This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-98-574

County of Anoka, Minnesota,

Respondent,

vs.

Sharlette Petrik, defendant and

third-party plaintiff,

Appellant,

vs.

City of Columbia Heights,

Minnesota, et al.,

third-party defendants,

Respondents,

The Honorable James Morrow, et al.,

third-party defendants,

Respondents.

Filed August 25, 1998

Affirmed; motions denied

Short, Judge

Anoka County District Court

File No. C3969253

Alfred M. Stanbury, Stanbury Law Firm P.A., 2209 St. Anthony Parkway, Minneapolis, MN 55418 (for appellant)

Hubert H. Humphrey, III, Attorney General, Peter M. Ackerberg, Assistant Attorney General, 445 Minnesota Street, Suite 1100, St. Paul, MN 55101-2128 (for respondents Honorable James Morrow, et al.)

Thomas H. Crouch, Jenneane L. Jansen, Meagher & Geer P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondents City of Columbia Heights, et al.)

Robert M.A. Johnson, County Attorney, Thomas Haluska, Assisant County Attorney, Anoka County Government Center, 2100 Third Avenue, Anoka, MN 55303 (for respondent County of Anoka)

Considered and decided by Schumacher, Presiding Judge, Short, Judge, and Harten, Judge.

U N P U B L I S H E D O P I N I O N

SHORT, Judge

At 11:20 p.m. on March 7, 1995, Sharlette Petrik was transported to the Anoka Metro Regional Treatment Center and placed on a 72-hour emergency hold pursuant to Minn. Stat. § 253B.05, subd. 1 (1994). In an attempt to obtain her release, Petrik's attorney filed a petition for writ of habeas corpus. That petition was denied and Petrik remained at the detoxification center for three days. As a result of Petrik's stay, the County of Anoka (county) incurred $660 in detoxification costs.

On January 18, 1996, the county sued Petrik in conciliation court to recover those costs. Judgment was entered for Anoka County. Alleging a deprivation of state and federal constitutional rights by the City of Columbia Heights (city), numerous police officers, the state, and two judges and their law clerks, Petrik appealed to the trial court, and counterclaimed for damages and injunctive relief. On September 30, 1996, Petrik removed the state court action to federal court. On October 30, 1996, the state moved to dismiss, or alternatively, for summary judgment. Concluding it had no subject matter jurisdiction, the federal district court remanded the case to state court without considering the dispositive motions. After remand, the city filed a joint answer to Petrik's original complaint. Pursuant to Minn. R. Civ. P. 41.01(a), Petrik filed two notices of voluntary dismissal without prejudice. The court concluded Petrik's voluntary dismissals were ineffective and dismissed Petrik's actions with prejudice. On appeal, Petrik argues[1] the trial court abused its discretion by: (1) concluding her voluntary dismissals were ineffective; (2) deciding issues not properly before it; and (3) sanctioning her and her attorney. Petrik and the state request attorney fees on appeal. We affirm, and deny attorney fees.

D E C I S I O N

This court will not reverse a trial court's decision on a Rule 41 motion absent an abuse of discretion. Paulucci v. City of Duluth, 826 F.2d 780, 782-83 (8th Cir. 1987).

I.

Minn. R. Civ. P. 41.01(a) gives a plaintiff the absolute right to dismiss a case without prejudice during the early stages of a lawsuit. Rhein v. Rhein, 244 Minn. 260, 262, 69 N.W.2d 657, 659 (1955). Rule 41.01(a) provides:

Subject to the provisions of Rules 23.05, 23.06, and 66, an action may be dismissed by the plaintiff without order of court (1) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs.

Minn. R. Civ. P. 41.01(a) (emphasis added).

Petrik argues even though she dismissed her action against the state after the state served its motion in the federal court proceeding, her dismissal is effective because the state's motion: (1) was a 12(b)(6) motion; and (2) was not served in state court after the case was remanded. See 1A David F. Herr & Roger S. Haydock, Minnesota Practice § 41.4 (1998) (providing Rule 12 motion to dismiss does not cut off right of plaintiff to unilaterally dismiss). We disagree. The state's motion was a motion for dismissal, and in the alternative for summary judgment. See Maras v. City of Brainerd, 502 N.W.2d 69, 74 (Minn. App. 1993) (treating motion for dismissal, or alternatively, summary judgment as summary judgment motion), review denied (Minn. Aug. 16, 1993). Cf. Aamot v. Kassel, 1 F.3d 441, 443-45 (6th Cir. 1993) (concluding federal rule 41(a)(1) notice of dismissal effective even though defendant filed 12(b)(6) motion). In addition, when a case, removed to federal court, is remanded to state court, the state court receives that case in the posture it was in when remanded. See Doerr v. Warner, 247 Minn. 98, 105-06, 76 N.W.2d 505, 512 (1956) (concluding when case removed to federal court and subsequently remanded to state court, state court has continuous, though dormant, jurisdiction while case in federal court, but jurisdiction is revived on remand); see also Williams v. St. Joe Minerals Corp., 639 S.W.2d 192, 195 (Mo. Ct. App. 1982) (concluding when state court receives case on remand from federal court removal, case is in posture it was in when remanded and failure to re-file pleading after remand is not fatal to state court ruling on pleading). Therefore, once the state served its motion in federal court, it was not required to re-file that motion in state court after remand. See Hunter, Keith, Indus., Inc. v. Piper Capital Management, Incorp., 575 N.W.2d 850, 853 (Minn. App. 1998) (concluding in remanding action to state district court, federal court also remanded party's pending motion filed in federal court); see also Crumpton v. Perryman, 956 P.2d 670, 672 (Colo. Ct. App. 1998) (concluding state court may rule on motions filed in federal court prior to remand); Citizens Nat'l Bank v. First Nat'l Bank, 331 N.E.2d 471, 476 (Ind. Ct. App. 1975) (concluding when federal court remands case without ruling on motions filed in federal court, those motions were properly ruled on by state court without motions being re-filed). Because the state properly served its summary judgment motion prior to Petrik's voluntary dismissal, the trial court did not abuse its discretion in concluding Petrik's dismissal was ineffective.

