Opinion
No. A06-235.
Filed October 31, 2006.
Appeal from the District Court, Hennepin County, File Nos. 27-Cv-04-003047/27-Cv-04-003068.
Erik F. Hansen, Blake R. Nelson, Hellmuth Johnson, (for appellants).
Dean B. Thomson, Theodore V. Roberts, Fabyanske, Westra, Hart Thomson, P.A., (for respondent).
Considered and decided by Minge, Presiding Judge, Lansing, Judge, and Klaphake, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).
UNPUBLISHED OPINION
On appeal in this dispute over attorney fees, appellant Integrity Floor Covering, Inc. argues that the district court failed to address its claim that it is entitled to fees, costs, and penalty interest under Minn. Stat. § 337.10, subd. 3 (2004), on the undisputed portion of the amount due to it from respondent Weis Builders, Inc. for work appellant performed as respondent's subcontractor on a large construction project. Because the district court's findings fail to address whether it awarded attorney fees, costs, and interest under this statute, we reverse and remand.
DECISION
"A party may not recover attorney fees from an opponent unless a statutory or contractual provision expressly allows for such recovery." Correll v. Distinctive Dental Servs., P.A., 636 N.W.2d 578, 582 (Minn.App. 2001). Minn. Stat. § 337.10, subd. 3 (2004) provides for prompt payment by contractors to subcontractors for work on large building projects, and provides for the award of costs, attorney fees, and penalty interest for failure to make required prompt payment, as follows:
A building and construction contract shall be deemed to require the prime contractor . . . to promptly pay any subcontractor . . . within ten days of receipt by the party . . . requesting payment. The contract shall be deemed to require the party responsible for payment to pay interest of 1-1/2 percent per month to the party requesting payment on any undisputed amount not paid on time. The minimum monthly interest penalty payment for an unpaid balance of $100 or more is $10. For an unpaid balance of less than $100, the party responsible for payment shall pay the actual penalty due to the party requesting payment. A party requesting payment who prevails in a civil action to collect interest penalties from a party responsible for payment must be awarded its costs and disbursements, including attorney fees incurred in bringing the action.
Here, appellant commenced a mechanic's lien foreclosure action, claiming that respondent was delinquent in paying undisputed amounts it owed appellant for its subcontracting work. The district court stayed the foreclosure action to allow the parties to proceed to arbitration in accordance with their contract. The arbitrator issued an award that granted attorney fees to respondent for prevailing on the issue of compelling appellant to arbitrate but otherwise specifically declined to award attorney fees under either the mechanic's lien statute, Minn. Stat. § 514.14 (2004), or Minn. Stat. § 337.10, subd. 3. The arbitration award stated that attorney fees were best determined by the district court in the underlying action.
Appellant's complaint does not state a claim for attorney fees, costs, and penalties under Minn. Stat. § 337.10, subd. 3 (2004), but the record suggests that this issue was tried by agreement or consent of the parties. See Minn. R. Civ. P. 15.02 (allowing issue to be tried by consent of parties).
Appellant then moved to address the reserved issues of whether attorney fees should be allowed under Minn. Stat. §§ 337.10, subd. 3, and 514.14. Following a hearing, the district court ruled that appellant was entitled to "$2,000 in attorney fees and $55 in costs for bringing this motion, and $3,500.00 in fees and $388.85 in costs for successfully maintaining the mechanic's lien." The memorandum attached to the district court's order clearly awards attorney fees under the mechanic's lien statute, but other than a general discussion about applicability of Minn. Stat. § 337.10, subd. 3, the memorandum does not further address whether attorney fees should be awarded under this statute.
Because the district court's order fails to state whether it intended to deny appellant's motion for costs, fees, and interest under Minn. Stat. § 337.10, subd. 3, we remand for specific findings on the applicability of this statute. See Shepard v. City of St. Paul, 380 N.W.2d 140, 145 (Minn.App. 1985) (reversing and remanding attorney fees award granted under federal civil rights statute where district court provided no explanation for fees awarded); Minn. R. Civ. P. 52.01 (requiring district court to "set forth the findings of fact and conclusions of law which constitute the grounds for its action").