This opinion will be unpublished and

may not be cited except as provided by

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




In Re the Marriage of:

Lindon F. Reber, petitioner,



Kathleen Reber,


Filed June 16, 1998


Huspeni, Judge

Washington County District Court

File No. F5971438

John R. Kempe, McCullough, Smith, Wright & Kempe, P.A., 905 Parkway Dr., St. Paul, MN 55106 (for appellant)

Pamela M. Cecchini, Cecchini Law Office, 2850 Metro Dr., Suite 527, Minneapolis, MN 55425 (for respondent)

Considered and decided by Huspeni, Presiding Judge, Willis, Judge, and Holtan, Judge.*



Appellant's attorney challenges the order that he personally pay $1,500 to respondent's attorney as a sanction for bringing a bad-faith motion in limine to compel discovery. Because we see no support in the record for the trial court's finding that appellant's attorney acted in bad faith, we reverse.


The issue on appeal concerns not the named parties to this dissolution action but their attorneys, John Kempe (for appellant Kathleen Reber) and Pamela Cecchini (for respondent Lindon Reber).

Lindon Reber was an insurance agent for American Family Insurance Company. Both parties and their attorneys agreed that the valuation of his business had to be determined prior to dissolution. Because the parties wanted to conduct matters inexpensively, the attorneys began by informally requesting documents rather than launching formal discovery proceedings.[1]

In March 1997, Cecchini sent Kempe documents purporting to show that the business had no value. Kempe forwarded the documents to Jack Koffel, a CPA whom he hired to evaluate the business. In July 1997, Koffel requested 14 additional documents or categories of documents needed to evaluate the business. Cecchini replied that they were unable to provide the requested information.

On July 22, after it appeared that informal discovery was not going to lead to production of the required documents, Kempe served a formal Request for Production of Documents "to avoid any misunderstanding." Cecchini replied that a summarized version of the information Kempe requested would be produced.

The information produced was less than Kempe had requested, but he hoped it would be adequate for Koffel's purposes. Kempe's letter forwarding the information to Koffel shows that, even after discovery had begun, Kempe attempted to keep it minimal.

As much as possible, I would like to be accommodating to Mr. Reber in using summaries of information whenever possible and not insisting on numerous copies being made of anything other than the most essential information.

* * * *

As a matter of professional courtesy, I would like to provide Mr. Reber as much latitude as possible in keeping his copying time and expenses to a minimum; however, I want to make certain that you have the essential information you will need in order to provide a professional opinion.

On August 8 and September 11, Kempe again wrote Cecchini asking for the documents sought in discovery. Cecchini's position was that her client had nothing more and further information could be obtained only from American Family.

There is no transcript of the September 19 pretrial conference, and what happened there is disputed. Cecchini claims that the parties agreed all further information could come only from American Family because Lindon Reber had turned over all records in his possession. Cecchini cites Kathleen Reber's trial testimony for support. However, Kathleen Reber testified only that Cecchini and Lindon Reber had informed her that Lindon Reber had provided all the business documentation in his possession and that further information would have to come from American Family. Kathleen Reber did not say she agreed that Lindon Reber had provided all the documents in his possession.

Kempe claims that at the pretrial conference Cecchini agreed both to authorize releases of additional information and to permit Koffel to inspect the records at Lindon Reber's office. He wrote to Cecchini on October 3, giving dates when Koffel was available and again asking Cecchini to produce the documents requested in July. This letter also referred to both attorneys' efforts to keep discovery minimal.

Although you and I have certainly tried hard to cut down on the aggravation and expense that is associated with the production of extensive discovery, and for that purpose, we held informal discovery conferences and have attempted to work from the summarized and abbreviated business records that Mr. Reber had provided, we are at the point now, however, that unless the information we need can be obtained by the end of next week, which would be October 17 at the absolute latest, I will need to ask that the Court consider a brief continuance of the trial date.

Cecchini's reply reiterated that Lindon Reber had already provided all the information he had, that Koffel should get any other information directly from American Family, and that there was no point in having Koffel come to Lindon Reber's office, but Cecchini did not deny that there had been an agreement for Koffel to inspect the records at the office. Kempe forwarded Cecchini's letter to Koffel. Koffel responded with a lengthy memorandum in which he cited Internal Revenue Code provisions and treasury regulations showing that Lindon Reber was required by law to keep certain records Koffel wanted and pointed out that in order to prepare his own tax returns, Reber needed those records and various other documents furnished to him by American Family. Koffel listed what was lacking for every year from 1992 through 1997 and asserted that American Family would not have the business records Koffel requested, that those business records could be obtained only by meeting with Lindon Reber, and that authorizing the release of documents by American Family did not relieve Lindon Reber of the obligation to retain and produce his own records. [2] Kempe sent Cecchini a copy of Koffel's memo and said that, unless Koffel was allowed to inspect records at Lindon Reber's office, Kempe would file a "motion in limine" to compel discovery.

