This opinion will be unpublished and

may not be cited except as provided by

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





Hyland Hill North Condominium Association, Inc.,

Respondent (C0-97-2291),

Appellant (C2-97-2308),


St. Paul Fire and Marine Insurance Company,



Hyland Hill Co., et al.,

Appellants (C0-97-2291),

Respondents (C2-97-2308),


Berwald Roofing Co., Inc.,

defendants on cross-claim,


Filed August 25, 1998

Affirmed in part, reversed in part, and remanded

Amundson, Judge

Hennepin County District Court

File No. CT9213104

James W. Rude, Fredrick R. Krietzman, Frommett & Eide, Ltd., 580 International Centre, 900 Second Avenue South, Minneapolis, MN 55402 (for appellant/respondent Hyland Hill North Condominium Association and respondent Berwald Roofing)

Einar E. Hanson, Strobel & Hanson, P.A., 222 Bush Street, Suite 200, Red Wing, MN 55066 (for appellants/respondents Hyland Hills Co., et al.)

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



Developer appeals the district court's denial of its motion to reduce the judgment by the amount of a settling party's percentage of fault. Condominium association appeals from the district court's denial of attorney fees incurred at trial and on subsequent appeals. We affirm the district court's denial of attorney fees, reverse the district court's denial of the motion to reduce the judgment, and remand for entry of judgment consistent with our opinion.


This case arises out of defective workmanship in a condominium complex and involves claims of negligence, breach of contract, breach of express and implied warranties, breach of restrictive covenants, and breaches of fiduciary duty. On November 20, 1990, Hyland Hill North Condominium Association, Inc. (the association) commenced this action against several defendants, claiming over $350,000 in damages. The defendants who are still parties are: Hyland Hill Co., Gittleman Corp., Diversified Management Co., Gittleman Management Corp., Melvin C. Gittleman, and Donald W. Anderson (collectively referred to as "developer").[1]

In addition to suing developer, the association also named as a defendant Berwald Roofing Co. (Berwald), the roofing contractor who installed the original roof on the condominium. Developer asserted a cross-claim against Berwald for contribution and indemnity and for breach of the roofing contract entered into between developer and Berwald for construction of the roof. Before trial, the association and Berwald entered into a Pierringer release, and the association's claims against Berwald were dismissed. In this appeal, the association is acting on behalf of itself and Berwald, pursuant to their Pierringer release.

Berwald paid the association $67,500 as consideration for the Pierringer release. The release provides in part:

Releasors agree to satisfy such portion, fraction or percentage of any ultimate judgment attributable to [Berwald], whether such judgment is direct or as a result of claims, rights, suits, actions, causes of actions and/or demands for damages * * *, contribution and/or indemnity * * *. It is also agreed and understood that this Agreement encompasses any and all claims, rights, suits, actions, and/or causes of action, based on the amount of any subsequent judgment determined to be uncollectible in accordance with Minnesota Statutes which may be reallocated to [Berwald].

The association's claims against developer went to trial. The jury found that the condition of the building's roof was beyond repair and that Hyland Hill Company, Berwald, and Gittleman Management Corporation were negligent with respect to the construction and/or design of the roof, that their negligence was a direct cause of harm to the association, and that their negligence caused $200,000 in damages. With respect to roof damages, the jury also found (1) that Hyland Hill Company, Gittleman Management Corporation, Melvin C. Gittleman and Donald W. Anderson breached express warranties under the Minnesota Uniform Condominium Act, and (2) that Hyland Hills Company breached implied warranties under the Condominium Act and other implied warranties. The jury then was asked to take the combined negligence of the parties who caused roof damages and attribute to each a percentage of fault. The jury allocated fault as follows:

Hyland Hill Co. 20 %

Gittleman Management Corporation 20 %

Melvin C. Gittleman 35 %

Donald W. Anderson 5 %

Berwald Roofing Co., Inc. 20 %

= 100%

The jury also found that Berwald breached a contract with Hyland Hill Co. regarding the construction of the roof, and the breach caused $40,000 of damages.

The district court found that all claims except developer's cross-claim against Berwald and those claims for breach of fiduciary duties were barred by the two-year statute of limitations under Minn. Stat. § 541.051. All parties appealed, and this court affirmed the district court in part and reversed in part. See Hyland Hill Condominium Ass'n, Inc. v. Hyland Hill Co., 538 N.W.2d 479 (Minn. App. 1995). This court reinstated developer's $40,000 award against Berwald for breach of contract and the full jury award against developer.

