This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Hennepin Soil and Water
aka Hennepin Conservation District,
Filed April 22, 2003
Hennepin County District Court
File No. 0112533
James P. Michels, Ann E. Walther, Karin E. Peterson, Rice, Michels and Johnson, 206 East Bridge-Riverplace, 10 Second Street N.E., Suite 206, Minneapolis, MN 55413 (for respondent)
Leigh Harrod, 220 Bell Street, Excelsior, MN 55331 (appellant pro se)
Considered and decided by Klaphake, Presiding Judge, Lansing, Judge, and Stoneburner, Judge.
Leigh Harrod appeals pro se from a judgment vacating an arbitrator’s award and denying her request for reimbursement of costs that she incurred consulting with two attorneys during the pendency of lawsuits brought against her by respondent Hennepin Conservation District (HCD). On appeal, Harrod argues that she is entitled to reimbursement of these expenses or costs. Because (1) the arbitrator’s award was untimely; (2) attorney fees are not available to a pro se litigant under Minn. Stat. § 13.08 (2002); and (3) Harrod has not yet brought a claim to challenge the HCD’s refusal to indemnify and defend her under Minn. Stat. § 466.07 (2002), we affirm the district court’s decision to vacate the arbitrator’s award and deny Harrod’s request for reimbursement.
In November 2000, Harrod was elected by voters to the HCD Board of Supervisors. She began her four-year term as a supervisor in January 2001.
In July 2001, the HCD brought two lawsuits against Harrod in her individual capacity. The first alleged that Harrod made numerous disparaging remarks about the HCD and its employees, both at public meetings and in conversations with other people. This suit claimed a breach of contract and sought damages in excess of $50,000.
The second suit alleged that Harrod “inundated” the HCD with requests for data under the Minnesota Government Data Practices Act (data practices act) and that the HCD made a good faith effort to respond to those requests. This suit sought injunctive and declarative relief. Harrod answered both suits and filed a counterclaim in the data practices suit, seeking a declaration that the HCD has violated the data practices act.
After the Hennepin County Board of Commissioners refused to allow any expenditure of funds to pursue litigation in “matters that do not involve specific conservation issues,” the HCD sought to dismiss its suits against Harrod. The district court eventually dismissed both of the HCD’s suits against Harrod with prejudice, but specifically ordered Harrod’s counterclaim under the data practices act dismissed without prejudice, “with leave to refile with no filing fees when all administrative remedies have been exhausted.”
The district court thereafter ordered arbitration on the “limited” issue of Harrod’s requests for attorney fees and costs under Minn. Stat. §§ 13.08, 466.07 (2002). The hearing took place on May 3.
On May 21, the district court issued an order denying Harrod’s motion for attorney fees. Two days later, on May 23, the arbitrator filed an award with the district court.
The HCD thereafter questioned the timeliness of the arbitrator’s award and its effect. The HCD requested a clarification from the district court and, to preserve its rights, filed a request for a trial de novo. The district court vacated the arbitrator’s award because it was not filed within 10 days as required by Minn. R. Gen. Pract. 114.09(d).
Construction of statutes and rules of practice or procedure are issues of law that this court reviews de novo. See State v. Johnson, 514 N.W.2d 551, 554 (Minn. 1994) (conflict between statute and rule or procedure is question of law); Grinnell Mut. Reinsurance Co. v. City of Cokato, 603 N.W.2d 665, 667 (Minn. App. 1999) (statutory construction is question of law); In re Welfare of J.D.O., 504 N.W.2d 281, 283 (Minn. App. 1993) (construction of rule of juvenile procedure is question of law), review denied (Minn. Sept. 30, 1993).
Harrod challenges the district court’s decision to vacate the arbitrator’s award, arguing that the decision “ignores public policy issues” and denies her any relief. The district court concluded that the arbitrator’s award was void or voidable because it was not filed within 10 days as required by Minn. R. Gen. Pract. 114.09(d).
For unknown reasons, the arbitrator filed his award more than 10 days from the date of the hearing. The award was therefore untimely under Minn. R. Gen. Pract. 114.09, subd.(d)(1), which provides that “[n]o later than 10 days from the date of the arbitration hearing * * *, the arbitrator shall file with the court the decision, together with proof of service by first class mail on all parties.” As the HCD notes, even if the award had been timely filed, it was not binding on the parties because they never stipulated that it would be binding and because the HCD requested a trial de novo under Minn. R. Gen. Pract. 114.09(e)(1) (“Within 20 days after the arbitrator files the decision with the court, any party may request a trial by filing a request for trial with the court, along with proof of service upon all other parties.”). These rules are unambiguous and strictly construed. Smigla v. Schnell, 547 N.W.2d 102, 104 (Minn. App. 1996). Thus, the district court did not err in vacating the arbitrator’s award.
