This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0524
In re the Marriage of:
Sandra Sue Grazzini-Rucki,
Petitioner Below,
Michelle L. MacDonald, et al.,
Appellants,
vs.
David Victor Rucki,
Respondent,
Linda Olup, Esq.,
Respondent,
Elizabeth Henry, Esq.,
Respondent,
Jennifer Evans, Esq.,
Respondent.
Filed January 12, 2015
Affirmed
Rodenberg, Judge
Dakota County District Court
File No. 19AV-FA-11-1173
Michelle Lowney MacDonald Shimota, MacDonald Law Firm, LLC, West St. Paul,
Minnesota; and
Stephen Grigsby, Minneapolis, Minnesota (for appellants)
Lisa M. Elliott, Elliott Law Offices, P.A., Minneapolis, Minnesota (for respondent David
Rucki)
Linda Olup, Olup & Associates, LLC, Edina, Minnesota (pro se respondent)
Gary K. Luloff, Chestnut & Cambronne, PA, Minneapolis, Minnesota (for respondent
Elizabeth Henry)
Jennifer Evans, Eagan, Minnesota (pro se respondent)
Considered and decided by Rodenberg, Presiding Judge; Cleary, Chief Judge; and
Kirk, Judge.
UNPUBLISHED OPINION
RODENBERG, Judge
Appellants Michelle L. MacDonald and MacDonald Law firm, LLC challenge the
district court’s imposition of monetary sanctions against them pursuant to Minn. R. Civ.
P. 45.03. We affirm.
FACTS
On January 8, 2013, appellant Michelle MacDonald and her law firm began
representing petitioner-wife Sandra Grazzini-Rucki in an ongoing marriage dissolution
proceeding. A trial was scheduled for September 11 and 12 to determine custody,
parenting time, and child support. In preparation for trial, appellant MacDonald’s
associate arranged for service of subpoenas seeking invoices and billing information from
wife’s three former attorneys regarding the total fees wife paid in the ongoing
dissolution.1 Specifically, appellant sought “[a]ny and all invoices and billing records,
payment record with respect to your representation of [wife]” and testimony in the
September trial from respondents Linda Olup, Elizabeth Henry, and Jennifer Evans.
1
Respondent Olup was served on August 30, 2013 and respondents Henry and Evans
were served on September 3, 2013.
2
All three attorneys promptly responded to appellant MacDonald, in writing, and
included the requested documents.2 Olup requested that appellant MacDonald either
compensate her for her time to prepare for and testify at trial or to release her from her
obligation to testify based on the documents she had produced. She also informed
appellant MacDonald that she would seek to quash the subpoena the next day. Henry
requested compensation for her time in producing the records and noted “to the extent the
billing records are being produced . . . [wife is] waiving the Attorney Client Privilege as
well as the confidentiality of those documents” and that within “the next few days” she
would seek to quash the subpoena. Evans informed appellant MacDonald that she would
not appear without prepayment, was not available on the trial date, and that she had
scheduled a motion to quash the subpoena.
On motion from Olup on September 5, the district court ordered that a hearing on
her motion to quash be held the next day, finding “good cause shown” to hear the motion
“earlier than 14 days after service of her Notice of Motion and Motion” because the trial
was scheduled to begin six days from the date of the motion. Henry and Evans also
moved to quash the subpoenas served on each of them. At the motion hearing, appellant
MacDonald introduced herself for the record and stated “that I object to all of these
proceedings. I just have a standing objection, as you know, that’s in the file . . . [to] the
entire divorce proceeding.” After hearing arguments from the three subpoenaed
attorneys, husband’s attorney, and appellant MacDonald, the district court took the matter
under advisement and invited all attorneys to submit proposed orders.
2
Henry was represented by counsel who drafted the letter on her behalf.
