This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






In re the Marriage of:

Sherri Gifford Mazzitelli,

Petitioner Below,




John Patrick Mazzitelli,





Stephen Dennis,



Filed April 10, 2007


Halbrooks, Judge



Hennepin County District Court

File No. DC 268365


John P. Mazzitelli, 3109 Hennepin Avenue South, Minneapolis, MN 55408 (attorney pro se)


Shannon M. O’Toole, 223 South Avon Street, St. Paul, MN 55105 (for respondent)


            Considered and decided by Halbrooks, Presiding Judge; Kalitowski, Judge; and Collins, Judge. *


U N P U B L I S H E D   O P I N I O N


Appellant John Patrick Mazzitelli challenges the district court’s order requiring him to pay 75% of the expert-witness fees charged by respondent Stephen Dennis to perform a valuation of the Mazzitellis’ marital and nonmarital property during the dissolution of the Mazzitellis’ marriage.  Mazzitelli argues that the district court abused its discretion by failing to recuse itself from the posttrial fee dispute between Dennis and Mazzitelli and erred by (1) denying Mazzitelli’s motion for summary judgment, (2) using its contempt powers to enforce the monetary judgments, and (3) ordering Mazzitelli to pay conduct-based attorney fees to Dennis.  Because we conclude that the district court properly applied the law and did not abuse its discretion, we affirm.


In May 1986, Mazzitelli married Sherri Gifford Mazzitelli.  In October 2000, Sherri Mazzitelli commenced dissolution proceedings.  Sherri Mazzitelli challenged the couple’s antenuptial agreement, and, in an April 10, 2003 order, the district court determined that the agreement was “not enforceable with respect to property acquired during the marriage and conduct based attorney’s fees and costs.”  On June 3, 2003, the district court issued an order stating that the parties agreed to have Dennis conduct valuations of the parties’ marital and nonmarital property, including Mazzitelli’s law practice.  The district court ordered Dennis to conduct the valuation and ordered the Mazzitellis to cooperate with Dennis in that process. 

Mazzitelli signed a retainer agreement, which indicated that Dennis would “[p]erform services prescribed in the Court’s June 3, 2003 Order . . . .”  In the agreement, Mazzitelli agreed to “waiv[e] any possible conflict of interest that might exist,” and Mazzitelli wrote on the agreement that he was “[r]esponsible for one-half of the fee or whatever the court orders.”  The agreement also stated that the parties were responsible for any attorney fees or costs that Dennis might incur in collecting the expert fees.

In November 2003, the district court conducted a two-day trial.  Dennis testified regarding his valuation study.  While Mazzitelli disputed some of Dennis’s calculations regarding nonmarital property, the district court adopted Dennis’s calculations, noting that the parties had agreed to use Dennis as a neutral expert.  After trial, the district court issued a judgment and decree, ordering Mazzitelli to pay Sherri Mazzitelli, among other things, $10,000 in conduct-based attorney fees and a “cash property settlement” of $164,904.50. 

Mazzitelli appealed from the judgment and decree, challenging only the cash property settlement and the conduct-based attorney fees.  Mazzitelli did not appeal Dennis’s valuation or expert fees and costs.  This court affirmed the district court’s decision.  Mazzitelli v. Mazzitelli, No. A04-420 (Minn. App. Feb. 1, 2005). 

Sherri Mazzitelli subsequently moved the district court to direct Mazzitelli to pay Dennis’s fees and to award her attorney fees and costs.  Following a hearing, the district court issued an order on September 22, 2004, that compelled Mazzitelli to pay 75% of Dennis’s expert fees and costs, totaling $18,596.50, and $1,000 in attorney fees and costs.  Because Mazzitelli did not pay Dennis, in July 2005, the district court again ordered Mazzitelli to resolve the issue of the remaining amount due to Dennis.  Mazzitelli again refused to pay Dennis.

Mazzitelli did not appeal the district court’s orders; he simply did not obey them.  In February 2006, Dennis moved the district court to either enforce its orders that Mazzitelli pay 75% of his fees or hold Mazzitelli in contempt.  In response, the district court ordered Mazzitelli to appear and show cause why “he should not be adjudged in contempt of court” for failing to comply with the district court orders to pay Dennis.  Mazzitelli made several responsive motions, seeking denial of Dennis’s motion to collect expert fees, summary judgment, and recusal of the district court.  The district court held a hearing in March 2006.

On April 5, 2006, the district court issued an order granting Dennis’s motion for payment of his expert fees and denying Mazzitelli’s motions.  On April 27, 2006, the district court issued another order, requiring Mazzitelli to pay Dennis’s attorney fees incurred in pursuing payment of the expert fees.  Soon thereafter, Mazzitelli paid Dennis in order to avoid jail and then appealed.  Because Mazzitelli did not pay the fees voluntarily, this court accepted jurisdiction over both the April 5 and 27 orders of the district court.



