Dietz v. Kautzman

20030362 Rachel M. Dietz, Plaintiff and Appellee
Robert A. Kautzman, Paul
Kautzman and Kautzman
Millwright, Inc., Defendants and Appellants
George A. Wyum, Kautzman
Family Trust, Valarie
Torgerson, and B. & G.
Enterprises, LLC, Defendants
Jonathan T. Garaas, Appellant

Appeal from: District Court, East Central Judicial District, Cass County
Judge Cynthia Rothe-Seeger
Nature of Action: Contracts
Appellant: Garaas Law Firm
Appellee: Vogel Law Firm
Term: 06/2004   Argument: 06/17/2004
ND cite: 2004 ND 164
NW cite: 686 N.W.2d 110

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
1. Were the Order Compelling Discovery of May 9, 2003 and the Order for Sanctions of July 18, 2003, too vague to support a finding of contempt [or Rule 37(b) sanctions] for the acts that Rachel complained about?
2. Did the lower court fail to make the prerequisite finding that its orders were willfully, or intentionally, disobeyed, and the facts of this case show that Robert, Paul, Millwright and Garaas fulfilled their duties to the lower court, or Rachel, as they understood their duties to be?
3. Is the July 18, 2003, assessment of $1,000.00 enforceable by contempt proceedings in that it is a debt, and debts are not contemplated to be enforced through the contempt powers by statute and court rule?
4. Can the October 8, 2003, order to pay $250.00 and the July 18, 2003, assessment of $1,000.00 be sustained as a remedial sanction for contempt?
5. Can the July 18, 2003, assessment of $1,000.00 be sustained under N.D.R.Civ.P. 37(a) because Rachel did not bring a motion under said portion of Rule 37, and the lower court did not follow applicable procedures within the rule?
6. Did the assessment of $1,000.00 stem from a denial of the protections of discovery rules?
7. Is it an abuse of discretion to assess Garaas $1,000.00 without proper notice as to what wrongdoing he is accused, without submission of evidence of wrongdoing, and without findings of actual wrongdoing?

Appellee's Statement of the Issues:
1. Are the trial court's orders compelling Robert Kautzman, Paul Kautzman and Kautzman Millwright to respond to Dietz's discovery requests appealable.
2. Did the district court properly compel Robert Kautzman, Paul Kautzman and Kautzman Millwright to answer Rachel Dietz's discovery requests.
3. Did the district court abuse its discretion by ordering Robert Kautzman, Paul Kautzman, Kautzman Millwright and Jonathon Garaas to pay $1,000 as a sanction for their failure to comply with an earlier order compelling discovery?
4. Did the district court abuse its discretion by (a) holding Robert Kautzman, Paul Kautzman, Kautzman Millwright and Jonathon Garaas in contempt of court for their failure to pay the $1,000 sanction (b) ordering that judgment be entered against them for this amount; and (c) ordering that they pay an additional $250?
4. Should Robert Kautzman, Paul Kautzman, Kautzman Millwright and Jonathon Garaas be required to pay Rachel Dietz's legal fees and expenses incurred in this appeal.

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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
412/19/2003 Transcript dated April 17, 2003
512/22/2003 DISK - April 17, 2003 transcript
601/13/2004 RETENTION OF RECORD ON APPEAL (Gail Wells): 03/01/2004
801/29/2004 ACTION BY TRIAL COURT. Granted: 03/01/2004
902/06/2004 TRANSCRIPTS DATED JULY 7, 2003 AND OCTOBER 2, 2003
1002/06/2004 DISK - TRA JULY 7, 2003 & OCT 2, 2003
1102/09/2004 RECORD ON APPEAL & Deposition (1) (Not Recd: #15,46,53,77, & 89--tapes and #71--Steno Notes)
1203/16/2004 APPELLANT BRIEF
1403/19/2004 7 copies of page iii for Appellant's Brief (inserted)
1503/23/2004 Corrected cover pages for ATB & ATA
1603/23/2004 DISK - atb
1704/19/2004 APPELLEE BRIEF (Rachel M. Dietz)
1904/26/2004 Corrected cover pages for AEB & AEA - Inserted
2004/26/2004 DISK - AEB (e-mailed)
2104/30/2004 REPLY BRIEF
2205/10/2004 Corrected TOA & page 6 for RYB
2305/10/2004 DISK - ryb
2405/20/2004 SITTING WITH THE COURT: Hodny, William F.
2506/03/2004 MOTION FOR WAIVER OF OA ON BEHALF OF APPELLEE (faxed letter dated 5-17-04 from Steven Johnson)
2606/03/2004 E-FILED MOTION
2706/03/2004 ACTION BY CHIEF JUSTICE (OA waived on behalf of AE). Granted
2806/17/2004 APPEARANCES: Jonathan T. Garaas; submitted on brief for AE
2906/17/2004 ARGUED: Garaas
3208/31/2004 UNANIMOUS OPINION: VandeWalle, Gerald W.
3308/31/2004 Double costs are awarded to the Appellee
3409/01/2004 Order/Judgment Mailed to Parties
3509/09/2004 PETITION FOR REHEARING (Appellee)
3609/10/2004 DISK - (Appellee's PER)
3709/14/2004 PETITION FOR REHEARING (Appellant)
3809/15/2004 DISK (Appellants' PER)
3910/14/2004 ACTION BY SUPREME COURT (Appellee's PER). Denied
4010/14/2004 ACTION BY SUPREME COURT (Appellant's PER). Denied
4110/25/2004 MANDATE
4305/20/2011 EXPUNGED - Nonpermanent record items destroyed

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