This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-97-2128

Julianne D. Birkholz,

Plaintiff,

Garrett T. Geiger,

Appellant,

vs.

Stephen R. Upgren, et al.,

Respondents.

Filed May 5, 1998

Affirmed

Mulally, Judge**

Stearns County District Court

File No. C6932789

Garrett T. Geiger, 5408 71st Circle North, Brooklyn Center, MN 55429 (pro se appellant)

Richard E. Vosepka, 901 Westwood Drive South, Golden Valley, MN 55416 (for respondents)

Considered and decided by Toussaint, Chief Judge, Foley, Judge**, and Mulally, Judge.

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

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

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

MULALLY, Judge

Appellant Garrett T. Geiger challenges the district court's assessment on remand of attorney fees for and because of a motion to compel. We affirm.

FACTS

Throughout the discovery process in the underlying action, appellant failed to produce the dispositive admission of service, even after the district court granted a motion to compel production of the file. Appellant finally produced it after the summary judgment motion responses were due. Finding that appellant was at fault for failing to produce the document, the district court awarded respondent attorney fees to cover the motion to compel and the fees resulting from appellant's failure to comply.

In appellant's initial appeal of the district court's April 29, 1996, order awarding fees, this court remanded for redetermination of attorney fees, costs, and sanctions. Birkholz v. Upgren, No. C5-96-1563 (Minn. App. Apr. 8, 1997). On remand, the district court clarified its award of fees. Appellant now appeals this award.

D E C I S I O N

"On review, this 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).

[I]t is fundamental that the reasonable value of attorney's 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, 400-01 (1973) (footnote omitted).

Here, this court's initial decision in this matter provides the law of the case on the issue of whether fees were appropriate. This court concluded:

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.

Birkholz, unpub. op. at 5.

Further, respondents provided the district court with affidavits of the fees and costs necessitated both by the motion to compel and appellant's failure to comply with the motion. Thus, the district court was able to review the claimed fees and determine which fees were appropriate under Minn. R. Civ. P. 37.01(d) and 37.02(b).

Appellant argues: 1) the district court abused its discretion in awarding fees for obtaining the motion to compel as allowed by Minn. R. Civ. P. 37.01(d) for work respondents did after the motion to compel was filed; 2) there was no failure to comply with the motion to compel as required by Rule 37.02(b); and 3) the fees awarded for December 6-20, 1994, were not caused by a failure to comply.

I.

Minn. R. Civ. P. 37.01(d) allows the court to award fees incurred in obtaining a motion to compel. Even though the motion to compel in this case was filed on November 1, 1994, it was not obtained until December 2, 1994. The district court did not award fees for all of the hours documented, and we conclude its findings regarding which fees were related to obtaining the motion to compel were not clearly erroneous. We further conclude the district court did not abuse its discretion in granting fees up until the date the motion was obtained.

II.

Appellant argues that there was no "noncompliance" to trigger the use of Minn. R. Civ. P. 37.02(b). While the district court ordered that appellant produce the entire file, however, appellant admitted to only producing "numerous pages" and significantly failed to produce the document that would have required the defamation issue be dismissed. The district court explained its assessment of attorney fees under Minn. R. Civ. P. 37.02(b):

The expenses are allowed for two reasons: first, it was the Court's intention to award fees pursuant to Rule 37.02(b) in its previous order, second, the Court finds the expenses are warranted due to Attorney Geiger's failure to submit the admission of service by its due date of December 5, 1994. If the admission of service had been submitted by this time, it is doubtful the ensuing litigation would have continued, and it also would have fallen within the due date for consideration of Defendants' motion for summary judgment.

We conclude the district court acted within its discretion in awarding attorney fees for failure to comply with the motion to compel. These fees were assessed as part of the sanction for withholding the document. If appellant had acted appropriately in producing it, future expenses would have been eliminated.

III.

Similarly, the district court also found that any of the costs associated with this case that were incurred between December 6 and 20, 1994, would have been unnecessary if appellant had simply produced the compelled document. The court stated:

While it is arguable that the hours incurred by the defense for depositions, etc. after the order to compel was granted, would have occurred despite the order to compel, and therefore are not attributable to Geiger's failure to obey the order, the Court nevertheless awards the defense fees and costs during this time, because the Court views Geiger's release of the signed Admission of Service on December 20, 1994, one day after the due date for response to Defendants' motion for summary judgment, as a calculated method of avoiding its consideration upon motion for summary judgment, and therefore, the expenses incurred would likely have been avoided but for Geiger's belated release. Accordingly, Attorneys Vosepka and Vadnie are awarded fees and costs between December 6, 1994, and December 20, 1994.

We conclude the district court did not abuse its discretion in determining that attorney fees and costs for December 6-20, 1994, should be awarded because of appellant's failure to comply with the court's motion to compel.

IV.

Because respondents did not file the requisite notice of review indicating that they were cross-appealing the issue of imposing sanctions under Minn. Stat. § 549.211 (Supp. 1997), we will not address it. See Minn. R. Civ. App. P. 106 ("A respondent may obtain review of a judgment or order entered in the same action which may adversely affect him by filing a notice of review with the clerk of the appellate courts.").

Affirmed.