This opinion will be unpublished and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

A03-1444

 

Rosemary Feehan, et al.,

Plaintiffs,

 

Jon Erik Kingstad,

Appellant,

 

vs.

 

City of St. Mary’s Point, et al.,

Respondents,

 

Mark J. Vierling,

Respondent.

 

Filed May 4, 2004

Affirmed

Hudson, Judge

 

Washington County District Court

File No. C0-01-6519

 

Jon Erik Kingstad, Lake Elmo Bank Building, Suite 260, 600 Inwood Avenue North, Oakdale, Minnesota 55128 (attorney pro se)

 

Pierre N. Regnier, Jardine, Logan & O’Brien, 8519 Eagle Point Boulevard, Suite 100, Lake Elmo, Minnesota 55042 (for respondents City of St. Mary’s Point)

 

Mark J. Vierling, Eckberg, Lammers, Briggs, Wolff & Vierling, P.L.L.P., 1835 Northwestern Avenue, Stillwater, Minnesota 55082 (attorney pro se)

 

            Considered and decided by Stoneburner, Presiding Judge; Anderson, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

Appellant challenges the district court’s award of attorney fees as a sanction in an action brought pursuant to the Minnesota Government Data Practices Act.  Appellant argues that the district court abused its discretion by not making specific findings of fact or explaining the basis for the sanction.  Appellant also argues that the district court abused its discretion in not providing appellant notice that the district court was considering an award of attorney fees as a sanction.  Our review establishes that the district court made adequate findings of fact describing the offending conduct, provided an explanation for the sanction imposed, and afforded appellant sufficient notice and several opportunities to respond to respondent’s motion for sanctions.  Accordingly, we affirm.

FACTS

Respondent Mark J. Vierling is an attorney with offices in Stillwater, Minnesota; the City of St. Mary’s Point (the city) has retained Vierling in the past to provide specific services. 

On December 11, 2001,[1] appellant filed a Summons and Amended Complaint, serving it on respondent and other named defendants.[2]  Appellant alleged that Vierling, in conjunction with the city, had refused to respond to a request for records under the Minnesota Government Data Practices Act (MGDPA).  The complaint sought exemplary damages jointly and severally against all defendants, an injunction against all defendants, and other relief directed individually against the city.  On January 3, 2002, respondent served and filed a motion to dismiss and later served a notice and motion for sanctions pursuant to Rule 11 of the Minnesota Rules of Civil Procedure and Minn. Stat. § 549.211, subds. 3, 4, 5 (2002).

            On February 1, 2002, appellant, on behalf of his clients, served and filed a motion for leave to amend the Amended Complaint alleging that the city failed to appoint a responsible authority under the MGDPA and disclosed confidential documents in violation of the MGDPA.  Appellant also alleged that Vierling and others had concealed records of unlawful contract between the city and Stephen Popovich while Popovich was mayor and a member of the city council.  On April 17, 2002, after hearing appellant’s motion to amend and respondent’s motions to dismiss and for sanctions, the district court issued its decision, dismissing appellant’s Amended Complaint against respondent and granting sanctions against appellant Kingstad.

            On April 24, 2002, appellant, on behalf of his clients, filed a motion for a new trial and amended findings with the district court.  On April 25, 2002, respondent filed an affidavit requesting reimbursement for attorney fees incurred in the defense of the matter, totaling $5,116.53.  Appellant filed an unsworn response to respondent’s affidavit, and on August 15, 2002, the district court denied appellant’s motion for a new trial and amended findings.

            Respondent filed a supplemental affidavit requesting an additional $2,580.85 for expenses, fees, and time incurred in responding to appellant’s motion for amended findings of fact and for related issues addressed within the district court’s order.  On October 8, 2002, the district court directed appellant to pay attorney fees to respondent in the amount of $3,243.07 within 30 days of the date of the order.

            On October 10, 2002, appellant appealed on behalf of his clients, seeking review of the district court’s April 17 and August 15 orders.  This court denied any appeal from the October 8, 2002, award of attorney fees because no judgment had been entered and because appellant’s clients had not established that the award of attorney fees against their counsel bore directly on their personal interest.[3]  Appellant moved for entry of judgment; the district court granted appellant’s motion and entered judgment on August 7, 2003.  This appeal follows.

