This opinion will be unpublished and

may not be cited except as provided by

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







Brian J. Peterson, d/b/a Brian J. Peterson, P.A.,





Colleen Lenz,




Filed December 7, 2004

Affirmed in part and reversed in part

Huspeni, Judge*



Hennepin County District Court

File No. LN 03-013109



Brian J. Peterson, 317 East Wayzata Boulevard, Wayzata, MN 55391 (attorney pro se appellant)


Ronald B. Sieloff, Tori Marie Appelhof, Sieloff & Associates, 3460 Washington Drive, Suite 214, Eagan, MN 55122 (for respondent)



            Considered and decided by Minge, Presiding Judge, Willis, Judge, and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant is respondent’s former attorney.  This is an appeal from an order that (1) granted respondent’s motion to dismiss appellant’s lawsuit to foreclose on six attorney’s liens appellant had recorded for legal services provided during respondent’s dissolution proceedings, and (2) granted attorney fees to respondent.  Appellant contends the district court (1) erred in holding that the statute of limitations under Minn. Stat. § 481.13, subd. 3 (2002), barred his action; (2) erred in issuing an order that contradicted its prior order referring the matter to mediation; and (3) abused its discretion in awarding attorney fees.  Because appellant’s lien claims were invalid, we affirm the order dismissing those claims.  Because procedural requirements for an award of attorney fees under Minn. Stat. § 549.211, subd. 4 (2002), were not followed, we reverse the award of attorney fees to respondent.


            Appellant Brian Peterson represented respondent Colleen Lenz in the dissolution of her marriage.  As part of the parties’ contract regarding legal services in the dissolution proceedings, respondent signed a homestead exemption waiver.  It is undisputed that although respondent was still married at the time she signed the homestead exemption waiver, respondent’s husband never signed the waiver.

            On April 12, 1994, respondent’s marriage dissolution became final.  Prior to that date, appellant had begun filing attorney’s liens against respondent’s homestead; by 1997, he had filed a total of six such liens based on respondent’s failure to pay the balance owed for appellant’s services rendered during the dissolution proceeding. 

            In July 2003, appellant filed suit against respondent to foreclose on the six attorney’s liens; he sought judgment in the amount of $24,592, plus interest, costs and disbursements, and attorney fees.  Respondent moved to dismiss the complaint for failure to state a claim upon which relief may be granted pursuant to Minn. R. Civ. P. 12.  Respondent also moved to dismiss on the basis that the statute of limitations had run on appellant’s underlying claim.  Finally, respondent requested an award of costs, disbursements, and attorney fees in the amount of $4,564.15. 

            On October 17, 2003, the district court granted respondent’s motion to dismiss, concluding that the liens on respondent’s homestead were unenforceable because no waiver of the homestead exemption is valid without the signatures of both spouses.  In addition, the court determined that the one-year statute of limitations under Minn. Stat. § 481.13, subd. 3 (2002), barred appellant’s claims.  Finally, the court awarded attorney fees to respondent in the amount of $1,500 under Minn. Stat. § 549.211, subd. 3 (2002).  In awarding fees, the district court determined that in light of Peterson v. Hinz, 605 N.W.2d 414 (Minn. App. 2000), appellant knew or should have known that the liens he filed against respondent were without merit.  

            Appellant moved for amended findings and order requesting denial of respondent’s motion to dismiss and referral of the matter for mediation pursuant to a scheduling order that had been filed on September 19, 2003.  The district court, characterizing the motion as one to reconsider, denied the motion in its entirety.  The district court also ordered appellant to pay an additional $500 in attorney fees for failing to comply with the October 17, 2003 order.  This appeal followed.   



            We address as a preliminary matter respondent’s contention that appellant did not timely file his appeal, and therefore his appeal should be dismissed.  In support of her contention, respondent argues that the district court entered judgment on the motion to dismiss on October 17, 2003, but that appellant did not file his notice of appeal until March 5, 2004; that even though he moved for amended findings between those two dates, the district court characterized the motion as one for reconsideration and entered its order denying the motion on December 30, 2003.  Respondent contends that motions for reconsideration do not toll any time periods or deadlines, including the time to appeal.  The time to appeal is extended by the filing of a timely and proper motion of a type listed in Minn. R. Civ. App. P. 104.01, subd. 2.

