United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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Nos. 05-3833/06-1596 

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Gas Aggregation Services, Inc., *

*

Plaintiff - Appellant, *

*

v. *

*

Howard Avista Energy, LLC; Howard *

Energy Marketing, Inc.; *

* Appeal from the United States

Defendants, * District Court for the District 

* of Minnesota.

Thomas A. Foster; *

*

Movant Below - Appellee, *

*

Howard Avista Energy, LLC, *

*

Third Party Plaintiff, *

*

v. *

*

Manjit Bajwa, *

*

Third Party Defendant - *

Appellant. *

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Submitted: June 12, 2006

Filed: August 10, 2006

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1

The Honorable David S. Doty, United States District Judge for the District of

Minnesota.

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Before BYE, LAY, and RILEY, Circuit Judges.

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BYE, Circuit Judge.

Gas Aggregation Services, Inc. (GSI) appeals the district court's1

 August 24,

2005, order confirming an attorney's lien in favor of Thomas A. Foster, and ordering

GSI to pay attorney's fees incurred by Foster in perfecting the lien. GSI also appeals

the district court's order of January 26, 2006, ordering enforcement of the attorney's

lien and award of attorney's fees. We affirm. 

I

In 1999, GSI, through its owner, Manjit Bajwa, hired attorney Thomas A.

Foster to represent it in an action in the federal district court of Minnesota (the federal

action) to recover approximately $2,000,000 from Howard Avista Energy, LLC

(Howard). While the federal action was pending, Northern States Power Company

(NSP) brought an interpleader action in Minnesota state court (the state action) asking

the court to determine whether GSI or Howard should receive a $600,000 receivable

held by NSP. Foster represented GSI in both actions.

The federal action was arbitrated and, following an appeal to this court,

judgment was entered in favor of GSI for $2,105,392.25, plus interest. See Gas

Aggregation Servs., Inc. v. Howard Avista Energy, L.L.C., 319 F.3d 1060 (8th Cir.

2003) (reversing in part and affirming in part the district court's vacation of arbitration

award). Following the successful appeal, a fee dispute arose between Bajwa and

Foster, and Bajwa threatened to sue Foster for malpractice. On the advice of his

malpractice insurer, Foster withdrew from further representation of GSI. Foster then
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moved the state court, pursuant to Minn. Stat. § 481.13 (2002) and the parties'

arbitration agreement, to establish a lien on the $600,000 receivable held by the court

and on whatever funds GSI would recover in the federal action.

GSI argued the fee dispute was governed by a March 13, 2002, agreement

which provided for a twelve percent fee. Foster argued the dispute was governed by

a February 26, 2001, agreement providing for a twenty-four percent fee. The state

court held in favor of Foster and imposed a lien of twenty-four percent on the

arbitration award, plus interest. The state court also ordered twenty-four percent of

the $600,000 NSP receivable be held pending resolution of a second appeal which had

been filed in this court. See Gas Aggregation Servs. Inc. v. Howard Avista Energy,

LLC, 388 F.3d 639 (8th Cir. 2004) (awarding the $600,000 NSP receivable to GSI).

GSI appealed to the Minnesota Court of Appeals arguing, among other things, the

state court lacked jurisdiction to impose a lien on the recovery in the federal action.

The Minnesota Court of Appeals disagreed, finding the court had subject-matter

jurisdiction under Minn. Stat. § 481.13, subd. 1(c), and affirmed the attorney's lien.

N. States Power Co. v. Gas Servs., Inc., 690 N.S.2d 362, 367 (Minn. Ct. App. 2004).

GSI did not appeal to the Minnesota Supreme Court.

