This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Cheryl Ann Olson, petitioner,
Mark Allen Babler,
HennepinCounty District Court
File No. DA 283510
Guerrero, Meshbesher & Spence, Ltd.,
A. Olson, Olson Law Office,
Considered and decided by Minge, Presiding Judge, Randall, Judge, and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
On appeal from an award of attorney fees to respondent in this OFP proceeding, appellant argues that (a) numerous findings by the district court lack support in the record and (b) appellant was not given the notice of sanctions required by Minn. Stat. §549.211 (2004).
We conclude appellant’s request for an OFP was in bad faith and for an improper purpose. The award of attorney fees to respondent was within the district court’s discretion and the fee amount was reasonable. We affirm.
In March 2003, Cheryl Olson, appellant, filed a Petition for Order for Protection against her boyfriend, Mark Babler, respondent, alleging abuse. The parties had been dating for three years.
In her petition, appellant alleged that respondent came to her residence, things escalated, and she asked him to leave. As respondent left, he demanded that she give him his jacket, but she refused, stating the jacket belonged to her father. Respondent grabbed the jacket from appellant and she alleged that respondent “shoved [her] against a wall with force.” Appellant testified that respondent did not injure or threaten her. After respondent left with the jacket, appellant called the police who retrieved the jacket.
In addition to the incident in her petition, appellant alleges several other altercations with respondent. Sometime in December 2002, appellant alleges she was injured when respondent punched, slapped, hit, kicked, grabbed her by the throat, and pulled her hair during an altercation. As a result, respondent was arrested and pleaded guilty to disorderly conduct and ordered to participate in a mandatory anger management program.
When respondent was one week away from completing the court ordered anger management program, appellant contacted the counseling program alleging that respondent had again assaulted her. She reported that respondent stuffed a blanket in her mouth cutting off her air and held her down with his knee causing an asthma attack. Police were not notified but respondent was found to have violated the terms of his probation. Appellant’s allegations delayed his completion of the program.
During respondent’s probation violation hearing, appellant testified on his behalf. She lied to the court to help respondent look favorable in a separate proceeding for the custody of his children from a different relationship.
Appellant testified that on yet another separate occasion, respondent assaulted and injured her while she was driving. She testified that respondent hit her in the face, pulled off her glasses, and punched her but she did not report this incident to the police.
Finally, appellant alleged that after their recent breakup, respondent showed up at her home and demanded that she turn over his belongings. Her testimony paints a descriptive picture of the incident describing respondent as yelling and using derogatory words, threatening to trash her house and van. Respondent was never arrested, but appellant testified that a police report was filed. Evidence presented at trial painted a different picture of what occurred. When respondent went to appellant’s house to collect his belonging, he brought along a tape recorder in order to record his conversation with appellant. The tape recording revealed that respondent was calm and collected during the incident and did not threaten appellant.
The district court found that appellant has a propensity to lie. During trial, appellant admitted lying to the court on numerous occasions in an attempt to make respondent look more favorable. When her attorney asked whether she had lied in court on other occasions, appellant testified “absolutely.” She continued her habit of lying during the present case injuring any possible credibility. Appellant testified that she had been pregnant with respondent’s baby but had an abortion. She never produced medical records to support her testimony nor could she remember the exact month she had the abortion. At trial, she testified that she never told anyone that she had children with respondent. Witness testimony proved otherwise. Other evidence showed that appellant represented to others, including the court, that she was a medical doctor. On cross-examination she admitted she was not a doctor. Appellant testified that she was never married to respondent, but at other times, has told the court and others that she was married to respondent. Finally, appellant testified that she had a terminal illness, later admitted that this was not true.
In its memorandum to its findings, the district court described appellant’s lying as “intentional” leading to “intentional bad faith pleading and intentional bad faith conduct” during the litigation. It further stated that appellant
demonstrated total disregard for the sanctity of oath and of authority and dignity of the Court as a function of its duty to dispense fairness and justice. She has told lies big and small, some directly relating to the principle components of [the] proceedings, and others of collateral importance. There is nothing that [appellant] says that can readily be believed without supporting documentation.
At the conclusion of the trial, the district court vacated appellant’s ex parte order for protection and dismissed her petition for an order for protection. The district court found that appellant lied to respondent and cheated him out of money, failed to prove that any abuse occurred, and acted in bad faith and asserted frivolous claims in the proceeding. The district court also found that appellant was put on notice by respondent that he believed she was making a sanctionable claim and that her claims caused respondent to incur unnecessary legal fees, investigative expenses, and costs. The district court ordered that respondent’s request for reasonable attorney fees, costs, and expenses or other sanctions be heard. A hearing date was scheduled for July 2003.
