This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







In re the Marriage of:

Brenda Janean Horton, petitioner,





Jerry Stephen Horton,



Walling & Berg, P.A.,




Filed January 6, 2004


Halbrooks, Judge



Sherburne County District Court

File No. F9-01-1245



Maureen Williams, P.O. Box 1895, Burnsville, MN 55337-0895 (for appellant)


Jerrold F. Bergfalk, Lindquist & Vennum, P.L.L.P., 4200 IDS Center, 80 South 8th Street, Minneapolis, MN 55402 (for respondent Horton)


Nancy Zalusky Berg, Erica B. Klein, Walling & Berg, P.A., 121 South 8th Street, Suite 1100, Minneapolis, MN 55402 (for respondent Walling & Berg)




            Considered and decided by Kalitowski, Presiding Judge; Halbrooks, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Brenda Janean Horton appeals the district court’s denial of her motion to vacate the dissolution judgment and the district court’s granting of respondent Walling & Berg’s motion for a lien, arguing that (1) Minn. R. Gen. Pract. 307(b) provides appellant relief because she was deprived of an opportunity to object to the proposed judgment and because the proposed judgment did not accurately reflect the parties’ stipulation; (2) the district court should have reopened the judgment for mistake and duress under Minn. Stat. § 518.145, subd. 2 (2002) and Haefele v. Haefele, 621 N.W.2d 758 (Minn. App. 2001), review denied (Minn. Feb. 21, 2001); and (3) a lien in favor of appellant’s former attorney is inappropriate because the attorney acted in bad faith in dealing with her.  We affirm.


            Appellant Brenda Janean Horton and respondent Jerry Stephen Horton began marriage dissolution proceedings in July 2001.  On December 27, 2001, appellant retained respondent Walling & Berg, P.A., and specifically Nancy Zalusky Berg, to represent her in her dissolution proceeding, agreeing to pay for the legal services based on standard hourly rates.

            On the original trial date of May 28, 2002, the case was continued until the next day in an effort to provide additional time to settle the case.  The parties and attorneys spent the afternoon and evening of May 28, 2002, attempting to resolve the remaining issues.  Appellant alleges that she was not allowed in the room with everyone else while the negotiations took place and that she was left out of the negotiation process altogether.  Respondents disagree.

            On May 29, 2002, appellant met with Berg briefly before entering court.  Appellant states that she told Berg that she did not want to settle and that she was not pleased with the negotiated results.  Berg then allegedly pressured appellant to make a decision about the settlement and told appellant that she was not prepared to go to trial.  Appellant began to cry, but agreed to go through with the settlement.  Appellant claims that Berg did not advise her of the terms of the agreement prior to going into the courtroom.

            Once in court, the attorneys read the final terms of the settlement agreement into the record, and the parties agreed in sworn testimony to be bound by the stipulation.  Appellant acknowledged that she understood the proceedings, and she did not raise any issue regarding the terms of the stipulation or any concerns about Berg’s representation.  After the stipulations were made on the record, the court directed Berg to draft a proposed judgment, requesting submission to the court by June 10, 2002.

            On June 10, 2002, Berg faxed her proposed judgment to respondent without providing a copy to appellant so that she could see it first (as appellant alleges she had requested).  Because the judgment had not yet been submitted to the court, respondent’s counsel began to draft a judgment and filed the transcript of the oral-stipulation hearing with the court on June 11, 2002. 

Appellant fired Berg on June 14, 2002, and Berg filed a formal notice of withdrawal on June 20, 2002.  Berg sent appellant a final bill detailing the fees incurred for her services, but appellant failed to pay the balance. 

On the same day as the firing, appellant wrote to the court, asking that the dissolution not proceed.  This letter was filed on June 17, 2002.  Also on June 14, respondent sent a proposed judgment to the court and to Berg, which was later filed on June 17.  Berg e-mailed the proposed judgment to appellant on June 17.  Appellant hired another attorney on or about June 27, 2002.  At no time did appellant or any of her attorneys file a motion to withdraw or vacate the stipulation prior to the judgment being entered.

On July 3, 2002, the district court judge signed and entered the dissolution judgment.  Later, the court determined that the judgment contained a clerical error ordering respondent to deed the Marcell property to appellant, even though the judgment awarded the property to respondent.  Thereafter, no transfer was made by either party, but appellant filed a lis pendens notice concerning the property.

