In re the Marriage of: Dawn Marie Mondus Loger v. Cory Scott Loger ( 2014 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A13-2280
In re the Marriage of:
Dawn Marie Mondus Loger, petitioner,
Respondent,
vs.
Cory Scott Loger,
Appellant.
Filed September 15, 2014
Affirmed; motions denied
Halbrooks, Judge
Anoka County District Court
File No. 02-FA-12-525
Dawn Marie Mondus Loger, Andover, Minnesota (pro se respondent)
Melanie P. Persellin, Jensen Sondrall & Persellin, P.A., Brooklyn Park, Minnesota (for
appellant)
Considered and decided by Cleary, Chief Judge; Halbrooks, Judge; and Hooten,
Judge.
UNPUBLISHED OPINION
HALBROOKS, Judge
Appellant challenges the district court’s entry of default dissolution judgment and
denial of his motion to vacate the default judgment. We affirm the judgment of the
district court and deny the motions brought by both parties on appeal.
FACTS
Appellant Cory Scott Loger and respondent Dawn Marie Mondus Loger were
married in June 2000. They separated in March 2012, shortly before respondent
commenced this dissolution action by personal service of the summons and petition. In
the petition, respondent requested sole legal and physical custody of the parties’ four
minor children based on a history of domestic abuse, subject to appellant’s right to
reasonable parenting time. In April, the parties stipulated that respondent would have
exclusive use and occupancy of the marital home, and respondent agreed to dismiss her
application for an order for protection (OFP) against appellant. The parties also
stipulated to temporary custody and parenting-time arrangements.
Also in April 2012, respondent granted appellant an indefinite extension of time to
respond to the petition. Respondent asserts that the purpose of the extension was to allow
the parties to engage in financial early neutral evaluation (FENE). Although the district
court ordered the parties to exchange relevant documents and engage in FENE, appellant
never produced any documents. The neutral evaluator determined that the case was
inappropriate for FENE and returned the matter to the district court in May 2012.
On September 10, the district court ordered appellant to serve answers to
respondent’s discovery requests, which had been served months earlier, and ordered the
parties to attend two mediation sessions by the end of September. In October, the district
court ordered temporary joint legal custody, with sole physical custody to respondent,
regularly scheduled parenting time to appellant, and basic child support of $631 per
month. The next month, the parties appeared before the district court on respondent’s
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motion for an order to show cause. Appellant acknowledged that he had not yet
responded to respondent’s interrogatories and that he had not paid child support but
argued that he had a right to offset child-support payments with amounts that he had
spent on behalf of the children. The district court patiently explained to appellant that his
understanding of his child support and discovery obligations was flawed.1 The district
court instructed appellant, “Mr. Loger, I don’t know if you understand the seriousness of
what’s going on here. You are acting as your own attorney. I am going to hold you to
the same standard.”
In January 2013, the district court found appellant in constructive civil contempt
of court for his failure to pay child support or to comply with the district court’s
September 10 order to respond to respondent’s interrogatories. The district court
sentenced appellant to two consecutive 30-day stints in the Anoka County workhouse but
stayed the sentences on the conditions that appellant pay child support and fully and
accurately complete, sign, and serve his responses to respondent’s interrogatories by
February 23, 2013. The district court also awarded attorney fees to respondent, reserving
the amount. A review hearing was scheduled for the first week of April. As of March
22, 2013, appellant had not complied with the January contempt order, and respondent
filed and served a notice of intent to proceed by default. The district court notified the
parties that it would hear respondent’s default motion in conjunction with the review
hearing on the contempt order.
1
Appellant was represented by counsel at the initial case-management conference in
April 2012 but discharged his attorney by July 18, 2012, and proceeded unrepresented
until just after entry of default judgment in April 2013.
3
At the April 5 hearing, both parties testified, and the district court inquired about
appellant’s failure to pay child support and his failure to comply with the district court’s
discovery orders. Appellant persisted in his claim that he was entitled to deduct amounts
he spent on the children’s expenses from his child-support obligation and asserted that he
was doing the best he could as a self-represented party.
