This opinion will be unpublished and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

A05-2345

 

 

Citibank (South Dakota) N.A.,

Respondent,

 

vs.

 

Kermit J. Erickson,

defendant and third party plaintiff,

Appellant,

 

vs.

 

Betty Marie Erickson,

third party defendant,

Respondent.

 

 

Filed August 1, 2006

Affirmed; motion granted in part, denied in part

Halbrooks, Judge

 

 

Hennepin County District Court

File No. CT 05-1221

 

 

Michael D. Johnson, Balogh Becker, Ltd., 4150 Olson Memorial Highway, Suite 2000, Minneapolis, MN 55422-4811 (for respondent Citibank)

 

Allen H. Gibas, Allen H. Gibas, P.A., 1422 West Lake Street, Suite 320, Minneapolis, MN 55408  (for appellant)

 

Betty Marie Erickson, 3804 East 36th Street, Minneapolis, MN 55406 (pro se respondent)

 

            Considered and decided by Halbrooks, Presiding Judge; Minge, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            On appeal from the district court’s dismissal of respondent’s action to recover credit-card debt from appellant, appellant argues that the district court erred in denying his earlier motion to strike under Minn. R. Civ. P. 12.06 and in dismissing the case without awarding costs pursuant to Minn. Stat. § 549.04 (2004).  Because respondent had a sufficient evidentiary basis for its claims and because appellant never requested costs in the district court, we affirm.  Appellant moved this court to strike portions of respondent’s brief and appendix; that motion is granted in part and denied in part.

FACTS

            In late 2001, a credit-card account with respondent Citibank (South Dakota) N.A. was opened via telephone in the names of appellant Kermit Erickson and his then-wife, Betty Erickson.[1]  Appellant contends that his now ex‑wife opened the account in his name, that he never personally signed a credit application or entered into a credit agreement with Citibank,[2] and that he only learned of the account during his dissolution proceedings.  After receiving account statements at his new address following the couple’s separation, appellant reported the matter to his counsel, who wrote to the credit-card company requesting verification of appellant’s connection to the account.  Counsel for appellant states that he never received a response to that demand for verification.   

            After a debt collector contacted appellant about the outstanding debt on the account, counsel for appellant wrote to the collector, requesting verification that appellant had accepted liability for the account.  Soon thereafter, appellant’s dissolution judgment was final.  In the property settlement, Betty Erickson was ordered to pay the outstanding debt on the Citibank account.  Because she failed to do so, another debt collector contacted appellant and demanded payment.  Counsel for appellant again responded, requesting documentation of appellant’s connection to and liability for the account. 

            Respondent filed a complaint against appellant, seeking judgment for the outstanding credit-card debt and attorney fees incurred in collecting the debt.  Appellant responded with a demand for proof that appellant had applied for the account and had agreed to be liable for the account.  After internally verifying that the account was opened via telephone in September 2001, respondent served on appellant copies of the account’s billing statements and its initial discovery requests.  Appellant submitted an answer, denying the allegation and requesting dismissal, costs and disbursements, and fees. 

            Appellant then moved to strike respondent’s complaint or for a protective order, asking the court to strike the complaint under Minn. R. Civ. P. 12.06 because of the complaint’s failure to comply with Minn. R. Civ. P. 11.02(c).  Appellant argued that the complaint should be stricken because respondent failed to provide any evidentiary support for its assertion that appellant was liable for the account.  Appellant also moved for sanctions.  Respondent opposed the motions, noting that it had no obligation to provide a signed credit-card application, that such documentation does not exist because the account was opened over the telephone, and that appellant had been provided with three years’ worth of account billing statements bearing appellant’s name and address, which had been mailed to appellant.  Respondent argued it had an objectively reasonable basis for pursuing the claim and that rule 11 sanctions were inappropriate. 

            After a hearing, the district court denied appellant’s motion to strike the complaint or grant a protective order and ordered appellant to pay respondent $600 in costs associated with the motion.  The district court did not explain its ruling, and there is no transcript of the motion hearing for our review. 

            Appellant served a third-party complaint on Betty Erickson, with whom respondent then settled the debt.  Respondent notified the district court of the settlement and asked that the matter be dismissed with prejudice as to all parties and without costs to any party.  The district court signed an order to that effect on August 15, 2005, without contacting appellant. 

            Before he received a copy of the order for dismissal, appellant moved for removal of the district court judge and for dismissal of the case.  But after receiving the district court’s dismissal order, appellant withdrew the motions and asked the district court to enter judgment.  Accordingly, the district court issued an order directing that judgment be entered; the court also issued an order, rescinding the $600 in costs that were previously awarded to respondent.  This appeal followed.

            After briefing on appeal was complete, appellant requested that respondent voluntarily correct the record on appeal by withdrawing certain portions of respondent’s brief and appendix; respondent voluntarily withdrew some portions of its appendix and statement of the case.  Thereafter, appellant moved to strike the portions of respondent’s brief and appendix that respondent had refused to voluntarily withdraw.  By order of the special-term panel, the motion was deferred to this panel for decision.  

D E C I S I O N

I.

