This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


Trust of Lois P. Doyle,


Empire Fire & Marine Insurance Company,

Filed January 25, 2000
Kalitowski, Judge

Hennepin County District Court
File No. 9817718

Jan Stuurmans, Law Offices of Jan Stuurmans, P.A., 1800 Rand Tower, 527 Marquette Avenue, Minneapolis, MN 55402 (for appellant)

Janet Pollish, Pollish & Heisick, 1660 South Highway 100, Parkdale Plaza, Suite 200E, Minneapolis, MN 55416 (for respondent)

Considered and decided by Amundson, Presiding Judge, Kalitowski, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Trust of Lois Doyle challenges the district court’s dismissal of its claim against respondent Empire Fire & Marine Insurance Company, issuer of an attachment bond in an underlying action, for recovery of attorney fees incurred in successfully challenging the order for attachment. We affirm.


The district court concluded as a matter of law that attorney fees incurred to vacate a wrongfully issued order for attachment were not recoverable as "damages" under the attachment bond. A reviewing court is not bound by and need not give deference to a trial court’s decision on a purely legal issue. Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984).

The general rule in Minnesota is that "attorney’s fees are not recoverable as an item of damages unless there is a specific contract permitting such recovery or such fees are authorized by statute." Fownes v. Hubbard Broadcasting, Inc., 310 Minn. 540, 543, 246 N.W.2d 700, 702 (1976) (quotation omitted). Here, appellant concedes there is no authority for recovery of attorney fees under either the preliminary attachment bond or the bonding statute, Minn. Stat. § 570.041, subd. 1 (1998).

Despite the absence of contractual or statutory authority, appellant contends its attorney fees are recoverable as damages under the attachment bond based on the long-standing exception permitting similar recovery under injunction bonds. Under common law, attorney fees incurred solely to resist a wrongful temporary injunction are recoverable as damages, even though no specific statutory authority exists for such an award. See, e.g., AMF Pinspotters, Inc. v. Harkins Bowling, Inc., 260 Minn. 499, 507, 110 N.W.2d 348, 353 (1961); NewMech Cos. v. Independent Sch. Dist. No. 206, 558 N.W.2d 22, 24 (Minn. App. 1997).

Appellant urges that we extend the exception for fee awards under an injunction bond to the recovery of fees under an attachment bond. In support, appellant relies on Frost v. Jordan, in which the court described an attachment bond as analogous to an injunction bond. Frost v. Jordan, 37 Minn. 544, 545, 36 N.W. 713 (1887). The district court correctly noted that under Frost, attorney fees incurred in defending a principal action are not recoverable as damages under an attachment bond. But the Frost court also discussed, albeit in dicta, the prevailing rule in other jurisdictions that "attorney’s fees incurred in a motion to dissolve the attachment are recoverable under the obligations of such a bond." Frost, 37 Minn. at 546, 36 N.W. at 714 (emphasis added). The Frost court declined to decide whether this rule would apply in Minnesota because the fees at issue in that case were incurred in the principal action. Id. Appellant has cited no Minnesota cases subsequent to Frost that have addressed the issue of the recovery of attorney fees as damages under an attachment bond.

While we acknowledge the persuasiveness of the analogy that appellant wishes us to draw between injunction bonds and attachment bonds, we cannot agree that Frost is controlling. We conclude that if the legislature had intended to allow an award of attorney fees under the bonding statute, it could have drafted the bonding statute accordingly. The legislature is capable of providing for an attorney fee award when it so intends, as illustrated by numerous statutory provisions allowing for recovery of attorney fees.[1] Moreover, the legislature has specifically authorized an award of attorney fees under an attachment bond in certain situations not applicable here. Minn. Stat. § 570.025, subd. 5 (1998) (allowing recovery of attorney fees in defending a bad-faith motion for a preliminary attachment on the basis of extraordinary circumstances).

We decline to create a new common-law exception permitting recovery of attorney fees under attachment bonds absent either express legislative authority or direction from the supreme court that is more authoritative than century-old dicta. "[T]he task of extending existing law falls to the supreme court or the legislature, but it does not fall to this court." Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987), review denied (Minn. Dec. 18, 1987). We conclude the district court did not err in determining that attorney fees incurred to vacate a wrongfully issued order for attachment were not recoverable as damages under an attachment bond.


[1] See, e.g., Minn. Stat. § 221.271 (1998) (allowing recovery of attorney fees against motor carriers); Minn. Stat. § 115B.14 (1998) (allowing recovery of fees under Minnesota Environmental Response and Liability Act); Minn. Stat. § 144.335(e), subd. 3a(e) (1998) (allowing recovery of fees for improper release of health records); Minn. Stat. § 325F.791, subd. 8(c) (1998) (allowing recovery of maximum $500 fee in action between pet dealers and pet purchasers).