The district court subsequently issued its findings of fact, conclusions of law, and
order for judgment, dissolving the parties’ marriage and awarding respondent sole legal
and physical custody, awarding child support, and ordering a parenting-time schedule
that was nearly identical to the temporary arrangement that was in place. Some of the
factual findings made by the district court were based on requests for admissions served
by respondent on October 5, 2012, and January 18, 2013, that appellant never answered,
and the district court deemed admitted.2
After entry of default judgment, appellant promptly retained counsel and moved
the district court to reopen the judgment, arguing that the district court failed to make
appropriate findings supporting its (1) custody determination, (2) upward deviation from
the child-support guidelines, and (3) award of attorney fees. Appellant argued that fraud
on the court as well as the interests of justice supported reopening the judgment.
2
Minn. R. Civ. P. 36.01 provides with respect to requests for admissions that “[t]he
matter is admitted unless within 30 days after service of the request . . . the party to
whom the request is directed serves upon the party requesting the admission a written
answer or objection.” Under Minn. R. Civ. P. 36.02, “[a]ny matter admitted pursuant to
this rule is conclusively established unless the court on motion permits withdrawal or
amendment of the admission.”
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Appellant asserted that he had never intended to default and that he had complied with
district court orders during the course of the litigation.
After a hearing on appellant’s motion, the district court found that appellant
“substantially failed to participate in this matter until after entry of the Judgment and
Decree” and that he “made no showing that he had a reasonable defense” due in part to
admissions that he made with respect to custody, child support, and attorney fees by
failing to respond to respondent’s requests for admissions. The district court reviewed
the Finden factors and determined that they did not as a whole favor granting appellant’s
motion. Thus, the district court denied appellant’s motion to reopen the judgment and
decree. This appeal follows.
DECISION
I.
Appellant argues that the district court abused its discretion in granting
respondent’s motion for default dissolution judgment and decree. The decision to grant
or deny a motion for a default judgment lies within the discretion of the district court, and
we will not reverse it absent an abuse of that discretion. Black v. Rimmer, 700 N.W.2d
521, 525 (Minn. App. 2005), review dismissed (Minn. Sept. 28, 2005).
The district court granted respondent’s motion for default judgment under Minn.
Stat. § 518.13, subd. 1 (2012), based on appellant’s failure to file an answer or any
pleadings. The district court also noted that appellant had been found in constructive
civil contempt based on his refusal to answer interrogatories and for nonpayment of child
support. Upon receipt of a petition for dissolution of marriage, a respondent has 30 days
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to answer the petition. Minn. Stat. § 518.12 (2012). “A party appears when that party
serves or files any document in the proceeding.” Minn. R. Civ. P. 5.01. “If the
respondent does not appear after service duly made and proved, the court may hear and
determine the proceeding as a default matter.” Minn. Stat. § 518.13, subd. 1. Appellant
was served with the summons and petition on March 19, 2012, and was therefore
required to answer by April 18, 2012. Appellant does not deny that he failed to file any
pleadings but argues that respondent granted him an extension to answer the petition and
failed to notify the district court that she had done so. But even assuming that the
extension was still valid, appellant also neglected to call it to the district court’s attention.
And aside from not filing an answer, appellant also failed to participate in any other
meaningful way in the litigation despite a series of motions and court orders that required
him to do so.
Although appellant personally appeared at all district court hearings over the
course of a year, he filed no pleadings, motion responses, prehearing statements, or other
documents. Appellant also refused to take part in a custody evaluation and failed to
respond in any meaningful way to respondent’s discovery requests. He failed to produce
any documents required for FENE. He neither responded to respondent’s default motion
nor at that point filed or served an answer to the petition. At the default hearing,
appellant informed the district court that he had not filed anything because he had hoped
to settle the case and because he lacked the requisite legal expertise. Appellant then
requested a continuance so that he could retain legal counsel.
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This is not a circumstance in which a party learned of a default proceeding at the
last minute, appeared at the hearing, and requested a continuance. The district court
repeatedly explained to appellant that he was obligated to comply with court rules,
deadlines, and orders. Appellant had been served with the divorce petition more than a
year earlier, had attended a number of hearings, had been found in contempt of court
months earlier for his failure to comply with discovery and child-support obligations, and
had actual notice of the default petition. “Although some accommodations may be made
for pro se litigants, this court has repeatedly emphasized that pro se litigants are generally
held to the same standards as attorneys and must comply with court rules.” Fitzgerald v.
Fitzgerald, 629 N.W.2d 115, 119 (Minn. App. 2001). Even if the initial extension to
respond to the summons and petition was still valid in early March 2013, appellant was
surely on notice of its withdrawal no later than when he was served with the notice of
intent to proceed by default. By failing to file any pleadings—or respond to the default
motion—appellant failed to appear, and the district court did not abuse its discretion by
entering a default judgment under Minn. Stat. § 518.13, subd. 1.
