This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-451

 

T.J. Haislet,

Appellant,

 

vs.

 

Lawrence L. Skoglund, et al.,

Respondents.

 

Filed December 13, 2005

Affirmed in part and reversed in part
Klaphake, Judge

 

Carver County District Court

File No. CV-04-84

 

Thomas E. Emmer, Teresa A. Anderson, Emmer Law Firm, P.A., 1800 Pioneer Creek Center, P.O. Box 39, Maple Plain, MN  55359 (for appellant)

 

Patrick J. Neaton, Neaton, Puklich & Klassen, 601 Carlson Parkway, Suite 620, Minnetonka, MN  55305 (for respondents)

 

            Considered and decided by Klaphake, Presiding Judge, Halbrooks, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant T.J. Haislet sued respondents Lawrence and Ann Skoglund for breach of a contract to convey real property.  He also filed a notice of lis pendens, which was dismissed on respondents’ motion shortly after it was filed.  After a bench trial, the district court dismissed all of appellant’s claims as meritless, found that appellant had slandered respondents’ title, and awarded respondents special damages that included attorney fees incurred in discharging the notice of lis pendens and additional attorney fees under Minn. Stat. § 549.211 (2002).  Appellant challenges the award of attorney fees.

            Because respondents failed to give timely notice of their intent to pursue sanctions under Minn. Stat. § 549.211, we reverse the district court’s award of $8,620 in attorney fees under this statute as an abuse of discretion.  But because the district court had authority to award special damages incurred in the discharge of the notice of lis pendens, we affirm the remaining award of $5,780 in attorney fees.

D E C I S I O N

            The district court’s award of attorney fees under Minn. Stat. § 549.211 (2002) is reviewed for an abuse of discretion.  Gibson v. Coldwell Banker Burnet, 659 N.W.2d 782, 787 (Minn. App. 2003).[1]  The district court’s discretion is limited by the requirement that the sanctioned party receive fair notice and an opportunity to respond.  See Minn. Stat. § 549.211, subd. 3; Kellar v. Von Holtum, 605 N.W.2d 696, 702 (Minn. 2000).

            A motion for sanctions under the statute must be made separately from other motions and served as provided by the rules; it may not be filed with or presented to the court until the party to be sanctioned has had 21 days after service within which to correct the conduct to be sanctioned.  Minn. Stat. § 549.211, subd. 4(a).  The district court may sua sponte enter an order describing the conduct to be sanctioned, but must issue an order to show cause why the party or attorney should not be sanctioned.  Id., subd. 4(b).  If a party fails to provide adequate notice, or a 21-day safe-harbor period, or a separate motion, no sanctions can be imposed.  See, e.g., Dyrdal v. Golden Nuggets, Inc., 672 N.W.2d 578, 589 (Minn. App. 2003) (failure to file separate motion), aff’d,689 N.W.2d 779 (Minn. 2004); Gibson, 659 N.W.2d at 791 (failure to give 21-day safe-harbor period); Minn. Humane Soc’y v. Minn. Federated Humane Societies, 611 N.W.2d 587, 591 (Minn. App. 2000) (failure to give reasonable notice). 

            Here, respondents gave notice of their intent to pursue sanctions in a March 16, 2004 letter, which was served two days before the hearing on the motion to discharge the notice of lis pendens.  While service two days before the hearing may or may not be reasonable, the letter was not in the form of a motion and did not give appellant 21 days in which to correct the complained-of conduct:  filing the notice of lis pendens.  Moreover, 21 days did not even expire, because the district court’s order discharging the notice was issued 12 days after the letter.  Under these facts, we must conclude that the district court abused its discretion in awarding $8,620 in attorney fees based solely on Minn. Stat. § 549.211, even though appellant’s conduct clearly warranted such a sanction.  See Gibson, 659 N.W.2d at 791 (denying sanctions, despite violations, because of failure to comply with procedural requirements). 

            The district court also awarded respondents attorney fees incurred in discharging the notice of lis pendens as special damages caused by appellant’s slander of title.  In Paidar v. Hughes, 615 N.W.2d 276, 281 (Minn. 2000), the supreme court held that attorney fees incurred to remove a cloud on title are special damages in a slander of title action. 

            Appellant challenges the district court’s determinations that the notice of lis pendens was a slander on the title and that it proximately caused the special damages cited by the district court.  Issues of causation are generally fact questions left to the finder of fact and only become questions of law when “different minds can reasonably arrive at only one result.”  Id. (quotation omitted). 

            Appellant has not provided a transcript of the testimony before the court, and our review is therefore limited to whether the district court’s factual findings support its conclusions.  Am. Fam. Life Ins. Co. v. Noruk, 528 N.W.2d 921, 925 (Minn. App. 1995), review denied (Minn. Apr. 27, 1995).  The district court found that the title insurance company was willing to issue a title insurance policy on the date of closing, subject to a possible quiet title action; there is no indication that a quiet title action was necessary before closing on August 10, 2004.  The facts that appellant argues in his brief, that closing was prevented by title problems and that respondents were unable to close until a quiet title action was held, are not in the record.  Appellant may not rely on facts that are not in the record to argue lack of proximate cause.  We therefore conclude that the district court here did not abuse its discretion by awarding respondents $5,780 in attorney fees as special damages.

            The district court’s award of $8,620 in attorney fees under Minn. Stat. § 549.211 is reversed, but its award of $5,780 in attorney fees for the discharge of notice of lis pendens as special damages is affirmed.

            Affirmed in part and reversed in part.