3
On September 9, the district court granted the motions to quash the subpoenas as
unduly burdensome and concluded that “[t]he subpoenaed non-party witness attorneys
are entitled to compensation for the time they spent and the expenses they incurred in
bringing this motion” and that the expenses “shall be assessed as sanctions against
Michelle MacDonald, Esq. and the MacDonald Law Firm, LLC.” The district court also
ordered the attorneys to “submit affidavits detailing the time they spent and the expenses
they incurred related to this motion and their respective hourly rates.” The district court’s
incorporated memorandum cited rule 45.03(a) of the rules of civil procedure as authority
for the sanctions, stating that the rules of evidence “provide[] for the admission of record
of regularly conducted business activity to be admitted into evidence without testimony
from the declarant if the records are relevant to the proceeding” and stated that “any
needed foundation for the bills could presumably be provided by [wife] as the recipient of
the bills.”3
Each subpoenaed attorney submitted an affidavit stating the fees each incurred.
The district court subsequently ordered appellant to pay Olup and Associates, LLC
$4,415.00, the Law Office of Jennifer Evans $377.50, and Chestnut Cambronne, PA
$1,450.00, all payable within 30 days of the order. If unpaid, “[j]udgment shall be
entered against Michelle MacDonald individually in favor of the attorneys and law
firms.” Judgment was entered for Olup and Associates, LLC on December 19, 2013 for
3
In hearing husband’s motions in limine prior to trial, the district court ruled that the
attorney fees were irrelevant.
4
$4,415.00 and judgment was entered for Chestnut Cambronne, PA4 on February 6, 2014
for $1,450.00. To date, respondent Evans has not obtained a judgment for her $337.50
award. This appeal followed.
DECISION
We first address whether this appeal is properly before us. An appeal may be
taken from a “final order, decision or judgment affecting a substantial right” made in a
special proceeding. Minn. R. Civ. App. P. 103.03 (g). A special proceeding is “a remedy
that is not part of the underlying action and that is brought by motion or petition, upon
notice, for action by the court independent of the merits of the underlying action.” In re
Estate of Janacek, 610 N.W.2d 638, 642 (Minn. 2000). An appeal of an order awarding
attorney fees properly lies from the judgment entered on the order. T.A. Schifsky & Sons,
Inc. v. Bahr Constr., LLC, 773 N.W.2d 783, 789-90 (Minn. 2009).
Appellants were ordered to pay fees to three separate attorneys and their respective
law firms, but only two of the three attorneys, Henry and Olup, have obtained judgments.
Appeal from those judgments is proper as a matter of right. The third appeal from the
order awarding fees to Evans, and not reduced to judgment, would ordinarily be
premature. Evans makes no appearance on appeal. However, we “may reverse, affirm,
or modify the judgment or order appealed from or take any other action as the interest of
justice may require.” Minn. R. Civ. App. P. 103.04 (emphasis added); see also Losen v.
Allina Health System, 767 N.W.2d 703, 707 (Minn. App. 2009) (granting review when
4
The judgment contains a clerical error and identifies “Chestnut Camronne, PA” as
judgment creditor. No party to this appeal has raised any issues concerning this evident
clerical error.
5
the claims involved the same narrow issue as other proper claims to avoid expense and
delay). We conclude that it is in the interests of justice and judicial economy to consider
this case on the merits concerning all three fee awards and that no party would be
prejudiced by our doing so. See Losen, 767 N.W.2d at 707.
Appellants argue that the district court erred when it issued sanctions against them
for imposing an undue burden on respondents. We review a district court’s decision to
quash a subpoena for an abuse of discretion. In re Coleman, 793 N.W.2d 296, 303
(Minn. 2011). We “must conclude that the district court erred by making findings
unsupported by the evidence or by improperly applying the law” to find an abuse of
discretion. State v. Underdahl, 767 N.W.2d 677, 684 (Minn. 2009).
The rules of civil procedure provide that an attorney issuing subpoenas “shall take
reasonable steps to avoid imposing undue burden or expense on a person subject to that
subpoena” and that the district court “shall enforce this duty” and “impose upon the party
or attorney in breach of this duty an appropriate sanction.” Minn. R. Civ. P. 45.03(a).
The sanction may include reasonable attorney fees. Id. The rules also provide that on a
“timely motion, the [district] court on behalf of which a subpoena was issued shall quash
or modify the subpoena if it . . . subjects a person to undue burden.” Minn. R. Civ. P.
45.03(c)(1)(D).