After the state district court ruled in Foster's favor, but before the state appeal

was completed, Bajwa attempted to settle the fee dispute with Foster. On December

3, 2003, he sent Foster a fax stating an attorney hired to collect the judgment against

Howard would be contacting Foster. The following day, Bajwa sent Foster a second

fax indicating he was contemplating a global settlement with Howard, which Bajwa

argued would extinguish any claim Foster had to fees on the disputed $600,000 NSP

receivable. Foster then received a letter from Bajwa's attorney offering to settle the

fee dispute for $146,755.96. Negotiations continued through December 2003, and

Foster was told, among other things, Bajwa was attempting to settle his claim with

Howard but the contemplated settlement would not involve any cash payment.

Negotiations culminated with a letter from Bajwa to Foster dated December 29, 2003,
2

The receivable was eventually awarded to GSI, thereby obligating Howard to

pay GSI a total of $2,261,349.99. 

3

The Honorable Jonathan Lebedoff, Chief United States Magistrate Judge for

the District of Minnesota. 

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detailing the difficulties he was having in reaching a settlement with Howard. The

letter stated: "Our judgment against the two insolvent companies amounts to no

recovery. If I settle [with Howard], I will petition [appellate counsel] to release the

funds to GSI based on the settlement language. My goal is to get the matter resolved

if I can." (Emphasis added).

Contrary to these and other representations, Bajwa had settled the dispute with

Howard on December 2, 2003, for a minimum cash payment of $1,661,349.99. The

settlement reserved the issue of the $600,000 NSP receivable.2

 After learning of the

settlement, Foster broke off negotiations and filed a motion in federal district court to

collect on the attorney's lien. Foster sought disclosure of the settlement terms between

GSI and Howard but was initially stymied in those efforts. Eventually, the terms of

the settlement were disclosed but the action was stayed pending resolution of the

second appeal involving the $600,000 NSP receivable. Once the second appeal was

resolved, Foster renewed his motion to confirm the lien. 

 

The matter was referred to the magistrate judge,3

 and Foster argued the federal

district court should give full faith and credit to the state court judgment.

Additionally, Foster argued he should not be limited to a lien on the amount of the

settlement. Instead, because Bajwa attempted to defraud him, Foster argued the court

should award a lien based on the amount of the judgment ($2,834,027.11), not the

settlement ($2,261,349.99). GSI argued the court should not give full faith and credit

to the state court judgment because the federal district court had exclusive jurisdiction

to determine attorney's fees arising from the federal court proceedings. GSI also

argued there was no evidence showing Bajwa attempted to defraud Foster because the
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settlement between GSI and Howard included a provision requiring Howard to

withhold twenty-four percent of all payments for attorney's fees. 

The magistrate judge concluded the state court and the federal court had

concurrent jurisdiction over the attorney's lien issue and the state court judgment

should be accorded full faith and credit. The court further concluded Bajwa's

misrepresentations to Foster justified an award of fees based on the judgment, not the

settlement. Finally, the magistrate judge recommended granting Foster's motion for

attorney's fees incurred to enforce the lien.

 

The district court adopted the report and recommendation of the magistrate

judge and entered an order in favor of Foster confirming the attorney's lien and

awarding attorney's fees. Foster moved for entry of judgment and on August 24,

2005, the district court granted the motion as to the award of attorney's fees, but

denied the motion without prejudice as to the attorney's lien. On September 8, 2005,

Foster renewed his motion for entry of judgment. On September 23, 2005, before the

court could rule on the renewed motion, GSI appealed the August 24, 2005, order.

Thereafter, GSI argued the district court was without jurisdiction to further consider

Foster's September 8, 2005, motion because the notice of appeal divested the district

court of jurisdiction. The district court, however, concluded the notice of appeal was

premature because no judgment had been entered on the August 24, 2005, order. On

January 26, 2006, the district court granted Foster's renewed motion in part and

ordered enforcement of the attorney's lien and payment of the attorney's fees. GSI

appealed and the district court granted a stay pending resolution of these consolidated

appeals. 

