Bongard v. Bongard

• Decision Date: 28 December 1983
• Docket Number: No. C4-83-1313,C4-83-1313
• Parties: Frederick BONGARD, Appellant, v. Marilyn BONGARD, Respondent.
• Court: Minnesota Court of Appeals

Page 156

342 N.W.2d 156

Frederick BONGARD, Appellant, v. Marilyn BONGARD, Respondent.

No. C4-83-1313.

Court of Appeals of Minnesota.

Dec. 28, 1983.

Syllabus by the Court

The trial court denied two motions to vacate a writ of attachment. The time for appeal from the first motion had expired. Between the two motions, portions of the attachment statute were declared unconstitutional. Because of the declared unconstitutionality of the statute, sufficient grounds existed for a timely appeal from the second motion.

Though the statute relied upon for the attachment was declared unconstitutional, this does not automatically void the attachment, since the prior statute remains in effect and, if the record discloses sufficient evidence that the writ is constitutionally valid under the prior statute, it will be upheld.

Diane M. Knoss, Nicklaus, Monroe & Fahey, Chaska, for appellant.

Bruce P. Wyant, Wyant & Morgenson, Bloomington, for respondent.

Heard, considered and decided by PARKER, J., P.J., and WOZNIAK and LANSING, JJ., with oral argument.

OPINION

WOZNIAK, Judge.

This interlocutory appeal comes to the Court of Appeals from the trial court's refusal to vacate a writ of attachment. Minn.R.Civ.App.P. 103.03(c). The writ was issued September 28, 1982. Mr. Bongard moved the trial court to vacate the writ. The trial court refused. After the trial court's decision and after the time for appeal had expired, portions of the attachment statute were declared unconstitutional. Mr. Bongard again moved the trial court to vacate the writ. Again the trial court refused. We affirm.

FACTS

Marilyn Bongard claims that her ex-husband defrauded her in the property settlement of their marriage dissolution. According to her, Mr. Bongard hid a partnership agreement between himself and his brother. The assets of the partnership included a farm and a garage in New Germany, Minnesota. The attachment in question is part of her lawsuit.

After 22 years of marriage, Marilyn and Frederick Bongard dissolved their marriage. The litigation involved three separate lawsuits: one by Ms. Bongard in Hennepin County and two by Mr. Bongard, one in North Carolina and one in Carver County. The dissolution was finally granted on April 12, 1973 by a final judgment of the North Carolina court.

During the dissolution proceedings, Mr. Bongard maintained he had no partnership with his brother and had no assets of any substance in Minnesota. In a verified answer to the Hennepin County dissolution suit, Mr. Bongard claimed that he "owns no real property in Minnesota, has no business interest of any kind in Minnesota ..."

In a sworn affidavit in the Carver County dissolution, Mr. Bongard made no mention of any partnership assets or ownership of the farm. He did mention the garage, but only that he was closing it down.

Ms. Bongard relied on these statements when entering into the property settlement. The final settlement contained no references to the property in New Germany, Minnesota.

After the dissolution was final, Mr. Bongard sued his brother for withholding partnership assets. Mr. Bongard claimed in sworn pleadings that he and his brother had a partnership in all but name since 1966. In his verified complaint, Mr. Bongard stated:

only in the area of disclosing an inventory figure did Roger Bongard seem evasive ... Fred, plaintiff herein, did not want to push the matter either as he and his wife were voluntarily separated ....

Fred Bongard continued:

Fred stated to Arthur Wagner that the title would be put in the name of Roger as Fred was still not through with his domestic problems .... Everyone understood Fred was to be the owner of the farm at the closing .... The formal partnership agreement ... was to be drawn up as soon as Fred's domestic problem was resolved ...

The suit was settled; Mr. Bongard received $85,000 from his brother.

Ms. Bongard sued to get a portion of Mr. Bongard's settlement with his brother. As part of that suit, she attached $50,000 of the settlement proceeds between Mr. Bongard and his brother. Mr. Bongard moved on January 3, 1983 to vacate the attachment. On January 7, 1983, the trial court refused. On June 30, 1983, Mr. Bongard brought another motion to vacate pursuant to the Supreme Court's declaring portions of the attachment statute unconstitutional. The trial court denied the motion on August 3, 1983 and Mr. Bongard appealed.

ISSUES

1. Is the appellant precluded from making the instant appeal by his failure to timely appeal from a prior order denying his first motion to vacate the writ of attachment?

2. Does the holding of the Minnesota Supreme Court in Olson v. Ische, 330 N.W.2d 710 (Minn.1983), that Minnesota Statutes Sec. 570.02(2)(b)(2)(ii) is unconstitutional as overbroad, invalidate an attachment made pursuant to that statute, thereby requiring the attachment to be vacated?

