Opinion
No. C2-98-1511.
Filed May 11, 1999.
Appeal from the District Court, Carver County, File No. F196680.
Susan C. Rhode, Moss Barnett, (for respondent Sandra Paulson)
Brian J. Peterson, (for appellant)
Gerald O. Williams, Jr., Kissoon, Clugg, Linder Dittberner, Ltd., (for respondent Kissoon firm)
Considered and decided by Amundson, Presiding Judge, Crippen, Judge, and Anderson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
We find no merit in an appeal from several trial court rulings on motions brought during the year following the divorce of the parties.
FACTS
Appellant Kirby Paulson and respondent Sandra Paulson were married in 1984 and divorced in July 1997. The stipulated judgment provided that an arbitrator should decide issues involving property division and the sale of the marital homestead.
Appellant filed various motions related to the division of marital property and the trial court denied these motions. The court granted a motion of respondent law firm Kissoon, Clugg, Linder Dittberner, Ltd. for a judgment against appellant in lieu of an attorney's lien for fees related to the divorce proceedings.
DECISION
1. The Homestead
Appellant contends that the trial court denied him his right of first refusal to purchase the homestead. This argument has no basis in fact. Appellant was provided ample opportunity to purchase the homestead but never offered the duly determined purchase price. Equally as important, the issue is moot. The closing on the sale of the homestead to a third party occurred in July 1998. Appellant has presented no disputes regarding the distribution of proceeds. He asserts he has suffered numerous consequential damages, but none has been shown.
2, Arbitration
Appellant alleges that the trial court erred in not vacating or modifying the arbitrator's award. The court's power to vacate such an award is purely statutory. AFSCME Council 96 v. Arrowhead Reg'l Corrections Bd ., 356 N.W.2d 295, 299-300 (Minn. 1984). In this matter, the trial court properly refused to vacate or modify the award because appellant stated no statutory basis for that action. Despite appellant's protestations to the contrary, the alleged errors are all matters of fact, providing no grounds to reverse. See Minn. Stat. § 572.19, subd. 1 (1998) (setting forth the grounds for vacating an arbitration award).
3. Attorney Fees
In response to appellant's motions regarding the sale of the homestead and division of personal property, the trial court awarded respondent Sandra Paulson attorney fees — $4,000 in April 1998 and another $1,200 in July 1998. An award of attorney fees is within the discretion of the trial court. Courey v. Courey , 524 N.W.2d 469, 473 (Minn.App. 1994). An award is justified when a party unreasonably contributes to the length or expense of a proceeding. Minn. Stat. § 518.14 (1998).
Appellant contends the record contains no evidence that he unduly prolonged the proceedings. To the contrary, the court recited, with support in the record, appellant's continued litigation on property issues without a showing of legal cause. Appellant contends that his assertions are correct because he received relief on a child support issue, but this adjustment alone does not demonstrate an abuse of discretion by the trial court.
Appellant disputes that there is any documentation for the fees, but the trial court determination is adequately supported by affidavits and billings that justify the amount awarded. Appellant disputes the adequacy of findings on fees, but we find, in both instances, a specific trial court recitation of the facts and reasons justifying the fee award.
4. Judgment for counsel
Because appellant did not pay $2,527.28 due for his own attorney fees, the Kissoon firm sought and was awarded a judgment against appellant in lieu of an attorney's lien.
Appellant disputes the process, arguing that the trial court erred in ordering judgment against appellant without issuing an order to show cause. But appellant received notice, filed a responsive motion, and appeared at the hearing. Nothing in the statute governing attorney liens, Minn. Stat. § 481.13 (1998), requires notice to be in the form of an order to show cause.
Appellant also argues that he was entitled to a hearing at which testimony would be taken. As noted above, there was a hearing on the fee issue. And although appellant was entitled to "an adequate opportunity to contest the facts regarding the attorney's fees," Boline v. Doty , 345 N.W.2d 285, 289 (Minn.App. 1984), he asserted no dispute on the topic that required presentation of testimony. His affidavit alluded to "serious billing issues in dispute," but he premised his argument, both in his legal memorandum and at the hearing, on allegations of a usurious interest rate and improper collection costs, both discussed below. This state of the record also makes it evident that appellant has made no showing of prejudice arising from the absence of an evidentiary hearing. See Midway Ctr. Assocs. v. Midway Ctr., Inc. , 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (holding that in addition to their burden to show error, appellants have the burden on appeal to demonstrate that the trial court error caused them prejudice).
5. Collection Costs
The Kissoon firm charged appellant $1,980 for attorney fees related to obtaining the entry of judgment against appellant. Appellant claims he cannot be charged for in-house attorney fees. In support of his argument, appellant cites State by Head v. Savage , 255 N.W.2d 32 (Minn. 1977), but this case deals only with statutory entitlements.
The present case involves a contract claim. By the terms of the retainer agreement, appellant agreed to pay "all collection costs, including reasonable attorney's fees." He has presented no pertinent authority limiting recovery of in-house fees. Cf. Harkleroad v. Stringer , 499 S.E.2d 379, 382 (Ga.Ct.App. 1998) (holding that an attorney is entitled to recover in-house collection costs).
Although appellant disputes whether the firm actually incurred expense in paying fees to its own associate, he does not dispute the reasonableness of the statement of fees earned.
6. Usury
Appellant alleges that Kissoon charged a usurious interest rate. The trial court found no evidence that Kissoon charged an interest rate higher than eight percent. This finding is justified by the record. Legally, the amount charged and the written agreement between appellant and Kissoon were in compliance with Minn. Stat. § 334.01, subd. 1 (1998) (providing for an interest rate of up to eight percent if contracted for in writing); see Peterson v. Gustafson , 584 N.W.2d 660, 662 (Minn.App. 1998) (construction of usury statues is a question of law that is independently reviewed on appeal), review denied (Minn. Nov. 17, 1998).
Appellant argues that Kissoon actually charged a rate "slightly in excess of 8% on all amounts not paid within 30 days." But Minn. Stat. § 334.03 (1998) provides, "Interest at the rate of 1/12 of eight percent for every 30 days shall not be construed to exceed eight percent per annum." Thus, the monthly fluctuations in interest charged (here, the monthly rate varies from 7.8% to 8.15% if extended for a year) are of no consequence if the annual percentage would not exceed eight percent. Appellant also argues that Kissoon charged "interest upon interest." But this appears to be the result of an inadvertent calculation of one item approximately amounting to a 25-cent mistake. There is no evidence that this billing represented a usurious billing, because it was not intentional. See Minn. Stat. § 334.03 (1998) ("No merely clerical error in the computation of interest, made without intent to avoid the provisions of this chapter, shall constitute usury.").
In sum, there is no merit in appellant's contentions on appeal. We affirm the trial court's disputed decisions and award respondent Sandra Paulson $1,000 attorney fees on appeal.
Appellant correctly notes that the Kissoon firm included a document not of record in its appellate brief and appendix. But the disputed document does not affect the merits of the case and concern about the document is irrelevant.