This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996)




Michele Warner,


Stephen Cooper,



Commissioner Michael Jordan, et al.,


City of Newport, et al.,


Filed October 13, 1998


Holtan, Judge*

Washington County District Court

File No. C3964196

Stephen W. Cooper, Kathryn J. Cima, Stacey R. Everson, Eric D. Bull, The Cooper Law Firm, Chartered, 4747 First Bank Place, 601 Second Avenue South, Minneapolis, MN 55402 (for appellant)

Pierre N. Regnier, Joseph E. Flynn, Jardine, Logan & O'Brien, P.L.L.P., 2100 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101-2160 (for respondents)

Considered and decided by Kalitowski, Presiding Judge, Amundson, Judge, and Holtan, Judge.



Appellant challenges the district court's award of bad-faith attorney fees under Minn. Stat. § 549.21 (1996) and Minn. R. Civ. P. 11. We affirm.


Appellant Stephen Cooper represented Michele Warner in her suit against the State of Minnesota, various state departments and their commissioners, unnamed state troopers (collectively, "the state"), and the City of Newport, David Anderson, and unnamed Newport officers ("Newport"). Warner asserted numerous claims relating to a stop of her vehicle, which was the same color as, and bore custom license plates identical with, a vehicle she had previously reported stolen. The district court granted summary judgment for the state on the basis of immunity and dismissed all claims against Newport for lack of evidence. On appeal, we affirmed. Warner v. Jordan, No. CX-97-1789, 1998 WL 157363, *7 (Minn. App. Apr. 7, 1998) (Warner I).

After Warner's appeal was filed, but before she had submitted a brief on the merits, Newport filed a motion in the district court, seeking sanctions under Minn. Stat. § 549.21 (1996) and Minn. R. Civ. P. 11. The district court concluded that it had jurisdiction to entertain the motion, that Minn. Stat. § 549.21 was applicable, and that an award was appropriate under that statute and rule 11. This appeal followed.[1]


1. Jurisdiction of the District Court

Cooper argues that the district court lacked jurisdiction to consider Newport's request for fees after Warner's appeal on the merits was filed. The existence of subject-matter jurisdiction is a question of law, to which we apply the de novo standard of review. Neighborhood Sch. Coalition v. Independent Sch. Dist. No. 279, 484 N.W.2d 440, 441 (Minn. App. 1992), review denied (Minn. June 30, 1992).

As a general rule, an appeal stays further proceedings in the district court "upon the judgment or order appealed from or the matter embraced in it." Minn. R. Civ. App. P. 108.03. But the district court's jurisdiction is suspended only as to matters "necessarily involved" in the appeal. Spaeth v. City of Plymouth, 344 N.W.2d 815, 824 (Minn. 1984) (quoting State v. Barnes, 249 Minn. 301, 302-03, 81 N.W.2d 864, 866 (1957)). The district court retains jurisdiction over matters independent of or supplemental to the appeal, and of matters collateral to the proceeding in which the appealed order or judgment was rendered. Id.

Both the supreme court and this court have held that attorney fees are a collateral matter, independent of the merits of litigation. See, e.g., Welsh v. City of Orono, 355 N.W.2d 117, 124 (Minn. 1984) ("[s]ince a petition for attorney fees is collateral to the merits, it may be heard and decided after perfection of an appeal by a party"); Radloff v. First Am. Nat'l Bank, 470 N.W.2d 154, 156 (Minn. App. 1991) (upholding jurisdiction of trial court to award attorney fees while substantive issues of case were on appeal), review denied (Minn. July 24, 1991). Because Newport's motion for bad-faith attorney fees did not involve reconsideration of the merits of the dismissal on which the appeal was based, we conclude the district court had subject-matter jurisdiction to consider the motion.

2. Applicable Statute

Cooper contends that the district court erred in applying Minn. Stat. § 549.21 (1996) rather than Minn. Stat. § 549.211 (Supp. 1997) when considering Newport's motion for bad-faith attorney fees. The construction of a statute is a question of law, which this court reviews de novo. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985).

The Minnesota Legislature repealed section 549.21, which formerly governed awards for bad-faith attorney fees, and replaced it with Minn. Stat. § 549.211, which became effective August 1, 1997. 1997 Minn. Laws ch. 213, art. 1, § 1; Minn. Stat. § 645.02 (1996) (providing that "[e]ach act * * * enacted finally at any session of the legislature takes effect on August 1 next following its final enactment, unless a different date is specified in the act"). We will not apply the law in effect at the time of appeal if doing so

would alter rights that had matured or become unconditional, would impose new and unanticipated obligations on a party, or would work some other injustice due to the nature and identity of the parties.