II.
Appellant also challenges the district court’s denial of his motion to vacate the
default judgment, which we review for abuse of discretion. See Roehrdanz v. Brill, 682
N.W.2d 626, 631 (Minn. 2004). A dissolution decree is “final when entered, subject to
the right to appeal.” Minn. Stat. § 518.145, subd. 1 (2012). The proper method to seek
review of a default judgment in a marriage dissolution proceeding is to move the district
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court for relief under Minn. Stat. § 518.145 (2012).3 Mesenbourg v. Mesenbourg, 538
N.W.2d 489, 493 (Minn. App. 1995). The party seeking relief from a judgment bears the
burden of proof. Haefele v. Haefele, 621 N.W.2d 758, 765 (Minn. App. 2001), review
denied (Minn. Feb. 21, 2001).
The district court may relieve a party from a judgment and decree due to, among
other grounds, excusable neglect, misrepresentation, or fraud. Minn. Stat. § 518.145,
subd. 2(1), (3). Because appellant’s motion was made within one year of the entry of
judgment, the ordinary fraud standard is the correct standard to apply. See Doering v.
Doering, 629 N.W.2d 124, 130 (Minn. App. 2001), review denied (Minn. Sept. 11, 2001).
Ordinary fraud in the context of a dissolution does not require intentional
misrepresentation or nondisclosure; rather, “failure of a party . . . to make a full and
complete disclosure constitutes sufficient reason to reopen the dissolution judgment.” Id.
at 129.
The district court’s findings as to whether the judgment was prompted by mistake
or fraud will not be set aside unless they are clearly erroneous. Hestekin v. Hestekin, 587
N.W.2d 308, 310 (Minn. App. 1998). A finding is clearly erroneous if this court is “left
with the definite and firm conviction that a mistake has been made.” Vangsness v.
Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000) (quotation omitted). When
applying the clearly erroneous standard, this court views the record in the light most
favorable to the district court’s findings. Id. That the record might support findings other
3
Appellant’s motion to the district court was premised on Minn. R. Civ. P. 60.02. The
district court correctly ruled that rule 60.02 does not apply to marriage dissolution
decrees.
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than those made by the district court does not render the findings clearly erroneous. Id. at
474.
Appellant argues that respondent made material misrepresentations to the district
court about appellant’s failure to file a responsive pleading and about appellant’s
compliance with discovery. With respect to pleadings, appellant himself failed to assert
that he was still relying on the initial extension. Appellant fails to explain how
respondent “fail[ed] . . . to make a full and complete disclosure,” Doering, 629 N.W.2d at
129, by not making this argument for him. Similarly, the record does not support
appellant’s argument that respondent failed to disclose information about appellant’s
compliance with discovery. The record reflects that the district court was well acquainted
with appellant’s discovery deficiencies. Although the ordinary fraud standard is “less
strenuous” than that of fraud on the court, Doering, 629 N.W.2d at 129, the district court
did not clearly err in determining that the ordinary fraud standard is not satisfied here.
Although Minn. R. Civ. P. 60.02 does not apply to marriage dissolution decrees,
cases citing rule 60.02 have been relied on in applying Minn. Stat. § 518.145, subd. 2.
See, e.g., Peterson v. Eishen, 512 N.W.2d 338, 341 (Minn. 1994) (applying precedent
interpreting rule 60.02(d) in construing functionally identical language in section
518.145, subdivision 2(4)), superseded by rule on other grounds, Minn. R. Civ. P. 12.02,
as recognized in Fed.–Hoffman, Inc. v. Fackler, 549 N.W.2d 93, 95 (Minn. App. 1996),
review denied (Minn. Aug. 20, 1996). To be relieved from a default judgment under rule
60.02, the moving party has the burden of demonstrating: (1) a reasonable defense on the
merits, (2) a reasonable excuse for failure or neglect to act, (3) due diligence after notice
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of entry of judgment, and (4) absence of substantial prejudice to the opponent. Finden v.
Klaas, 268 Minn. 268, 270-71, 128 N.W.2d 748, 750 (1964). All four Finden factors
“must be proven, but a weak showing on one factor may be offset by a strong showing on
the others.” Reid v. Strodtman, 631 N.W.2d 414, 419 (Minn. App. 2001).