Appellant MacDonald had a duty to avoid imposing an undue burden on
respondents under rule 45.03(a). Aside from her “standing objection . . . [to] the entire
divorce proceeding,” the only reason appellant MacDonald gave in support of the
subpoenas was that she wanted to prove the amount of legal fees her client had paid. As
6
the district court observed, there were a number of alternative and less-burdensome ways
for her to prove the amount of the fees wife had paid, including having wife testify to the
fees she had paid. It was not necessary to subpoena the attorneys.
Appellants argue that it was proper and reasonable to issue subpoenas for
documents and testimony from the attorneys in this case. Appellants fail to provide
supporting authority from the record or legal authority to demonstrate that there were no
less burdensome methods available to introduce this evidence. Even assuming that the
payments for attorney fees were relevant, appellants fail to explain why their client could
not testify to the amount of attorney fees she paid throughout the course of litigation, an
obvious method of proving the issue that would have been less burdensome than
subpoenaing respondents. Neither have appellants explained why the documents
produced by the attorneys in response to the subpoenas were insufficient. From the
record, it also appears that counsel for Mr. Rucki did not dispute foundation or the fact of
the amounts paid by appellants’ client.
Appellants argue that the rules of evidence prohibit them from introducing the
invoices at trial without the testimony of the subpoenaed attorneys. Appellants cite
Palmer v. Hoffman, 318 U.S. 109, 113, 63 S. Ct. 477, 480 (1943), to support their theory
that attorney invoices are not business records made in the regular course of business and
therefore are inadmissible hearsay. Appellants do not cite any law other than Palmer,
which, they argue, makes “specific mention of lawyer’s office records and the general
complexity of whether something is a true business record” and they conduct no analysis
7
5
of the case in their brief. Even if appellants’ argument had merit, they provide no
reason why Palmer should be applied to the routine matter of an attorney’s bill that has
been paid.
Appellants also argue that the subpoenas did not impose an undue burden on
respondents and that the district court improperly “confused ‘undue burden’ with any
legitimate burden.” Appellants argue that their actions did not constitute an undue
burden because an undue burden is “one that imposes a gratuitous burden in excess of
what is necessary to satisfy the legitimate purpose of the subpoena.” Appellants provide
no legal support for this assertion. The rule requires an attorney to avoid using subpoenas
to create an “undue burden,” and it makes no reference to “gratuitous.” Minn. R. Civ. P.
45.03(a). Appellant MacDonald’s duty required her to use other and less burdensome
avenues to obtain and introduce evidence of legal fees paid by her client before issuing
subpoenas to nonparty attorneys. The record supports the district court’s conclusion that
appellant MacDonald breached her duty to avoid imposing an undue burden on
respondents.
5
The cited excerpt from Palmer states:
But the fact that a company makes a business out of recording
its employees’ versions of their accidents does not put those
statements in the class of records made ‘in the regular course’
of the business within the meaning of the Act. If it did, then
any law office in the land could follow the same course, since
business as defined in the Act includes the professions. We
would then have a real perversion of a rule designed to
facilitate admission of records which experience has shown to
be quite trustworthy.
318 U.S. at 113, 63 S. Ct. at 480 (emphasis added).
8
After concluding that appellant MacDonald breached the duty imposed by the
rules of civil procedure, the district court properly sanctioned appellants. Sanctioning a
breach of this duty “may include, but is not limited to, lost earnings and a reasonable
attorney’s fee” for the nonparty witness subjected to the subpoena. Minn. R. Civ. P.
45.03(a). The rule also provides that the subject of a subpoena “who is required to give
testimony or produce documents . . . is entitled to reasonable compensation for the time
and expense involved in preparing for and giving such testimony or producing such
documents.” Minn. R. Civ. P. 45.03(d). The district court “has a wide discretion as to
the means to be employed in protecting the parties and witnesses.” Baskerville v.
Baskerville, 246 Minn. 496, 507, 75 N.W.2d 762, 769 (1956). The district court “shall
exercise its power with liberality in issuing orders which justice requires for the
protection of parties or witnesses from unreasonable annoyance, expense, embarrassment,
or oppression.” Id. at 506, 75 N.W.2d at 769.
