This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C0-96-59

Breezy Point Holiday Harbor Lodge-
Beachside Apartment Owners' Association,
Appellant,

vs.

B.P. Partnership, et al.,
Respondents.

Filed July 30, 1996
Affirmed in part, Reversed in part, and Remanded
Peterson, Judge

Crow Wing County District Court
File No.C594568

Stanley Efron, Henson & Efron, P.A., 1200 Title Insurance Building, 400 Second Avenue South, Minneapolis, MN 55401 (for Appellant)

Phillip R. Krass, Timothy Moynihan, Krass, Monroe, Schmidt, Moxness, & Gibson, P.A., 1650 West 82nd Street, Suite 1100, Bloomington, MN 55431-1447 (for Respondents)

Considered and decided by Peterson, Presiding Judge, Norton, Judge, and Holtan, Judge.*

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

PETERSON, Judge

In an action to enforce its bylaws, a condominium association argues the district court improperly granted summary judgment for one of its members on its claims for damages and attorney fees. We affirm in part, reverse in part, and remand.

FACTS

Appellant Breezy Point Holiday Harbor Lodge-Beachside Apartment Owners' Association is an association of condominium owners. At the May 1991 association meeting, the association members amended the association bylaws to provide that effective in September 1992, no unit would be allowed to be rented for more than 14 days per year. Respondent B.P. Partnership, an association member, continued to rent the unit that it owned for more than 14 days per year and refused to stop these rentals. Respondent Dean Morlock is an agent for and partner in B.P.

The association sued respondents seeking to permanently enjoin them from renting their unit for more than 14 days per year; damages for respondents' violation of the bylaws, including reasonable attorney fees pursuant to the condominium statutes; and costs and disbursements. The district court granted the association's motion for partial summary judgment on the issue of the validity of the rental restriction; permanently enjoined respondents from renting their unit in violation of the bylaws; awarded the association reasonable damages for respondents' violation of the bylaws; and held that neither party was entitled to attorney fees under Minn. Stat. ' 549.21, subd. 2. See Breezy Point Holiday Harbor Lodge-Beachside Apartment Owners' Ass'n v. B.P. Partnership, 531 N.W.2d 917 (Minn. App. 1995) (affirming district court's decision).

The association then moved for summary judgment on the issue of damages. The association argued that Minn. Stat. ' 515.07 (1994) allowed a condominium association suing a member to enforce its bylaws to "recover sums due, for damages or injunctive relief or both" and that the phrase "sums due" included attorney fees incurred in the action. The association also argued that it was entitled to recover damages in the form of attorney fees under Minn. Stat. ' 515B.4-116 (1994) (common interest ownership act). Finally, the association argued it was entitled to recover the rents improperly collected by respondents under an unjust enrichment theory.

The district court held that the association could not recover under an unjust enrichment theory because it had an adequate legal remedy; the association could not recover general damages suffered as a result of respondents' violation of the bylaws because it had not produced any evidence of those damages; and res judicata barred the association's attorney fee claims because the court had denied an attorney fee award in the first partial summary judgment. When the time to appeal was about to expire and the district court had not decided the association's motion for reconsideration, the association appealed from the judgment.

D E C I S I O N

On appeal from a summary judgment, a reviewing court must examine the record to determine whether any genuine issues of material fact exist and whether the district court erred in applying the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). We must view the evidence in the light most favorable to the nonmoving party. Id. But we are not bound by a district court's decision on a question of law. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

1. The association first argues the district court erred in determining it was not entitled to damages under an unjust enrichment theory. "Relief under the theory of unjust enrichment is not available where there is an adequate legal remedy * * *." Southtown Plumbing, Inc. v. Har-Ned Lumber Co., 493 N.W.2d 137, 140 (Minn. App. 1992). Minn. Stat. ' 515.07 (1994), provides that a condominium association can enforce its bylaws by bringing "an action to recover sums due, for damages or injunctive relief or both." Because the association had the right to recover damages under Minn. Stat. ' 515.07, for respondents' violation of its bylaws, the association had an adequate legal remedy and therefore was not entitled to damages under an unjust enrichment theory.

The association also argues that it has a fiduciary relationship with its members and that the rules governing fiduciary relationships entitle it to recover the rent unjustly collected by respondents. Because this argument was not presented to or decided by the district court, we will not consider it for the first time on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (appellate court generally will consider only issues presented to and decided by district court).

2. The association next argues that the district court never reached the issue of the general damages it suffered due to respondents' violation of the bylaws and that the case improperly was dismissed after its second motion for summary judgment was denied. But in its motion papers, the association sought "summary judgment on the remaining issue of damages." Because the association presented no evidence of any general damages it suffered as a result of respondents' violation of the bylaws, the district court properly entered judgment for respondents on this issue. See Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (summary judgment shall be granted when record shows no genuine issues of material fact exist and either party is entitled to judgment as a matter of law).

3. The association finally argues that the district court erred in holding that res judicata barred its claim for attorney fees. We agree. "Res judicata bars a second suit for the same claim by the same party." Nitz v. Nitz, 456 N.W.2d 450, 451 (Minn. App. 1990) (emphasis added). Because this is the first action between the parties, res judicata does not apply. Further, the association raised all three theories for recovering attorney fees in the present lawsuit and did not split its claims between successive lawsuits. See id. at 452 (res judicata bars litigant from splitting claims between two successive lawsuits). In the first partial summary judgment, the district court entered judgment on only one of the association's theories of recovery. If we affirmed the application of res judicata in this case, any partial summary judgment entered against a litigant on one of its theories of recovery in a case would bar the litigant's right to recover under any other theory of liability raised in the same lawsuit. Accordingly, res judicata does not apply in this case to bar the association's claim for attorney fees under Minn. Stat. ' 515.07, and Minn. Stat. ' 515B.4-116 (1994).

The district court did not decide whether Minn. Stat. ' 515.07, or Minn. Stat. ' 515B.4-116, gave it the authority to award attorney fees to the association or whether an attorney fees award was warranted under either statute in this case. [1] We generally will consider only matters decided by the district court. Thiele, 425 N.W.2d at 582. Accordingly, we remand for the district court to decide whether Minn. Stat. ' 515.07, or Minn. Stat. ' 515B.4-116, gives the association the right to seek attorney fees in this case and, if so, whether an award of attorney fees is warranted in this case.

Affirmed in part, reversed in part, and remanded.


Footnotes

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

[1] The district court did address these issues in the February 13, 1996 order deciding the association's reconsideration motion. But the association had filed its notice of appeal of the attorney fees issue on January 8, 1996 and, therefore, the district court had no jurisdiction to decide this issue on February 13, 1996. See Amatuzio v. Amatuzio, 431 N.W.2d 588, 589 (Minn. App. 1988) (upon filing of appeal, district court "loses jurisdiction to amend or modify matters at issue on appeal, or necessarily involved in the appeal"). Thus, the district court's February 13, 1996 order is of no effect. See Evans v. Blesi, 345 N.W.2d 775, 780 (Minn. App. 1984) (district court order reducing damage award that was filed after party appealed damage award was of no effect).