This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Marriage of:
Margaret Lynch Burns,
Lower Court Petitioner,
Harry Edward Burns, II,
Kissoon, Clugg, Linder, & Dittberner, Ltd.,
Filed December 28, 1999
Stearns County District Court
File No. F195274
Arlo H. Vande Vegte, 1850 West Wayzata Boulevard, P.O. Box 39, Long Lake, MN 55356 (for respondent)
Gerald O. Williams, Jr., Kissoon, Clugg, Linder & Dittberner, Ltd., 3205 West 76th Street, Edina, MN 55435 (for appellant)
Considered and decided by Willis, Presiding Judge, Short, Judge, and Anderson, Judge.
U N P U B L I S H E D O P I N I O N
Harry Edward Burns, II hired Kissoon, Clugg, Linder, & Dittberner, Ltd. (the firm) to represent him in his dissolution proceedings. Burns did not pay his entire bill, and the firm sought an attorney’s lien on Burns’s business, business checking account, or the building that houses his business and the attached parking lot. The firm appeals the denial of its motion to establish an attorney’s lien, arguing the trial court erred in denying the attorney’s lien and failing to award attorney fees incurred in attempting to collect from Burns. We affirm.
D E C I S I O N
This court will not set aside a trial court’s findings of fact unless they are clearly erroneous. Minn. R. Civ. P. 52.01; Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 102 (Minn. 1999). A finding is clearly erroneous when we hold a "definite and firm conviction that a mistake has been made." In re Guardianship of Dawson, 502 N.W.2d 65, 68 (Minn. App. 1993) (quoting Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987)), review denied (Minn. Aug. 16, 1993).
The firm argues the trial court erred by denying the attorney’s lien. To establish an attorney’s lien, the firm needed to show the assets it wanted to attach were involved in or affected by Burns’s dissolution proceeding in which the firm represented him. See Minn. Stat. § 481.13(1) (1998); Schroeder, Siegfried, Ryan & Vidas v. Modern Elec. Prods., Inc., 295 N.W.2d 514, 516 (Minn. 1980) (holding lien applies only to property connected to particular proceeding); Ashford v. Interstate Trucking Corp. of Am., 524 N.W.2d 500, 502 (Minn. App. 1994) (holding validity of attorney’s lien is question of fact). Here, the firm presented no evidence on the issue of sufficient relationship. Moreover, it failed to prove any claimed assets were unchanged during the three years before the firm attempted to establish its lien. Under these circumstances, we cannot say the trial court clearly erred in finding the assets involved in the dissolution proceeding had changed. The trial court’s denial of attorney’s lien was not clearly erroneous, and we need not reach Burns’s waiver argument.
The firm argues the trial court erred in refusing to award attorney fees. An award of attorney fees must flow from the retainer agreement between Burns and the firm. See Material Movers, Inc. v. Hill, 316 N.W.2d 13, 18 (Minn. 1982) (holding attorney fees recoverable if authorized by statute or contract); Van Vickle v. C.W. Scheurer & Sons, Inc., 556 N.W.2d 238, 242 (Minn. App. 1996) (same). Because the firm did not prevail in this action and the trial court explicitly preserved the firm’s right to sue for breach of contract, we cannot say the trial court abused its discretion in denying attorney fees under the contract and we decline to award fees on appeal. See Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (Minn. 1987) (holding, absent abuse of discretion, this court will not reverse trial court’s denial of attorney fees); Redeemer Covenant Church v. Church Mut. Ins. Co., 567 N.W.2d 71, 82 (Minn. App. 1997) (same), review denied (Minn. Oct. 1, 1997).