Although a hearing date was set to determine fees, expenses, costs, and sanctions, the matter was continued a number of times to allow additional discovery. After almost a year of additional discovery, written arguments, additional evidence, and testimony, a hearing was held in November 2004. Appellant argued that sanctions should not be awarded because respondent failed to give her notice of sanctionable conduct, she did not act in bad faith or bring frivolous claims, and was entitled to a new trial. The district court found appellant’s arguments unpersuasive reasoning that her conduct involved extensive intentional lying under oath which a reasonable person would understand is a risk for sanctions. The district court denied all of appellant’s requested relief: (a) motion to vacate parts of the court’s findings of fact; (b) her motion to dismiss sanctions; (c) the findings that she did not act in bad faith or assert frivolous claims; (d) and her motion for a new trial. This appeal followed.
On appeal, appellant argues that many of the trial court findings are without substantial evidentiary support, she was not provided the proper notice by either the district court or respondent that sanctions would be sought or awarded, and that the district court abused its discretion by awarding attorney fees to respondent.
D E C I S I O N
Appellant argues that some of the district court’s findings are literally without support in the record.
of fact, whether based upon oral or documentary evidence, shall not be set
aside unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of the witnesses.”
The credibility of each witness was an important consideration in the district court’s decision. The district court found that appellant lied to respondent and cheated him out of money during the course of their relationship. Appellant argues there is “absolutely no substantial evidentiary support for this finding” and that respondent presented no evidence to substantiate this allegation. We disagree. There is some reasonable evidence to support the district court’s finding.
Respondent testified that he withdrew money from his retirement account and gave it to appellant so that she could place it in her safe. When he requested the money, appellant told him that her father had taken the money. Respondent testified that he spent and gave money to appellant as a result of her promises that she would pay him back. Appellant never fulfilled her promises.
Based upon the evidence before it, the district court’s finding that appellant cheated respondent out of money is not manifestly contrary to the weight of the evidence. Appellant offers no evidence to show otherwise. The district court essentially had to determine whose testimony was more credible and determined that respondent’s testimony was more credible.
The district court found that appellant faked a wedding between respondent and herself. Appellant argues there is no evidentiary support for this finding. She denied that she and respondent were ever married. Respondent testified that he and appellant were married during a ceremony held at her house in front of friends and a minister. Both parties testified that October 7, 2002 reflected the date that they applied for a marriage license. After an October 2002 wedding, respondent testified he checked at the county to see if the appropriate wedding papers were filed and they were not. Once again, the district court had to make a credibility determination and found respondent more credible.
The district court found that appellant lied about being pregnant and lied about having an abortion. Appellant argues there is no evidence to support this finding other than appellant’s refusal to disclose medical records which she refused to do because she claims they contain “sensitive and private” information, having no relevance to her claims of abuse and fear. The court was again left to make a finding primarily on conflicting testimony.
During trial, appellant testified that she was pregnant with respondent’s child but that she aborted the pregnancy. However, she was unable to prove the existence of an abortion. She could not recall the dates of her alleged abortion, a traumatizing event, not even the month. After her testimony regarding her alleged abortion, the district court ordered that appellant sign an authorization to obtain medical records to show that she had in fact experienced an abortion. Appellant refused to sign an authorization.
Appellant testified that she never told respondent or anyone else that she had a child with respondent but then testified she “absolutely” told respondent that she had children by him. She testified she told him she had children by him “because [she] absolutely couldn’t stand [respondent].” Evidence at trial included a baby announcement which was sent to respondent’s parents announcing that she had given birth to respondent’s twins.
Respondent testified that appellant told him she gave birth to his twin boys sometime in August 2002. When he requested to see them, she told him that they were born with a disease and in intensive care. He testified appellant told him that he could not see his sons because only medical personnel were allowed into intensive care. Appellant even presented respondent with pictures of his alleged children.
The district court found that appellant lied about having terminal cancer, both testifying to this fact and stating so in her petition. Appellant argues she never told the court she was suffering a terminal illness, but had to concede she stated so in her petition for an OFP. Also, at trial appellant testified that she was suffering from a terminal illness. The district court’s finding is supported by the evidence.
The district court found that appellant’s allegations and testimony regarding alleged abuse was not supported by the evidence. She argues she is fearful for her well being as a result of past abuse. The district court’s finding that she lied regarding past abuse is supported by a tape recording which she concedes “undermine[s] her testimony to some degree” and relates “to the heart of her case.” The tape recording proves that appellant lied to the court in her petition and through her testimony.
The district court found no evidence that respondent had any other similar incidents or any violent criminal record. Appellant argues evidence supports her allegations of abuse and her fear because police arrested respondent after observing abrasions on appellant’s hand and neck and that he plead guilty to disorderly conduct as a result. The district court found that appellant has testified that she and appellant continued to live together, things were going good, and she wanted to continue to have contact with respondent after similar alleged incidents. Appellant points to specific photographs showing past alleged abuse by respondent. However, appellant’s own testimony brings into question the validity of the photographs. Appellant could not prove the authenticity of the pictures. The district court found that the injuries sustained could not have happened as appellant testified.