            Mazzitelli first argues that the district court abused its discretion by refusing to recuse itself from the posttrial dispute over Dennis’s expert fees.  This court reviews a district court’s decision to deny a motion to recuse for an abuse of discretion.  Carlson v. Carlson, 390 N.W.2d 780, 785 (Minn. App. 1986), review denied (Minn. Aug. 20, 1986).

A judge who has presided at a motion or other proceeding may not be removed except upon an affirmative showing of prejudice on the part of that judge.  Minn. R. Civ. P. 63.03.  “[A] judge who feels able to preside fairly over the proceedings should not be required to step down upon allegations of a party which themselves may be unfair or which simply indicate dissatisfaction with the possible outcome of the litigation.”  Carlson, 390 N.W.2d at 785 (quotation omitted).  In most cases, there will not be prejudice in fact, “but merely certain circumstances which lead a litigant sincerely to believe that bias is present.”  Jones v. Jones, 242 Minn. 251, 261-62, 64 N.W.2d 508, 515 (1954) (quotation omitted). 

In support of his argument that the district court was biased against him, Mazzitelli contends that the district court failed to clarify “how [Dennis] could be a court appointed expert and not a Minn. R. Evid. 706 expert.”[1]  Mazzitelli argues that the district court considered Dennis as both “the parties[’] neutral financial expert” and “the court-appointed neutral expert.”  Mazzitelli contends that the district court failed to inform him of Dennis’s status as a court-appointed witness, thereby preventing him from questioning Dennis’s alleged conflict of interest and from calling his own expert witness at trial.

But we consider only those issues argued to and considered by the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Mazzitelli did not challenge Dennis’s appointment, his valuation, or his expert fees and costs at trial in his initial appeal.  Furthermore, Mazzitelli did not appeal from the September 2004 or July 2005 district court orders to pay Dennis’s fees.  The parties mutually agreed to have Dennis evaluate their property, but the district court officially appointed Dennis as an expert witness in its June 3, 2003 order.  Also, at the time the Mazzitellis agreed on Dennis’s involvement, Mazzitelli had a long-standing professional relationship with Dennis, whose accounting firm worked for Mazzitelli’s law firm, and Mazzitelli was not precluded from questioning Dennis’s alleged conflicts or from calling his own expert at trial under Minn. R. Evid. 706(d). 

Mazzitelli also cites the following as evidence of the district court’s bias against him: (1) the district court made “contradictory and confusing” findings; (2) the district court failed to clarify its reasons for awarding Dennis expert fees; and (3) the district court ignored the parties’ antenuptial agreement to release each other from court costs and improperly ordered Mazzitelli to pay 75% of the expert costs.  But Mazzitelli fails to provide any support for these arguments.  “An assignment of error based on mere assertion and not supported by any argument or authorities in appellant’s brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection.”  State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (quoting Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971)).  Furthermore, in the retainer agreement, Mazzitelli wrote that he was “[r]esponsible for one-half [of] the fee or whatever the court orders.”  The district court’s determination was within its discretion under Minn. R. Evid. 706(b).[2] 

We find no evidence in this record that the district court was biased against Mazzitelli.  The district court was in the best position to enforce its orders, and it did not abuse its discretion by declining to recuse itself from the posttrial proceedings between Mazzitelli and Dennis.


            Mazzitelli next argues that if the district court granted summary judgment in favor of Dennis, Mazzitelli should have been entitled to discovery regarding Dennis’s alleged conflicts of interest.  This argument is without basis in the record.  Dennis never moved for summary judgment; Mazzitelli did.  And the district court denied Mazzitelli’s motion in its April 5, 2006 order. 

A motion for summary judgment must be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.”  Minn. R. Civ. P. 56.03.  On appeal from summary judgment, this court determines whether there are any genuine issues of material fact and whether the district court erred in applying the law.  N. States Power Co. v. Minn. Metro. Council, 684 N.W.2d 485, 491 (Minn. 2004).  “[W]e view the evidence in the light most favorable to the party against whom summary judgment was granted.”  Hickman v. SAFECO Ins. Co. of Am., 695 N.W.2d 365, 369 (Minn. 2005).  To survive summary judgment, a party need not show substantial evidence; instead, it needs only to produce sufficient evidence to permit reasonable persons to draw different conclusions.  Schroeder v. St. Louis County, 708 N.W.2d 497, 507 (Minn. 2006). 