McClelland v. McClelland, 393 N.W.2d 224, 226-27 (Minn. App. 1986) (citations omitted), review denied (Minn. Nov. 17, 1986).

Cooper brought suit on Warner's behalf in March 1995. The conduct on which the motion for fees and the district court's award are based occurred before August 1, 1997. Section 549.211 substantially revised the procedure for bringing a motion for attorney fees. To apply section 549.211 to Newport's motion for attorney fees, which was based on conduct that occurred before the effective date of the statute, would impose new and unanticipated obligations on Newport. See id.; cf. Minn. Stat. § 645.35 (1996) (providing that "repeal of any law shall not affect any right accrued, any duty imposed, any penalty incurred, or any proceeding commenced, under or by virtue of the law repealed"). We conclude that Newport's motion for attorney fees incurred in responding to a suit brought before August 1, 1997, is governed by section 549.21.

In the first appeal of this case, this court stated that

Newport did not move for attorney fees in the district court until November 6, 1997, after appellant had filed her notice of appeal; in this court, Newport never moved for fees but simply argued for them in its brief, filed on December 19, 1997. Therefore, the statute in effect at the time Newport sought attorney fees both here and in the district court was Minn. Stat. § 549.211.

Warner I, 1998 WL 157363, at *7 (footnote omitted). The doctrine of law of the case applies to issues decided in earlier stages of the same case and provides that when a court decides on a rule of law, that decision continues to govern the same issues in later stages of the same case. In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990). But the question addressed in the quoted section of Warner I was whether this court should grant Newport's motion for attorney fees on appeal; the conclusion that section 549.211 applied to Newport's motion for attorney fees in the district court was not necessary to the decision on that question.

Because Warner's appeal was filed in September 1997, after the effective date of Minn. Stat. § 549.211, the motion for fees incurred on appeal was governed by that section. See Cole v. Star Tribune, 581 N.W.2d 364, 370 (Minn. App. 1998) (applying section 549.21 to district court's award and section 549.211 to request for fees on appeal). The observation in Warner I about the statute applicable to the motion for fees in the district court was dictum, and we disregard it. See State v. Rainer, 258 Minn. 168, 179, 103 N.W.2d 389, 396 (1960) ("a ruling not necessary to the decision of a case can be regarded as only `dictum'"); State ex rel. Foster v. Naftalin, 246 Minn. 181, 208, 74 N.W.2d 249, 266 (1956) (stating that because dictum is expression in opinion that goes beyond facts of case, it is not binding in subsequent cases). For the reasons stated, we conclude the district court did not err in determining that section 549.21, rather than section 549.211, applied to Newport's motion for bad-faith attorney fees incurred in connection with the district court proceedings.

3. Fee Award

Cooper argues that the district court abused its discretion in awarding Newport bad-faith attorney fees. This court will not reverse an award of attorney fees and costs under Minn. Stat. § 549.21 or Minn. R. Civ. P. 11 absent an abuse of discretion. Radloff, 470 N.W.2d at 156.

Section 549.21 permits an award of fees if a party has (1) acted in bad faith; (2) asserted a frivolous claim that increases the opponent's costs; (3) taken a position intended to delay the action or harass the opponent; or (4) committed fraud on the court. Minn. Stat. § 549.21, subd. 2. The court measures a party's conduct by an objective standard. Radloff, 470 N.W.2d at 157.

As Warner's counsel, Cooper asserted seven causes of action against all defendants, including Newport. The district court concluded that there was no factual basis to support any claims against Newport when the suit was brought, but it also analyzed the failure to dismiss claims after discovery was conducted. Whether or not Cooper conducted an adequate investigation before signing the initial complaint, we agree that his refusal to dismiss the claims against Newport justifies the award of sanctions. Cf. Katz v. Katz, 408 N.W.2d 835, 839 (Minn. 1987) (holding that appellate court "will not reverse a correct decision" merely because it may be "based on incorrect reasons").

