This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).





Jonathan Swanson,



Michael Chorney,

defendant and third-party plaintiff,


Timesavers, Inc.,

defendant and third-party plaintiff,



Industrial Hardwood Products, Inc.,

Third-Party Defendant.

Filed January 27, 1998

Reversed and remanded

Huspeni, Judge

Goodhue County District Court

File No. CX94135

Kay Nord Hunt, John R. McBride, Lommen, Nelson, Cole & Stageberg, P.A., 1800 IDS Center, 80 S. Eighth St., Minneapolis, MN 55402 (for appellant Timesavers)

Thomas E. Gorman, Richard D. Gorman, Gorman & Gorman, Ltd., 1626 Old W. Third St., Red Wing, MN 55066; Michael S. Polk, Michael R. Strom, Sieben, Polk, Laverdiere, Jones & Hawn, P.A., 999 Westview Dr., Hastings, MN 55033 (for respondent Swanson)

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



Appellant, a jointly and severally liable defendant, moved the district court to stay execution and enforcement of a portion of the judgment and to reallocate. Both motions were denied as untimely; the motion to reallocate was also denied on the ground that it was premature because the collectibility of another jointly and severally liable defendant had not yet been determined. Because we hold that the motions were not untimely, we reverse and remand for the court to establish a time period within which appellant may try to establish defendant's uncollectibility.


Respondent Jonathan Swanson, an employee of Industrial Hardwood Products, Inc. (IHPI), was injured while trying to repair a sander manufactured by appellant Timesavers, Inc., when respondent Michael Chorney, Swanson's supervisor, inadvertently turned on part of the sander instead of a brake.[1] Swanson brought an action against Chorney, Timesavers, and IHPI. At trial Swanson and Timesavers were each found 15% liable, Chorney was found 30% liable, and IHPI was found 40% liable. On June 10, 1996, judgment was entered jointly and severally against Timesavers, Inc. and Chorney in the amount of $516,742.59, with the provision that Timesavers' liability was limited to four times its pro rata share of the verdict, or $460,035.60 (60% of $766,726, the total judgment).

Timesavers filed a supersedeas bond and an appeal of the judgment. This court affirmed on March 11, 1997. Timesavers' petition for supreme court review was denied.

Timesavers and Swanson agreed that the judgment and interest, costs, and disbursements totaled $537,302.29; that Timesavers would pay Swanson $402,976.71 (Timesavers' 15% liability, half of Chorney's 30% liability, and interest, costs, and disbursements). Timesavers deposited $134,325.58 (the other half of Chorney's liability that would be reallocated to Swanson if Chorney's share proved uncollectible), into an escrow account with Swanson's attorneys.

On July 23, 1997, Timesavers moved for an order staying execution and enforcement on the amount in escrow, pending a determination on the collectibility of Chorney's share of the judgment. The motion was denied as time barred because it had been brought more than one year after entry of judgment. Timesavers then moved to reallocate Chorney's share of the judgment; this motion was also denied as time barred, and in addition was denied on the ground that Chorney's share of the judgment had not yet been determined to be uncollectible.


1. The denial of Timesavers' reallocation motion

Minn. Stat. § 604.02, subd. 2 (1996) provides:

Upon motion made not later than one year after judgment is entered, the court shall determine whether all or part of a party's equitable share of the obligation is uncollectible from that party and shall reallocate any uncollectible amount among the other parties, including a claimant at fault, according to their respective percentages of fault.

The construction of a statute is clearly a question of law and thus fully reviewable by an appellate court. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985).

Timesavers argues that, because its motion to reallocate was brought well within one year of the supreme court's denial of review, it was not untimely. In support, Timesavers relies on Hosley v. Pittsburgh Corning Corp., 401 N.W.2d 136, 139 (Minn. App. 1987) (holding that a motion to determine uncollectibility was not untimely because the judgment had been appealed and "the time period for bringing the motion did not begin to run until the stay pending appeal was lifted following the supreme court's decision"), review denied (Minn. Apr. 23, 1997) (Hosley II).[2] In Hosley II, as here, judgment was entered and an appeal was taken. The motion for reallocation, brought within a year of the Hosley I appellate decision, was held to be timely. Id.

We conclude that the rationale of Hosley II applies in this case. To hold otherwise would be to construe Minn. Stat. § 604.02, subd. 2, as requiring a judgment debtor to choose between appealing from a judgment and moving for reallocation. Such a construction of the specific reallocation provision would conflict with the general provision of Minn. R. Civ. App. P. 108.03 that filing a supersedeas bond "shall stay all further proceedings in the trial court upon the judgment or order appealed from or the matter embraced in it." We see no basis for such a construction. See Minn. Stat. § 645.26, subd. 1 (1996) (when possible, specific and general provisions are to be construed so that effect is given to both). Timesavers' motion for reallocation, filed well within a year of the supreme court's denial of review, was timely.

The trial court also denied the reallocation motion on the alternative ground that "Timesavers has not demonstrated that Chorney's share of the liability is uncollectible." While we reverse the court's conclusion that the motion was untimely, we agree with the holding that the motion was premature. That holding was based on the court's conclusion that there are several areas to be investigated before collectibility or uncollectibility of Chorney's share of the judgment can be determined. The trial court actually identified several of those areas. Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Minn. R. Civ. P. 52.01. The trial court's finding that the collectibility or uncollectibility of Chorney's share of the judgment has not yet been determined is not clearly erroneous, and will not be set aside. We remand for the trial court to establish a time period within which Timesavers may conduct the investigation necessary to determine if Chorney's share of the judgment is, in fact, uncollectible.

2. The motion for a stay

The amount of Chorney's share of the judgment that would be reallocated to Swanson in the event of uncollectibility is now in escrow with Swanson's attorney.[3] Timesavers asks this court, if it agrees that the collectibility of Chorney's share of the judgment cannot presently be determined, to reverse the denial of Timesavers' motion for a stay until the final determination of collectibility. Again, we believe that the rationale of Hosley II applies here. Hosley II affirmed a

decision to deny [one defendant's] request for reallocation but to stay enforcement of its liability on damages [equal to the plaintiff's and the Pierringer-released defendants' shares of the potentially uncollectible portion of the judgment].

Id. at 139. See also Hosley v. Armstrong Cork Co., 383 N.W.2d 289, 294 (Minn. 1986) (remanding "for a stay of the settling defendants' share of [the potentially uncollectible defendant's] obligation, * * * in addition to the [plaintiff's share of the potentially uncollectible defendant's obligation] already stayed") (Hosley I). In light of our conclusions that Timesavers' motion for reallocation was not untimely and that the collectibility of Chorney's share of the judgment has yet to be determined, Timesavers' motion for a stay pending that determination must be granted.

We therefore reverse the denials of Timesavers' motions for reallocation and for a stay, and remand to the trial court for a determination of the period of time within which Timesavers must complete its investigation and the issue of the collectibility of Chorney's share of the judgment must be decided.

Reversed and remanded.

[1] While Chorney is listed as a respondent on both briefs, he has taken no part in this appeal.

[2] Hosley II followed Hosley v. Armstrong Cork Co., 383 N.W.2d 289 (Minn. 1986) (Hosley I).

[3] The trial court ordered that the amount remain in escrow during the pendency of this appeal.