This opinion will be unpublished and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

C4-00-2127

 

 

In Re:  Conservatorship Protection

of Louis F. Dinkel, Conservatee.

 

 

Filed June 19, 2001

Remanded

Willis, Judge

 

Ramsey County District Court

File No. P0946046

 

Daniel W. Voss, Robert E. Boyle, Boyle & Voss, P.A., 145 Paramount Plaza III, 7831 Glenroy Road, Bloomington, MN  55439 (for appellants Bradley Dinkel, Russell McNally, and Kathy McNally)

 

William E. Mullin, R. Christopher Sur, Maslon Edelman Borman & Brand, LLP, 3300 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN  55402 (for respondent Glenda Oxborough)

 

            Considered and decided by Willis, Presiding Judge, Klaphake, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellants challenge the district court’s award of attorney fees in this conservatorship proceeding.  Because the district court did not identify the legal authority for its award of attorney fees, we remand.

FACTS

 

            Appellants Bradley Dinkel, Russell McNally, and Kathy McNally appeal the district court’s award to respondent Glenda Oxborough of attorney fees incurred in bringing a motion to enforce a stipulated order. 

In November 1997, the district court filed a stipulated order in a proceeding involving the conservatorship of Louis F. Dinkel.  The order settled a wide range of disputes involving Dinkel’s children, who were active in his electronics business.  The business included several corporations, which operated collectively under the name “Control Design Supply.”  In accordance with the order, the shares of the various Control Design Supply corporations were sold and then purchased by appellants, Oxborough, Bruce Dinkel, and Louis D. Dinkel.  The order prohibited appellants from using the Control Design Supply name and the “CDS” trademark after December 1999.  Oxborough, Bruce Dinkel, and Louis D. Dinkel were given exclusive use of that name and trademark.  In June 1998, the court amended its order, extending the deadline for compliance to June 2000.

After the order was amended, Oxborough and Louis D. Dinkel stopped using the Control Design Supply name and CDS trademark and changed the names of their businesses to “GO Electronics” and “Beyond Components,” respectively.  Appellants then changed the names of their businesses to include the initials CDS.  In July 2000, Oxborough moved to enjoin appellants from using the trademark, to hold them in civil contempt for violating the stipulated order, and to award her attorney fees for bringing the motion.  Appellants did not deny using the CDS trademark.  They argued that the restriction on use of the name and trademark was intended to prevent marketplace confusion and that, because Oxborough and Louis D. Dinkel had abandoned the trademark and Bruce Dinkel had no objection to their use of it, the court should consider the matter “now and forevermore closed.”

            The district court determined that appellants violated the order and enjoined them from further use of the trademark.  The court declined to find appellants in contempt but ordered them to pay Oxborough’s attorney fees.  Appellants challenge the attorney-fee award.

D E C I S I O N

A reviewing court will not reverse a district court’s award or denial of attorney fees absent an abuse of discretion.   Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (Minn. 1987).  Ordinarily, a party may not recover attorney fees unless a statutory or contractual provision expressly allows for such recovery. Ly v. Nystrom, 615 N.W.2d 302, 314 (Minn. 2000).  As the supreme court recently noted, it is a

fundamental principle of law deeply ingrained in our common law jurisprudence that each party bears his own attorney fees in the absence of a statutory or contractual exception.

 

Id.  Because the procedural and substantive requirements for a fee award vary depending on the authority on which it is based, proper appellate review “requires that the district court identify the authority for its fee award.”  Geske v. Marcolina, 624 N.W.2d 813, 816 (Minn. App. 2001).  Here, the district court’s order stated:

As a result of [appellants’] non-compliance, [respondent] shall be awarded reasonable attorney fees, incurred as a result of bringing this matter before the Court * * * .

 

The court identified no statutory or contractual authority for its award. 

Appellants suggest that we treat the fee award as one based on Minn. Stat. § 549.211 (2000).  Oxborough does not address the statutory or contractual basis for the award.  Rather, as she did in the district court, she relies on Weber v. Sentry Ins. Co., 442 N.W.2d 164 (Minn. App. 1989), in which this court considered a fee award based on Minn. Stat. § 549.21, subd. (2) (1988).  Section 549.21 was repealed in 1997 and replaced by section 549.211, which has different procedural requirements.  See 1997Minn. Laws ch. 213, art. 2, § 6 (repealing Minn. Stat. § 549.21);1997 Minn. Laws ch. 213, art. 1, § 1 (enacting provision now codified as Minn. Stat. § 549.211).  But because the court did not identify the basis for its award and because appellant did not provide us with a transcript of the motion hearing, we cannot infer merely from respondent’s invocation of a case applying a repealed statute that the district court based its award on the successor statute. 

Because the district court’s order does not identify the legal authority for its award of attorney fees, we remand for the court to re-address the question of attorney fees.  Whether to reopen the record on remand shall be discretionary with the district court.

Remanded.