At the hearing on Newport's motion for dismissal, Cooper conceded that (1) Newport was not involved in the decision to stop Warner; (2) there was no basis for the defamation claim against Newport; and (3) Newport had no duty to maintain records about the stolen vehicle bearing identical custom license plates, on which Warner based her claims for negligence and emotional distress. Nonetheless, Cooper gave no explanation for his repeated refusal to dismiss claims against Newport. Distinguishing speculation from evidence, the record shows that (1) only one Newport police officer was on duty the night of the stop; (2) two other local officers identified in a report of the incident were from St. Paul Park, not Newport; and (3) various witnesses referred to the involvement of "local officers," but none identified the officer from Newport with specificity. In refusing to dismiss Newport, Cooper asserted that there was a "question as to what the City of Newport officer's role was during the incidents in question." We agree with the district court: in light of the complete lack of factual evidence about the involvement of the lone Newport police officer in the conduct on which Warner's claims were based, beyond his mere presence at the scene for some period of time, there was no such "question" and no basis for Cooper's refusal to dismiss Newport. The evidence supports the district court's conclusion that Cooper acted in bad faith and asserted frivolous claims unsupported by the evidence. The district court did not abuse its discretion in awarding attorney fees against Cooper under Minn. Stat. § 549.21.

Cooper challenges the amount of fees awarded to Newport. The reasonable value of attorney fees is a question of fact; this court will uphold a district court's findings on that issue unless they are clearly erroneous. Van Vickle v. C.W. Scheurer & Sons, Inc., 556 N.W.2d 238, 242 (Minn. App. 1996). The district court reviewed the "billings" of defense counsel and found that $18,546 for Newport's attorney fees was "reasonable under the circumstances." Cooper has not identified any contrary evidence in the record. Further, many of the arguments made to this court regarding the reasonableness of the attorney fees were not made in the district court, and we therefore disregard them. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding that appellate courts refuse to address issues and theories not raised to or decided by district court). We conclude the district court's finding that the attorney fees were reasonable is not clearly erroneous.

Cooper argues, in a footnote, that Newport's motion was improper because it requested sanctions under both Minn. Stat. § 549.21 and rule 11. An award under section 549.21 is "an alternative to any claim for sanctions that may be asserted under the rules of civil procedure." Minn. Stat. § 549.21, subd. 2. The district court concluded that sanctions under rule 11 were justified by Cooper's misrepresentation of the facts at a hearing on a motion for summary judgment and that the sum of $3,000.00 is an appropriate amount in order to have a deterrent effect on future conduct.

But the district court did not actually impose any additional sanction under rule 11, noting that it had already awarded Newport attorney fees. Because the district court did not abuse its discretion in awarding bad-faith attorney fees under section 549.21 and rule 11 was only an alternate basis for the award, we need not address Cooper's argument that the district court abused its discretion in sanctioning under rule 11 or that there was inadequate notice that Newport would seek rule 11 sanctions.

4. Sanctions on Appeal

Newport moves for sanctions on appeal. See Minn. Stat. § 549.211 (Supp. 1997); see also Cole, 581 N.W.2d at 370, 371 (imposing sanctions for continued assertion on appeal of claims not supported by evidence or law). Cooper has had an opportunity to address the motion, to withdraw the appeal, and to correct unsupported factual assertions made in the briefs to this court, but he has failed to do so. We agree with Newport that the continued misrepresentation of facts and evidence in submissions to this court justifies an award of fees. See Minn. Stat. § 549.211, subd. 2(3) (providing that advocacy and written submissions to the court constitute certification that allegations and factual contentions have evidentiary support); see also Hughes v. Sinclair Mktg., 389 N.W.2d 194, 200 (Minn. 1986) (recognizing need for award of fees incurred in defense of favorable decision and unsuccessful appeal, to avoid dilution of fees awarded by district court). But Newport has not itemized the fees incurred on appeal or provided supporting documentation. Newport may make a motion for sanctions, to be accompanied by supporting documentation, within 15 days after the filing of this opinion. Any response shall be served and filed in accordance with Minn. R. Civ. App. P. 127. This shall not affect the taxation of costs and disbursements, which is governed by Minn. R. Civ. App. P. 139.

The district court had subject-matter jurisdiction to consider the motion for fees while the appeal was pending; it did not err in concluding that Minn. Stat. § 549.21 (1996) applied; and it did not abuse its discretion in awarding fees for the persistent and repeated advancement of multiple claims that are factually and legally unwarranted.


*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 district court made specific findings regarding the conduct of Cooper, and the award of sanctions was assessed against Cooper, for his conduct in the course of representing Warner. The notice of appeal in this case indicates that Warner is appealing the award. However, the notice of appeal was signed by counsel for Cooper, it apprised all parties of the issues to be raised on appeal, and none of the respondents have asserted that they were unaware that Cooper was challenging the award. Therefore, we liberally construe this as an appeal by Cooper from the award. See Kelly v. Kelly, 371 N.W.2d 193, 195 (Minn. 1985) (notices of appeal to be liberally construed in favor of sufficiency).