This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2000).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-02-355

 

 

David Edward Braith, petitioner,

Respondent,

 

vs.

 

Laure Jean Fischer,

Respondent,

 

Dale C. Nathan,

Appellant.

 

 

Filed October 22, 2002

Affirmed; motion granted

Robert H. Schumacher, Judge

 

Scott County District Court

File No. C9614755

 

 

Timothy L. Warnemunde, 400 First Street South, P.O. Box 22, Montgomery, MN 56069 (for respondent Braith)

 

Laure Jean Fischer, 751 Main Street, Elko, MN 55020 (respondent pro se)

 

Dale C. Nathan, 1230 Eagan Industrial Road, Suite 150, Eagan, MN 55121 (attorney pro se)

 

 

Considered and decided by Schumacher, Presiding Judge, Kalitowski, Judge, and Minge, Judge.


U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant Dale C. Nathan argues that he did not receive timely and adequate notice of a hearing on motions for attorney fees made by respondent David Edward Braith. Braith moves to strike Nathan's March 5, 2002, affidavit from the record. We affirm and grant the motion.

FACTS

Over the course of one year in lengthy visitation and custody litigation, Braith brought two motions for attorney fees and sanctions against Laure Jean Fischer and Nathan, her attorney at that time. The first motion was brought during a November 1, 2000, telephone hearing among the district court, Braith's attorney, and Nathan. The court found Nathan to have violated Minn. R. Civ. P. 11 and Minn. Stat. 588.11 (2000). The court granted Braith attorney fees and costs and ordered Braith's attorney to submit an affidavit and Nathan to respond within 14 days.

Braith's second motion for attorney fees and sanctions, dated August 27, 2001, was made after Nathan's July 16, 2001, motion to remove the judge assigned to the case. Despite conducting hearings on both of these motions, in neither case did the court rule on the motions for attorney fees.

After Nathan withdrew as attorney for Fischer on October 22, 2001, the court conducted an administrative review of the file and issued an order on October 25, 2001, scheduling a November 6, 2001, hearing to consider all of Braith's previous motions for attorney fees and costs as well as an outstanding motion to hold Fischer in contempt. Nathan received the October 25, 2001, order by fax on October 26, 2001. He did not respond. On November 2, 2001, Braith's attorney sent Nathan an affidavit setting out his fees and costs related to the motion. Nathan did not respond. On November 6, 2001, the parties and their attorneys attended the scheduled hearing. Nathan did not appear.

At the November 6 hearing, Fischer was granted two weeks leave to submit an affidavit defending the motion to hold her in contempt. On January 7, 2002, she submitted her affidavit, primarily blaming her Nathan for her conduct. After receiving Fischer's affidavit, the court entered judgment against Nathan and Fischer for attorney fees.

Although Nathan received the Fischer affidavit sometime in February 2002, he did not seek relief from the district court. After judgment was entered, he filed his own responsive affidavit with the district court and with his appeal to this court.

D E C I S I O N

"[A]fter notice and a reasonable opportunity to respond," the court may impose appropriate sanctions to deter a party or attorney whose conduct in civil litigation is unwarranted and unreasonable. Minn. Stat. 549.211 (2000); Minn. R. Civ. P. 11. "A party or attorney must have fair notice of both the possibility of a sanction and the reason for its proposed imposition." Rumachik v. Rumachik, 494 N.W.2d 68, 71 (Minn. App. 1992) (Uselman v. Uselman, 464 N.W.2d 130, 143 (Minn. 1990)). A party or attorney is also entitled to an opportunity to respond at a hearing on the record regarding a possible sanction. Kellar v. Von Holtum, 605 N.W. 2d 696, 702 (Minn. 2000), as amended on denial of reh'g (Minn. Feb. 29, 2000).

Nathan concedes that he received on October 26, 2001, the order scheduling the November 6, 2001, hearing. The court order clearly identified the subjects of the November 6 hearing: Braith's "motions for sanctions and attorney fees in earlier proceedings" and an order to show cause why Fischer should not be held in contempt. The order also provided that "[t]o the extent motion papers and supporting affidavits are to be submitted by counsel, [they must] be received by responding counsel by November 2, 2001."

Given the clarity of the order and Nathan's many previous appearances in this matter before the same court, it is disingenuous for Nathan to claim that the order did not provide reasonable notice that the outstanding motions for sanctions would be heard on November 6. Having received adequate notice through the order and the clearly referenced prior motions, Nathan had a duty to respond or appear.

When a court order provides for a specified period in which an attorney or party must act, an enlargement of time is available to an aggrieved attorney or party "for cause shown." Minn. R. Civ. P. 6.02. With or without motion, Nathan could have sought relief from the court's deadline upon receipt of the order or later when he received opposing counsel's affidavit on November 2. See id. Upon motion and a showing of excusable neglect, Nathan could have sought relief anytime after the court's deadlines. Id. Nathan took no steps to obtain relief from the district court.

Nathan also claims that even though he was never served with Fischer's affidavit, it was received and considered by the court in its order sanctioning both of them with attorney fees. Had Nathan been present at the November 6 hearing, however, he would have heard the substance of the affidavit and could have made an objection and offered his own counter-affidavit. Having failed to timely respond to the court order or Braith's affidavit or to appear, he cannot now be heard to complain about the Fischer affidavit.

Furthermore, Nathan's untimely counter-affidavit, submitted to the district court two months after the judgment for sanctions and one day after he filed this appeal, is not properly before this court on appeal from the judgment. See, e.g., State v. Pearson, 609 N.W.2d 630-34 (Minn. App. 2000) (striking affidavit not sworn to until after sentencing), rev'd on other grounds, 637 N.W.2d 845 (Minn. 2002); Brett v. Watts, 601 N.W.2d 199, 201-02 (Minn. App. 1999) (striking medical report not submitted to district court before entry of judgment appealed from), review denied (Minn. Nov. 17, 1999).

Affirmed; motion granted.