Marque Plumbing, Inc. v. Barris

384 N.W.2d 246, 1986 Minn. App. LEXIS 4154

Opinions

OPINION

HUSPENI, Judge.

This is an appeal of a summary judgment awarded to respondents who are property owners in the Cinnamon Ridge Carriage Homes development. Appellant Marque Plumbing, Inc. (Marque) contends the trial court erred when it ordered the discharge of lis pendens after Marque failed to post a required supersedeas bond. Respondents contend the appeal is moot and move for attorney fees under Minn.Stat. § 549.21 (1984). We dismiss the appeal as moot and deny respondents’ motion for attorney fees.

FACTS

On June 3, 1985, the trial court granted summary judgment to respondents and ordered all liens and lis pendens of Marque discharged because Marque failed to meet the notice requirements of Minn.Stat. § 514.011 (1982). Marque brought separate appeals against two groups of property owners. In Marque Plumbing, Inc. v. Barris, 380 N.W.2d 174 (Minn.Ct.App.1986), pet. for rev. filed, (Minn. Feb. 14, 1986) (Marque I), and Marque Plumbing, Inc. v. Anderson, 380 N.W.2d 180 (Minn.Ct.App.1986), pet. for rev. filed, (Minn. Feb. 14, 1986) (Marque II), this court addressed both the mootness issue and the notice requirement issue, and affirmed summary judgment for the property owners.¹

On June 25, 1985, the trial court reinstated the lis pendens on the condition that Marque post a supersedeas bond. Marque’s motion in Marque I to vacate the bond requirement was denied by this court’s order of July 30,1985, which stated:

If appellant wishes to stay the discharge order pending appeal, it must post a su-persedeas bond as ordered by the trial court.

On October 11, 1985, the supreme court denied Marque’s petition for review of the July 30 order.

On September 26, 1985, the trial court again ordered the lis pendens discharged because Marque refused to post a supersedeas bond. After this court denied a motion in Marque II to vacate that order, Marque brought this third appeal.

On December 24, 1985, respondents filed their brief and made a motion for attorney fees. By our order of December 30, 1985, we deferred our decision on the motion until we considered the merits of this appeal.

ISSUES

1. Is this appeal moot?

2. Are respondents entitled to attorney fees on appeal?

ANALYSIS'

I.

A case is “moot” when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy. See In re Township of Glendale v. Minnesota Municipal Commission, 288 Minn. 340, 343, 180 N.W.2d 925, 927 (1970). Marque concedes that our decision in this appeal depends upon the outcome of Marque I and Marque II, and “if they are affirmed, * * * they will serve to discharge all liens and this appeal will be moot.”

Marque I and Marque II affirmed the trial court’s award of summary judgment in favor of respondents. Marque I, 380 N.W.2d 174; Marque II, 380 N.W.2d 180. We agree with Marque that our decisions on the merits in Marque I and Marque II serve to render this appeal moot. We need not address here the other mootness issue raised by respondents, which we were required to address in the two earlier opinions.²

II.

Attorney fees may be awarded to a party under Minn.Stat. § 549.21 (1984) which pro- • vides:

Upon motion of a party, the court in its discretion may award to that party costs, disbursements, reasonable attorney fees and witness fees if the party * * * charged acted in bad faith; asserted a claim or defense knowing it to be frivolous; asserted an unfounded position solely to delay the ordinary course of the proceedings or to harass; or committed a fraud upon the court. To qualify for an award under this section, a party shall give timely notice of intent to claim an award.

(Emphasis added). This court recently held that a request for attorney fees in a brief “does not constitute timely notice. Timm v. State Bank of Young America, 374 N.W.2d 588, 590 (Minn.Ct.App.1985).

Here respondents filed their motion for attorney fees contemporaneously with their brief. We do not believe that this procedure affords an adverse party notice that is in any way superior to the notice held untimely in Timm. The motion for attorney fees is accordingly denied.

DECISION

This appeal is dismissed as moot because previous decisions of this court upheld summary judgment awards in favor of respondents. Respondents’ motion for attorney fees is denied because it was untimely.

Dismissed.

1

. In Marque I and Marque II this court ruled that because all parties on appeal were the same parties that appeared in the original proceeding, the trial court’s discharge of the lis pendens and mechanic's liens due to Marque's failure to post a supersedeas bond did not render the appeal moot. We resolved the notice requirement issue on the merits in respondents’ favor in each case.

2

. If we addressed the merits of this appeal, our decision would be controlled by our July 30, 1985 order in Marque I, which addressed the supersedeas bond requirement. That order established the law of the case; we see no reason to readjudicate the issue here. See Minnesota Power & Light Co. v. Minnesota Public Utilities Commission, 342 N.W.2d 324, 327 (Minn.1983).