This opinion will be unpublished and

may not be cited except as provided by

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




John Casablancas,



Scott Swanson, FKA Duff,


Norwest Funding,


Filed November 24, 1998

Affirmed in part, dismissed in part, motions denied

Mulally, Judge[*]

Scott County District Court

File No. 19983867

John G. Roban, 261 Ruth Street, St. Paul, MN 55119 (for appellant)

Ralph James Overholt, P.O. Box 5331, Hopkins, MN 55343-2331 (for respondent)

Considered and decided by Crippen, Presiding Judge, Willis, Judge, and Mulally, Judge.



Alleged debtor appeals the district court's decision discharging a garnishment and denying sanctions against the creditor, arguing that the prejudgment garnishment procedures authorized by Minn. Stat. § 571.71(2) (1996) are unconstitutional and that sanctions were warranted. Both parties move for attorney fees on appeal. Because appellant does not present a justiciable controversy as to the constitutionality of the statute, that issue is dismissed. The district court's denial of sanctions is affirmed, and the motions for fees on appeal are denied.


Respondent creditor attempted to serve a summons and complaint on appellant debtor by leaving a copy with Jeanne Swanson at appellant's address. The complaint alleged that appellant owed respondent $294.33 for the balance due on a June 10, 1990, contract.

On January 20, 1998, respondent served a wage-garnishment summons for the amount of $453.02 on garnishee Norwest Funding and on appellant. This was the third wage garnishment respondent had served since service of the summons and complaint. Appellant brought a motion to release the garnishment and for sanctions. The district court released the garnishment by order dated March 25, 1998. The court subsequently discharged the garnishment by order dated April 28, 1998. The court found that the original summons and complaint had not been properly served because it had been left with a person living in a duplex unit separate from the appellant. The court also denied appellant's motion for sanctions. The parties acknowledge that they stipulated to the dismissal of the underlying action in open court due to the fact that the statute of limitations had run on that action. This appeal followed.


1. Justiciability

"Minnesota statutes are presumed constitutional, and our power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary." In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989). "The party challenging a statute has the burden of demonstrating beyond a reasonable doubt a violation of some provision of the Minnesota Constitution." Id.

[A] litigant who questions the constitutionality of a statutory provision, must, in order to invoke the jurisdiction of the court, be able to show that the statute is, or is about to be, applied to his disadvantage.

Lee v. Delmont, 228 Minn. 101, 110-11, 36 N.W.2d 530, 537 (1949). The court does not have jurisdiction where there is no justiciable controversy. Rupp v. Mayasich, 561 N.W.2d 555, 557 (Minn. App. 1997). "A justiciable controversy requires * * * a genuine or present controversy * * * capable of specific rather than advisory relief * * *." Id. Furthermore, "[a] party who is not aggrieved by a judgment may not appeal from it. Twin Cities Metro. Pub. Transit Area v. Holter, 311 Minn. 423, 425, 249 N.W.2d 458, 460 (1977).

In the present case, the appellant prevailed at the district court level. The garnishment was discharged on the basis of improper service of the original summons and complaint, and appellant acknowledges that the underlying cause of action was subsequently dismissed. In spite of this, appellant challenges the constitutionality of the prejudgment garnishment provision found in Minn. Stat. § 571.71(2) (1996)[1] on due process and equal protection grounds. Appellant ignores the fact that there is no relief that this court can grant and asks the court to declare a statutory provision unconstitutional for no other reason than to set precedent. "It is well settled that courts hear only live controversies and will not rule on a question merely to set a precedent." Weigel v. Miller, 574 N.W.2d 759, 760 (Minn. App. 1998). Here there is no live controversy and the statute in question is not being applied to appellant's disadvantage. The issue is moot[2], not justiciable, and this court does not have jurisdiction to hear it. We therefore do not address the constitutionality of the statute.

2. Sanctions at the District Court Level

"On review, this court will not reverse a trial court's award or denial of attorney fees absent an abuse of discretion." Becker v. Alloy Hardfacing & Eng'g, 401 N.W.2d 655, 661 (Minn. 1987). A district court's decision on a motion for rule 11 sanctions is also reviewed under an abuse of discretion standard. Uselman v. Uselman, 464 N.W.2d 130, 145 (Minn. 1990).

Appellant moved for sanctions at the district court level under Minn. Stat. §§ 571.90 (1996), 549.211 (Supp. 1997), and Minn. R. Civ. P. 11. The district court denied the motion based on its findings that respondent acted in accordance with the statute, and that respondent's actions were not unreasonable. Because the district court did not abuse its broad discretion, we affirm.

3. Fees on Appeal

Both parties have moved for fees on appeal under Minn. Stat. § 549.211 (Supp. 1997). Respondent also makes a claim for fees based on the parties' retail installment contract.

Whether to award fees on appeal is discretionary with the court. Katz v. Katz, 408 N.W.2d 835, 840 (Minn. 1987). Here, neither party has complied with the procedural requirement of Minn. Stat. § 549.211, subd. 4(a), requiring that the motion specify the conduct alleged to violate the statute. Furthermore, the enforceability of the retail installment contract has not been litigated at the district court level. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding that a reviewing court will generally not consider matters not argued and considered at the trial court level). For these reasons, the parties' motions for fees are denied.

Affirmed in part, dismissed in part, motions denied.

[1] 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] Minn. Stat. § 571.71 (1996) provides in relevant part:

As an ancillary proceeding to a civil action for the recovery of money, a creditor may issue a garnishment summons as provided in this chapter against any third party in the following instances:

* * * *

(2) at any time 40 days or more after service of the summons and complaint upon the debtor in the civil action when a judgment by default could have, but has not, been entered pursuant to Rule 55.01(a) of the Minnesota Rules of Civil Procedure for the District Courts. No filing of a pleading or other documents by the creditor is required to issue a garnishment summons under this clause; however, the creditor must comply with the service requirement of section 571.72, subdivision 4 * * *

[2] Appellant does not argue that this issue fits within an exception to the mootness rule because it is "capable of repetition but likely to evade review." Elzie v. Commissioner of Pub. Safety, 298 N.W.2d 29, 32 (Minn. 1980).