Despite the fact that he moved for summary judgment, Mazzitelli claims that he presented evidence that was sufficient to create a genuine issue of material fact about whether Dennis owed Mazzitelli a fiduciary duty.  But the issue of summary judgment did not arise until Mazzitelli was ordered to show cause for his failure to pay Dennis.  The district court concluded that, based on its earlier orders and the retainer agreement, “there are no material facts in dispute.  [Mazzitelli] is not entitled as a matter of law to be excused from paying all or part of Mr. Dennis’ fees.”  The district court also determined that Mazzitelli failed to indicate the nature of the discovery that he sought from Dennis and that, even if he had, no additional discovery was necessary to determine whether Mazzitelli was obligated to pay Dennis’s fees. 

Nonetheless, Mazzitelli argues that he presented evidence showing that Dennis failed to disclose a working relationship with his wife’s attorneys, and Mazzitelli claims that if he had known about that alleged relationship, he never would have agreed to use Dennis as an expert.  Mazzitelli cites L & H Airco, Inc. v. Rapistan Corp., 446 N.W.2d 372, 377 (Minn. 1989), arguing that a neutral’s “[f]ailure to disclose possible conflicts of interest creates at the least an impression of bias.  An impression of bias contaminates the decision making process when neutrality is essential and is not condoned by this court.”  But L & H is distinguishable as it involved not an expert witness but the fiduciary duties of a neutral arbitrator in issuing a binding decision.  L & H Airco, 446 N.W.2d at 376-77.  We conclude that the district court did not err in determining that, as a matter of law, Mazzitelli was not excused from paying Dennis.


            Mazzitelli argues that the district court abused its discretion by exercising its contempt powers against him.  A district court has the power to hold parties in contempt if they disobey court orders or judgments.  Minn. Stat. §§ 588.01, subd. 3(3), .02 (2006).  “Where a judgment requires the payment of money, or the delivery of real or personal property, it may be enforced in those respects by execution.”  Minn. Stat. § 550.02 (2006).  A person who refuses to comply with a judgment “may be punished by the court as for contempt, and the individual’s obedience thereto enforced.”  Id. 

“The factual findings of a contempt order are subject to reversal only if clearly erroneous.”  Mower County Human Servs. v. Swancutt, 551 N.W.2d 219, 222 (Minn. 1996) (citing Minn. R. Civ. P. 52.01).  “The [district] court’s decision to invoke its contempt powers is subject to reversal only if the appellate court finds an abuse of discretion.”  Id.

Mazzitelli contends that the district court failed to provide him with an opportunity to explain his reasons for failing to pay the fees as required in Hopp v. Hopp, 279 Minn. 170, 174-175, 156 N.W.2d 212, 216 - 217 (1968).  But the district court held a hearing and gave Mazzitelli the opportunity to appear and show cause why “he should not be adjudged in contempt of court” for failing to comply with the district court orders to pay Dennis.  

Mazzitelli also argues that there was no evidence that the district court’s monetary judgments against him were lawful orders.  But Mazzitelli did not challenge them until he was held in contempt for failing to obey them.  On this record, the district court did not abuse its discretion in exercising its contempt powers.


Finally, Mazzitelli argues that the district court abused its discretion by ordering him to pay conduct-based attorney fees to Dennis.  Under Minn. Stat. § 518.14, subd. 1 (2006), a district court may award “additional fees, costs, and disbursements against a party who unreasonably contributes to the length or expense of the proceeding.”  A district court’s decision to award conduct-based attorney fees is reviewed for an abuse of discretion.  Geske v. Marcolina, 624 N.W.2d 813, 818 (Minn. App. 2001).

            The district court ordered Mazzitelli to pay Dennis “conduct-based attorney’s fees and costs in the amount of $2,860, representing the full amount of attorney’s fees and costs . . . incurred in representing Stephen Dennis for collection of his fees.”  Mazzitelli argues that he did not unreasonably contribute to the length of these proceedings because he was challenging the expert fees based on his belief that Dennis had failed to disclose conflicts of interest.  The record shows that Dennis’s work and testimony on this matter was complete by November 2003.  The district court ordered Mazzitelli on September 22, 2004, to pay 75% of Dennis’s fee.  Because Mazzitelli failed to comply, the district court issued another order on July 1, 2005.  Again, Mazzitelli failed to comply, prompting Dennis to move for enforcement of the orders and resulting in a third district court order on April 5, 2006.  On this record, we conclude that the district court acted within its discretion by awarding Dennis conduct-based attorney fees.


*  Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Minn. R. Evid. 706(a) provides that “[t]he court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection.”  Such an expert witness “shall be subject to cross-examination by each party, including a party calling the witness.”  Id.  Nothing in rule 706 prevents the parties from calling expert witnesses of their own selection.  Minn. R. Evid. 706(d). 


[2]“Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow.”  Minn. R. Evid. 706(b).  In civil actions, expert “compensation shall be paid by the parties in such proportion and at such time as the court directs, and thereafter charged in like manner as other costs.”  Id.