Appellant moved to vacate the judgment, alleging that there were discrepancies between the stipulation and the judgment.  Respondent moved for an amended judgment, seeking appellant’s transfer of the Marcell property to respondent and a dismissal of the lis pendens on the property.  The district court denied appellant’s motion to vacate, stating that it was fair and equitable for the Marcell property to go to respondent and that, if appellant were awarded the property, the property settlement would be grossly unfair and inequitable.  The court granted respondent’s motion to correct the clerical error in the judgment, and later, in a second amended judgment, specifically ordered appellant to dismiss the lis pendens on the Marcell property. 

Berg and the firm of Walling & Berg, P.A., commenced an action on June 20, 2002 to secure a lien against appellant’s property award.  Appellant responded, alleging malpractice, stating that Berg improperly attempted to impose a lien on her homestead, failed to disclose to the court appellant’s desire to avoid the agreement, failed to prepare for trial, and that the agreement reached was not in appellant’s best interests.  But appellant acknowledged signing the retainer agreement and admitted that prior to the lien action, she had never made a complaint regarding her bill.  At the summary hearing on the attorney-fee issue, Berg offered three volumes of documents representing the correspondence between appellant and the firm stemming from the five months that Berg represented appellant.  The record reflects that even after Berg suggested that appellant limit her communications in order to minimize attorney fees, appellant continued to remain in constant contact.  The district court found that the lien was proper and that appellant owes the firm of Walling & Berg, P.A. reasonable attorney fees in the amount of $34,155.75.  This appeal follows.




            The district court’s findings of fact will not be set aside unless clearly erroneous, and its determination not to reopen the judgment and decree will not be disturbed absent an abuse of discretion.  Kornberg v. Kornberg, 542 N.W.2d 379, 386 (Minn. 1996).  Prior to the time judgment is entered on an oral stipulation, a party may seek relief in two ways: (1) the party can seek to withdraw from or vacate the stipulation upon which the proposed judgment is based, see Shirk v. Shirk, 561 N.W.2d 519, 521-22 (Minn. 1997); or (2) the party can attack the proposed judgment, alleging that the proposed judgment does not accurately reflect the parties’ stipulation, see Clark v. Clark, 642 N.W.2d 459, 463-64 (Minn. App. 2002).  “Dissolution stipulations are ‘accorded the sanctity of binding contracts’ and a party to a dissolution stipulation cannot withdraw from or repudiate a dissolution stipulation without obtaining either the other party’s consent, or leave of the court for good cause.”  Id. at 463 (citing Shirk, 561 N.W.2d at 521-22).

A.        Minn. R. Gen. Pract. 307(b)

            Appellant argues the district court should have “vacated” the judgment under Minn. R. Gen. Pract. 307(b).[1]  Rule 307(b) reads as follows:

Where a stipulation has been entered orally upon the record, the lawyer directed to prepare the decree shall submit it to the court with a copy to each party. Unless a written, fully executed stipulation is filed or unless the decree contains the written approval of the lawyer for each party, a transcript of the oral stipulation shall be filed by the lawyer directed to prepare the decree.  Responsibility for the cost of the transcript shall be determined by the court.  Entry of the decree shall be deferred for 14 days to allow for objections unless the decree contains the written approval of the lawyer for each party.


Appellant asserts that respondent failed to comply with the rules because a rule 307(b) argument does not require a motion, appellant was not afforded an opportunity to object, and the final judgment differed from the oral stipulation.  See Clark, 642 N.W.2d at 464 (noting rule 307(b) does not require a motion).

            Appellant contends that she did not have the opportunity to object to the proposed judgment because she was not personally given notice that it had been filed.  Appellant also asserts that the district court abused its discretion in refusing to allow her a continuance because she is deserving of leniency.  See Kasson State Bank v. Haugen, 410 N.W.2d 392, 395 (Minn. App. 1987) (noting a trial court has a duty to ensure fairness to a pro se litigant by allowing reasonable accommodation so long as there is no prejudice to the adverse party).

            Rule 307(b) was satisfied here.  First, respondent submitted the proposed judgment to the court on June 14, 2002 and sent a copy to Berg, appellant’s counsel at that time.  Berg was still appellant’s attorney of record until June 20, 2002.  See Minn. R. Civ. P. 5.02 (requiring service of all pleadings on counsel).  Further, there is no requirement that either the court or respondent’s counsel provide notice of the 14-day provision in rule 307(b).  Second, the transcript was prepared and filed with the court on June 11, 2002.  Third, the judgment was not entered until July 3, 2002, 19 days after the proposed judgment’s submission date and approximately one week after appellant retained new counsel.  We conclude that appellant had an opportunity to object by motion to the proposed judgment.  See Clark, 642 N.W.2d at 463; Toughill v. Toughill, 609 N.W.2d 634, 638 (Minn. App. 2000) (noting that, absent other party’s agreement, to relieve party of an oral stipulation, a motion and subsequent leave of the district court are required).  Even though appellant was without counsel for several days, she was sent a copy of the proposed judgment on June 17, 2002, giving her 16 days to raise objections before the court entered its judgment.  “Although some accommodations may be made for pro se litigants, this court has repeatedly emphasized that pro se litigants are generally held to the same standards as attorneys and must comply with court rules.”  Fitzgerald v. Fitzgerald, 629 N.W.2d 115, 119 (Minn. App. 2001).