The association and developer petitioned for review to the supreme court, which granted review. Berwald did not file a petition for review. The supreme court affirmed in part, reversed in part, and remanded to the district court for entry of judgment for the association in the amount of $206,297.64. Hyland Hill Condominium Ass'n, Inc. v. Hyland Hill Co., 549 N.W.2d 617 (Minn. 1996), cert. denied, 117 S. Ct. 610 (1996). The supreme court held that the six-year limitations period in the Condominium Act, and not the two-year limitations period contained in Minn. Stat. § 541.051, governed the association's claims for breaches of express and implied warranties under the Condominium Act. Id. at 622. The supreme court reaffirmed the award of damages for breaches of fiduciary duties and held that "the Association's other claims were barred by the two-year statute of limitations under section 541.051." Id. at 624. The supreme court remanded to the district court for hearing of post-appeal motions and entry of judgment.

In September 1997, the district court entered judgment in favor of the association and against developer in the amount of $285,711.64, which includes the amount of damages dictated by the supreme court plus costs, disbursements, and prejudgment interest. Of that amount, $149,000 was attributable to roof damages. The district court also denied association's motion for attorney fees of $294,282 under Minn. Stat. § 515A.4-115 (the Uniform Condominium Act). In October 1997, the district court denied developer's pending motion to reduce the judgment by the amount awarded by the jury to Hyland Hill Co. for Berwald's breach of contract ($40,000), and by the 20% found by the jury to be Berwald's percentage of fault for roof-related damages.

The association and developer filed separate appeals from the September and October judgments, and this court consolidated the appeals for briefing and argument.


I. Reduction of Judgment

On established facts, this court determines de novo whether the district court erred in allocating damages. Frederickson v. Alton M. Johnson Co., 402 N.W.2d 794, 797 (Minn. 1987).

Developer argues that it is entitled to a reduction of its judgment because the association signed a Pierringer release agreeing to satisfy any portion of fault attributable to Berwald, and the jury found Berwald 20% at fault for negligence. Neither the court of appeals nor the supreme court Hyland Hill opinions address the allocation of the judgment or the effect of Berwald's Pierringer agreement.

"The practical effect of the Pierringer release is to limit the plaintiff's recovery to the percentage of fault attributable to the nonsettling defendants." Vang v. Vang, 490 N.W.2d 647, 651 (Minn. App. 1992), review denied (Minn. Nov. 17, 1992); see also Frederickson, 402 N.W.2d at 797.

The association argues that developer may not reduce its judgment by the 20% of fault attributable to Berwald because the damages fall under different theories of liability (negligence versus breach of warranty). The only roof-related claims not time-barred by the two-year statute of limitations in Minn. Stat. § 541.051 were for developer's breaches of warranties under the Condominium Act, in the amount of $149,000. The association argues that because Berwald could not be liable to the association for breaches of warranty under the Condominium Act, developer cannot reduce any damages awarded under the Condominium Act by the percentage of fault attributable to Berwald. However, the jury attributed percentages to the parties for the total causal fault regarding all roof-related damages, and developer seeks contribution and indemnity from Berwald for its share of the roof-related damages. The supreme court has provided that

contribution-indemnity is not based on contract or tort, although either may secondarily be involved, but on one party paying more than its fair share of a common liability. Common liability exists when both parties are liable to the plaintiff for the same damages, even though their liability may depend on different legal theories. * * * In short, the nature of the common liability is of secondary importance to the fact of common liability itself. The same holds true for indemnity, where the primary liability of the indemnitor (e.g., breach of warranty) may rest on different grounds than the secondary liability of the indemnitee (in negligence).

City of Willmar v. Short-Elliott-Hendrickson, Inc., 512 N.W.2d 872, 874 (Minn. 1994) (citation omitted). Here, although Berwald's liability was for negligence and developer's liability was for breach of warranty, both Berwald and the developer were found by the jury to be liable to the association for roof-related damages. Under City of Willmar, it makes no difference whether Berwald and developer were liable for roof-related damages under different theories. In addition,

it makes no difference that the injured plaintiff's claim against the party from whom contribution-indemnity is sought is barred by the statute of limitations. Plaintiff is not bringing the contribution-indemnity claim; rather the claim is being brought by [a defendant], which, by paying more than its fair share of a common liability shared with another, has sustained an injury different in kind from the plaintiff City's injury. But even more importantly, a statute of limitations defense does not negate liability; it is only a procedural device that is raised after the events giving rise to liability have occurred, and which precludes the plaintiff from collecting on that liability. Indeed, unless the defendant affirmatively asserts the statute of limitations bar, a plaintiff can still recover on its claim against that defendant.

