IN COURT OF APPEALS
Irina Alexandrovna Johnson,
and o/b/o Angelique Nina Johnson, petitioner,
Bryan Craig Johnson,
Filed January 30, 2007
St. Louis County District Court
File No. 69-F6-04-601063
Brenda S. Denton, Legal Aid Service of Northeastern Minnesota, 424 West Superior Street, Suite 302, Duluth, Minnesota 55802 (for appellant)
Bill L. Thompson, 1200
Considered and decided by Minge, Presiding Judge; Shumaker, Judge; and Hudson, Judge.
Because the purpose of awarding attorney fees under Minn. Stat. § 549.211 (2004) and Minn. R. Civ. P. 11 is deterrence rather than punishment, the “safe-harbor” provision of the statute and rule, which requires adequate notice of the possibility of a sanction before filing the motion with the court, is mandatory.
O P I N I O N
In November 2004, the district court granted appellant Irina Alexandrovna Johnson an emergency ex parte order for protection (“OFP”) against respondent Bryan Craig Johnson. In August 2005, the district court dismissed the OFP after an evidentiary hearing. During an unrelated September 2005 marriage-dissolution hearing, respondent requested attorney fees for costs incurred defending against the previously dismissed OFP. The district court subsequently ordered appellant to pay respondent’s attorney fees incurred defending against the OFP. Appellant argues that the fee award constitutes an abuse of discretion because respondent did not adhere to the statutory “safe-harbor” requirements of Minn. Stat. § 549.211 (2004) and Minn. R. Civ. P. 11. Because the mandatory “safe-harbor” provisions of Minn. Stat. § 549.211 (2004) and Minn. R. Civ. P. 11 were not met, we reverse.
Appellant and respondent were married in 1999. Appellant left the relationship in November 2004, when she departed their home with a police escort. In November 2004, she petitioned for and was granted an emergency ex parte order for protection against respondent. In December 2004, the district court issued an OFP after respondent failed to appear for the hearing. Appellant alleged a history of domestic violence, physical assault, and emotional abuse, including respondent’s threats to kill her and himself if she left him or sought child support. Appellant contends that she feared for her own safety. Immediately after receiving notice of the OFP, respondent took steps to vacate the default judgment. Both parties agreed to an evidentiary hearing, at which the district court found the testimony of respondent “overwhelmingly credible” and the testimony of appellant “incredible and not to be believed.” The district court dismissed the ex parte OFP with prejudice, stating that appellant “failed to prove by a preponderance of the evidence” that domestic abuse had occurred.
At a pretrial hearing in a separate proceeding to dissolve the parties’ marriage, respondent made an oral request for attorney fees incurred in the OFP proceeding. The issue was scheduled for hearing and respondent subsequently filed a letter with the court seeking attorney fees incurred in the OFP proceeding. A copy of the letter was sent to opposing counsel. The letter was accepted by the district court as a notice of motion and motion for fees incurred defending against the ex parte OFP. The October 2005 hearing concerned only the issue of attorney fees. Counsel for appellant admitted at the hearing to receiving a letter from respondent requesting attorney fees but “did not view it as a motion.”
In December 2005, the district court awarded attorney fees to respondent under Minn. Stat. § 549.211 (2004) and Minn. R. Civ. P. 11, allowing respondent to recover the entirety of the funds expended to defend against appellant’s “unsubstantiated and unfounded allegations.” Appellant’s informal petition for reconsideration was denied. The district court found that the letter sent by respondent in September 2005 was adequate notice as it was supplied to both the district court and opposing counsel. This appeal follows.
Did the district court err as a matter of law in awarding respondent attorney fees without applying the “safe-harbor” provisions of Minn. Stat. § 549.211 (2004) and Minn. R. Civ. P. 11?
Appellant argues that the
district court abused its discretion when it awarded respondent attorney fees
without requiring respondent to follow the applicable statutory and procedural
guidelines. An award of attorney fees is
reviewed for an abuse of discretion. Becker v. Alloy Hardfacing & Eng’g Co.,
401 N.W.2d 655, 661 (
The mandatory opportunity to
respond to a motion for attorney fees made under Minn. Stat. § 549.211 or rule
11 is provided for in the “safe-harbor” provisions of those authorities. Minn. R. Civ. P. 11.03(a)(1) “independently
requires that a party seeking sanctions serve its motion on the nonmoving
party, wait for 21 days, and, if the challenged material has not been withdrawn
or corrected by then, file the motion for sanctions in the district court.” Gibson
v. Coldwell Banker Burnet, 659 N.W.2d 782, 789 (
A request for conduct-based
attorney fees made under Minn. Stat. § 549.211 or rule 11 that arises out of
the conduct of a party in a district court proceeding must be presented to the
district court at a stage in the proceedings where the deterrent effect of the
applicable rule and statute will be advanced.
Empire Fire & Marine Ins. Co.
v. Carlson, 476 N.W.2d 666, 669 (
Here, appellant argues that
the September 2005 letter from respondent requesting attorney fees did not
provide her with the opportunity to respond or correct her action under Minn.
Stat. § 549.211, subd. 4(a), or
The proper procedure for
obtaining a domestic-abuse-related OFP in
Because respondent’s oral request and letter requesting attorney fees came after the dismissal of the OFP and almost nine months after respondent’s first motion to modify the OFP, they fail to satisfy the “safe-harbor” provisions of the statute and the rule. Appellant was not afforded time to withdraw or appropriately correct the challenged conduct pursuant to Minn. Stat. § 549.211 and Minn. R. Civ. P. 11. While the district court has the authority to assess sanctions under these provisions, that authority is circumscribed by the 21-day “safe-harbor” provisions of the statute and the rule. By failing to apply the mandatory “safe-harbor” provision, the district court erred as a matter of law.
D E C I S I O N
Because we conclude that the district court erred as a matter of law when it awarded attorney fees despite respondent’s failure to adhere to the mandatory “safe-harbor” provisions of Minn. Stat. § 549.211 (2004), and Minn. R. Civ. P. 11, we reverse.