            Appellant also argues the judgment did not accurately reflect the parties’ stipulation.  The test of whether a judgment will stand is whether it shows a meeting of the minds on the essential terms of the agreement.  Ryan v. Ryan, 292 Minn. 52, 55, 193 N.W.2d 295, 297 (1971).  Appellant asserts that the stipulation and the judgment differ in the following areas: the division of ESA proceeds, the division of 401(k) and SERP at Renaissance Corporation, the Marcell property, health insurance coverage, and book proceeds from Shake and Bake Sergeant.  The district court reviewed the transcripts of the stipulation and the proposed judgment and found that the transcripts were in accord with the proposed judgment.  While the judgment is much more detailed in its wording, it is consistent with the statements made on the record concerning the stipulation.  Also, the record reflects that, except for the Marcell property provisions, the parties have followed the provisions of the judgment.  Therefore, the district court correctly concluded that the judgment accurately reflects the parties’ stipulation.

B.        Minn. Stat. § 518.145 (2002)

            Appellant argues the district court erred in denying her motion to reopen the dissolution judgment on the grounds of duress and mistake.  The district court’s decision whether to reopen a dissolution judgment under Minn. Stat. § 518.145, subd. 2, will be upheld unless the court abused its discretion, and the district court’s findings as to whether the judgment was prompted by mistake, fraud, or duress will not be set aside unless clearly erroneous.  Harding v. Harding, 620 N.W.2d 920, 922 (Minn. App. 2001), review denied (Minn. Apr. 17, 2001); Hestekin v. Hestekin, 587 N.W.2d 308, 310 (Minn. App. 1998).  When a judgment is entered based on a stipulation, “the stipulation is merged into the judgment and decree and the stipulation cannot thereafter be the target of attack by a party seeking relief from the judgment and decree.  The sole relief from the judgment and decree lies in meeting the requirements of Minn. Stat. § 518.145, subd. 2.”  Shirk, 561 N.W.2d at 522.

            Minn. Stat. § 518.145, subd. 2, provides that a court may reopen a dissolution judgment on the bases of mistake, newly discovered evidence, fraud, misconduct, that the judgment is void, has been satisfied or discharged, or that “it is no longer equitable that the judgment and decree or order should have prospective application,” among others.  Duress, while not specifically listed in the statute, can nonetheless constitute misconduct of an adverse party.  Haefele v. Haefele, 621 N.W.2d 758, 762 (Minn. App. 2001), review denied (Minn. Feb. 21, 2001).  In Minnesota, the only way to relieve a party from a contractual obligation for duress is if the agreement was “coerced by physical force or unlawful threats.”  Bond v. Charlson, 374 N.W.2d 423, 428 (Minn. 1985).  Here, the district court found that appellant entered into the agreement of her own free will, testified under oath to her understanding and consent to the agreement terms, and was not under physical force or unlawful threats. 

            Appellant claims duress, stating that (1) her attorney forced her to agree to the stipulation, (2) she was not shown the terms that were put on the record on May 29, (3) she did not understand the terms, and (4) her attorney told her that she had to agree or the judge would be angry.  Appellant also argues she did not have sufficient capacity to assent to the settlement since she was distraught, nervous, and so physically and mentally exhausted that she did not comprehend or appreciate the consequences of the settlement.  She states that, because the court failed to closely observe her demeanor during the proceedings, it was error to allow the settlement to stand.  See Ryan, 292 Minn. at 54, 193 N.W.2d at 297 (noting that had the court “had the slightest doubt that there was even partial lack of understanding or acceptance of the terms of the settlement, the proceedings . . . would have been recessed”).

            The record reflects that appellant was represented by competent counsel, the stipulation was the result of extensive detailed negotiations, the appellant agreed to the stipulation in open court, and when questioned, indicated that she understood the oral stipulation’s terms and considered them to be fair and equitable.  On this record, appellant has not shown that the district court clearly erred in finding no duress.  Cf. Tomscak v. Tomscak, 352 N.W.2d 464, 466 (Minn. App. 1984) (addressing prior standard for evaluating viability of dissolution judgments), superceded by statute as stated in Clark, 642 N.W.2d 459.  The record, which reflects good stipulation practice, supports affirming the district court’s exercise of its discretion to refuse to vacate the judgment.  See Hestekin, 587 N.W.2d at 311.

