This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






In Re the Marriage of:

Vallie Brewster, f/k/a

Vallie B. Kriz,

Petitioner Below,




James J. Kriz, Jr.,





Fredrikson & Byron, P.A.,



Filed September 19, 2000


Willis, Judge


Hennepin County District Court

File No. 194230


William F. Mohrman, Mohrman & Kaardal, P.A., 4100 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN  55402 (for appellant)


Jay Quam, Judy Sally Engel, Fredrikson & Byron, P.A., 1100 International Centre, 900 Second Avenue South, Minneapolis, MN  55402 (for respondent)


            Considered and decided by Crippen, Presiding Judge, Schumacher, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


            James J. Kriz, Jr., appeals the district court’s denial of his motion for relief under Minn. R. Civ. P. 60.02 from an order establishing an attorney’s lien on behalf of respondent Fredrikson & Byron, P.A.  We affirm.


In April 1996, appellant James J. Kriz, Jr., retained respondent Fredrikson & Byron, P.A., as his counsel in connection with post-decree matters arising from the dissolution of his marriage with Vallie Brewster.  Kriz agreed to pay $1,000 per month toward both his new bills and past bills with the firm for unrelated services and to pay his outstanding bill in full in the event of a substantial cash recovery.  Kriz paid his monthly payments sporadically and made no payments to Fredrikson after January 1999.

            In February 1999, Kriz retained new counsel.  Soon thereafter, Kriz and Brewster reached a settlement in which Kriz received publicly traded securities valued at approximately $2,000,000.  After receiving the securities, Kriz did not resume his payments to Fredrikson or pay his outstanding bill in full.

            In May 1999, Fredrikson moved the district court to establish an attorney’s lien on the settlement from Brewster in an amount that included both Kriz’s outstanding legal fees and attorney fees for the motion to establish the lien.  Kriz’s counsel did not file a written response but only presented oral arguments at the motion hearing.  In an August 1999 order, the court granted Fredrikson’s motion and established the requested lien.

            In October 1999, Kriz moved the district court for relief from the August 1999 order pursuant to Minn. R. Civ. P. 60.02.  In response to this motion, Fredrikson conceded that the award of attorney fees incurred in establishing the lien was inappropriate.  In a judgment entered in March 2000, the district court amended the lien to exclude those fees and denied the balance of Kriz’s motion.  Kriz appeals.


Kriz argues that the district court erred by denying Kriz’s motion for relief from the August 1999 order establishing an attorney’s lien on the proceeds of Kriz’s settlement with Brewster because, Kriz claims, his counsel was negligent in not filing a written response to Fredrikson’s motion.  Minn. R. Civ. P. 60.02 provides in pertinent part that a court

may relieve a party * * * from a final judgment (other than a marriage dissolution decree), order, or proceeding and may order a new trial or grant such other relief as may be just for * * * [m]istake, inadvertence, surprise, or excusable neglect.


Minn. R. Civ. P. 60.02.  As a general rule, the neglect of a party’s attorney is chargeable to the party.  Finden v. Klaas, 268 Minn. 268, 271, 128 N.W.2d 748, 750 (1964).  But the neglect of a party’s attorney is excusable to the party when the party (a) possesses a reasonable defense on the merits; (b) has a reasonable excuse for the neglect; (c) acted with due diligence after notice of entry of judgment; and (d) shows that no substantial prejudice will result to the other party.  Id.; Conley v. Downing, 321 N.W.2d 36, 40 (Minn. 1982) (quoting Finden, 268 Minn. at 271, 128 N.W.2d at 750); Ayers v. Rudolph’s, Inc., 392 N.W.2d 647, 649 (Minn. App. 1986) (citing Conley, 321 N.W.2d at 40).  This exception to the general rule regarding attorney neglect is established “pursuant to a liberal policy conducive to the trial of causes on their merits.”  Finden, 268 Minn. at 271, 128 N.W.2d at 750.  The district court has broad discretion in deciding whether to grant relief under rule 60.02, and this court will affirm the district court’s decision absent an abuse of that discretion.  See Conley, 321 N.W.2d at 40-41.

Kriz cites Conley to argue that the counsel representing him in response to Fredrikson’s motion to establish an attorney’s lien committed neglect excusable to Kriz by “failing to file any papers” in response to the motion.  In Conley, the party’s attorney appeared at a hearing regarding the opponent’s motion, requested and was granted time to submit a memorandum of law, represented to the party that he would file a brief in response to the motion, but subsequently failed to file any response.  Id. at 38.  The supreme court held that the party’s reliance on the attorney’s representation that he would file a response excused her from the neglect of her attorney, in light of the court’s “approach to [r]ule 60.02, which favors trials on the merits whenever possible.”  Id. at 41. 

Here, Kriz’s attorney did provide a defense on the merits against Fredrikson’s motion at the hearing regarding the motion.[1]  Kriz does not argue that his former counsel made no arguments on his behalf.  Rather, Kriz merely takes issue with his counsel’s failure to file written opposition and presents here the arguments that he believes should have been made on his behalf.  But while Kriz’s attorney did not file a written response to the motion, the failure of a party’s attorney to file appropriate papers in response to a motion does not, in and of itself, constitute attorney neglect excusable to a party.  See State v. $14,000 in Various Denominations of U.S. Currency, 345 N.W.2d 277, 281 (Minn. App. 1984).  And an attorney’s decision not to argue all possible theories is not a basis for a finding of attorney neglect excusable to the party.  See Ayers, 392 N.W.2d at 650. 

That Kriz now seeks the opportunity to argue other theories in opposition to the lien does not establish that his former counsel engaged in neglect excusable to Kriz.  We conclude, therefore, that the district court did not abuse its discretion by denying Kriz’s rule 60.02 motion.


[1] Because Kriz did not provide to this court transcripts of either the hearing regarding Fredrikson’s motion or the hearing regarding his rule 60.02 motion, we cannot precisely determine the arguments made on Kriz’s behalf.  But it is clear from the district court’s order establishing the attorney’s lien that at the hearing Kriz’s counsel argued, at a minimum, that (1) the lien would be premature; (2) because the retention letter provides that Kriz would pay his bill in full upon receipt of a “cash” settlement, the bill was not due in full because the settlement comprised securities only; and (3) Fredrikson’s failure to be sufficiently “aggressive” delayed settlement of the case.