Pauline Thomas, individually and as guardian ad litem for the minor child, Antonequa Lee, Plaintiff, vs. City of Minneapolis, et al., Respondents, Shannon McKenzie in her individual capacity and as a member of the unincorporated association Underdog Rescue, Respondent, Carolyn Keller, Appellant.

Pauline Thomas, individually and as guardian ad litem for the minor child, Antonequa Lee, Plaintiff, vs. City of Minneapolis, et al., Respondents, Shannon McKenzie in her individual capacity and as a member of the unincorporated association Underdog Rescue, Respondent, Carolyn Keller, Appellant. A06-1024, Court of Appeals Unpublished, April 17, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1024

 

Pauline Thomas, individually and as

guardian ad litem for the minor child,

Antonequa Lee, Plaintiff,

 

vs.

 

City of Minneapolis, et al.,

Respondents,

 

Shannon McKenzie in her individual capacity

and as a member of the unincorporated association

Underdog Rescue,

Respondent,

 

Carolyn Keller,

Appellant.

 

Filed April 17, 2007

Affirmed in part, reversed in part, and remanded Worke, Judge

 

Hennepin County District Court

File No. 27-CV-05-003109

 

Jay M. Heffern, Minneapolis City Attorney, Charles J. Brown, Jr., Assistant City Attorney, 333 South Seventh Street, Suite 300, Minneapolis, MN 55402 (for respondent Animal Control Shelter and City of Minneapolis)

 

Charles F. Gegen, P.O. Box 606, Hastings, MN 55033 (for respondent Shannon McKenzie)

 

Kenneth R. White, 325 South Broad Street, Suite 203, Mankato, MN 56001; and

 

Michael B. Padden, Padden & Associates, PLLC, 275 East Fourth Street, Suite 782, St. Paul, MN 55101 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge; Worke, Judge; and Crippen, Judge.[*]

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

Appellant, the purchaser of a lost dog who was later ordered to return it to its original owner, argues that the district court erred by (1) sanctioning her under Minn. Stat. § 549.211 (2006) because the behavior the district court described as "sanctionable" predated her involvement in the litigation and because there was no compliance with the due-process requirements of the statute; (2) failing to make her damages award for the cost and care of the dog joint and several among respondents; and (3) failing to award her costs and disbursements as a prevailing party.  We affirm in part, reverse in part, and remand.

 FACTS

            On February 5, 2005, plaintiff Pauline Thomas (Thomas) left her granddaughter's dog in the care of a friend.  Two days later, Thomas returned home to learn that the dog was lost.  The same day, Thomas went to the Animal Humane Society and filed a lost-dog report.  Thomas then went to the address listed in a phone directory for respondent Animal Control Shelter of the City of Minneapolis (ACS), but discovered that the building was unoccupied and that no new address was posted.  For approximately one week Thomas searched for the dog.  Thomas then returned to the building she understood was occupied by ACS and discovered, after inquiring at a nearby address, that ACS had moved.     

            On February 19, 2005, Thomas went to ACS and discovered that the dog was picked up on February 7 and transferred to an animal-rescue organization on February 15.  ACS would not release to Thomas the animal-rescue organization's name until February 25, at which time they informed Thomas that the dog had been transferred to respondent Shannon McKenzie/Underdog Rescue (McKenzie/Underdog).  After continued attempts to locate the dog, Thomas was informed by McKenzie that the dog was adopted on February 18 and the new owner refused to give him back.   

            In March 2005, Thomas filed a complaint against respondents City of Minneapolis (city), ACS, and McKenzie/Underdog.  In June, Thomas moved to add "John and Jane Doe" as defendants because she still did not know who had adopted the dog.  In August, Thomas learned that appellant Carolyn Keller possessed the dog, moved to add appellant as a defendant, and then moved for partial summary judgment.

            Appellant filed an answer, counterclaim, and crossclaim.  Appellant alleged in her counterclaim that Thomas's damages were caused by her own negligence, carelessness, fault, and possible unlawful conduct.  In her crossclaim appellant alleged that as a good-faith purchaser she was put in the middle of a "legal firestorm" in which she would incur costs and attorney fees, expend time and energy, and suffer emotional distress. 

            In September 2005, the district court granted Thomas's motion for partial summary judgment, ruling that ACS failed to comply with Minn. Stat. § 347.14, subd. 2 (2004), requiring it to post written notice in three public places regarding its possession of the dog.  The district court concluded that ACS never acquired title to the dog and that the transfer to McKenzie/Underdog was illegal. 