Kempe served Cecchini with the motion to compel discovery on October 10. On October 12, Cecchini said Koffel could inspect the records. On October 13, Kempe filed the discovery motion and sought a three weeks' continuance or bifurcation of the trial. The motions were heard via telephone conference on October 14 and were denied three days later. Cecchini subsequently served and filed a motion for attorney fees incurred in responding to the motion to compel.

The court ordered Kempe to pay Cecchini $1,500 in "bad-faith" attorney fees. Kempe's motion for amended findings or a new trial was denied; he appeals. Cecchini seeks attorney fees on appeal. [3]


"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, 401 N.W.2d 655, 661 (Minn. 1987).

As a threshold matter, we note that Minn. Stat. § 549.21, subd. 2, under which the court awarded attorney fees, was no longer in effect at the time of the award. By October 1997, Minn. Stat. § 549.21 had been superseded by Minn. Stat. § 549.211 (Supp. 1997). The new statute, unlike its predecessor, "does not apply to disclosures and discovery requests, responses, objections, and motions that are subject to discovery provisions and remedies of the Rules of Civil Procedure." Minn. Stat. § 549.211, subd. 6. Therefore, the standard relevant to a motion for attorney fees as a sanction for a bad-faith motion to compel discovery is Minn. R. Civ. P. 37.01(d)(2), which provides that if the motion to compel is denied,

the court shall * * * require the * * * attorney filing the motion * * * to pay * * * the reasonable expenses incurred in opposing the motion, including attorney fees, unless the court finds that the making of the motion was substantially justified * * *.

Thus, the issue becomes whether the court abused its discretion by not finding that Kempe's motion to compel was substantially justified.

The trial court held on October 31, 1997, that

[Kempe] failed to insure that all discovery was completed prior to the discovery deadline and * * * did not commence discovery on the very issue raised in December 1996 until July 1997.

* * * *

[Cecchini] is entitled to an award of attorney's fees associated with this motion [brought on October 13, 1997] pursuant to Minn. Stat. § 549.21, subd. 2, for bad faith in seeking last minute relief and continuance which required [Cecchini's client] to incur additional costs in attorney's fees.

These findings do not accurately reflect the record. Kempe delayed in serving discovery because he believed both attorneys were making a good-faith effort to exchange needed documents voluntarily with minimum expense to their clients. Once he served discovery, he made repeated efforts to have it completed by the discovery deadline.

Kempe brought his motion to compel only after several unsuccessful attempts to procure the documents Koffel needed to establish the value of Lindon Reber's business. Kempe's belief that these documents had to be produced prior to trial and were unlikely to be produced absent a court order compelling their production was not unfounded. His motion to compel was "substantially justified" within the meaning of Minn. R. Civ. P. 37.01(d).

The motion to compel was brought at the last minute, but the delay was due initially to both attorneys' efforts to use informal discovery and subsequently to Kempe's belief that Cecchini would comply with discovery requests without a motion. In retrospect, neither the attorneys' decision to proceed without formal discovery nor Kempe's belief that documents would be produced voluntarily was well founded, but this does not equate to bad faith and does not support an award of attorney fees.

Our reversal of the award of attorney fees demonstrates that there were grounds for this appeal. We therefore reject Cecchini's view that the appeal was brought solely to harass and deny her motion for attorney fees.


[1]See, e.g., Cecchini's letters of April 20 and May 27 and Kempe's letter of July 7, 1997.

[2] At trial, Koffel's testimony confirmed what he had said in his memo. In response to Cecchini's question on cross-examination as to whether he was aware that he was to get information directly from American Family, he said: "I wasn't aware, but it wouldn't have made any difference because I couldn't get the information from American Family." When asked if he could have obtained the information if he had had more time, he replied,

I couldn't have gotten, counsel, bank statements, paid invoices, records of automobiles, and all of the records that he is required to maintain at his office. American Family never had them, doesn't have them and never will have them. I couldn't have gotten [the records] from [American Family]. It's an impossibility.

[3] Kempe also argues that he was entitled to a hearing on his motion for amended findings or a new trial. He provides no support for this argument, and we see no merit in it.