            While the record reflects that appellant had several problems communicating with her attorney, it does not reflect any evidence of physical force or unlawful threats.  And, when asked whether appellant received adequate representation in court, she responded in the affirmative.  Further, while appellant asserts that she was not presented with the terms of the agreement prior to the stipulation hearing, this does not change the fact that appellant had the “opportunity” to review them.  See Kroeplin v. Haugen, 390 N.W.2d 872, 875 (Minn. App. 1986) (“Although it might have been preferable to reduce the terms to writing in order to allow the parties to review them without the pressure of time, the trial date was not the first opportunity appellant had to review the issues or discuss the negotiable options.”), review denied (Minn. Sept. 25, 1986).  The district court did not abuse its discretion in denying appellant’s motion to reopen the dissolution judgment on the basis of duress.


            Appellant’s final argument relates to attorney fees.  She contends that the fees are not appropriate because Berg acted in bad faith in her dealings with appellant.  An attorney guilty of bad faith in dealing with a client is not entitled to compensation.  Faber v. Enkema, 180 Minn. 493, 493, 231 N.W. 410, 410 (1930).  “[A]n attorney must represent the client with undivided loyalty and must disclose to the client any material matter which might impair that loyalty or affect the client’s interests.”  Perl v. St. Paul Fire & Marine Ins. Co., 345 N.W.2d 209, 215 (Minn. 1984).  The existence of bad faith is a factual question.[2]  Gendreau v. Foremost Ins. Co., 423 N.W.2d 712, 714 (Minn. App. 1988).  Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the district court to judge the credibility of the witnesses.  Minn. R. Civ. P. 52.01.

            Appellant asserts that Berg’s bad faith is evidenced by not allowing appellant to participate in the negotiations on May 28, by failing to disclose the terms of the agreement prior to the stipulation hearing, by failing to perform adequate discovery, by pushing appellant to agree to a settlement that she did not want, by coming to court unprepared for trial, by failing to submit a proposed judgment to the court by June 10, and by not telling appellant the truth about whether the proposed judgment was ready yet.  While appellant makes several allegations, there is no support in the record for them.

            The district court relied, in part, on appellant’s following testimony at the May 29, 2002 hearing when she was questioned by Berg concerning her agreement to the negotiated stipulation:

Q:        Ms. Horton, we spent ten or eleven hours yesterday going through the negotiations back and forth between us and Mr. Horton and his counsel with the assistance of Tom Hargess.  Prior to that time there has been substantial negotiations and demand for information . . . . However, in the interest of having this matter resolved and bringing it to a conclusion today . . . you have agreed to enter into this agreement.  And do you understand this is an agreement . . . between yourself and Mr. Horton?  That once the court approves it, it cannot be changed or modified in any way.  Do you understand that?


A:        Yes.


Q:        Do you have any questions for the Court or for me about this agreement?  Is there anything about it you don’t feel that you understand fully and adequately?


A:        The only thing I will say is we need documentations from Renaissance on the insurance policies that we have not received.


. . . .


Q:        Do you feel you have had an adequate opportunity to discuss these issues with me?  Do you have any concerns about my representation and whether or not you have been adequately represented in these proceedings?


A:        I am fine with everything.


Q:        Okay.  You need to let the Court know if you feel that you have not been adequately represented.  Because this is your opportunity.  Otherwise the presumption is you are living with the agreement and you do feel adequately represented.


A:        I do.


            This testimony, given under oath, supports the court’s conclusions that appellant was fully aware of the stipulation reached, was in agreement with the settlement, and that she had no misgivings about her representation.  The court had the opportunity to observe appellant’s demeanor and to assess her willingness to enter into the agreement in court.  Therefore, we conclude the district court did not clearly err in impliedly determining that Berg did not act in bad faith.


[1] Rule 307(b) does not provide for the remedy of vacation.  Instead, it provides the proper procedure for submitting an oral stipulation for a court’s consideration before the entry of the judgment.  But there is no procedural prohibition associated with combining a rule 307(b) argument with a motion to vacate a judgment.  See Clark, 642 N.W.2d at 464-65 n.2 (“We see no procedural prohibition on combining such a motion with a motion to vacate a stipulation.”).

[2] Here, the district court did not expressly address the bad-faith issue in its findings or conclusions.  But its silence on the presented issues implies the district court did not agree with appellant’s factual argument.  See Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949) (stating appellate courts cannot assume district court error).  This assumption is consistent with the district court’s award of attorney fees.