The district court found that appellant has a significant earnings capacity and should be required to exercise that capacity to pay her debt owed to respondent. Appellant argues that there is no support for this finding. Evidence supports the district court’s finding. The district court found that appellant was last employed by Allina of United Hospitals as a surgical coordinator earning $40,000.00 per year. The court found that she possessed the potential to earn at least this amount. Although appellant argues she is unemployed and receiving disability payments. She provided no credible evidence to support this claim. She provided no evidence showing that she is receiving social security disability payments. Appellant argues that the court’s estimated value of her assets is not supported by substantial evidence. Appellant has provided no evidence to show otherwise. Based upon the evidence, the district court’s findings are not clearly erroneous.
In addition to the lack of evidence to show that the district court’s findings are manifestly contrary to the evidence, appellant’s credibility was her worst enemy. Appellant testified that she had lied to the court and further testified, “I’ve lied to . . . numerous different people on numerous occasions regarding [respondent’s] behavior and the abuse.” Appellant lied in her petition and in her testimony concerning her lies in her petition. Appellant’s attorney stated appellant “was obviously attempting to garner some sort of sympathy from the court when she filled out [the] petition that formed the basis of obtaining the ex parte order . . . .” Based on counsel’s candor, and appellant’s surprising candor exhibited by her willingness to admit that, “sure I lied,” it is difficult to second guess this district court judge for making credibility determinations in favor of respondent.
Based on the complete record and the credibility determinations of the district court, there is sufficient evidence to support the district court’s findings.
Appellant argues that the district court failed to give notice of its intent to award sanctions.
district court’s award of attorney fees under Minn. Stat. § 549.211 (2004) is
reviewed for an abuse of discretion. Gibson v. Coldwell Banker Burnet, 659
N.W.2d 782, 787 (
The district court found that sanctions were warranted under Minn. R. Civ. P. 11 and Minn. Stat. § 549.211. The court concluded that it had inherent powers to award sanctions for bad faith, vexatious, wanton, or oppressive reasons.
The district court found that appellant was given sufficient notice through letters by respondent to the court and herself. The court stated in its findings of fact that although the letters “did not specifically state respondent’s intent to seek sanctions, that clearly was an implication and at that point, [appellant] was represented by counsel who should have recognized the risk.” The court found that appellant should have realized that respondent would seek sanctions because from its “inception, this case was permeated by a clear indication from respondent that he intended to vigorously defend himself and to reveal [appellant] a liar.” The court stated that a party who intentionally lies “should not have to be notified of an intent to seek sanctions, by virtue of the party’s outright lies.” Respondent orally moved the court for sanctions on April 29, 2003 during trial. According to Rule 11 and Minn. Stat. § 549.211, a party moving for sanctions must not only move for sanctions, but must file with or present to the court its motion. When respondent orally moved for sanctions, appellant was put on notice that he would be seeking sanctions. Respondent made it clear that he would be seeking attorney fees because it was his belief that appellant brought her OFP in bad faith. The hearing was continued until May 22, 2003. Appellant had sufficient time to withdraw any testimony or evidence that was not true or fabricated. There was sufficient time to allow her to remedy any wrong doing she may have committed. She was given an opportunity to respond to the notice of possible sanctions and did not take advantage of the opportunity.
In addition to what the rules may provide, the district court has inherent power to award sanctions for bad faith, vexatious, wanton, or oppressive reasons.
In Patton v. Newmar Corp., the Minnesota
Supreme Court recognized a court’s inherent authority to address misconduct. 538 N.W.2d 116, 119 (
The district court justified using its inherent power to impose sanctions stating that appellant “demonstrated total disregard for the sanctity of oath and of the authority and dignity of the [c]ourt as a function of its duty to dispense fairness and justice.” The court continued stating appellant “has told lies big and small, some directly relating to the principle components of [the] proceedings, and others of collateral importance.” The court used its inherent powers because the rules provided “do not fully address the scope of remedies reasonably required to cure the resulting harm and protect the dignity of the [c]ourt” as a result of appellant’s actions. Finally, the court reasoned that it must use its inherent power to impose sanctions because appellant brought her case for an improper reason, one unfounded in fact, and brought to deter respondent from bring suit to recover his belongings, including money.
The district court properly used its inherent powers to impose sanctions.
Appellant argues that the district court abused its discretion when it awarded attorney fees based upon her conduct. She argues she did not bring her order for protection in bad faith and that the award was excessive.
On appeal, this court
will not reverse the district 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 (
The evidence showed that appellant consistently lied
under oath and fabricated facts that were to be considered by the court in
making its decision. As a result of
appellant’s actions and conduct, respondent incurred fees that he otherwise
would not have. Whether a party acts in
bad faith is a credibility determination on which this court defers to the
district court. Tonka Tours, Inc. v.
Chadima, 372 N.W.2d 723,
Appellant argues that the amount of the award for attorney fees is excessive. The district court found that all proceedings and respondent’s fees after the trial were incurred as a result of appellant’s bad faith claims, perjury and her pursuit of bad faith damages. The record supports the court’s award of attorneys’ fees through November 2004.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.