D E C I S I O N

I

Appellant challenges the award of sanctions, and argues that the district court abused its discretion in failing to make adequate findings of fact.  Appellant further contends that the district court’s findings were, in fact, legal conclusions.  Appellant argues that his claim against Vierling individually was innovative, but sufficiently grounded in the MGDPA to preclude sanctions.  Finally, appellant argues that the district court abused its discretion by failing to explain the basis for the sanction.

The underlying basis for appellant’s argument is two fold.  First, appellant contends that the attorney fees sanction was unwarranted because Vierling could have been subject to liability if the city had designated him as a “responsible authority” under the MGDPA.  Second, appellant claims that sanction was unwarranted because the district court assumed, without making a factual determination, that the city had not appointed or designated Vierling as a responsible authority under the MGDPA.  We find no merit in either position.

a.         Minnesota Government Data Practices Act

            The Minnesota Government Data Practices Act (MGDPA)

regulates the collection, creation, storage, maintenance, dissemination, and access to government data in state agencies, statewide systems, and political subdivisions.

 

Minn. Stat. § 13.01, subd. 3 (2002).

            The MGDPA requires that

[t]he responsible authority in every state agency [and] political subdivision . . . shall keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use.

 

Minn. Stat. § 13.03, subd. 1 (2002) (emphasis added).

The MGDPA permits “a political subdivision, responsible authority, statewide system, or state agency” to be held liable for damages arising from a violation of the MGDPA.  See Minn. Stat. § 13.08, subd. 1 (2002).

            Minn. Stat. § 13.02, subd. 17 (2002), defines “state agency” as “the state, the University of Minnesota, and any office, officer, department, division, bureau, board, commission, authority, district or agency of the state,” but this definition does not impart responsibility to a state agency.  Rather, Minn. Stat. § 13.02, subd. 16 (2002), entitled “[r]esponsible authority,” defines who is the responsible authority within those agencies under the MGDPA.

The MGDPA defines “responsible authority” of a state agency as the

state official designated by law or by the commissioner as the individual responsible for the collection, use and dissemination of any set of data on individuals, government data, or summary data.

 

Minn. Stat. § 13.02, subd. 16 (emphasis added).

 

The MGDPA defines “responsible authority” of any political subdivision as

the individual designated by the governing body of that political subdivision as the individual responsible for the collection, use, and dissemination of any set of data on individuals, government data, or summary data, unless otherwise provided by state law.

 

Id. (emphasis added).

Considering the language of the statute, it is clear and unambiguous on its face that data collected and held by all state agencies and political subdivisions are accessed through a responsible authority who is expressly designated as such either by law, the commissioner, or a governing body.  There is nothing in this record that shows that Vierling was designated a responsible authority either by law, the commissioner, or a governing body.

As the district court correctly determined, Vierling’s role in this litigation is limited to acts performed solely in his capacity as city attorney.  Specifically, in Count II of the Amended Complaint filed on December 11, 2001, it is alleged that Vierling and others violated the MGDPA by “willfully refusing and evading Plaintiff’s repeated request to obtain access to and the right to inspect and copy public official record [sic] . . . .”  Appellant further alleged that Vierling refused to prepare public documents pursuant to Minn. Stat. § 13.05 (2002), and refused to produce certain records regarding a land transaction between the mayor and the city. 

But our review of the record indicates that the city had not, at any time relevant to this matter, appointed a responsible authority to handle requests for inspection and copying of government data under the MGDPA.  Vierling, of course, does not have the authority to force the city to do any of these things; a responsible authority must be “designated by the governing body of that political subdivision.”  Minn. Stat. § 13.02, subd. 16.  Vierling, as city attorney, cannot designate a responsible authority, nor is he responsible for disseminating the city’s data.  The law is clear that a city attorney, unless designated a responsible authority, does not come within the class of prospective MGDPA defendants.  Plainly, Vierling cannot be held liable under Minn. Stat. § 13.02, subd. 16, and thus appellant’s claim was completely unfounded.

            Appellant contends, however, that Minn. Stat. §§ 13.05, subd. 11, and 13.08 (2002) create a cause of action against individual defendants.  This argument also fails.  Appellant correctly notes that under Minn. Stat. § 13.05, subd. 11(a), the MGDPA allows a political subdivision, responsible authority, statewide system, or state agency to “contract with a private person to perform any of its functions.”  When such a contract exists, the government entity

shall include in the contract terms that make it clear that all of the data created, collected, received, stored, used, maintained, or disseminated by the private person in performing those functions is subject to the requirements of this chapter and that the private person must comply with those requirements as if it were a government entity.