On appeal, GSI argues the district court: 1) erred when it afforded the

Minnesota state court judgment full faith and credit; 2) erred when it based the

attorney's lien on the amount of the judgment instead of the settlement; 3)erred when

it awarded attorney's fees; 4) had no jurisdiction to consider the September 8, 2005,
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motion because GSI's notice of appeal divested the court of jurisdiction; and 5) should

have delayed ruling on the September 8, 2005, motion pending the outcome of a state

court action filed against Foster for legal malpractice. 

II

A. State Court Judgment

GSI first argues the district court erred when it afforded full faith and credit to

the state court judgment. GSI contends the federal district court had exclusive

jurisdiction over the issue of attorney's fees incurred in the federal action, and

therefore, the state court lacked subject-matter jurisdiction.

We review the district court's decision affording the state court judgment full

faith and credit de novo. Lundquist v. Rice Mem'l Hosp., 238 F.3d 975, 976 (8th Cir.

2001). The Full Faith and Credit Statute, 28 U.S.C. § 1738, requires federal courts to

give state court judgments the same preclusive effect those judgments would be given

in the courts of the states rendering them, Allen v. McCurry, 449 U.S. 90, 96, (1980);

Tolefree v. City of Kan. City, 980 F.2d 1171, 1173-74 (8th Cir.1992), and to

implement the preclusion rules of the state issuing the judgment. Kremer v. Chem.

Const. Corp., 456 U.S. 461, 482 (1982). This general rule applies even as to questions

of jurisdiction "when the second court's inquiry discloses that those questions have

been fully and fairly litigated and finally decided in the court which rendered the

original judgment." Durfee v. Duke, 375 U.S. 106, 111 (1963). Accordingly, we look

to Minnesota state law to determine if res judicata would bar relitigation of this issue

in Minnesota state court. Wilson v. Comm'r of Revenue, 619 N.W.2d 194, 198 (Minn.

2000); see also Harmon Indus., Inc. v. Browner, 191 F.3d 894, 902 (8th Cir. 1999)

(stating federal courts look to the state law of res judicata to determine whether a state

court judgment should be given preclusive effect in federal court under 28 U.S.C. §

1738).
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In Minnesota, prior state court decisions are given preclusive effect if 1) the

claim involved the same cause of action, 2) there was a judgment on the merits, 3) the

claim involved the same parties or their privies, and 4) the party against whom res

judicata is being applied had a full and fair opportunity to litigate the matter in the

prior proceeding. Wilson, 619 N.W.2d at 198. Applying these rules, it is apparent res

judicata bars relitigation of this issue in federal court. The prior claim involved the

same cause of action, there was a judgment on the merits, and the parties are identical.

Further, it is undisputed the Minnesota Court of Appeals considered the issue of

subject-matter jurisdiction and determined the state courts had jurisdiction under

Minn. Stat. § 481.13, subd. 1(c). Finally, the judgment became final when GSI did

not appeal to the Minnesota Supreme Court. Thus, the matter was fully and fairly

litigated, and GSI is precluded under res judicata from relitigating the issue in this

appeal. Id. at 113-14.

 

GSI argues this case falls outside the general rule and we should reconsider the

state court's decision regarding subject-matter jurisdiction. In particular, GSI argues

the state court's holding improperly deprived the federal court of the opportunity to

resolve the fee dispute which arose out of the federal action, thereby infringing on the

authority of the federal court. 

 

"To be sure, the general rule of finality of jurisdictional determinations is not

without exceptions. Doctrines of federal pre-emption or sovereign immunity may in

some contexts be controlling." Id. at 114 (citations omitted). Here, no such concerns

are present, and the general rule controls. Further, GSI fails to explain how affording

full faith and credit to the state court judgment substantially infringes on the authority

of the federal court. Accordingly, we affirm the district court's order affording full

faith and credit to the state court judgment. 
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B. Amount of the Lien

GSI next argues the district court erred when it based the attorney's lien on the

amount of the judgment instead of the settlement.