 

            Appellant maintains that the district court abused its discretion by refusing to strike respondent’s complaint under Minn. R. Civ. P. 12.06, arguing that the complaint did not comply with Minn. R. Civ. P. 11.02(c) because respondent did not have evidentiary support for its claims.  We review the district court’s actions under an abuse-of-discretion standard.  See Minn. R. Civ. P. 12.06 (noting that a district court “may” take action on pleadings that do not comply with rule 11); Kellar v. Von Holtum, 605 N.W.2d 696, 703 (Minn. 2000) (costs).  Rule 12.06 provides that a district “court may order any pleading not in compliance with Rule 11 stricken.”  And rule 11.02(c) states that an attorney presenting a pleading to the court

is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, . . . [that] the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

           

We have held that this rule requires that “counsel ha[ve] an objectively reasonable basis for pursuing a factual or legal claim or [that] a competent attorney could form a reasonable belief a pleading is well-grounded in fact and law.”  Bergmann v. Lee Data Corp., 467 N.W.2d 636, 641 (Minn. App. 1991) (quotation omitted), review denied (Minn. May 23, 1991).

            Here, respondent possessed sufficient evidence to meet its burden under rule 11.  Respondent possessed and presented the following evidence in support of its claim:  (1) the fact that appellant was the primary cardholder for the past-due credit account; (2) monthly billing statements for the account that respondent sent to appellant’s home spanning the time period from September 2001 until October 2004; and (3) cancelled checks from appellant’s and Betty Erickson’s joint account submitted to respondent for payment on the credit account that were signed by appellant’s now ex-wife.  That evidence provides a reasonable, objective basis for respondent’s claims.  Because respondent had sufficient evidentiary support for the allegations in its complaint to satisfy rule 11 requirements, we conclude that the district court did not abuse its discretion by failing to strike the complaint under Minn. R. Civ. P. 12.06.

            Appellant also argues that the district court abused its discretion by dismissing the lawsuit without awarding costs.  Although appellant moved for costs after the district court dismissed the matter, counsel for appellant withdrew the motion because he “believed [the district court’s] order mooted the motion.”  So, while Minn. Stat. § 549.04 (2004) provides that “the prevailing party . . . shall be allowed reasonable disbursements paid or incurred,” such costs were never actually taxed or requested in the district court. 

            Further, appellant’s assertion that the dismissal of the matter divested the district court of jurisdiction to decide the collateral matter of costs is unsupported by the law.  Appellant relies on cases that involve stipulations for dismissal without costs in support of his assertion that the district court could not address the issue of costs here.  But this case does not involve such a stipulation.  The district court retained jurisdiction to decide the issue of costs after dismissing the matter because the issue was collateral to the merits of the case.  Radloff v. First Am. Nat’l Bank of St. Cloud, 470 N.W.2d 154, 156 (Minn. App. 1991) (concluding that the district court retained jurisdiction to award sanctions and attorney fees while case was on appeal because attorney fees were an “other matter” independent of the litigation’s merits), review denied (Minn. July 24, 1991); Seiberlich v. Burlington N. R.R., 447 N.W.2d 896, 899 (Minn. App. 1989) (holding that the district court retained jurisdiction to award costs while case was on appeal because the issue was “collateral and supplemental to decision on the merits” (quotation omitted)), review denied (Minn. Jan. 12, 1990).

            Appellant was not precluded from requesting costs in the district court, and he cannot now claim to be aggrieved by the district court’s failure to award costs when he did not tax them.  This court generally considers only those issues that were presented and considered by the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Because appellant never requested costs in the district court, we do not address the question of whether the district court abused its discretion by dismissing the matter without awarding costs.

II.

            Appellant asks this court to strike two items from respondent’s brief and appendix: (1) the statement from page 13 of respondent’s brief that says: “Only after Judge DuFresne signed the order for Dismissal did Erickson seek to address the issue of ‘costs’ with the court.  On August 16, 2005, Erickson filed a Motion to Remove Judge and Dismiss Action with Costs Awarded to Defendant”; and (2) pages 7-15 of respondent’s appendix, which consist of appellant’s Notice of Motion and Motion for Removal of Judge and for Dismissal and the memorandum, affidavit, and proposed order associated with that motion.  Appellant claims that he could not possibly have known about the district court’s order dismissing the matter before preparing his August 16 motion and that because he inadvertently failed to pay the filing fee and subsequently withdrew the motion, the documents are not part of the district court record.     

            Respondent opposes the motion to strike, arguing that the motion should properly be heard by the district court.  Respondent alternatively cites to Minn. R. Civ. App. P. 110.05, which provides that this court may supplement the court record with material information that was mistakenly omitted or is misstated therein.

            We decline to strike the statement in respondent’s brief concerning the timing of appellant’s “Motion to Remove Judge and Dismiss Action with Costs Awarded to Defendant.”  Respondent’s statement is factually accurate, and we do not understand it to disparage appellant’s counsel. 

            And although the district court file does not contain appellant’s August 16 motion papers, it does contain respondent’s response to that motion.  The district court file also contains the August 26 letter from appellant’s counsel to the district court explaining that after receiving the dismissal order he “believed [the district court’s] order mooted the motion [he] filed on August 16, 2005.”

            While this court could order, under Minn. R. Civ. App. P. 110.05, that the motion papers be made part of the record, given that the court file contains specific references to the existence of the August 16 motion and that the contents of those motion papers are not under scrutiny here, it is not necessary to supplement the record.  Accordingly, we grant appellant’s motion in part and strike pages 7-15 from respondent’s appendix.   

            Affirmed; motion granted in part, denied in part.