            Recently, the Minnesota Supreme Court ruled that “the test for determining whether a motion is authorized, and therefore proper, is to determine whether on the face of the document the party has filed a motion that is expressly allowed under subdivision 2 [of Minn. R. Civ. App. P. 104.01].”  Madson v. Minn. Mining & Mfg. Co., 612 N.W.2d 168, 172 (Minn. 2000).  Here, the motion filed by appellant was entitled “[APPELLANT’S] NOTICE OF MOTION AND MOTION FOR AMENDED FINDINGS AND ORDER.”  A motion for amended findings is a motion listed in Minn. R. Civ. App. P. 104.01, subd. 2.  Therefore, despite the district court’s characterization of appellant’s motion as one to reconsider, appellant did file a motion that extended the appeal period.  See Madson, 612 N.W.2d at 172.[1]  The extended time for appeal from such a motion runs for all parties from the service by any party of notice of filing of the order disposing of the motion.  Minn. R. Civ. App. P. 104.01, subd. 2(b).  Here, the record indicates that notice of filing of the order denying appellant’s motion for amended findings was served upon appellant on January 5, 2004.  Appellant filed his notice of appeal on March 5, 2004, within the 60-day appeal time set forth in Minn. R. Civ. App. P. 104.01, subd. 1.  The filing of appellant’s notice of appeal on March 5 was timely.

            Respondent’s argument that appellant’s brief was not timely filed is also without merit.  Our review of the record indicates that appellant complied with the requirements of Minn. R. Civ. App. P. 131.01.  Appellant provided a copy of the envelope, which contained the transcripts mailed from the court reporter to appellant.  The stamp reflects that the transcripts were mailed on April 5, 2004, rather than April 2, 2004, the date on which respondent claims the transcripts were mailed.  Appellant’s brief was filed on May 7, 2004, within the allotted 33-day time period.  See Minn. R. Civ. App. P. 131.01.   Appellant’s brief is properly before this court for consideration.


            In reviewing cases that were dismissed for failure to state a claim on which relief can be granted, the only question before the reviewing court is whether the complaint sets forth a legally sufficient claim for relief.  Barton v. Moore, 558 N.W.2d 746, 749 (Minn. 1997).  

If, on a motion asserting the defense that the pleading fails to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.


Minn. R. Civ. P. 12.02.  Because the district court here considered evidence outside of the pleading, we treat this appeal as an appeal from summary judgment.  See Black v. Snyder, 471 N.W.2d 715, 718 (Minn. App. 1991) (stating that the district court’s failure to exclude documentary evidence effectively converted the rule 12 motion to dismiss into one for summary judgment), review denied (Minn. Aug. 29, 1991).

            On review of summary judgment, this court views the evidence in the light most favorable to the party against whom summary judgment was rendered.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  The court determines whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  The interpretation of a statute and the determination of whether a genuine issue of material fact exists are subject to de novo review.  Brookfield Trade Ctr. v. Ramsey County, 609 N.W.2d 868, 874 (Minn. 2000).

          Appellant contends that the district court erred in holding that the statute of limitations barred his claim because Minn. Stat. § 481.13, subd. 3 (2002), applies only to liens filed after August 1, 2002.  In support of his claim, appellant cites the historical note to Minn. Stat. § 481.13, which provides that:

NOTE:  The amendment to this section by Laws 2002, chapter 403, section 2, is effective August 1, 2002, and applies to a notice of intention to claim a lien filed on or after August 1, 2002.  Subdivision 3 applies to notices of intention to claim a lien filed prior to August 1, 2002.  These liens expire August 1, 2003, unless prior to August 1, 2003, the lienholder complies with the provisions of subdivision 3 by filing either a complaint or an answer with the court administrator and filing with the county recorder or registrar of titles, a notice of lis pendens of the action for registered land, the registrar of titles shall not carry memorials of lien statements forward to new certificates of title if no notice of lis pendens has been registered before August 1, 2003.


Appellant asserts that because all of his liens were filed before August 1, 2002, his lien claims were effectively “grandfathered in” as set forth in the historical note to Minn. Stat. § 481.13

            Appellant presents a persuasive argument on the construction of section 481.13.  He commenced the action to foreclose on the liens in July 2003, and therefore appears to have complied with requirements of the amended statute.  Our tendency to agree with his interpretation of the statute, however, is not dispositive of any issue presented for review on appeal.  While the district court may have misinterpreted section 481.13, we cannot ignore the two additional independent bases upon which the district court also relied in dismissing appellant’s complaint.