The district court issued what appears to us to have been a modest sanction against
appellants and showed restraint by awarding only fees actually incurred by the attorneys
in moving to quash the subpoenas. The district court specifically found that the sanctions
“would put [respondents] in the same position they would have been in but for the failure
of Ms. MacDonald to consider the various rules available to her to submit the Petitioner’s
attorney bills to the extent these are deemed relevant.” The district court did not impose
any sanction or monetary award unauthorized by rule 45.03.
9
Appellant MacDonald also argues that her due process rights were violated. We
review a claim of a denial of due process de novo. Zellman ex rel M.Z. v. Indep. Sch.
Dist. No. 2758, 594 N.W.2d 216, 220 (Minn. App. 1999). Appellant MacDonald argues:
The only distinguishable process is that provide [sic] by Rule
45. Following service, Appellant was essentially ambushed
by Respondents with a barrage of pleadings, and was required
by the court to appear the very next day. In the motions and
pursuit of sanctions against the Appellant, there were no clear
rules or distinguishable rules followed. Any court rules were
either not followed or relaxed.
“In order to establish that a due process violation occurred, a party must ‘identify specific
facts that, if proven, would demonstrate that [the district court] deprived [the party] of a
constitutionally protected property or liberty interest.’ Here, appellant has failed to do
so.” Id. (citation omitted). Because appellant MacDonald failed to adequately brief this
issue and support her arguments with legal authority, we need not address her argument.
Dep’t of Labor and Industry v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn.
1997).
Moreover, and even if we were to address the merits of appellant MacDonald’s
due process claim, nothing in the record supports appellant MacDonald’s claim that her
due process rights were violated. Appellant MacDonald was provided notice of the
hearing on the motions, she attended the hearing, and at the hearing she was provided
ample opportunity to argue why respondents’ testimony was necessary and why issuing
subpoenas to them did not impose an undue burden. After initially objecting to “all of
these proceedings,” appellant MacDonald argued at some length that the subpoenas were
proper. The district court also invited all attorneys, including appellant MacDonald, to
10
submit proposed orders after the hearing. We conclude that appellant MacDonald’s due
process claim is without merit.
Appellants also argue that the district court abused its discretion by “allowing
attorneys to intervene” and become judgment creditors in the case to which they were not
parties. But there was no intervention by the nonparty attorneys in this case. The
subpoenaed attorneys moved to quash the subpoenas, as they were entitled to do. The
civil rules specifically provide that the subject of the subpoena may move the court to
quash the subpoena. Minn. R. Civ. P. 45.03(c). Appellants’ reliance on caselaw
concerning intervention into family court matters by nonparties is inapposite. The district
court did not err in hearing, and granting, the motions to quash and for sanctions.
Appellant MacDonald further argues that she, herself, cannot be subject to the
district court’s jurisdiction because she was a nonparty, citing Ferlitto v. Ferlitto, 565
N.W.2d 35, 37 (Minn. App. 1997). In Ferlitto, we concluded that the attorney for wife
could not be responsible to pay the judgment to the husband because the attorney was not
a party to the case, and the district court therefore could not exercise jurisdiction over the
attorney. Id. However, Ferlitto is also inapposite as the judgment in that case was for a
party against the wife’s attorney for a portion of the ultimate judgment in the case. Id.
Here, the motion proceeding was a special proceeding, separate from the ultimate issue in
the case, and all parties to the judgment were nonparties to the underlying dissolution
case. See Janacek, 610 N.W.2d at 642. Ferlitto provides no support for appellant
MacDonald’s argument in this case. Moreover, appellant MacDonald fails to explain
how the civil rules, which allow for sanctions, can be interpreted to prohibit reducing
11
such a sanction to judgment. Appellant MacDonald’s position, if adopted, would render
the rule permitting such sanctions meaningless. The district court was explicitly
permitted, by rule, to award sanctions against appellants. The district court did not abuse
its discretion in permitting judgment to be entered to enforce the awards.
The district court neither erred in applying the law nor abused its discretion in
sanctioning appellants for breach of an attorney’s duty under Minn. R. Civ. P. 45.03(a) to
take reasonable steps to avoid imposing undue burden or expense on subpoenaed former
attorneys of appellants’ client.
Affirmed.
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