This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-96-229

C3-96-282

Brian W. Brooks,

Respondent (CX-96-229),

Appellant (C3-96-282),

Roxanne Heinrich,

Appellant (CX-96-229),

vs.

Healthy Returns, Inc., et al.,

Defendants,

Joyce Bonafield,

Respondent.

Filed November 12, 1996

Affirmed in part, reversed in part, and remanded

Willis, Judge

Hennepin County District Court

File No. 948975

Dean L. McAdams, 1325 East 66th Street, Minneapolis, MN 55423 (for Respondent/Appellant Brooks)

Cathleen Bang Anderson, 5655 Audrey Avenue East, Inver Grove Heights, MN 55077 (for Appellant Heinrich)

Debra J. Teuchert, 300 Metro Executive Plaza, 7800 Metro Parkway, Bloomington, MN 55425 (for Appellant Heinrich)

Marshall H. Tanick, Teresa J. Ayling, Mansfield & Tanick, 1560 International Centre, 900 Second Avenue South, Minneapolis, MN 55402 (for Respondent Bonafield)

Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Willis, Judge.

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

WILLIS, Judge

Appellants Brian Brooks and Roxanne Heinrich separately challenge the district court's award of attorney fees and costs pursuant to Minn. R. Civ. P. 11 and Minn. Stat. § 549.21 (1994). By notice of review, respondent Joyce Bonafield challenges the amount awarded to her for fees incurred in seeking sanctions. We affirm in part, reverse in part, and remand to the district court.

FACTS

This appeal arises from a suit that Brian Brooks filed in June 1994 against several defendants, including his former employer, Healthy Returns, Inc., and Joyce Bonafield. Healthy Returns and Bonafield initially conducted a joint defense, but Healthy Returns' insurance carrier ultimately assumed representation of all defendants except Bonafield. Roxanne Heinrich represented Brooks in the lawsuit.

Brooks's claims against Bonafield were based primarily on an allegedly defamatory letter Bonafield wrote to the court in connection with a divorce proceeding involving the son of Healthy Returns' owners. Brooks also claimed that Bonafield circulated a defamatory tape and made statements that caused him to lose a Sunday school teaching position and a job opportunity. Brooks and Heinrich were unable to obtain statements from witnesses they claimed could substantiate the allegations, and they produced no other evidence to support the claims.

When Bonafield moved for summary judgment, Brooks offered to dismiss the suit without prejudice, and shortly before the hearing on the motion he offered to dismiss with prejudice if Bonafield would agree not to seek attorney fees. Bonafield refused both offers. Brooks did not contest summary judgment at the hearing, and the court granted summary judgment to Bonafield.

Approximately one month later, Bonafield filed a motion for sanctions under Minn. R. Civ. P. 11 and Minn. Stat. § 549.21 (1994). The district court found Brooks's lawsuit to be without factual basis and awarded attorney fees and costs to Bonafield against both Brooks and Heinrich.

Brooks and Heinrich separately appealed the judgment. This court granted Bonafield's motion to consolidate the appeals.

D E C I S I O N

Appellants argue the district court (1) had no jurisdiction to award sanctions, (2) abused its discretion in awarding the sanctions, and (3) erred in the amount of fees and costs it awarded. Bonafield claims that the district court erroneously limited the amount awarded for fees and costs.

1. Jurisdiction.

"Whether a court has jurisdiction is a legal question, and therefore this court is not bound by, and need not defer to, a [district] court's legal conclusions." Vegemast v. DuBois, 498 N.W.2d 763, 764 (Minn. App. 1993).

Appellants argue that the district court had no jurisdiction to award sanctions after granting summary judgment. Appellants rely on Love v. Anderson, 240 Minn. 312, 61 N.W.2d 419 (1953), in which the supreme court held that the district court had no jurisdiction to grant summary judgment after it had dismissed the case. Because a grant of summary judgment is on the merits, the district court in that case no longer had jurisdiction to grant summary judgment after it had dismissed the case on the merits. Id. at 315, 61 N.W.2d at 421. Here, because attorney fees and costs under rule 11 and section 549.21 are collateral to the merits of the case, the district court had jurisdiction over the sanctions motion, even after it had disposed of the case on the merits by granting summary judgment. Cf. Radloff v. First Am. Nat'l Bank of St. Cloud, 470 N.W.2d 154, 156 (Minn. App. 1991) (concluding the district court properly retained jurisdiction to award rule 11 and section 549.21 sanctions while case was on appeal because attorney fees were "other matter" independent of the merits of the litigation), review denied (Minn. July 24, 1991) .

2. Award of fees and costs.

When reviewing an award of attorney fees under section 549.21 or rule 11, this court determines whether the district court abused its discretion. Id.

Rule 11 sanctions may be imposed if an attorney signs a pleading without first forming a reasonable belief that it is well grounded in fact and law. Minn. R. Civ. P. 11. Sanctions under section 549.21 may be imposed on an attorney or party who acts in bad faith, asserts a frivolous claim that is costly to the other party, asserts a position solely for delay or harassment, or commits fraud on the court. Minn. Stat. § 549.21 (1994). Because of the similarity between the rule and the statute, a district court is not required to differentiate specifically between them when awarding sanctions. Radloff, 470 N.W.2d at 156.

