This opinion will be unpublished and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
C5-95-2718

Duling Optical Corporation,
d/b/a Duling, D&K Optical, Inc.,
Appellant,

vs.

First Union Management, Inc.,
d/b/a First Union Estate Investments,
Respondent.

Filed August 13, 1996 
Affirmed in part and reversed in part 
Amundson, Judge

Stearns County District Court
File No. C4-94-520 

Michael P. Gallagher, Norwood Office Plaza, 423 NE Fourth 
Street, Grand Rapids, MN 55744  (for appellant)

Neil C. Franz, 1011 North Second Street, P.O. Box 307, St. Cloud, 
MN 56302  (for respondent)

	Considered and decided by Amundson, Presiding Judge, 
Norton, Judge, and Peterson, Judge.

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

AMUNDSON, Judge
	Appellant Duling Optical Corporation challenges the 
district court's finding that its waiver of damages resulting from a 
forcible eviction is effective and the court's conclusion that 
respondent First Union Management is entitled to an award of 
attorney fees for a related, but separate, unlawful detainer action.  
We affirm in part and reverse in part.

		FACTS	

	Appellant Duling Optical Corporation leased business space 
in Crossroads Shopping Center in St. Cloud.  Duling subleased the 
space and was subject to the terms of the primary lease.
	In the spring of 1993, Duling went into default under the 
terms of the lease due to its failure to pay rent.  Duling was able to 
cure this default, but went into default again in January 1994.  
	On January 5, 1994, respondent First Union Management, 
Inc. (First Union) commenced an unlawful detainer action.  On 
February 4, First Union changed the locks on Duling's premises, 
resulting in a forcible eviction of Duling.  On February 9, Duling 
filed for a temporary restraining order and commenced this action 
for damages incurred as a result of the forcible eviction.  The 
temporary restraining order was granted on February 15, and 
Duling was restored to the premises.
	On June 15, the district court issued an order in the 
unlawful detainer action, concluding that First Union had failed to 
give adequate notice as provided in the lease.  On August 30, the 
district court incorporated this order by reference into the damages 
proceedings.
	On December 22, 1994, First Union commenced a second 
unlawful detainer action.  A different district court judge 
concluded that the lease provision waiving Duling's right to 
redeem was invalid under the unlawful detainer statute.
	On September 28, 1995, the district court issued an order in 
the damages action, concluding that it did not have jurisdiction to 
award attorney fees for either of the previous unlawful detainer 
actions because they were decided in separate actions and that, 
although Duling's waiver of the right to redeem was in violation of 
public policy, the waiver of damages resulting from a forcible 
eviction was not.  The court then awarded First Union interest on 
the back rent and attorney fees for the second unlawful detainer 
action.  This appeal followed.

			 	DECISION

	I.  Waiver

	Duling contends that the district court clearly erred in 
finding that the lease provision waiving the right to damages 
resulting from a forcible entry was effective.
	Findings of fact shall not be set aside unless they are clearly 
erroneous.  Minn. R. Civ. P. 52.01.
	The lease provides that, in the event of a default, the
		Landlord shall have the immediate right to re-enter 
the Premises, either by summary proceedings, by 
force or otherwise and to dispossess Tenant and all 
other occupants therefrom and remove and dispose 
of all property therein or, at Landlord's election, to 
store such property in a public warehouse or 
elsewhere at the cost and for the account of Tenant, 
all without service of any notice of intention to re-
enter with or without resort to legal process (which 
Tenant hereby expressly waives) and without 
Landlord being deemed guilty of trespass or 
becoming liable for any loss or damage which may 
be occasioned thereby.

	The district court concluded that the common law remedy 
of re-entry and forcible detainer had been replaced with the 
unlawful detainer statute.  The court also concluded that, because 
the statute was silent as to whether parties may waive their right to 
the unlawful detainer process, waiver of those rights is in violation 
of public policy.  The court nonetheless concluded that the waiver 
of the right to damages for violation of the unlawful detainer 
process did not subvert the intent of the legislature that the right of 
possession of a leased premises be determined in the courts and 
thus was valid.  
	The district court correctly concluded that the waiver of the 
right to redeem as provided by the unlawful detainer statute is a 
violation of public policy.  See 614 Co. v. D. H. Overmyer Co., 
297 Minn. 395, 397-98, 211 N.W.2d 891, 894 (1973).
	The unlawful detainer statute, however, does not include a 
provision for the recovery of damages, and thus the district court 
correctly noted that a waiver of damages does not subvert the 
intent of the legislature to have the right of possession determined 
in the courts.  Because Duling knowingly entered into the sublease 
subject to the provisions of the original lease, the right to collect 
damages due to forcible entry was knowingly relinquished, and the 
district court did not err in concluding that the waiver was 
effective.  See Hauenstein & Bermeister, Inc. v. Met-Fab 
Industries, Inc., 320 N.W.2d 886, 892 (Minn. 1982) ("[A] waiver 
is defined as an intentional relinquishment of a known right * * 
*.").

	II.	Attorney Fees

	Duling contends that the district court abused its discretion 
in awarding First Union attorney fees that arose out of a separate 
unlawful detainer action.
	On review, we will not reverse a district court's award of 
attorney fees absent an abuse of discretion.  Becker v. Alloy 
Hardfacing & Eng'g Co., 401 N.W.2d 655, 661 (Minn. 1987).
	The district court concluded that 
		[b]ecause this action is separate and distinct from 
either of the unlawful detainer actions concerning 
the landlord-tenant relationship between Plaintiff 
and Defendant, the issue of reimbursement of 
attorney fees accrued in those actions is not properly 
before this Court.  The disposition of that issue 
should have been decided in the relevant unlawful 
detainer actions and this Court has no jurisdiction to 
revisit either unlawful detainer action.

Despite this conclusion, the district court awarded First Union 
attorney fees for the second unlawful detainer action; an action 
heard by a different judge.
	We conclude that the district court correctly noted that it 
lacked jurisdiction to award attorney fees for the unlawful detainer 
actions, and thus the award of attorney fees for the previous action 
was an abuse of discretion.
	Affirmed in part and reversed in part.