This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-00-1399

 

Wilbur C. Keefer,
Appellant,

vs.

Virginia M. Schmidt,
Respondent.

 

Filed January 16, 2001

Reversed and remanded

Stoneburner, Judge

 

Ramsey County District Court

File No. CX989643

 

 

Neal J. Shapiro, Bernick and Lifson, P.A., 5500 Wayzata Boulevard, 1200 The Colonnade, Minneapolis, MN 55416 (for appellant)

 

Kathleen S. Adams, Scott G. Knudson, Briggs & Morgan, P.A., 2200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent)

 

 

            Considered and decided by Stoneburner, Presiding Judge, Lansing, Judge, and Peterson, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant Wilbur Keefer appeals from the district court’s denial of his post-trial motion to award him attorney fees and interest on a $25,000 mortgage and promissory note found valid and enforceable by the district court, and appeals from the judgment that failed to address the issues of attorney fees, interest, and costs.  Because the motion was timely and adequately supported and because findings are required, we reverse the district court and remand for further findings on the issues of attorney fees, interest, and costs. 

FACTS

 

Appellant Wilbur Keefer loaned respondent Virginia Schmidt more than $25,000 between 1979 and 1984.  On October 13, 1983, Schmidt signed a promissory note to Keefer in the amount of $25,000 and gave him a mortgage against her condominium to secure the note.  The note provides for interest at 12% per annum.  The mortgage instrument, which does not provide for interest at a stated rate, provides in part:

Provided, [n]evertheless, [t]hat if the said mortgagor, her heirs, administrators, executors or assigns, shall pay to the said mortgagee, his heirs or assigns, the sum of Twenty Five thousand and 00/100 Dollars, according to the terms of mortgage note of even date herewith due and payable, executed by the said mortgagor, and payable to the order of said mortgagee at place designated and shall repay to said mortgagee, his heirs or assigns, at the times and with interest as hereinafter specified * * *. 

 

* * * *

 

 

In case of default in any of the foregoing covenants, the mortgagor confer upon the mortgagee the option of declaring the unpaid balance of said principal note and the interest accrued thereon, together with all sums advanced hereunder, immediately due and payable without notice, and hereby authorize and empower said mortgagee * * * to foreclose this mortgage * * * and out of the moneys arising from such sale to retain all sums secured hereby, with interest and all legal costs and charges of such foreclosure and the maximum attorney’s fee permitted by law.

 

In June 1998, despite Schmidt’s contention that the money Keefer gave her was a gift and that the mortgage was invalid, the Ramsey County Examiner of Titles, after a hearing, directed that the mortgage be recorded in Ramsey County.  Keefer recorded the mortgage on July 9, 1998.  Through written notice of default on the mortgage on July 20, 1998, Keefer sent Schmidt a formal demand for payment of the note and accrued interest at 12%.

On September 29, 1998, Keefer filed suit against Schmidt seeking judgment in the amount of $25,000 with interest at 12% beginning October 13, 1983, costs and disbursements, reasonable attorney fees, and an order directing foreclosure on the mortgage and sale of the condominium.  In her answer, Schmidt raised the defense of the statute of limitations.  Following a bench trial, the transcript of which has not been provided, the district court found that the note and mortgage had been duly executed and recorded and were valid and enforceable.  The district court did not mention the statute-of-limitations defense to the note, found Schmidt in default, awarded Keefer judgment in the amount of $25,000, and directed the sale of Schmidt’s condominium in satisfaction of the judgment.  The district court did not address issues of interest, costs, and disbursements, or attorney fees. 

            On May 26, 2000, Keefer filed a “Notice of Motion and Motion to Amend Order,” requesting the district court to amend its order to include interest at a rate of 12% per annum from October 13, 1983, and to award attorney fees.  The motion does not mention costs.  A hearing on the motion was held on June 13, 2000.  Judgment pursuant to the February 2, 2000 order was entered on the same day.  In an ex parte letter following the hearing, Keefer’s attorney asked the district court to consider the motion pursuant to Minn. R. Civ. P. 60.01 as a motion to amend a clerical error.[1]

The district court denied Keefer’s post-trial motion, noting that although Keefer’s counsel asked the court to consider the motion pursuant to Minn. R. Civ. P. 60.01, he had not shown that there was a clerical error and submitted no memorandum or proposed changes to the Findings of Fact, Conclusions of Law, and Order for Judgment that were filed on February 2, 2000.  The district court first noted that Keefer’s motion is “by its very language * * *  a request for an amendment or reconsideration of the Order of the Findings of Fact, Conclusions of Law and Order for Judgment that was filed on February 2, 2000,” but later stated that it was not clear from the motion whether it was a motion to amend or whether it was a motion to correct a clerical error.  The district court denied the motion because Keefer had not obtained the court’s permission for a motion for reconsideration and had not provided a supporting affidavit or memorandum of law.  The district court implied that if the motion was a motion to amend pursuant to Minn. R. Civ. P. 52.02, it was untimely.  The district court did not address the merits of the request for attorney fees and interest.  Keefer appeals the June 13, 2000 judgment and the denial of his post-trial motion, arguing that his post-trial motion was timely and that the district court was required to make findings of fact and conclusions of law on his claims for interest, attorney fees, and costs. 