A party must be given adequate notice of the possibility of sanctions and an opportunity to respond. Uselman v. Uselman, 464 N.W.2d 130, 143-44 (Minn. 1990). Further, a court imposing sanctions "might consider the attorney's or party's ability to pay. Similarly, it must consider any relevant mitigating factors." Id. at 145 (citations omitted).

Appellants argue that neither the district court nor Bonafield gave them adequate notice of the possibility of sanctions. This court has found written advance notice from a party seeking rule 11 sanctions to be sufficient notice. Rumachik v. Rumachik, 494 N.W.2d 68, 71 (Minn. App. 1992), review denied (Minn. Feb. 25, 1993). Here, in her answer to Brooks's complaint, Bonafield gave notice that she considered the claims against her to be baseless and that she would seek sanctions under rule 11 and section 549.21. The district court had no duty to provide appellants with any additional warning of the possibility of sanctions. See Radloff, 470 N.W.2d at 159 (concluding that district court's issuance of summary judgment order and other orders denying relief provided ample warning of the possibility of rule 11 and section 549.21 sanctions for failing to dismiss baseless causes of action).

Appellants claim that although they were granted a hearing on the sanctions motion, the hearing was meaningless because of what they call "incidences * * * that look like bias," including the court's alleged failure to consider appellants' ability to pay and other mitigating factors. Nothing in the record reflects court bias or shows that the district court failed to consider appellants' financial conditions in awarding sanctions.

Appellants argue that their offers to dismiss and the fact that they did not oppose summary judgment should be considered mitigating factors. The offers to dismiss were not unqualified, however, and they were made under the pressure of a summary judgment motion seven and one-half months into the litigation. The fact that appellants did not oppose summary judgment at the hearing on Bonafield's motion did not obviate the motion in the first place or briefing on the motion or an appearance for argument by Bonafield's counsel. The actions identified by appellants are not mitigating factors. As the district court noted:

Once the plaintiff decides that he no longer is standing before the Court pursuing a claim against [Bonafield], and/or the attorney determines that she either does not have any evidence or the evidence that she has she can't produce, at that point, if she fails to file a dismissal, she is subject to Rule 11 sanctions * * *.

The record supports the district court's conclusion that appellants failed to show facts sufficient to support a claim against Bonafield. Notice of the possibility of sanctions and appellants' opportunity to respond were adequate. We find no abuse of discretion in the district court's imposition of sanctions.

3. Reasonableness of amount awarded.

"[T]he reasonable value of attorneys' fees is a question of fact, and the findings of the trial court must be upheld by a reviewing court unless clearly erroneous." Amerman v. Lakeland Dev. Corp., 295 Minn. 536, 537, 203 N.W.2d 400, 400-401 (1973).

The district court reviewed extensive documentation regarding the services provided by Bonafield's attorneys and awarded $9,239.62 in fees and costs as a sanction against Brooks and Heinrich. The district court limited attorney fees awarded for pursuing sanctions because of an agreement between Bonafield's attorneys and Healthy Returns[1] that capped legal fees for seeking sanctions at $1000:

While greater fees were incurred, the principal difference is going to lie in my limitation of attorney fees for enforcement of the sanction. The most Ms. Bonafield could be liable for under the agreement between [Bonafield's attorneys] and Healthy Returns is $1,000, and thus, I feel compelled to limit the recovery to this figure.

It appears the district court considered itself legally bound to limit the fees awarded because of the fee agreement. We hold that it was not so constrained. See Blanchard v. Bergeron, 489 U.S. 87, 93, 109 S. Ct. 939, 944 (1989) (concluding a pre-existing contingent fee agreement was helpful in determining reasonableness but not dispositive in the calculation of a fee award); see also S.B. Foot Tanning Co. v. Piotrowski, ___ N.W.2d ___ (Minn. App. Oct. 1, 1996) (holding fee agreement not dispositive in calculating attorney fee award). We remand to the district court for a determination of reasonable attorney fees incurred in seeking sanctions. Because of the evidentiary hearings already held on this issue, we do not anticipate a need for an additional hearing to make this determination, but we leave that to the district court's discretion.

4. Attorney fees for appeal.

Bonafield claims she is entitled to attorney fees and costs under rule 11 and section 549.21 for responding to this appeal. Such a request is "beyond the scope or intent of Rule 11." Uselman, 464 N.W.2d at 145. And although appellants' arguments on appeal did not prevail, they cannot fairly be characterized as frivolous. We therefore decline to grant Bonafield's request for fees and costs.

Affirmed in part, reversed in part, and remanded.

[ ]1Through her counsel, who initially represented all defendants in Brooks's suit, Bonafield represented to the district court that (1) she did not have the means to pay an attorney to seek sanctions and (2) the president of Healthy Returns agreed to pay Bonafield's attorneys a maximum of $1000 to seek sanctions, hoping that an award would be used to reimburse Healthy Returns for legal expenses it paid on Bonafield's behalf while the parties were conducting a joint defense.