Harrod challenges the district court’s ruling that she is not entitled to reimbursement of her litigation expenses because she was not a “party who substantially prevailed in this litigation” and thus was not entitled to attorney fees under Minn. Stat. § 13.08.
The data practices act requires a party to be “aggrieved” to recover attorney fees under Minn. Stat. § 13.08, which is different than “prevailing.” Wiegel v. City of St. Paul, 639 N.W.2d 378, 385 (Minn. 2002) (data practices act requires party to be “aggrieved” in order to claim attorney fees under Minn. Stat. § 13.08). Here, it is unclear whether Harrod was aggrieved: the district court dismissed her counterclaim against the HCD without prejudice and specifically indicated that she could “refile” her claim after exhaustion of administrative remedies. However, we need not determine whether Harrod qualifies as an “aggrieved” party, because as a pro se litigant, she is not entitled to reimbursement of costs or expenses incurred to consult with an attorney who does not represent her in the underlying lawsuit.
Minn. Stat. § 13.08, subd. 1, provides that a
political subdivision * * * which violates any provision of this chapter is liable to a person * * * who suffers any damage as a result of the violation, and the person damaged * * * may bring an action against the political subdivision * * * to cover any damages sustained, plus costs and reasonable attorney fees.
“Damages” generally do not include attorney fees or litigation expenses. See generally 13 Dunnell’s Minn. Digest Damages § 1.02.a. (4th ed. 1991). Thus, even if Harrod is considered “aggrieved” under the data practices act, she is not entitled to recover, as a pro se litigant, the expenses she incurred to consult with attorneys about her case.
Harrod cites Blazy v. Tenet, 194 F.3d 90 (D.C. Cir. 1999), a case in which a pro se litigant was allowed to recover expenses incurred for hiring attorneys to advise him, because he “substantially prevailed” under the federal privacy act, which specifically allows assessment of “reasonable attorney fees and other litigation costs reasonably incurred in any case.” Id. at 94. Minn. Stat. § 13.08, however, does not specifically allow for assessment of “litigation costs.” We therefore affirm the district court’s denial of Harrod’s request for attorney fees under Minn. Stat. § 13.08.
Harrod argues that the HCD had a duty to indemnify and defend her under Minn. Stat. § 466.07, subd. 1 (2002). That statute provides in pertinent part:
Subdivision 1. Indemnification required. Subject to the [maximum liability] limitations in section 466.04, a municipality or an instrumentality of a municipality shall defend and indemnify any of its officers and employees, whether elective or appointive, for damages, including punitive damages, claimed or levied against the officer or employee, provided that the officer or employee:
(1) was acting in the performance of the duties of the position; and
(2) was not guilty of malfeasance in office, willful neglect of duty, or bad faith.
Id. This provision imposes a duty to defend and indemnify only when damages are sought and does not apply to an action unrelated to establishment of monetary damages. Kroschel v. City of Afton, 512 N.W.2d 351, 354 (Minn. App. 1994) (holding § 466.07 not applicable to case involving civil penalty for violation of open meeting law), rev’d on other grounds, 524 N.W.2d 719 (Minn. 1994).
Here, the HCD sought damages against Harrod only in connection with its breach of contract claim. The remaining claims involved declaratory and/or injunctive relief against Harrod. Thus, the HCD arguably had a duty to defend and indemnify Harrod in connection with the breach of contract claim.
The district court, however, did not rule on this issue. Rather, in its May 21, 2002 order, the district court stated:
2. The Motion of Defendant Harrod for attorney fees pursuant to Minn. Stat. § 466.07 is denied. The applicability of this statute to this matter and whether Plaintiff [HCD] was required to provide a defense for Defendant Harrod is not properly before the Court.
3. The issues of 1) the duty of Plaintiff [HCD] to provide Defendant Harrod an attorney; 2) the duty of Plaintiff [HCD] to defend Defendant Harrod; or 3) the duty of Plaintiff [HCD] to reimburse Defendant Harrod for attorney fees incurred by an attorney filing a Certificate of Representation and actually appearing on her behalf in [a data practices] action are premature, speculative and not ripe for adjudication.
On appeal, the HCD concedes that “[i]f Harrod wants to pursue her section 466.07 claim, she can file a declaratory judgment action.” Thus, the issues involving the application of Minn. Stat. § 466.07 have not been addressed by the district court and have not been litigated.
We therefore affirm the district court’s vacation of the arbitration award and its denial of Harrod’s request for reimbursement of costs she incurred to consult with two attorneys in connection with two lawsuits brought against her by the HCD.