            First, the district court dismissed appellant’s complaint after determining that respondent’s attempt to waive the homestead exemption was invalid.  We agree with that decision.  Waiver of a homestead exemption requires the signatures of both spouses.  Peterson v. Hinz, 605 N.W.2d 414, 416 (Minn. App. 2000).  Peterson[2] involved a suit to enforce lien claims against a client’s homestead property.  Id. at 414.  The district court found that the lien claims were unenforceable because the client, who waived the homestead exemption, was married at the time he signed the waiver, but his wife had not also signed.  Id. at 415-16.  Minn. R. Civ. P. 11 sanctions were also imposed against Peterson.  Id. at 416.  Upon a motion to reconsider, the district court rescinded the order imposing sanctions, concluding that Peterson “subjectively believed” his claims had merit, but reiterating that Peterson’s contentions were “completely unfounded.”  Id.  This court affirmed the rescission of the rule 11 sanctions upon appeal by Hinz, but observed that because the waiver did not contain the signature of both spouses, it was invalid, and the district court had correctly determined that Peterson’s lien claims were unenforceable.  Id. 

            The facts underlying Peterson are remarkably similar to those in this case.  Respondent here signed the homestead exemption waiver on October 9, 1992; her husband did not sign.  The dissolution of respondent’s marriage was not final until April 12, 1994.

            Minn. Stat. § 507.02 (2002) provides that “[i]f the owner is married, no conveyance of the homestead . . . shall be valid without the signatures of both spouses.”[3]  The granting of an attorney lien on the homestead constitutes a conveyance governed by section 507.02.  See Alt v. Banholzer, 39 Minn. 511, 511, 40 N.W. 830, 830 (1888) (stating that a mortgage is void without both spouses’ signatures); see also Coles v. Yorks, 28 Minn. 464, 468, 10 N.W. 775, 777 (1881) (stating that mortgage is void without wife’s signature).

            Because respondent was still married at the time she signed the homestead exemption waiver, the waiver was invalid, as were appellant’s liens.  Peterson, 605 N.W.2d at 416.  Accordingly, the dismissal of appellant’s complaint was proper.   

            Appellant next contends that his lien claims were valid under Minn. Stat. § 510.02 (2002) because the value of the homestead exceeded $200,000 at the time he sought enforcement of his liens.  We recognize that under section 510.02 the value of the homestead exemption, whether claimed jointly or individually, may not exceed $200,000.  To accept appellant’s argument that the statutory limit is to be ascertained at the time of the lien enforcement action, however, would result in what respondent describes as a “blinking” lien – one validated or invalidated depending upon market conditions or equity level of the owners at a given time – a time to be determined solely within appellant’s discretion.  Such an interpretation strains credulity and would arguably lead to an absurd result.  See Minn. Stat. § 645.17(1) (2002) (stating that the legislature does not intend an absurd result).  A far more reasonable construction of the statutory language, we believe, would be to determine at the time a lien was filed whether the homestead exemption had been exceeded.  There is no allegation in this case that such was the case when appellant filed his liens.

            Appellant argues further that the district court erred by dismissing appellant’s suit, because that action is inconsistent with andcontradictory to the earlier order referring the matter to mediation.  But there is nothing in the record to indicate that the mediation order would not be superceded by the order dismissing the case.  The order granting respondent’s motion to dismiss rendered the mediation order moot. 

            In summation, the district court did not err in dismissing appellant’s cause of action.  The attempted waiver of the homestead exemption by respondent was invalid.  Neither did the court err by failing to send this matter to mediation nor by refusing to allow appellant to value the homestead at the time he sought foreclosure on his liens.  Because the invalidity of the homestead exemption provided a sufficient basis upon which to dismiss appellant’s action, we need not address respondent’s argument that the statute of limitations had run on the underlying obligation to pay appellant’s attorney fees.