            Thomas then moved for summary judgment on appellant's counterclaim and for an order for the return of the dog.  Appellant moved to amend her claims to include, among other things, a request for monetary damages incurred for the purchase price and care of the dog.  Appellant also moved for summary judgment on her claims.  In November 2005, the district court held a hearing on the motions.  The district court granted Thomas's motions; granted appellant's motion to amend; and denied appellant's motions for summary judgment, to stay replevin, and for attorney fees and costs. 

            Appellant then moved for summary judgment on her amended crossclaim.  In March 2006, the district court conducted a hearing on appellant's motion and on Thomas's motion for costs and disbursements.  Appellant argued that the city was negligent in failing to comply with the statutory requirement of providing notice of the dog's location and that McKenzie/Underdog was negligent for failing to verify that the city had complied with the statute.  Appellant argued that as a result of the negligence, she incurred expenses of $726.50. 

            The district court granted appellant's motion for summary judgment in part and denied the motion in part.  The district court found that appellant, the city, and McKenzie/Underdog were equally liable for appellant's damages.  The district court found that appellant was liable because of her "refusal to surrender the dog to the City and refusal to disclose the dog's location for a significant amount of time relative to the circumstances of this case," and described appellant's behavior as "sanctionable."  The district court ruled that although appellant was entitled to recover $726.50, that amount was to be divided in three equal parts among appellant, the city, and McKenzie/Underdog.  The district court denied appellant's motion for costs.  The district court granted Thomas's motion for costs and disbursements.  The district court ordered that Thomas, as a prevailing party, was entitled to $200 in costs and $1,069.95 in disbursements.  The district court taxed the $1,269.95 against appellant, the city, and McKenzie/Underdog in three equal amounts.  This appeal follows.

D E C I S I O N

Sanctions

Appellant first argues that the district court abused its discretion by sanctioning her.  Levying of civil penalties is within the district court's discretion.  See State by Humphrey v. Alpine Air Prods., Inc., 490 N.W.2d 888, 897 (Minn. App. 1992) (concluding that the district court acted within its discretion in ordering a civil penalty), aff'd, 500 N.W.2d 788 (Minn. 1993).

Appellant contends that the district court abused its discretion by sanctioning her for behavior that predated her involvement in the litigation and without following the due-process requirements for imposing sanctions under Minn. Stat. § 549.211 (2006).  A district court may impose sanctions "[o]n its own initiative . . . [by] . . . describing the specific conduct that appears to violate subdivision 2 and directing an attorney, law firm, or party to show cause why it has not violated subdivision 2 with respect to that conduct."  Minn. Stat. § 549.211, subd. 4(b).  An attorney or unrepresented party must certify that submissions to the court are: (1) "not being presented for any improper purpose"; (2) "the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law"; (3) allegations and factual contentions have or are likely to have evidentiary support; and (4) "denials of factual contentions are warranted on the evidence" or "are reasonably based on a lack of information or belief."  Id., subd. 2.  Appellant argues that she did not violate subdivision 2 and that the district court failed to provide her with an opportunity to show cause as to why she should not be sanctioned.  The district court granted summary judgment in favor of appellant and then stated:  

            [Appellant] is [] entitled to receive $726.50, the full amount of her claimed damages, because both the City and Underdog have engaged in sanctionable behavior during the course of this litigation.

 

            The City, Underdog, and [appellant] are equally liable for [appellant's] claimed damages. 

            . . . .

            [Appellant's] pre-replevin refusal to surrender the dog to the City and refusal to disclose the dog's location for a significant amount of time relative to the circumstances of this case are sanctionable behavior.

            . . . .

            Payment of [appellant's] damages shall be divided in three equal parts by [appellant], the City, and Underdog. 

 

            For her behavior as described in this Order, [appellant] is liable for one-third of her claimed damages . . . .

            The district court described the behavior for which appellant was sanctionedher pre-replevin refusal to surrender the dog and refusal to disclose the dog's location.  But appellant's behavior does not fall within the conduct described in Minn. Stat. § 549.211, subd. 2.  And although no transcript was provided to this court to review, it does not appear that the district court afforded appellant an opportunity to show cause why she should not be sanctioned.  Therefore, the district court abused its discretion by sanctioning appellant under Minn. Stat. § 549.211. 