 

Minn. Stat. § 13.05, subd. 11(a). 

            But, as we held in appellant’s first appeal, appellant has not shown that a contract existed between Vierling and the city that designated Vierling as the responsible authority.  Thus, Vierling was not a responsible authority under Minn. Stat. § 13.05, subd. 11, and, contrary to appellant’s claim, could not be held personally liable.  Based on these clear statutory directives, appellant’s claim that its theory of the case was an innovative, plausible interpretation of the law is completely unfounded.

            Of note is the following exchange between the district court and appellant’s counsel at the February 15, 2002, hearing on respondents’ motion for sanctions:

The Court:          Excuse me.  Do you have any case law which supports your position?

 

Mr. Kingstad:     I simply point out the fact that the law says, the Data Practices Act says, that the court can make an order enjoining a person who is engaged in some practice or usage which violates the provisions of the act, and it says that –

 

The Court:          Excuse me.  The Data Practices Act, if memory serves, is how many years old since its original enactment?  I know it was around when I was in the A.G.’s office in the early ‘80’s.  So it’s at least 20 years old.  So you’d think that this issue would have come up before and been addressed by a Court.  Have you even got any other cases out there where a consultant to the city has survived as a named defendant in a suit brought under the Data Practices Act?

 

Mr. Kingstad:     I don’t because I believe most the cities probably comply with the law and don’t attempt to evade the law as the City of St. Mary’s Point is apparently attempting to evade the law through these practices and usages in transferring custody and control of their –

 

The Court:          So the answer to my question is “no.”

 

Mr. Kingstad:     The answer to your question is “no,” Your Honor, yes.

 

b.         Sanctions

            An appellate court “will not reverse a trial court’s award or denial of attorney fees absent an abuse of discretion.”  Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (Minn. 1987).  When a district court imposes sanctions, it must “describe the conduct determined to constitute a violation of this section and explain the basis for the sanction imposed.”  Minn. Stat. § 549.211, subd. 5(c) (2002).  Here, the district court did not abuse its discretion as it properly described the conduct that violated the statute and explained the basis for the sanction imposed.  The district court made the following findings of fact in its April 17, 2002, order:

5.  On February 1, 2002, Vierling filed a notice of motion and motion for recovery of sanctions against Plaintiffs’ attorney pursuant to Minn. Stat. Sec. 549.211 and Rule 11, Minn. R. Civ. P.  This pleading was served on counsel for the Plaintiffs on January 7, 2002.  Plaintiffs did not withdraw their Amended Complaint or take any other action in response to Vierling’s motion.

 

6.  As against Defendant Vierling, Plaintiffs’ Amended Complaint, acknowledged by their counsel, Mr. Kingstad, does not constitute a claim that is warranted by existing law, nor does it represent a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.  The filing of the Amended Complaint with its claims against Defendant Vierling under the MGDPA is a violation of counsel’s responsibilities under Minn. Stat. Sec. 549.211, subd. 2 (2) (2000).

 

Taken together, these findings of fact sufficiently describe the conduct that violated the statute and explain the basis for the sanction imposed.  Appellant argues that the district court did not make findings that the application of law is clear or that the position taken by appellant is contrary to existing law.  Appellant’s position is unpersuasive as it puts form over substance.  The district court noted that appellant’s claim was not “warranted by existing law,” nor did it “represent a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.”  Furthermore, this court, in related litigation between the parties, had already affirmed the district court’s finding that that respondent is not a responsible authority under the MGDPA and that appellant’s complaint did not set forth a legally sufficient claim for relief.  See Feehan v. St. Mary’s Point, No. CX-02-1780, 2003 WL 21321691 (Minn. App. Jun. 10, 2003).  The district court did not abuse its discretion because it made adequate findings of fact describing the offending conduct and provided a sufficient explanation for the sanction.

            Appellant also argues that the district court’s sanction was not designed to deter repetition of the offending conduct but was instead a punitive fine.  Minn. Stat. § 549.211, subd. 5(a) provides that:

A sanction imposed for violation of this section must be limited to what is sufficient to deter repetition of the conduct or comparable conduct by others similarly situated.  Subject to the limitations in paragraph (b), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys’ fees and other expenses incurred as a direct result of the violation.

