STATE OF MINNESOTA

IN SUPREME COURT

CX-98-283

Kenneth L. Kellar, et al.,

Respondents,

vs.

John E. Von Holtum, et al,

Appellants,

Grand Marais State Bank, et al.,

Appellants.

O R D E R

This court, having considered en banc the petition for rehearing in the above entitled case,

IT IS HEREBY ORDERED:

  1. The paragraph beginning on page 5 and ending on page 6 of the slip opinion filed January 13, 2000, is hereby modified by deleting the last sentence in that paragraph, which sentence reads as follows:

    However, he did not raise this issue in his conditional petition for review.

    That paragraph shall now read as follows:

              Von Holtum and Grand Marais sought review, and Kellar filed a conditional cross-petition for review. The issues raised by the parties on appeal are: (1) whether the trial court had jurisdiction to award costs and disbursements or attorney fee sanctions after completion of the appeal on the merits; (2) whether appellants provided adequate notice to support imposition of sanctions; and (3) whether the trial court abused its discretion in awarding costs and disbursements. Appellants argue that Kellar was put on fair notice by the February 1996 motion and various subsequent court orders. Kellar asserts in his brief that the trial court abused its discretion in the amount of attorney fees awarded.

  2. The motion to remand the case to the court of appeals is denied. The case is remanded to the district court for a determination of attorney fees consistent with the opinion.
  3. The petition for rehearing is otherwise denied.
  4. No award of attorney fees pursuant to Minn. R. Civ. App. P. 140.03 is allowed.

Dated: February 29, 2000

BY THE COURT:

/s/Joan E. Lancaster
Associate Justice