Dietz v. Kautzman
Rachel M. Kautzman, Plaintiff and Appellee
v.
Robert A. Kautzman, Defendant and Appellant
Judge Norman J. Backes
| Appellant: | Garaas Law Firm | |
| Appellee: | Vogel Law Firm |
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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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