STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Marriage of:
Bret M. Haage, petitioner,
Paula J. Gronland,
James Fennert, et al.,
John R. Jesperson, et al.,
Filed September 10, 1996
Dakota County District Court
File No. F99113379
Bret M. Haage, 1842 E. 42nd Street, Minneapolis, MN 55407 (Pro Se Appellant)
James C. Lofstrom, Lofstrom & Lowe, P.A., 4635 Nicols Road, Suite 206, Eagan, MN 55122 (for Respondent Paula J. Gronland)
Kathryn T. Raidt, Callinan, Raidt & Rydholm, 6950 France Ave. So., Suite 113, Edina, MN 55435 (for Respondent James Fennert)
John R. Jesperson, Esq., 2335 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (Pro Se Respondent)
Considered and decided by Crippen, Presiding Judge, Parker, Judge, and Short, Judge.
Haage first argues the trial court lacked jurisdiction to hear the attorney's motion because the attorney himself served the papers. However, only the original service of process requires service by a nonparty. See Minn. R. Civ. P. 4.02 (specifically stating that any person over 18 years of age who is not a party may make service of a summons or other process); Minn. R. Civ. P. 5.02 (providing no similar requirement for service of motions). Because the attorney's motion did not commence a suit, the service was adequate. See Gaughan v. Gaughan, 450 N.W.2d 338, 343 (Minn. App. 1990) (noting a proceeding under Minn. Stat. § 481.13, which regulates attorneys' liens, is not a "new action necessitating a new judge, file, or filing fee"), review denied (Minn. Mar. 16, 1990).
The attorney originally served the motion papers by mail on August 8 for the August 23 hearing. Although Haage correctly asserts this service was untimely, he has not shown how prejudice resulted from the trial court's decision to hear the motion on August 23. See Minn. R. Gen. Pract. 303.03(a) (requiring motions in family court to be served and filed at least 17 days prior to the hearing if accomplished by mail), (b) (stating a court may cancel a hearing if the moving papers are not properly served and filed); see also Minn. R. Civ. P. 61 (stating courts must disregard defects that do not affect the substantial rights of the parties). Significantly, Haage had notice of the basis for the attorney's motion three months prior to the hearing date when the attorney served nearly identical motion papers, which he had to redraft and serve again due to Haage's bankruptcy filing.
Haage raises several objections to the trial court's order that the attorney's lien be satisfied out of the sale proceeds. First, Haage asserts the attorney could not attach his property under Minnesota law. However, after the entry of a dissolution judgment, an attorney may file notice of a lien for compensation on an interest of the client in any property "involved in or affected by" any action or proceeding in which the client employed the attorney. See Minn. Stat. § 481.13(1) (setting forth this procedure for express or implied contracts for compensation), (3) (1994) (allowing courts to establish and determine the amount of such liens); see also McDonald v. Johnson, 229 Minn. 119, 123-24, 38 N.W.2d 196, 199 (1949) (finding no reason for this statute not to apply in divorce proceedings and allowing an attorney to place a lien on a lump-sum alimony award). Second, Haage disputes the bankruptcy court's determination that the lien was not discharged in bankruptcy. However, we lack authority to consider objections to the bankruptcy court's order. See 28 U.S.C. § 158(a) (1994) (indicating appeals from orders issued by bankruptcy courts must be taken to a federal district court). And third, Haage believes a child support sequestration order, two mortgages, and his child support arrearages that had been reduced to judgment take priority over the attorney's lien. To the contrary, the evidence establishes that: (1) the attorney recorded his lien on September 18, 1992; (2) on June 28, 1993, the trial court ordered $7,000 from the proceeds sequestered to secure future child support payments; (3)subsequently gave two mortgages on the property on December 1, 1993; and (4) Haage's child support arrearages were reduced to judgment on May 4, 1994. Under these circumstances, the latter three interests did not have priority over the attorney's lien.See Minn. Stat. § 481.13(1) (noting an attorney has a lien, as against third parties, from the time of filing notice of the lien claim);Ryan & VanDerHeyden v. Bagne, 429 N.W.2d 307, 309 (Minn. App. 1988) (stating "the rule generally applied to liens is that the first in time is first in right" and noting an attorney's lien may be defeated by a prior existing lien), review granted (Minn. Dec. 1, 1988), appeal dismissed (Minn. Jan. 11, 1989).
Haage also argues the trial court's hostility unduly prejudiced him and denied him a fair and impartial hearing in violation of his due process rights. See In re Kirby, 354 N.W.2d 410, 415 (Minn. 1984) (acknowledging that a meaningful opportunity to be heard is a fundamental element of due process). However, our review of the record shows the trial court merely responded to Haage's allegations of unacceptable treatment by court personnel. The trial court's comments could not have affected Haage's right to be heard or to receive a fair and impartial hearing because he raised no issues regarding the merits and failed to make any objection to the attorney's motion.
Haage further argues: (1) a Dakota County court lacked authority to order the sale of property located in Hennepin County; (2) a trial court judge impermissibly required him to pay his former spouse costs if he insisted on removing that judge, who was at least the third judge Haage attempted to remove; (3) the attorney and the attorney of Haage's former spouse perpetrated fraud on the court by making misrepresentations and failing to disclose relevant information; and (4) the trial court improperly ordered the sale of property, the encumbrances of which exceeded its value. We disagree. The record shows: (1) the trial court ordered the property sold in its dissolution order; (2) Haage presents no evidence of prejudice to support his effort to remove a third trial court judge; (3) he makes no showing of a plan designed to exert improper influence on the trial court's decisions; and (4) the trial court ordered the sale of the property when the claims against it were minimal, and the property has already been sold. See Minn. Stat. § 518.65 (1994) (allowing a trial court presiding over a family matter to order the sale of property to effect a division or award of property); Minn. R. Civ. P. 63.03 (requiring an affirmative showing of prejudice to permit the removal of a judge after the party has exercised the right to disqualify one judge as a matter of right); Maranda v. Maranda, 449 N.W.2d 158, 165 (Minn. 1989) (quoting England v. Doyle, 281 F.2d 304, 309 (9th Cir. 1960), and stating fraud on the court requires a showing of "an unconscionable plan or scheme which is designed to improperly influence the court in its decision"); Smith v. Wright, 195 Minn. 589, 592, 263 N.W. 903, 904 (1935) (holding a party may not argue, after a sale, that claims against the property exceeded its value). Haage's remaining arguments are totally without merit and do not warrant further consideration.
Haage and the attorney each request monetary relief on this appeal. Both appear pro se and, thus, have incurred no attorney fees. Furthermore, neither party cites any authority for his request or addresses the factors necessary to support an award of attorney fees. See Minn. Stat. § 549.21, subd. 2 (1994) (allowing courts to award costs and attorney fees if the opposing party acted in bad faith, asserted a claim or defense that is frivolous and costly to the other party, asserted an unfounded position solely to delay or harass, or committed fraud on the court). Under these circumstances, we decline to award fees to either party.