D E C I S I O N

A district court in all civil actions tried to the court without a jury is required to make findings that cover all issues presented. Minn. R. Civ. P. 52.01; Midway Mobile Home Mart, Inc. v. City of Fridley, 271 Minn. 189, 193, 135 N.W.2d 199, 202 (1965) (noting purpose of the rule is to make definite and certain what the issues were and how they were decided).  Omission constitutes error only if the omitted findings are critical to the outcome of the claim and are supported by the weight of the evidence.  2 David F. Herr & Roger S. Haydock, Minnesota Practice § 52.17 (1998).  The district court’s failure to consider the merits of appellant Wilbur Keefer’s claim for attorney fees, interest, and costs and disbursements is an omission critical to the outcome of Keefer’s claim on these issues.

After a court has issued findings, conclusions, and an order for judgment, a dissatisfied party has three alternatives: (1) move to amend or make additional findings under rule 52.02, (2) move for a new trial under Minn. R. Civ. P. 59, or (3) appeal.  Herr & Haydock, supra, § 52.15.  A motion to reconsider is improper in this procedural context.  See Minn. R. Gen. Pract. 115.11 (prescribing process for requesting permission to make motion for reconsideration).  The district court correctly concluded that Keefer’s motion could not be a motion for reconsideration because permission for such a motion had not been granted.  The district court also correctly determined that to the extent Keefer based his motion on Minn. R. Civ. P. 60.01 for correction of a clerical mistake, the motion could not be granted because no clerical mistake was identified.  See Wilson v. City of Fergus Falls, 181 Minn. 329, 332, 232 N.W. 322, 323 (1930) (finding clerical error usually one of form not attributable to judicial discretion).  Insofar as the motion was brought under rule 52.02, the district court did not clearly state whether it was denied as untimely or denied for lack of clarity.

A rule 52.02 motion is timely if made within 15 days after service of notice by a party of the filing of the decision.  See Minn. R. Civ. P. 59.03 (applying 15-day limit to motion for new trial); Minn. R. Civ. P. 52.02 (stating motion to amend must be made no later than time allowed for motion for new trial).  In this case, Schmidt did not file a notice of the filing of the order because judgment was not entered until after the motion was filed.  The failure to serve the notice means the 15-day period does not run and the other party has an indefinite time to bring a motion to amend.  Herr & Haydock, supra, § 52.16; see Krech v. Commissioner of Revenue, 557 N.W.2d 335, 343 (Minn. 1997) (finding motion to amend timely where no party served notice of filing of order as required under rules to activate time limit).  Because the judgment was not entered and no notice was filed, Keefer’s motion to amend was timely.

A timely post-trial motion must comply with the Rules of Civil Procedure, including stating the grounds for the motion with particularity and setting forth the relief desired with supporting documentation.  Madson v. Minnesota Mining & Mfg., 612 N.W.2d 168, 171-72 (Minn. 2000).  Keefer’s motion referenced the district court’s finding that the note and mortgage were valid and enforceable and cited language from the note and mortgage providing for interest and attorney fees.  Keefer relied on the plain language of the note and mortgage to explain why the district court should have awarded attorney fees and interest.  Although minimal, the information in the motion was sufficient to support the request for an amendment to the Findings of Fact, Conclusions of Law, and Order for Judgment issued on February 2, 2000, to address the omitted issues.

Schmidt argues that the district court’s failure to grant interest, attorney fees and costs is a denial of those claims that should be affirmed on appeal because (1) action on the promissory note, the only instrument that contained a rate of interest, was barred by the statute of limitations; (2) the court had discretion to deny attorney fees even though the mortgage clearly provided for the fees; and (3) Keefer failed to comply with Minn. R. Gen. Pract. 119.01. 

Although Schmidt raised the statute of limitations in her answer (contrary to Keefer’s assertion that she did not), we do not know if the defense was argued or considered at trial.  The district court, however, found the promissory note valid and enforceable.  Keefer argues that the district court had no discretion to deny attorney fees provided for in the mortgage and that Minn. R. Gen. Pract. 119.01 is designed to establish a standard procedure for supporting requests for attorney fees and is not intended to limit the entitlement to recovery of attorney fees in any case.  See Minn. R. Gen. Pract. 119.011997 advisory comm. cmtThe issue of costs has not been addressed by the parties or the district court.  Absent findings by the district court, this court is unable to conduct a meaningful review of the issues of interest, attorney fees, or costs.  On remand the district court shall make findings on the issue of Keefer’s entitlement to interest, attorney fees, and costs.

Reversed and remanded.

 



[1] This letter is not contained in the record, although both parties acknowledge its existence, and the district court referred to it.