Lamb v. Jordan, CX-84-1696
| Decision Date | 26 February 1985 |
| Docket Number | No. CX-84-1696,CX-84-1696 |
| Citation | 363 N.W.2d 351 |
| Parties | Horace A. LAMB, Respondent, v. William E. JORDAN, Appellant. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
The trial court did not abuse its discretion by refusing to award attorney fees for a prior trial and appeal. Appellant did not make a timely request for those fees.
James A. Sage, Gruesen, Peterson & Sage, P.A., Duluth, for respondent.
Donald C. Erickson, Johnson, Fredin, Killen, Thibodeau & Seiler, P.A., Duluth, for appellant.
Considered and decided by POPOVICH, C.J., and NIERENGARTEN and RANDALL, JJ., with oral argument waived.
Appellant prevailed in a suit before the trial court and requested attorney fees pursuant to Minn.Stat. Sec. 549.21 (1982). The trial court found respondent's suit was "fraudulent from its inception" and awarded attorney fees. The trial court refused, however, to award attorney fees for a prior trial and appeal in the same matter. Appellant claims the trial court erred by not awarding attorney fees for the prior trial and appeal. We affirm.
In 1976, appellant contracted to buy respondent's grocery store and marine supply business. In July 1979, respondent sued appellant claiming default on a $41,000 promissory note. Respondent alleged the $41,000 note represented unrecorded cash advances made to appellant. Appellant denied any cash advancements had been made claiming the note was a penciled-in copy of a note for business inventory which later had been substituted with a typewritten copy. Appellant claimed respondent fabricated the story about the cash advances in order to fraudulently collect on both notes.
The jury in the first trial returned a verdict in respondent's favor. Appellant moved the trial court for judgment n.o.v. or for a new trial in the alternative, but did not request attorney fees. The trial court denied appellant's motion, and appellant appealed. On appeal, appellant renewed his request for judgment n.o.v. or a new trial without requesting attorney fees.
The Minnesota Supreme Court refused to grant judgment n.o.v. but did order a new trial. See Lamb v. Jordan, 333 N.W.2d 852 (Minn.1983). In ordering the new trial, the supreme court found "disturbing signs that the story was fabricated." Id. at 856.
The matter was retried in March 1983. This time a jury returned a verdict in favor of appellant. They found respondent had not made any cash advances to appellant. In a post-trial motion, appellant requested attorney fees for respondent's bad faith in asserting a fraudulent claim. Appellant requested attorney fees and costs for the entire period this matter was pending, including the prior trial and appeal. The trial court found the litigation was fraudulent and awarded attorney fees and costs for the second trial only.
The trial court held it did not have the power to award attorney fees incurred before the supreme court issued its opinion on the first appeal on May 6, 1983. The trial court also based its decision on appellant's failure to request attorney fees in the prior appeal.
1. Did the trial court err by failing to award attorney fees and costs incurred in a prior trial and appeal?
2. Did the trial court have the power to award attorney fees and costs incurred in the prior trial and appeal?
Appellant asserts he is entitled to all attorney fees and costs incurred since the inception of this fraudulent litigation under common law and Minn.Stat. Sec. 549.21 (1982). Section 549.21 codified the common law. See National Recruiters Inc. v. Toro Company, 343 N.W.2d 704, 709 (Minn.Ct.App.1984). Consequently, the issue raised by appellant is one of statutory construction. Minn.Stat. Sec. 549.21 (1982) states:
Upon motion of a party, the court in its discretion may award to that party costs, disbursements, reasonable attorney fees and witness fees if the party or attorney against whom costs, disbursements, reasonable attorney and witness fees are charged acted in bad faith; asserted a claim or defense knowing it to be frivolous; asserted an unfounded position solely to delay the ordinary course of the proceedings or to harass; or committed a fraud upon the court. To qualify for an award under this section, a party shall give timely notice of intent to claim an award.
The trial court relied primarily on appellant's failure to request attorney fees at the earlier trial and appeal in denying appellant's request for attorney fees and costs in those matters. Appellant, on the other hand, claims a request for attorney fees and costs need not be made until "the successful completion of the litigation."
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Hansen v. American Nat. Bank, C4-86-1083
...the court." Hansen argues that the trial court abused its discretion because his action was not brought in bad faith. Lamb v. Jordan, 363 N.W.2d 351, 353 (Minn.Ct.App.1985). Hansen had made repeated stale claims of fraud and lack of jurisdiction. The history of this litigation supports the ......
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In the Matter of Land, No. A07-562 (Minn. App. 11/13/2007)
...the trial," in its decision whether to grant a new trial. Lamb v. Jordan, 333 N.W.2d 852, 856 (Minn. 1983), appeal after remand, 363 N.W.2d 351 (Minn. App. 1985). Additionally, "[o]n a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been ......
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Kellar v. Von Holtum
...court denied review on October 31, 1997. The district court awarded fees on January 29, 1998. Appellants insist that Lamb v. Jordan, 363 N.W.2d 351 (Minn.App.1985), is a factually similar case. There, after a trial and an appeal, the supreme court ordered a new trial. Id. at 352. After comp......
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Ferguson v. Shea
...The award of attorney's fees can be reversed only upon a showing of an abuse of discretion by the trial court. Lamb v. Jordan, 363 N.W.2d 351, 353 (Minn.Ct.App.1985). At trial Ferguson presented credible evidence in support of his position such as his signature on the contract for deed, his......