may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Julianne D. Birkholz,
Garrett T. Geiger,
Stephen R. Upgren, et al.,
Filed April 8, 1997
Affirmed in Part, Reversed in Part, and Remanded
Stearns County District Court
File No. C6932789
Garrett T. Geiger, Sharp Law Firm, Ltd., 602 Flour Exchange Bldg., 310 S. Fourth Ave., Minneapolis, MN 55415-1012 (for Appellant)
Richard E. Vosepka, 901 Westwood Dr. S., Golden Valley, MN 55416 (for Respondent)
Considered and decided by Kalitowski, Presiding Judge, Davies, Judge, and Mulally, Judge.[*]
Appellant challenges the trial court's award of attorney fees and costs and disbursements. We affirm in part, reverse in part, and remand.
In March 1994, respondents' counsel made a request for documents. Appellant refused to respond, claiming the request was untimely. In September 1994, respondents' counsel resubmitted its document request. Appellant again refused to produce, this time on the grounds that the documents were protected from disclosure by attorney-client privilege and the attorney work-product doctrine. Respondents subsequently moved to compel discovery, and on December 2, 1994, the court orally granted the motion and ordered appellant to submit the requested documents.
Missing from the documents appellant then produced was Birkholz's executed admission of service in the 1985 lawsuit. Appellant sent the missing admission of service to respondents' counsel two weeks after providing the other documents.
In March 1995, the trial court dismissed the majority of Birkholz's claims by summary judgment. After a trial held in July 1995, the remaining claim was dismissed by order dated October 19, 1995.
The trial court also ordered Birkholz and appellant to pay respondents' costs and attorney fees caused by appellant's failure to produce the admission of service. The October 19, 1995, order was modified on April 29, 1996, to grant judgment on the fees issue only against appellant, not his client, and to limit the award of attorney fees to those incurred between October 27 and December 20, 1994. Appellant also was ordered to pay respondents' costs and disbursements. Appellant now appeals the assessment of attorney fees and costs and disbursements against him. By notice of review, respondents challenge the trial court's denial of Minn. R. Civ. P. 11 sanctions against appellant.
The trial court, on October 19, 1995, ordered appellant and his client to pay respondents' costs and attorney fees caused by their failure to turn over the signed admission of service. The court ordered these costs and fees pursuant to Minn. R. Civ. P. 37.01(d) and 37.02(b). Minn. R. Civ. P. 37.01(d) states:
If the motion [to compel] is granted, the court shall, after opportunity for hearing, require the party * * * whose conduct necessitated the motion or the * * * attorney advising such conduct or both to pay to the moving party the reasonable expenses incurred in obtaining the
order, including attorney fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
(Emphasis added.) In contrast, Minn. R. Civ. P. 37.02(b) states in relevant part:
[T]he court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
The executed admission of service was the document critical to respondents' defense. Its prompt production should have ended the lawsuit. Appellant did not, however, produce the document in response to respondents' requests for production nor immediately in response to the court's order to produce. It was not until two weeks after the date specified by the court in its order for production that appellant mailed a copy of the admission of service to respondents' counsel. Appellant offers no compelling justification for his delay in producing the document. Although appellant contends that the omission of the admission of service was innocent and merely a mistake, Minn. R. Civ. P. 37 does not require that the failure to comply be willful or in bad faith. The trial court was within its discretion in ordering appellant to pay attorney fees and costs of the motion necessitated by appellant's failure to turn over the admission of service.
B. Order Dated April 29, 1996
The October 19, 1995, order was modified by an order dated April 29, 1996. This later order provided for judgment on the fees issue only against appellant, not his client, and limited the award of attorney fees to those fees incurred between October 27, 1994 (the date by which the admission of service should have been produced in response to the request for production), and December 20, 1994 (the date on which it was produced). The April 1996 order recited that the fees were ordered pursuant to Minn. R. Civ. P. 37.01(d); it did not cite to Minn. R. Civ. P. 37.02(b) as had the October order.
Appellant does not contest the release of his client from these sanctions. Appellant does argue, though, that the attorney fees generated during the specified time frame do not reflect only the "reasonable expenses incurred in obtaining the order [to compel], including attorney fees"--the expenses covered by the rule cited, Minn. R. Civ. P. 37.01(d). We agree. Between October 27 and December 20, 1994, respondents also moved to dismiss the claim, renewed their motion to dismiss, moved for summary judgment, moved for a protective order, moved to strike Birkholz's memorandum, and moved for continuation of Birkholz's deposition. This involved more effort and hours than were incurred to obtain the order to compel.
In addition to attorney fees, the trial court also ordered appellant to pay to respondents' counsel costs and disbursements pursuant to Minn. Stat. § 549.02, subd. 1 (1994), Minn. Stat. § 549.04 (1994), and Minn. R. Civ. P. 54.04. This also is in error. The cited authorities authorize the assessment of costs and disbursements in favor of the prevailing party and against the nonprevailing party. Appellant is not a party to the lawsuit.
On remand, if it was the trial court's intention to assess attorney fees and reasonable expenses pursuant only to Minn. R. Civ. P. 37.01(d), then the court must determine which of the attorney fees and expenses apply to respondents' motion to compel, the fees authorized by that rule.
We do not, however, mean to limit the trial court only to those sanctions allowable under Minn. R. Civ. P. 37.01(d). Sanctions may also be available under Minn. R. Civ. P. 37.02(b), which allows an award of all attorney fees and costs caused by appellant's failure to obey the court's order to produce the requested documents. And sanctions may be available under Minn. Stat. § 549.21, subd. 2 (1994), if the trial court determines that appellant, by his failure to respond properly to the request for production and the court's order to produce,
acted in bad faith; * * * asserted an unfounded position solely to delay the * * * proceedings or to harass; or committed a fraud upon the court.
Minn. Stat. § 549.21, subd. 2. Cf. Brown v. State, 438 N.W.2d 456, 458 (Minn. App. 1989) (plaintiff's unfounded opposition to defendant's demand for change in venue justifies award of attorney fees under Minn. Stat. § 549.21, subd. 2).
This ruling applies only to sanctions that the court denied on the ground that the complaint was not frivolous. It does not preclude the court from ordering sanctions on other grounds listed in Minn. Stat. § 549.21, subd. 2, as discussed above.
Affirmed in part, reversed in part, and remanded.
[ ]* 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 The language cited is from the 1994 version of the Rules applicable to this case. Minn. R. Civ. P. 37.01(d) has since been amended slightly in ways insignificant to this case.