Reasonable Defense on the Merits
Appellant makes no explicit argument about his reasonable defense on the merits
with respect to the dissolution judgment itself. But he does argue that the district court
abused its discretion by failing to make adequate findings about (1) the best interests of
the children with respect to custody, (2) an upward deviation from the presumptive child-
support obligation, and (3) an award of attorney fees. “A reasonable defense on the
merits is one that, if established, provides a defense to the plaintiff’s claim.” Northland
Temporaries, Inc. v. Turpin, 744 N.W.2d 398, 403 (Minn. App. 2008), review denied
(Minn. Apr. 29, 2008). “Specific information that clearly demonstrates the existence of a
debatably meritorious defense satisfies this factor.” Palladium Holdings, LLC v. Zuni
Mortg. Loan Trust 2006-OA1, 775 N.W.2d 168, 174 (Minn. App. 2009) (quotation
omitted), review denied (Minn. Jan. 27, 2010).
Custody
Minnesota law requires the district court to consider a variety of factors “where
either joint legal or joint physical custody is contemplated or sought.” 2014 Minn. Laws
ch. 197, § 1 (amending Minn. Stat. § 518.17, subd. 2 (2012)). But in the case of domestic
abuse between the parents, which is supported by the record here, there is “a rebuttable
10
presumption that joint legal or physical custody is not in the best interests of the
child[ren].” Id.
The district court found that by failing to respond to respondent’s requests for
admissions, appellant admitted that “(1) [respondent] provides the primary care and
residency for the children; (2) [i]t is in the best interests of the minor children of the
parties to remain in [respondent’s] sole physical custody; (3) [appellant] engaged in acts
of domestic violence against [respondent] throughout the marriage; and (4) [i]t is in the
best interests of the minor children that [respondent] be granted sole legal custody . . . .”
The district court determined based on these admissions that appellant lacked a
reasonable defense on the merits with respect to custody. The district court also found
that appellant has no reasonable defense on the merits due to “his absolute failure to seek
a custody evaluation or provide any submission to the Court regarding the best interests
of the minor children.” These findings are well supported by the record. The district
court properly determined that an award of sole legal and sole physical custody is in the
children’s best interests.
Appellant now argues that despite the lack of any basis in the record for a different
custody ruling, the district court abused its discretion in denying his motion to vacate the
default judgment because the district court failed to analyze the 13 statutory best-interests
factors. “On appeal, a party cannot complain about a district court’s failure to rule in
[his] favor when one of the reasons it did not do so is because that party failed to provide
the district court with the evidence that would allow the district court to fully address the
question.” Eisenschenk v. Eisenschenk, 668 N.W.2d 235, 243 (Minn. App. 2003), review
11
denied (Minn. Nov. 25, 2003). In light of the statutory presumption that sole custody is
in the children’s best interests, appellant’s failure to provide the district court with any
information bearing on the best interests of the children, and appellant’s admissions that
the children’s best interests would be served by granting sole legal and physical custody
to respondent, we conclude that the district court did not err in determining that appellant
has no reasonable defense on the merits with respect to its custody ruling.
Attorney Fees
In its January 2013 contempt order, the district court found that respondent was
entitled to attorney fees but reserved the amount. The district court later ordered
appellant to pay respondent $15,000 “toward the attorney fees she has incurred in this
matter associated with [appellant’s] failure to comply with [d]iscovery requests and his
contempt of court.” Appellant argues that the district court’s findings are insufficient to
support the award.
The district court has the discretion to award conduct-based attorney fees against a
party who unreasonably contributes to the length or expense of a proceeding. Minn. Stat.
§ 518.14, subd. 1 (2012). A district court may award attorney fees based on a party’s
failure to produce meaningful discovery. Jensen v. Jensen, 409 N.W.2d 60, 63 (Minn.
App. 1987). The party moving for conduct-based fees has the burden to establish that the
adverse party’s conduct during the litigation process justifies an award. Geske v.
Marcolina, 624 N.W.2d 813, 818-19 (Minn. App. 2001).
By failing to respond to requests for admissions, appellant admitted under Minn.
R. Civ. P. 36.01 that respondent “[is] entitled to an award of $15,000 in attorney’s fees
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due to his own actions and contempt of court.” Under Minn. R. Civ. P. 36.02, “[a]ny
matter admitted pursuant to this rule is conclusively established unless the court on
motion permits withdrawal or amendment of the admission.” Because the record amply
supports the district court’s finding that respondent incurred costs due to appellant’s
failure to comply with discovery and his contempt of court and because appellant
specifically admitted that $15,000 is an appropriate award, the district court did not abuse
its discretion in awarding conduct-based attorney fees in that amount.
