This opinion will be unpublished and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

C9-00-2057

 

 

Micheal B. Prickett, et al.,

Appellants,

 

vs.

 

David E. Peterson, et al.,

Respondents,

 

Streeter & Associates, Inc.,

Defendants.

 

 

Filed May 1, 2001

Reversed and remanded

Schumacher, Judge

 

Hennepin County District Court

File No. 003988

 

Paul W. Chamberlain, Chamberlain Law Firm, 445 Lake Street, Suite 333, Wayzata, MN 55391 (for appellants)

 

John H. Brennan, 125 West Lake Street, Wayzata, MN 55391 (for respondents)

 

 

Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and Anderson, Judge.


U N P U B L I S H E D O P I N I O N

SCHUMACHER, ROBERT H., Judge

This is an appeal from a decision in which appellants Micheal B. Prickett and Sonia S. Prickett obtained a permanent injunction to prevent respondents David E. Peterson and Marian K. Peterson from constructing any improvement over easement property. The Pricketts challenge the district court's denial of their request for attorney fees. We reverse and remand.

FACTS

A property owner subdivided his lot and sold adjoining parcels to the Pricketts and the Petersons on February 17, 1999, subject to a declaration of easements and covenants. In relevant part, the declaration granted the Pricketts use of a six-foot strip of the Petersons' property for utilities "over, under, and across" the parcel. Attorney fees were authorized for an owner who successfully brought an action pursuant to the declaration.

Both parties designed houses to be constructed on their respective properties. A dispute arose because the attached garage for the Petersons' home would extend onto the Pricketts' six-foot utility easement by four and one-half feet. While the Petersons asserted that their construction would not interfere with the Pricketts' right to use the easement, the Pricketts disagreed. In a letter dated January 20, 2000, the Pricketts formally objected, and in mid-March 2000, they sued the Petersons, seeking an injunction, declaratory judgment, and attorney fees. The Petersons filed a counterclaim in early April, seeking a declaratory judgment allowing them to build on the easement and demanding attorney fees pursuant to the declaration.

The district court permanently enjoined the Petersons from constructing any permanent improvement over the easement property, but denied the Pricketts' motion for attorney fees. This appeal followed.

D E C I S I O N

An appellate court is not bound by a district court's determination as to legal issues. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utilities Comm'n, 358 N.W.2d 639, 642 (Minn. 1984). A district court's decision as to the reasonableness of attorney fees will be reviewed under an abuse of discretion standard. Giuliani v. Stuart Corp., 512 N.W.2d 589, 596 (Minn. App. 1994).

This appeal raises an issue only as to whether the Pricketts are entitled to an award of attorney fees. Under the American rule, a court may not award attorney fees absent a specific contractual provision or statutory authority.[1] Kallok v. Medtronic, Inc., 573 N.W.2d 356, 363 (Minn. 1998). When a contractual provision authorizes attorney fees, "Minnesota courts will enforce the provision as long as the fees are reasonable." State Bank of Cokato v. Ziehwein, 510 N.W.2d 268, 270 (Minn. App. 1994), review denied (Minn. Mar. 15, 1994). For example, when a loan agreement expressly allows recovery of attorney fees resulting from default of the loan, such provisions are enforceable. Id. Attorney fees are also recoverable in a declaratory judgment action brought by an insured when the action is in the nature of a breach of contract claim. American Standard Ins. Co. v. Le, 551 N.W.2d 923, 927 (Minn. 1996).

The district court held that because the Petersons had not defaulted or breached a contractual duty, there was no basis to award attorney fees to the Pricketts. But the Pricketts' claim for attorney fees was not based on the declaratory judgment action or a breach of duty. Instead, it was based on the language of the declaration, which bound both parties. Therefore, we must examine that language to determine whether the Pricketts were entitled to attorney fees.

The declaration gives the owners the right to seek injunctive relief and damages "[i]n the event of any violation or threatened violation by any Owner * * * of any of the provisions of this Declaration." (Emphasis added.) Before starting such an action, the declaration provides that the complaining owner must give written notice to the other owner. Attorney fees are authorized as follows:

If any Owner institutes any action or proceeding against another Owner relating to the provisions of this Declaration or any default hereunder, the unsuccessful Owner in such action or proceeding will reimburse the Owner who is the prevailing party therein for the reasonable expenses of attorneys' fees and disbursements incurred by the successful Owner.

 

The district court determined that the Pricketts' lawsuit was premature. But it is undisputed that the Petersons planned to build over a portion of the easement property, that their builder was prepared to commence construction, and that, absent the lawsuit, their builder would have obtained a permit to proceed. While the Petersons contend that their actions did not constitute a "threat" to violate the provisions of the declaration because they agreed they would not build within the disputed parcel absent an agreement between the parties or a court order, it was not until the district court acted that they abandoned their plans to build on the easement property. Further, although the Petersons refer to the parties as reaching an agreement, the district court granted the Pricketts a permanent injunction and judgment was entered in their favor. See Borchert v. Maloney, 581 N.W.2d 838, 840 (Minn. 1998) (holding that prevailing party "is one in whose favor the decision * * * is rendered and judgment entered") (footnote omitted). Consequently, as the prevailing party, the Pricketts are entitled to an award of attorney fees as a matter of law. The case is remanded to the district court for a determination of reasonable attorney fees.

The Pricketts also seek attorney fees incurred on appeal. When a party is entitled to attorney fees at trial, it may also be entitled to attorney fees on appeal. Bucko v. First Minn. Sav. Bank, 471 N.W.2d 95, 99 (Minn. 1991). "A party seeking attorneys' fees on appeal shall submit such a request by motion under [Minn. R. Civ. App. P. ] 127." Minn. R. Civ. App. P. 139.06, subd. 1. Motions for attorney fees must include sufficient documentation to allow this court to determine the appropriate amount of fees and must be submitted within 15 days after the filing of this decision. Id.; Minn. R. Civ. App. P. 139.03. Because the Pricketts did not make their request in the form of a motion or provide documentation, their request for attorney fees is denied at this time.

Reversed and remanded.



[1] The Pricketts do not seek bad faith attorney fees.