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COSTELLO v. MCFADDEN9/18/1996
es against petitioning creditors in involuntary bankruptcy proceeding, if debtor consents to dismissal of petition; within meaning of this statute, debtor did not "consent" to petitioning creditors' requests for dismissal of involuntary petition even though debtor did not oppose motion to dismiss; therefore, debtor was not precluded from seeking bad faith damages from petitioning creditors); Alaska Airlines v. United States, 399 F. Supp. 906, 910 (N.D.Cal. 1975) (consent is not unilateral but requires two parties, the one giving consent and the one to whom consent is given); Casserly v. Bench, 521 S.W.2d 395, 396 (Mo. 1975) (rule provided that court could direct attorneys for parties to appear before it for pretrial conference "in the county where the case is pending if all parties consent"; held that "consent" in rule meant express willingness; absence of any affirmative objection did not constitute consent); Babitzke v. Silverton Union High School No. 7J, 72 Or. App. 153, 161-62, 695 P.2d 93, 98 (1985) (where teacher considered anticipated dismissal to be unfair sanction, teacher could not be said to "consent" to dismissal within meaning of statute without some clear statement from teacher that she nevertheless agreed that dismissal should be taken).
According to the common meaning of consent, it takes two to agree. The person consenting must voluntarily agree to the proposed action. In addition, the party consenting must express his or her willingness. Mere inaction to a proposal is not consent.
Here, Brown did nothing when the plaintiffs filed their motion for summary judgment. There is no evidence that Brown expressed his willingness in any way either to the plaintiffs or to the court that the court sustain the motion. In these circumstances we can hardly say that Brown voluntarily agreed, that is, consented to the court's ruling on the summary judgment motion. Having reached this conclusion, we need not decide whether the alleged "consent" constituted an irregularity within the meaning of rule 252(b).
The district court correctly ruled that the alleged ethical violations did not constitute an irregularity for purposes of rule 252(b). The court also correctly ruled that Brown did not consent to the court's ruling on the motion for summary judgment in the original proceeding. The district court therefore correctly denied McFadden's petition to vacate judgment against him.
IV. The Cross-Appeal.
After the district court entered final judgment against McFadden in the original proceeding, the plaintiffs obtained a New York judgment on the Iowa judgment. In New York, the plaintiffs' New York lawyers garnished funds McFadden had coming to him. McFadden then sought to stay the New York proceedings.
Iowa Code section 502.501 provides that any person who violates section 502.201 (sale of unregistered securities) shall be liable for reasonable attorney fees to the person purchasing the securities. Under section 502.501, the plaintiffs sought attorney fees they incurred in attempting to collect the judgment in New York. The district court refused to allow these fees, and the plaintiffs contend this was error.
Our review on this issue is for legal error. Iowa R. App. P. 4.
Generally, attorney fees are recoverable only by statute or under a contract. See, e.g., Humiston Grain Co. v. Rowley Interstate Transp. Co., 512 N.W.2d 573, 576 (Iowa 1994) ("Attorney fees are not recoverable as court costs unless based on a statute or agreement authorizing them."). There is nothing in section 502.501 providing for collection of attorney fees incurred to enforce a judgment. The statute only allows attorney [553 NW2d Page 614]
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