Petrik argues even though she dismissed her action against the city after the city served an answer to the original complaint in the state court proceeding, her voluntary dismissal is effective because the city answered the original, instead of amended, complaint. We disagree. Rule 41.01(a) specifically prohibits a plaintiff from voluntarily dismissing an action if an adverse party files an answer or summary judgment motion. See Minn. R. Civ. P. 41.01(a) (providing method of voluntarily dismissing case without prejudice). The purpose of Rule 41.01(a) is to allow voluntary dismissals only in the very early stages of litigation, before a defendant has become involved with the case. Herr & Haydock, supra, § 41.4; see Armstrong v. Frostie Co., 453 F.2d 914, 916 (4th Cir. 1971) (concluding federal rule 41(a)(1)(i) is designed to permit disengagement of parties at behest of plaintiff only in early stages of suit, before defendant has expended time and effort in preparation of his case). By filing an answer to Petrik's original state court complaint, instead of amended complaint filed in federal court, the city expended time and effort in defending against Petrik's cause of action. Thus, even if the city arguably answered the wrong complaint, it still satisfied both the letter and spirit of Rule 41.01(a) and should not be subjected to Petrik's voluntary dismissal. See Armstrong, 453 F.2d at 916 (concluding court properly vacated plaintiff's dismissal of action without prejudice because opponent satisfied letter and spirit of federal rule 41(a)(1) by filing answer and motion for summary judgment to plaintiff's original, instead of amended, complaint). Under these circumstances, we conclude the trial court did not abuse its discretion in concluding Petrik's voluntary dismissal of the city was ineffective.

II.

Petrik also argues the trial court abused its discretion and denied her a fair hearing by dismissing officer Michael McGee from the action because his summary judgment motion was not properly before the trial court. We disagree. The record demonstrates: (1) in April 1997, McGee moved for summary judgment on the ground that he was not involved in transporting Petrik to the detoxification center; (2) McGee's motion papers were personally served on Petrik's counsel; (3) McGee's attorney also requested that Petrik dismiss him from the suit, with prejudice; (4) a hearing on all dispositive motions was scheduled for September 10, 1997; (5) Petrik's counsel mistakenly believed only the third-party defendants' motions for summary judgment would be considered at the September 10 hearing; (6) at the hearing, Petrik's counsel stated he had not read McGee's affidavits, but admitted receiving them; (7) McGee submitted information demonstrating he had not been involved in transporting Petrik to the detoxification center; and (8) Petrik's counsel failed to submit information refuting McGee or requesting a continuance. Because Petrik had ample notice of, and opportunity to respond to McGee's summary judgment motion, she was not denied a fair hearing when the trial court considered and granted that motion. See Minn. R. Civ. P. 56.03 (providing summary judgment is appropriate where there are no genuine issues of material fact and either party entitled to judgment as a matter of law); cf. Citizens State Bank v. Wallace, 477 N.W.2d 741, 743 (Minn. App. 1991) (concluding although appellants were able to hastily prepare counter-motion, their right to adequate notice was violated by receiving only two days' notice). Under these circumstances, McGee's summary judgment motion was properly before the trial court.

III.

Petrik further argues the trial court abused its discretion by sanctioning Petrik and her attorney for naming officer Michael McGee, the state, and two judges and their law clerks as third-party defendants. The trial court found: (1) Petrik failed to present any evidence showing officer McGee was at the scene, or even on duty at the time she was taken to the detoxification center; and (2) the suit against the third-party state defendants was baseless, frivolous, and a malicious exercise of litigative harassment. Because the evidence supports those findings, we conclude the trial court did not abuse its discretion in awarding attorneys fees. See Minn. R. Civ. P. 11 (providing court may, on own initiative, impose sanctions on party if that party brings action for improper purpose such as to harass, cause unnecessary delay, or needlessly increase cost of litigation); see also Solon v. Solon, 255 N.W.2d 395, 397 (Minn. 1977) (concluding appellate court will not reverse trial court's award of attorney fees absent clear abuse of discretion).

Finally, Petrik and the state request attorney fees on appeal. See Minn. Stat. § 549.211, subds. 2, 3 (Supp. 1997) (providing for sanctions against parties who bring action for improper purpose, assert unwarranted or frivolous arguments, or allege factual contentions that lack evidentiary support). Because we conclude none of the parties acted in bad faith during this appeal, we decline to award attorney fees. See, e.g., Ottman v. Fadden, 575 N.W.2d. 593, 598 (Minn. App. 1998) (declining to award sanctions on appeal because court failed to find appeal brought in bad faith).

Affirmed; motions denied.

[ ]1 After the parties filed briefs, Petrik moved to vacate the trial court's judgment and/or strike parts of respondents' briefs because the judgment was based on, and the briefs contain, federal pleadings that were not part of the trial court record. However, Petrik failed to object to the trial court considering those pleadings. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding reviewing court will only consider issues presented to and considered by trial court). Under these circumstances, we decline to address Petrik's motions. See, e.g., Pacific Equip. & Irrigation, Inc. v. Toro Co., 519 N.W.2d 911, 918 (Minn. App. 1994) (concluding courts will not address merits of motion to strike affidavit because affidavit was presented to trial court and therefore constitutes part of record, and appellant should have brought any motion to strike in trial court), review denied (Minn. Sept. 16, 1994).