Dietz v. Kautzman

20030361 Rachel M. Dietz, f/k/a
Rachel M. Kautzman, Plaintiff and Appellee
v.
Robert A. Kautzman, Defendant and Appellant

Appeal from: District Court, East Central Judicial District, Cass County
Judge Norman J. Backes
Nature of Action: Divorce/Property Div./Alimony
Counsel:
Appellant: Garaas Law Firm
Appellee: Vogel Law Firm
Term: 04/2004   Argument: 04/07/2004  1:30pm
ND cite: 2004 ND 119
NW cite: 681 N.W.2d 437

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Issues: Appellant's Statement of the Issues:
1. Did Rachel follow the requisite procedures found with N.D.R.Civ.P. 11 so that she can base her claim for attorney fees incurred in the District Court on said rule?
2. Were Robert's motions dated December 13, 2002, made for the improper purposes of harassing Rachel or to cause needless cost in litigation?
3. Was Rachel entitled to a presumption that Robert's motion was filed for improper purposes as she claims she is entitled to?
4. Was there a good faith basis for Robert's motions of December 13, 2002?
5. Could Robert's December 13, 2002, position be sustained by existing law or by a non-frivolous extension of the law?
6. If a sanction was appropriate, should the lower Court have explored another forms of sanctions prior to the award of any attorney fees to Rachel?
7. Can the sanction of attorney fees be sustained under N.D.C.C  28-26-01(2) when (a) Rachel did not submit a "responsive pleading" as required by said statute; (b) the sanction against both Robert and his attorneys instead of a cost assessment against a party to the lawsuit alone; (c) the amount awarded exceeds the reasonable attorney fees for the defense of Robert's challenged motion; and (d) that there was not such a complete absence of actual facts or law that a reasonable person could not have thought a court might rule in his favor?

Appellant's Reply Brief Issues
The first issue raised by Rachel abridges Appellants' Issues numbered 2, 3, 4, 5 and 7.
The second issue raised by Rachel touches upon some - but not all - of the subject matters addressed in Appellants' Issue 6.
The third issue raised by Rachel involves two matters that should not be the subject of an Appellee's Brief. If Rachel believes she is entitled to attorney fees for this appeal, she should follow the motion practice of this Court. If Rachel believes she is entitled to attorney fees for a prior appeal, she should have made timely motion or petition for rehearing in the prior appeal.

Appellee's Statement of the Issues:
1. Did the district court properly conclude the December 13, 2002 motion filed by Jonathon Garaas and the Garaas Law Firm violated Rule 11 of the North Dakota Rules of Civil Procedure and Section 28-26-01(2) of the North Dakota Century Code?
2. Did the district court impose an appropriate sanction by requiring Jonathon Garaas and the Garaas Law Firm to reimburse Rachel Dietz for a portion of the legal fees she incurred in responding to the December 13, 2002 motion?
3. Should Jonathon Garaas and the Garaas Law Firm be required to pay Rachel Dietz's legal fees and expenses incurred in this appeal and the prior appeal of the order rejecting their December 13, 2002 motion (Kautzman v. Kautzman, 2003 ND 140)?

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Docket entries:
112/16/2003 NOTICE OF APPEAL: 12/12/2003
212/16/2003 ORDER FOR TRANSCRIPT: 12/12/2003
312/16/2003 ANNOUNCED DISQUALIFICATION: Kapsner, Carol Ronning
412/31/2003 TRANSCRIPT DATED October 29, 2003
512/31/2003 DISK - TRA dated 10/29/03 (electronically transmitted)
601/15/2004 RECORD ON APPEAL (2 volumes & separates) (not rec'd - entries 1-1142, 1142, 1172, 1191 & 1220)
702/10/2004 CLERK'S SUPPLEMENTAL CERTIFICATE OF APPEAL DATED FEBRUARY 9, 2004(ENTRIES 1233 THRU 1236)
802/09/2004 APPELLANT BRIEF
902/09/2004 APPELLANT APPENDIX
1002/09/2004 DISK - ATB
1102/10/2004 Transcript dated 2-14-03
1202/10/2004 DISK - TRA (2-14-03) (e-filed)
1302/12/2004 Page 7 for ATB
1403/15/2004 APPELLEE BRIEF
1503/16/2004 APPELLEE APPENDIX
1603/16/2004 DISK - AEB
1703/19/2004 Copy of Appellee's Brief
1803/26/2004 SITTING WITH THE COURT: Graff, Benny A.
1903/26/2004 REPLY BRIEF of Appellant
2003/26/2004 DISK - RYB
2104/07/2004 APPEARANCES: Jonathan T. Garaas; Steven A. Johnson
2204/07/2004 ARGUED: Garaas; Johnson (Vol. Y; Page 226)
2304/07/2004 ORAL ARGUMENT WEBCAST
2406/07/2004 DISPOSITION: AFFIRMED
2506/07/2004 UNANIMOUS OPINION: VandeWalle, Gerald W.
2606/07/2004 Costs taxed in favor of Rachel Dietz
2706/08/2004 Judgment Mailed to Parties
2806/21/2004 PETITION FOR REHEARING
2906/22/2004 DISK - PER
3007/06/2004 ACTION BY SUPREME COURT (PER). Denied
3107/13/2004 MANDATE
3207/16/2004 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
3305/20/2011 EXPUNGED - Nonpermanent record items destroyed

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