William J. Otis, et al., vs. The W.W. Holes Manufacturing Co., d/b/a St. Cloud Marine Outlet, et al. C4-99-273, Court of Appeals Unpublished, August 24, 1999.

This opinion will be unpublished and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
C4-99-273

William J. Otis, et al.,
Respondents,

vs.

The W.W. Holes Manufacturing Co.,
d/b/a St. Cloud Marine Outlet, et al.,
Appellants,

AND

State of Minnesota, by its Attorney General, Michael A. Hatch,
Respondent,

vs.

W.W. Holes Manufacturing Co.,
d/b/a Marine Outlet, d/b/a Bud Grant's Boat Buying Club; et al.,
Appellants.

Filed August 24, 1999
Affirmed
Schumacher, Judge

Sherburne County District Court
File No. C6971018

Gerald W. Von Korff, Rinke-Noonan, 700 Norwest Center, Post Office Box 1497, St. Cloud, MN 56302 (for respondents Otis et al.)

Kevin F. Gray, Frank J. Rajkowski, Rajkowski Hansmeier Ltd., 11 Seventh Avenue North, Post Office Box 1433, St. Cloud, MN 56302 (for appellants)

Mike Hatch, Attorney General, Janette K. Brimmer, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2127 (for respondent State)

Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Amundson, Judge.

U N P U B L I S H E D O P I N I O N

SCHUMACHER, Judge

Appellants W.W. Holes Manufacturing Co., d/b/a St. Cloud Marine Outlet, Marine Outlet, Marine Outlet and R.V., and Bud Grant's Boat Buying Club, and James and Holly Marmas (Holes) claim the trial court erred in ordering that funds held in an escrow account be transferred into an account in the name of the State of Minnesota. We affirm.

FACTS

Respondents William J. and Carol Sue Otis brought a consumer fraud class action against Holes, which owned and operated a retail boat business. Respondent State of Minnesota brought a similar suit, alleging violations of the consumer protection laws. Holes sold its retail boat business prior to trial, and the parties entered into an agreement to place the proceeds of the sale into an escrow account. The state moved for summary judgment and to attach the funds in the escrow account and place the escrow account in the state's name. The district court granted summary judgment to the state on seven counts and ordered the funds in the escrow account placed in an account in the name of the state. The sole issue on appeal is whether the court erred by placing the escrow account in the state's name.

D E C I S I O N

1. The state moved this court to dismiss the appeal, arguing the issue of whose name the account is under is not appealable by itself. By order dated March 16, 1999, we denied the motion. Because this court has already addressed the issue, the state's claim is the equivalent to a petition for rehearing, which is prohibited by Minn. R. Civ. App. P. 140.01. This court will not reconsider the issue now. See In re Estate of Sangren, 504 N.W.2d 786, 788 n.1 (Minn. App. 1993) (court does not reconsider issues already addressed at special term), review denied (Minn. Oct. 28, 1993).

2. Holes argues that the court impermissibly placed the escrow fund in the state's name. Holes does not challenge the attachment itself, only the placement of the escrow account in the state's name. When reviewing a district court's application of statutory criteria to the facts,

the appellate court may correct erroneous applications of the law. As to the trial court's conclusions on the ultimate issues, mindful of the discretion accorded the trial court in the exercise of its equitable jurisdiction, the reviewing court reviews under an abuse of discretion standard.

Maxfield v. Maxfield, 452 N.W.2d 219, 221 (Minn. 1990). In addition, statutory interpretation is subject to de novo review. See Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985).

The law of attachment in Minnesota is found in Minnesota Statutes chapter 570 (1998). Of particular relevance to this case are Minn. Stat. §§ 570.051, subd. 1 and .061, subd. 3 (1998). The first of these two sections addresses requirements of the order for attachment. Minn. Stat. § 570.051, subd. 1. The language does not specifically prohibit the court from placing an escrow account in the state's name. Because the language in subd. 1 is discretionary, Holes has not shown a clear abuse of discretion. This court does not reverse absent a clear abuse of discretion. Nadeau v. County of Ramsey, 277 N.W.2d 520, 524 (Minn. 1979).

The second relevant section of the statute in question is Minn. Stat. § 570.061, subd. 3 (directing execution on personal property). Holes argues that this statute, in combination with the others it incorporates, required the court to put the account in the sheriff's name. This requirement is not provided for in the statute, and Holes does not point to where the requirement lies. Nor do the statutes prohibit placing an account in a party's name.

Holes also argues that putting the account in the state's name violates due process. Attachments have been challenged as unconstitutional, but both the Minnesota and United States Supreme Courts have found that they are constitutional, so long as they follow narrow guidelines and the defendant has an opportunity for a hearing. See, e.g., Mitchell v. W. T. Grant Co., 416 U.S. 600, 614-17, 94 S. Ct. 1895, 1903-04 (1974) (prejudgment sequestration statute constitutional); International State Bank v. Gamer, 281 N.W.2d 855, 857-59 (Minn. 1979) (Minn. Stat. § 570.02 constitutional). Holes was offered a hearing on the state's request . In addition, the funds are still in escrow, have not been released or disbursed to anyone, and are still subject to the original escrow agreement. We conclude the court did not abuse its discretion by placing the account in the state's name.

Affirmed.