Id. at 874-75 (citation omitted). Thus, even though certain claims were time-barred under Minn. Stat. § 541.051, Berwald's negligence nevertheless contributed to the total roof-related damages; developer should not be held responsible for Berwald's share of liability.

The Pierringer release requires reduction of judgment because "a plaintiff who enters into a Pierringer release is limited to recovering that portion of the damages attributable to the non-settling tortfeasor." Oelschlager v. Magnuson, 528 N.W.2d 895, 898 (Minn. App. 1995), review denied (Minn. April 27, 1995). Because Berwald was found to be 20% at fault in all damages to the roof, the association is limited to recovery of only the remaining portion of those damages attributable to developer. The judgment against developer must be reduced by $29,800, 20% of the $149,000 recovered for roof-related damages.

The district court erred by not reducing the verdict by the percentage of fault attributable to Berwald.

II. $40,000 Breach of Contract Cross-claim

Developer argues that the judgment should be reduced by an additional $40,000, the amount of damages Berwald was found to have caused by its breach of the contract with Hyland Hill Co.

The district court held that the cross-claim for $40,000 was barred by the statute of limitations in Minn. Stat. § 541.051. The court of appeals reversed and reinstated the jury's verdict, holding that the district court used the wrong discovery date. Hyland Hills, 538 N.W.2d at 484-85.

Developer contends that the court of appeals' decision must be considered the law of the case for Berwald, because Berwald did not petition to the supreme court for review. Developer argues, therefore, that this court's decision reinstating the cross-claim verdict must be upheld. The association claims that the supreme court decision considered the cross-claim against Berwald and found it time-barred, even though Berwald did not petition for review. To support its position, the association points to paragraphs where the supreme court mentions Berwald. See Hyland Hills, 549 N.W.2d at 618-20. However, these statements regarding Berwald are just factual references to the lower courts' opinion. In its holding, the supreme court only said that the association's claims were time-barred. Id. at 624. No mention is made of any disposition of developer's cross-claim.

Berwald did not petition the supreme court for review of the court of appeals decision reinstating the $40,000 award under the cross-claim, therefore, the court of appeals decision is the law of the case. In its Pierringer agreement, the association agreed to indemnify Berwald against all claims arising out of the litigation. The district court erred by denying developer's motion to reduce the judgment by $40,000.

III. Attorney Fees

Generally, it is within the discretion of the district court to award or deny attorney fees, and we will not reverse the district court's decision absent an abuse of that discretion. Radloff v. First American Nat'l Bank, 470 N.W.2d 154, 156 (Minn. App. 1991), review denied (Minn. July 24, 1991). The association claims that it is entitled to attorney fees pursuant to a provision in the Uniform Condominium Act, which provides:

If a declarant or any other person subject to sections 515A.1-101 to 515A.4-117 violates any provision thereof or any provision of the declaration or bylaws, any person or class of persons adversely affected by the violation has a claim for appropriate relief. Punitive damages may be awarded in the case of a willful violation of sections 515A.1-101 to 515A.4-117. The court, in an appropriate case, may award reasonable attorneys' fees.

Minn. Stat. § 515A.4-115 (1996).

Here, the district court denied attorney fees because: (1) the motion was untimely, (2) the district court is not empowered to order attorney fees relating to appeals, and (3) the association failed to comply with the district court's order to provide a breakdown in fees for trial and appeal. In addition, the court's memoranda indicate that it did not find this an "appropriate case" in which to award attorney fees.

Under the Uniform Condominium Act, the decision to award attorney fees is within the discretion of the district court. Id. The association argues that the district court abused its discretion in denying attorney fees, claiming (1) that the appeal was not untimely because no rule provides a specific time limit, (2) that it should have been awarded attorney fees for its appeals (even though it did not request fees at the appellate courts), and (3) that it provided the district court its requested breakdown of fees.

We do not find that the district court abused its discretion in denying fees in this case, where the request for fees was made 32 months after trial and seven months after the supreme court's decision, and the association did not index the hundreds of pages of billing statements it provided to the court. In addition, the court hearing a case has the discretion to award attorney fees; the district court may not award fees for the association's appeals.

Affirmed in part, reversed in part, and remanded.

[1] Hyland Hill Co. (the Partnership) is the Declarant of the Condominium as defined in the Uniform Condominium Act. The Partnership is a general partnership, and the current partners are Gittleman and Anderson. The Partnership was the general contractor for construction of the Condominium. Gittleman Management Corp. is the successor to Diversified Management Company and Gittleman Corp. and was the managing agent of the Association during the time the condominium was built through August 31, 1990. Gittleman and Anderson are both directors and officers of Gittleman Management Corp. and were also directors of the Association until May, 1987.