 

Generally, a client may settle a case and stop the litigation at any stage in the

proceedings. Desaman v. Butler Bros., 136 N.W. 747, 748 (Minn. 1912). In such

cases, an attorney's lien extends only to the settlement proceeds. Wildung v. Sec.

Mortgage Co. of Am., 173 N.W. 429, 430 (Minn. 1919). "Fairness and common

honesty [however] would indicate that settlements of lawsuits should not be

engineered in the dark, so as to permit an irresponsible or dishonest party to get away

with the fruits of the attorney's work without payment for the services." Desaman,

136 N.W. at 203. "[D]ishonest settlements made to cheat attorneys . . . will [be]

brush[ed] aside with a strong hand . . . ." Id. at 204 (quotation omitted). "[I]f there be

fraud and collusion to deprive the attorney of his lien, the settlement will not be

permitted to accomplish such result." Id. at 202. Here, the district court concluded

Foster's lien should not be limited by the settlement because there was clear evidence

Bajwa attempted to defraud Foster. We agree. The evidence demonstrates Bajwa

misled Foster about the settlement in an attempt to deprive him of his fee, and we will

not reward his deception. Therefore, the district court's order basing the lien on the

judgment instead of the settlement is affirmed. 

C. Attorney's Fees

GSI next argues the district court erred in awarding Foster his attorney's fees

incurred in pursuing and perfecting the attorney's lien. 

 We review the district court's decision to award attorney's fees for an abuse of

discretion. Chambers v. NASCO, Inc., 501 U.S. 32, 50 (1991). "Federal courts sitting

in diversity can use their inherent power to assess attorney fees as a sanction for bad
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faith conduct even if the applicable state law does not recognize the bad faith

exception to the general rule against fee shifting." Lamb Eng'g & Constr. Co. v. Neb.

Pub. Power Dist., 103 F.3d 1422, 1435 (8th Cir. 1997). This inherent power reaches

conduct both before and during litigation as long as the conduct abuses the judicial

process in some manner. A bad faith finding is specifically required in order to assess

attorneys fees. Dillon v. Nissan Motor Co., 986 F.2d 263, 266 (8th Cir.1993)

(citations omitted). 

The district court awarded attorney's fees as a sanction for Bajwa's attempts to

conceal the settlement and to misrepresent its terms. In doing so, the court made a

specific finding of bad fath on the part of GSI/Bawja. Because there is abundant

evidence to support the district court's finding of bad faith, we affirm the award of

attorney's fees.

D. Premature Notice of Appeal

GSI next contends the district court was without jurisdiction to rule on Foster's

September 8, 2005, motion to enforce the attorney's lien because GSI appealed the

August 24, 2005, order. According to GSI, its notice of appeal divested the district

court of jurisdiction. The district court concluded GSI's notice of appeal was

premature because no judgment was entered on the August 24, 2005, order, and

therefore, there was no final appealable order. We agree. The district court's August

24, 2005, order directed payment of attorney's fees but denied, without prejudice,

Foster's request for entry of judgment on the attorney's lien. No judgment was entered

on a separate document as to either award. Thus, the order was not final and

appealable, and GSI's notice of appeal did not divest the district court of jurisdiction.
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E. Malpractice Action

GSI's final argument is the district court erred in refusing to stay these matters

pending the outcome of a state court action by GSI against Foster for malpractice.

 

Minnesota law does not require a court to entertain claims of legal malpractice

when deciding the amount of an attorney's lien. Thomas A. Foster & Assoc. LTD v.

Paulson, 699 N.W.2d 1, 8 (Minn. Ct. App. 2005). In other words, assuming Foster

committed malpractice, those issues need not be resolved before a court can rule on

the issue of an attorney's lien. Therefore, there was no legal impediment to the district

court's decision to go forward with confirming and enforcing the lien. Accordingly,

we affirm the district court's refusal to hold the federal proceedings in abeyance

pending the outcome of the state court malpractice action.

III

The order and judgment of the district court are affirmed. 

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