            Finally, appellant contends that the district court abused its discretion by awarding respondent attorney fees under Minn. Stat. § 549.211, subd. 3 (2002).  Whether to award attorney fees under Minn. Stat. § 549.211 (2002) is discretionary with the district court.  Whalen v. Whalen, 594 N.W.2d 277, 281 (Minn. App. 1999).  Fees may be awarded under Minn. Stat. § 549.211 if the party to whom the fees are awarded sought the fees, or if the district court issued an order to show cause why fees should not be awarded.  See Minn. Stat. § 549.211, subd. 4(a) (describing process for party to initiate request for attorney fees); Minn. Stat. § 549.211, subd. 4(b) (describing process for court to initiate process for awarding fees on its own initiative).  Here, respondent requested attorney fees under Minn. Stat. § 518.14 (2002), which authorizes attorney-fee awards in proceedings “under this chapter”; i.e., Minn. Stat. ch. 518 (2002).  Further, the district court did not follow the requirements for awarding attorney fees under Minn. Stat. § 549.211, subd. 4(b).[4]  Thus, because this proceeding to foreclose an attorney lien is not a proceeding under chapter 518, and because the district court failed to follow the order-for-cause procedure in Minn. Stat. § 549.211, subd. 4(b), the district court should not have awarded attorney fees under Minn. Stat. § 549.211.  We reverse both the $1,500 original award made at the time of dismissal and the $500 award made upon denial of the post-dismissal motion. 

            Respondent argues that appellant waived his argument that the district court failed to comply with the procedural requirements of Minn. Stat. § 549.211, subd. 4, by not raising the question at the hearings or in his motion for amended findings and supporting documents.  We conclude that deciding the attorney fees issue on its merits is proper.  We note initially that respondent sought an award of fees only under Minn. Stat. § 518.14.  Therefore, appellant would have had no reason to argue at the dismissal hearing the inapplicability of an award of fees under Minn. Stat. § 549.211.  Further, the motion for amended findings and order did request that paragraphs 1 through 5 of the court’s order be deleted.  The award of attorney fees was made in paragraph 4 of the court’s order. 

            Because this case was concluded by dismissal of appellant’s action, a trial did not occur and the motion for a new trial that is generally required to preserve issues arising at trial for appeal would have been improper.  Parson v. Argue, 344 N.W.2d 431, 431 (Minn. App. 1984); see Sauter v. Wasemiller, 389 N.W.2d 200, 201-02 (Minn. 1986) (ruling new-trial motion required to preserve for appellate review issues arising at trial).  Also, there is no requirement that an issue be raised in a motion for amended findings to be preserved for appeal.  See Parson, 344 N.W.2d at 431-32 (discussing motion for amended findings only).  Moreover, where, as here, there is nothing novel or questionable about an issue, appellate courts have an obligation to decide cases consistently with the existing law, even if the district court or the parties or both did not correctly address the question.  See State v. Hannuksela, 452 N.W.2d 668, 673 n.7 (Minn. 1990) (stating “it is the responsibility of appellate courts to decide cases in accordance with law, and that responsibility is not to be ‘diluted by counsel’s oversights, lack of research, failure to specify issues or to cite relevant authorities’” (citation omitted)); Greenbush State Bank v. Stephens, 463 N.W.2d 303, 306 n.1 (Minn. App. 1990) (applying Hannuksela in a civil case), review denied (Minn. Feb. 4, 1991).  Our decision here simply recognizes the statutory requirements for an award of attorney fees under Minn. Stat. § 549.211 and the fact that those requirements were not satisfied.

            Affirmed in part and reversed in part.

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. 

[1] That the district court found appellant’s motion fatally defective because the motion lacked the required elements of a viable motion for amended findings does not preclude the motion from extending the appeal period.  See Lewis v. Lewis, 572 N.W.2d 313, 315-16 (Minn. App. 1997) (addressing required components of a motion for amended findings), review denied (Minn. Feb. 19, 1998); see also State ex rel. Fort Snelling State Park Ass’n v. Minneapolis Park & Recreation Bd., 673 N.W.2d 169, 178 (Minn. App. 2003) (discussing continued viability of Lewis).

[2] The Peterson in Peterson v. Hinz is also the appellant in this case.

[3] The language of this statute was in effect at the time respondent signed the homestead exemption waiver.  See Minn. Stat. § 507.02 (1992).

[4]  If a motion for sanctions is not made by a party to the action, the district court may take initiative and enter an order describing the specific conduct that appears to violate subdivision 2 and direct an attorney, law firm, or party to show cause why it has not violated subdivision 2 with respect to that conduct.  Minn. Stat. § 549.211, subd. 4(b).