3. Does the Ische decision cause the pre-1981 version of the statute to remain in effect, and, if so,

4. Is the attachment in this case constitutionally valid under the pre-1981 statute?

ANALYSIS

1. The respondent, Ms. Bongard, contends that this is not an appealable order. An appeal from an order must be "within 30 days after service by the adverse party of written notice of filing." Minn.R.Civ.App.P. 104.01. Thirty days have passed since notice of filing the first motion to vacate the writ. Her contention is that a second motion to vacate the same writ does not revive or extend the time for appeal.

Time limits on appeals are jurisdictional. Once the time limit has passed, this court has no jurisdiction to hear the case and the appeal must be dismissed. Jesmer Co. v. Wurdemann-Hjelm Corp., 250 Minn. 485, 488, 85 N.W.2d 207, 209 (1957). It is well established that "where the right to appeal from an unvacated appealable order has expired, the right of appeal is not revived by a negative order on a second motion for the same relief." Barrett v. Smith, 183 Minn. 431, 440, 237 N.W. 15, 19 (1931); see also Kloos v. Soo Line R.R., 282 Minn. 168, 163 N.W.2d 567 (1968), Ross v. Duluth, M. & R. Ry. Co., 201 Minn. 225, 275 N.W. 622 (1937). If the limits could be extended by merely making a new motion, the time limits would be meaningless.

A party can appeal from a second motion, however, if there are "grounds not included in the first one and satisfactory reasons appear for the omission." Trickel v. Calvin, 230 Minn. 322, 326, 41 N.W.2d 426, 568 (1950). While such a motion may be for the "same relief," the determinant is new grounds and justifiable reasons for omission.

In the first motion, the ground for objection was that the attachment violated the attachment statute. The statute was assumed constitutional. Minn.Stat. Sec. 645.17(3) (1982). In the second motion, the underlying statute had been declared unconstitutional and there was uncertainty and a vacuum in the law. Because of this vacuum, the grounds underlying the second motion were new and different from the first. Not allowing an appeal from this uncertainty would allow potentially unconstitutional deprivations to stand because of a rule of judicial economy. See E.C.I. Corp. v. G.G.C. Corp., 306 Minn. 433, 237 N.W.2d 627 (1976) (Barrett rule not strictly applied in the interests of justice). Therefore, under the Trickel case, this order is appealable.

2. The predecessor to the statute in question was constitutional. International State Bank v. Gamer, 281 N.W.2d 855 (Minn.1979). The legislature drastically revised that attachment statute in 1981, overruling a long-standing policy in Minnesota. Act of May 28, 1981, ch. 277, Sec. 1, 1981 Minn.Laws 1285, 1286 (codified at Minn.Stat. Sec. 570.02 (1982)). The Minnesota Supreme Court found portions of the act unconstitutionally overbroad in light of United States Supreme Court decisions. Olson v. Ische, 330 N.W.2d 710 (Minn.1983).

In this case, the attachment was issued under Minn.Stat. Sec. 570.02(2)(b)(2)(ii) (1982). That section allowed attachment if "[t]hat person or corporation has assigned, disposed of, or secreted or is about to assign, dispose of, or secrete, property." Id.

After the writ issued, the Minnesota Supreme Court declared that section unconstitutional because the "statutory language does not adequately balance the competing interests of creditor and debtor." Ische, 330 N.W.2d at 713. The legislature had deleted language from the prior statute which required "intent to delay or defraud ... creditors."

Generally, a court's decision is retroactive "absent special circumstances or specific pronouncements ... that its decision is to be applied prospectively only." Hoff v. Kempton, 317 N.W.2d 361, 363 (Minn.1982). The Ische court made no specific pronouncement renouncing retroactive application.

The Hoff court listed three special circumstances needed if a case is to be applied prospectively: (1) the case establishes a new principle of law; (2) retroactive application will retard the operation of the new principle; (3) retroactive application would be inequitable. Id. (applying United States Supreme Court case of Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971)).

The Ische decision changed the existing statutory law. Its purpose, preventing unconstitutional attachments, is furthered by retroactive application. Inequities of the worst kind would result from not applying Ische retroactively: unconstitutionally attached property could remain unconstitutionally attached. Since not all of the special circumstances exist, Ische will be retroactively applied. The statute under which the attachment was ordered was unconstitutional. The fact that the statute was unconstitutional does not necessarily mean, however, that the attachment was void.

3. Since the statute was declared unconstitutional and its effect was retroactive, this court must determine the status of the law in the interim. ¹ As a general rule, an unconstitutional amendment has no effect and leaves the statute as it was before the...