This opinion will be unpublished and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


Cityview Cooperative,


Darwin Rex Marshall,

Filed January 11, 2000
Short, Judge

Hennepin County District Court
File No. 1990115518

Gregory J. Myers, Lockridge Grindal Nauen, P.L.L.P., 100 Washington Avenue South, Suite 2200, Minneapolis, MN 55401 (for respondent)

Kristin A. Siegesmund, Legal Aid Society of Minneapolis, 430 First Avenue North, Suite 300, Minneapolis, MN 55401; and

Daniel Wexler, 516 West 53rd Street, Minneapolis, MN 55419 (for appellant)

Considered and decided by Anderson, Presiding Judge, Short, Judge, and Foley, Judge.[*]

U N P U B L I S H E D   O P I N I O N

SHORT, Judge

After filing an unlawful detainer action against Darwin Rex Marshall, Cityview Cooperative ("Cityview") settled the dispute for $175 in satisfaction of unpaid rent and fees, but disputed the amount of attorney fees due. The trial court ruled Marshall owed $4,187.26 in attorney fees under a lease provision permitting recovery of attorney fees. Marshall appeals, arguing the $5 limitation imposed by Minn. Stat. § 504.02, subd. 1(a) (1998) applies and the trial court denied him due process of law. We reverse.


Generally, a party may not recover attorney fees unless a statutory or contractual provision allows such fees. Morrison v. Swenson, 274 Minn. 127, 137-38, 142 N.W.2d 640, 647 (1966). Statutory construction presents a question of law, which this court reviews de novo. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990). Our function in interpreting a statute is to ascertain and effectuate the legislature's intent. Minn. Stat. § 645.16 (1998); State ex rel. Graham v. Klumpp, 536 N.W.2d 613, 615 (Minn. 1995). When a statute is free from ambiguity, we look only at its plain language. Minn. Stat. § 645.16; Tuma v. Commissioner of Econ. Sec., 386 N.W.2d 702, 706 (Minn. 1986).

Cityview argues cooperative law applies, rather than landlord-tenant law. But, in the occupancy agreement between Cityview and Marshall, Cityview chose landlord-tenant law to govern the relationship and the agreement specifically mentions unlawful detainer as a remedy. Nothing in the agreement limited Cityview's election of landlord-tenant law to a specific clause. Cityview, which pursued this action as an unlawful detainer, cannot now claim cooperative law applies. Cf. Mehralian v. Riverview Tower Homeowners Ass'n, Inc., 464 N.W.2d 571, 574 (Minn. App. 1990) (holding redemption statute does not apply to foreclosure of cooperative housing stock).

Marshall argues the trial court erred by ignoring the plain language of the unlawful detainer statute. See Minn. Stat. § 504.02, subd. 1(a) (allowing tenant to be restored to possession if tenant pays landlord or brings to court amount of rent in arrears, plus interest and costs, and attorney fees not exceeding $5). We agree the statute limits the amount of attorney fees a tenant must pay to redeem possession. Given the clear statutory language, we find the trial court erred in conditioning Marshall's right to redeem his present possessory interest on paying $4,187.26 in attorney fees, rather than the $5 available under the statute. Id.; see also Cheyenne Land Co. v. Wilde, 463 N.W.2d 539, 540 (Minn. App. 1990) (affirming trial court's award of $5, instead of full amount of attorney fees under lease provision, in unlawful detainer action for residential property). If Cityview wishes to collect the attorney fees Marshall contractually owes, it may pursue the matter in a more appropriate proceeding than an unlawful detainer action. See Eagan East Ltd. Partnership v. Powers Investigations, Inc., 554 N.W.2d 621, 622 (Minn. App. 1996) (determining trial court erred in ruling on attorney fees and prospective rent increase because issues were outside scope of unlawful detainer proceeding, but noting those issues could be decided in proper proceeding).

Cityview argues a 1973 Minnesota Supreme Court case permits the full award of attorney fees in an unlawful detainer action. See 614 Co. v. D.H. Overmyer Co., 297 Minn. 395, 395, 398, 211 N.W.2d 891, 893-94 (1973) (holding attorney fees provision in warehouse lease was enforceable and properly made a condition of redemption). But that case involved nonpayment of rent because of "calculated commercial conduct" between two businesses. Id.; see also Cheyenne Land Co., 463 N.W.2d at 540 (refusing to apply 614 Co. to case not involving calculated commercial conduct).

Because we reverse the trial court's judgment on attorney fees, we need not address Marshall's due process argument.


[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.