erroneous or improvident, upon which the action was actually tried below.”
Annis, 250 Minn. at 262-63, 84 N.W.2d at 261.

13
Paulson, 290 Minn. 371, 373, 188 N.W.2d 424, 426 (1971). A district court should

consider “the 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

(quotation omitted).

Here the district court completed a detailed analysis of the affidavits and

documents submitted by Stewart Title and considered them in light of all of the factors

highlighted above. In doing so, the district court made a determination that Stewart

Title’s fee request in the amount of $163,900.90 was reasonable. The district court did

not abuse its discretion in its determination of the reasonable amount of attorney fees.

Affirmed.

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