Appellant also argues that respondent incurred no attorney fees for part of the time
period at issue. Although respondent proceeded unrepresented after entry of default
judgment, at all times relevant to the request for fees, respondent was represented by
counsel. Because the attorney-fee award is amply supported by the record, we conclude
that the district court did not err in finding that appellant has no reasonable defense on the
merits with respect to the attorney-fee award.
Additional Child Support
Appellant also challenges paragraph 6.iv of the district court’s conclusions of law
in the default judgment, labeled “Additional Support.” In this provision, the district court
ordered appellant to pay 71% “of all mutually agreed upon school and extracurricular
activities” and to be solely responsible for expenses associated with the children’s
participation in wrestling and any out-of-state tournaments that he attends with the
children.
Appellant argues on appeal that the district court abused its discretion by
(1) ordering appellant to pay 71% of mutually agreed-upon expenses, (2) ordering him to
13
pay 100% of wrestling expenses, and (3) by failing to make findings in support of what
he contends is an upward deviation from child-support guidelines. Appellant’s
arguments about his allocated percentage and the wrestling expenses are waived for
failure to raise the issues to the district court. See Thiele v. Stich, 425 N.W.2d 580, 582
(Minn. 1988) (“A reviewing court must generally consider only those issues that the
record shows were presented and considered by the trial court in deciding the matter
before it.” (quotation omitted)).
Appellant’s argument about the adequacy of findings is properly before us.
Appellant argues that paragraph 6.iv represents an upward deviation from his
presumptive child-support obligation and that the district court deviated upward without
making necessary findings. “If the court deviates from the presumptive child support
obligation computed under section 518A.34, the court must make written findings that
[address identified factors].” Minn. Stat. § 518A.37, subd. 2 (2012).
After entry of default judgment, the parties stipulated that “mutually agreed upon”
expenses under paragraph 6.iv were expenses that the parties had agreed to in writing
before incurring any expense. The district court referenced this stipulation—and the
August 22, 2013 order memorializing it—in its October 15 order denying the motion to
vacate the default judgment. Therefore, under the challenged provision, appellant is not
obligated to pay anything unless the parties mutually agree to the expenditure in advance.
Because the challenged expenses are not mandatory, they do not represent an upward
deviation from child-support guidelines, and the district court was not required to make
specific written findings under subdivision 2. The district court therefore did not err in
14
finding that appellant lacks a reasonable defense on the merits with respect to the child-
support award.
Excusable Neglect
The district court found that “[appellant] has no defense for his failure to act,”
noting that it had warned appellant that he would be held to the same standard as an
attorney. The district court identified appellant’s failures to file any pleadings, retain
counsel until after entry of judgment, answer interrogatories, pay child support, and
respond to the default motion. Appellant does not specifically dispute these findings but
argues that because he had been granted an extension to answer the petition and appeared
personally at all hearings, the district court should have found any neglect excusable.
“Neglect of the party itself which leads to entry of a default judgment is
inexcusable, and such neglect is a proper ground for refusing to reopen a judgment.”
Black, 700 N.W.2d at 527 (quotation omitted). The district court’s findings that appellant
himself, as contrasted with counsel, neglected the matter are amply supported by the
record. The district court properly found that appellant’s failure to participate
meaningfully in the litigation was inexcusable when he received proper notice of all
proceedings, received repeated warnings from the district court, was found in contempt of
court for his ongoing neglect of the matter, and failed to act even when faced with an
imminent threat of 60 days in the workhouse.
Due Diligence After Notice of Entry of Judgment
It is undisputed that appellant acted with due diligence after receiving notice of
entry of default judgment.
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Absence of Substantial Prejudice to Opponent
The district court found that although, generally, additional expense and delay do
not rise to the level of substantial prejudice to the opponent, appellant’s showing on this
factor is weak due to his intentional delays. In general, when the only prejudicial effect
of vacating a judgment is additional expense and delay, “substantial prejudice of the kind
necessary to keep a judgment from being reopened does not exist.” Peterson v. Skutt
Ceramic Prods., Inc., 417 N.W.2d 648, 651 (Minn. App. 1987), review denied (Minn.