 

But the district court has “wide discretion to award the type of sanctions it deems necessary.”  Kellar v. Von Holtum, 605 N.W.2d 696, 702 (Minn. 2000).  The district court has not abused its discretion “[a]s long as the record reflects a reasonable correlation between the final amount of the sanctions imposed, the expenses incurred by the party defending the unfounded claims, and the basis of the court’s imposition of sanctions.”  Mears Park Holding Corp. v. Morse/Diesel, Inc., 426 N.W.2d 214, 219-20 (Minn. App. 1988).  Here, the amount of the sanction imposed is reasonably related to the expenses incurred by the party defending the unfounded claims.  Respondent sought $7,697.38 in attorney’s fees and costs; the district court awarded $3,243.07.  Thus, the district court awarded less than one-half of the requested fees.  We see nothing punitive in the district court’s award.  We conclude that the sanction imposed is a reasonable deterrent and that the district court acted well within its discretion in imposing it. 

II

Appellant argues that the district court abused its discretion in imposing the sanction without sufficient prior notice or issuing an order to show cause describing the specific conduct that warranted imposition of the sanction.  Appellant further contends that respondent’s motion did not specifically identify the particular conduct that warranted imposition of the sanction.

Minn. Stat. § 549.211, subd. 3, provides that before granting an award for sanctions, the attorney, law firm, or party must be given “notice and a reasonable opportunity to respond.”  The statute does not require, as appellant argues, “specific” or “particularized” notice.  Furthermore, appellant was given sufficient notice and had several opportunities to respond to respondent’s motion for sanctions.  On January 7, 2002, appellant received the first notice of possible sanctions when respondent served a notice and motion for sanctions pursuant to Rule 11 of the Minnesota Rules of Civil Procedure and Minn. Stat. § 549.211, subds. 3, 4, 5.  On February 8, 2002, appellant received additional notice when respondent filed and served an affidavit detailing the request for attorney fees.  At the February 15, 2002, hearing, respondent argued its motion for sanctions, and appellant had an opportunity to respond to respondent’s motion and appellant’s counsel spoke regarding the issue.  The court’s order also gave appellant five business days to respond to the imposition of the sanctions by way of an affidavit.  Appellant did not file a timely affidavit with the court; but instead filed an affidavit requesting a stay of the court’s order so that appellant could pursue discovery related to Vierling’s “advice to the city on the MGDPA.”  Finally, appellant had an opportunity to respond to respondent’s motion for sanctions at the hearing on appellant’s motion for a new trial and amended findings.  Thus, appellant had sufficient notice and several opportunities to respond to respondent’s motion for sanctions and the district court’s order awarding attorney fees as a sanction.

Because appellant’s theory of the case did not constitute a claim warranted by existing law, nor a nonfrivolous argument for the extension, modification, or reversal of existing law, we affirm the district court’s order awarding sanctions.

Affirmed.

 



[1] Appellant signed the Summons and Amended Complaint on December 11, 2001.  The affidavit of service of the Summons and Amended Complaint in the district court’s file notes that respondent was served with the Summons and Amended Complaint on December 19, 2001.  However, the district court’s stamp states that the Summons and Amended Complaint was filed on January 23, 2002.  Appellant served and filed a motion to dismiss the Summons and Amended Complaint on January 3, 2002.  Thus, it appears that there was an error in the filing of the January 23, 2002, Summons and Amended Complaint, whether it be a clerical error or appellant’s error.  For clarity purposes, we will use the date of December 11, 2001, when referring to appellant’s Summons and Amended Complaint.

 

[2] Respondents deny having ever been served with the original complaint.  Although the record is unclear, it appears that on November 8, 2001, appellant also filed a Petition and Complaint Seeking Issuance of a Writ of Mandamus against the city and others.  According to respondent, this pleading was never served on any of the defendants in that proceeding.

[3] On appeal from the April 17, 2002, final partial judgment dismissing appellant’s claims against Vierling, appellant argued that Vierling was a responsible authority under the MGDPA and sought injunctive relief and compliance with Minn. Stat. § 13.08, subds. 2, 4 (2002).  This court affirmed the district court’s determination that Vierling was not a responsible authority and concluded that a city attorney, unless designated as a responsible authority, does not come within the class of prospective MGDPA defendants.  Thus, appellant’s complaint failed to state a claim on which relief could be granted.  See Feehan v. City of St. Mary’s Point, No. CX-02-1780, 2003 WL 21321691 (Minn. App. June 10, 2003).