Mar. 18, 1988). But when a party’s delays are purposeful and the district court perceives
that the party is intentionally ignoring the process, “[t]he additional expense must be
viewed in a different light.” Black, 700 N.W.2d at 528 (quoting Hovelson v. U.S. Swim
& Fitness, Inc., 450 N.W.2d 137, 142 (Minn. App. 1990), review denied (Minn. Mar. 16,
1990)). The district court’s finding that appellant intentionally delayed this matter is
supported by the record. And because this is a dissolution judgment, finality of judgment
is of particular importance. Shirk v. Shirk, 561 N.W.2d 519, 521-22 (Minn. 1997). The
district court properly concluded that appellant has not met his burden of showing an
absence of substantial prejudice to respondent if the dissolution judgment is reopened.
III.
During the course of this appeal, respondent filed a motion to strike appellant’s
brief as untimely and nonconforming and asked this court to dismiss the appeal or,
alternatively, to deny oral argument. Respondent also seeks an award of costs incurred in
responding to the appeal. Appellant opposed respondent’s motion and seeks an award of
attorney fees incurred in responding to the motion.
16
The rules provide that an appellant has 30 days after delivery of the transcript to
serve and file a brief, with an additional three days if the transcript is delivered by United
States mail. Minn. R. Civ. App. P. 126.01, 131.01, subd. 1. The last transcript for the
appeal was delivered by mail on April 16, 2014. Appellant’s briefing deadline was
therefore May 19, 2014. Appellant’s brief was timely filed with the clerk of appellate
courts by hand-delivery on May 15, 2014, and timely served on respondent by United
States mail on May 15, 2014. See Minn. R. Civ. App. P. 125.03 (providing that service
by United States mail is complete on mailing). Respondent’s assertion that appellant’s
brief was untimely is therefore without merit.
Respondent also challenges appellant’s brief based on its 62-page length4 and its
failure to include a certificate of compliance with word-count or line-count limitations.
“Except for good cause shown and with permission of the appellate courts,” a principal
brief shall not exceed 45 pages, exclusive of pages containing the table of contents, table
of citations, and any addendum. Minn. R. Civ. App. P. 132.01, subd. 3. Alternatively, a
principal brief is acceptable if it contains no more than 14,000 words or it uses a
monospaced font and contains no more than 1,300 lines of text. Id., subd. 3(a). A brief
submitted under rule 132.01, subdivision 3(a), (b), or (c), must include a certificate that
the brief complies with the word-count or line-count limitation. Minn. R. Civ. App.
P. 132.01, subd. 3.
Appellant responded to respondent’s motion with a certification that appellant’s
principal brief “is 62 pages and consists of 13,988 words, inclusive of footnotes.” Based
4
Exclusive of tables of contents and citations.
17
on the certificate, appellant’s brief complies with the alternative length limitation of
14,000 words for a principal brief. Respondent’s motion to strike appellant’s brief and to
dismiss the appeal is therefore denied.
Respondent also moved this court to deny appellant’s request for oral argument.
Although appellant requested oral argument, this appeal was scheduled for nonoral
consideration because respondent is self-represented. See Minn. App. Spec. R. Pract. 2
(“If any litigant is without counsel, the case will be submitted on the briefs and record,
without oral arguments by any party.”). Respondent’s motion to deny oral argument is
denied as moot.
Respondent also requests costs in her motion. A prevailing party may file and
serve a notice of taxation of costs and disbursements within 15 days after the filing of this
court’s opinion. Minn. R. Civ. App. P. 139.03. At the time the motion was filed, the
appeal had not been decided on the merits, and the request was premature. See id.
Respondent’s motion for costs is denied as premature.
Appellant, in turn, seeks an award of attorney fees incurred in responding to
respondent’s motion. A party seeking attorney fees on appeal shall submit such a request
by motion. Minn. R. Civ. App. P. 139.06, subd. 1. Appellant did not file a motion
documenting the appropriate amount of fees. Appellant’s request for attorney fees does
not comply with Minn. R. Civ. App. P. 139.06. But even if appellant had filed a proper
motion, we would deny fees because appellant did not demonstrate a substantive basis for
an award of attorney fees. Respondent’s motion to strike would not have been filed if
appellant had provided a certificate of brief length with the brief as directed by Minn. R.
18
Civ. App. P. 132.01, subd. 3. Appellant’s motion for an award of attorney fees incurred
in responding to respondent’s motion is denied.
Affirmed; motions denied.
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