            Respondents argue, however, that the district court did not sanction appellant but, rather, apportioned fault under Minn. Stat. § 604.01 (2006) for her unreasonable failure to avoid aggravating her damages.  "Contributory fault does not bar recovery in an action . . . but any damages allowed must be diminished in proportion to the amount of fault attributable to the person recovering."  Minn. Stat. § 604.01, subd. 1.  The district court may "direct the jury to find separate special verdicts determining the amount of damages and the percentage of fault attributable to each party and the court shall then reduce the amount of damages in proportion to the amount of fault attributable to the person recovering."  Id.

After granting appellant's motion for summary judgment, the district court determined that appellant was liable for one-third of her damages.  Respondents' argument that the comparative-fault statute applies in this situation is flawed because comparative fault is an issue for a jury to determine, it is not appropriate for a district court to make a finding of comparative fault in granting summary judgment.  The issue is whether it was appropriate, in the context of deciding a motion for summary judgment, for the district court to find that appellant was liable for a portion of her damages.  "A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law."  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  No genuine issue for trial exists "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party."  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (alteration in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)). 

The district court determined that there was no genuine issue of material fact, and determined that appellant was entitled to recover the full amount of her claimed damages.  But the court went further and determined that appellant was responsible for one-third of her damages because she refused to surrender the dog.  By dividing the award into thirds, and holding appellant partially responsible, the district court made an improper factual finding about which reasonable minds could differ.  There is a fact issue as to whether appellant's behavior aggravated her damages, whether she should be held liable, and if she is held liable, how much her damages award should be reduced.  It would have been a different case if the district court had subtracted from the damages award the cost appellant incurred for care of the dog after she was ordered to surrender the dog.  But the district court found appellant's behavior sanctionable and held her liable for her behavior, an improper factual finding on summary judgment. 

Appellant requested $726.50, and the district court determined that she was entitled to recover that amount.  Respondents do not challenge the amount of the award.  Therefore, because the district court either sanctioned appellant or made a finding of comparative fault, both of which were inappropriate in this case, we reverse the district court's reduction of appellant's damages award and remand for an award to appellant for the full amount. 

 Joint and Several Liability

 

           Appellant next argues that the district court erred by failing to make the damages award joint and several among respondents.  Appellant contends that the injury caused was single and indivisible.  See Minn. Stat. § 604.02, subd. 1 (2006) (addressing joint liability).  Statutory construction is a question of law, which this court reviews de novo.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).  When reviewing mixed questions of law and fact, this court corrects erroneous applications of the law, but accords the district court discretion in its findings of fact and ultimate conclusions.  Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997). 

           In general, parties whose negligence combines to cause an injury are jointly and severally liable for the total damages award.  Minn. Stat. § 604.02, subd. 1(2).  The "single divisible injury" rule "creates an exception to the general rule of joint and several liability where there are independent consecutive acts of negligence and it is reasonably possible to determine which injuries were caused by which act."  Maday v. Yellow Taxi Co. of Minneapolis, 311 N.W.2d 849, 850 (Minn. 1981). 

           Here, the district court found that appellant, the city, and McKenzie/Underdog were each one-third responsible for appellant's damages.  The district court found that the city was negligent for failing to post written notice regarding its custody of the dog.  The district court found that McKenzie and Underdog were negligent for failing to verify valid title before transferring the dog to appellant.  These acts together caused appellant's damages, and it is not reasonably possible to determine in a summary-judgment proceeding which injuries were caused by which act.  See id.  This is especially true because the district court did not determine which injuries were caused by which act and, instead, held each party liable for an equal amount.  If the district court had determined that the city was liable for a certain amount because it failed to post written notice and that McKenzie/Underdog was liable for a certain amount for failing to verify legal title, the outcome would be different.  The district court erred in not finding respondents jointly and severally liable, and we remand to the district court to hold respondents joint and severally liable for appellant's damages award. 

Costs and Disbursements

 

Finally, appellant argues that the district court abused its discretion by failing to award costs and disbursements to her as a prevailing party.  "An award of costs and disbursements has generally been allowed within the sound discretion of the [district court].  As such, we review for an abuse of that discretion."  Kellar v. Von Holtum, 605 N.W.2d 696, 703 (Minn. 2000) (citations omitted).

Appellant relies on Minn. Stat. § 549.04 (2006), in arguing that as a prevailing party she is entitled to reasonable costs and disbursements.  Appellant contends that she is a prevailing party because a judgment was entered on her behalf.  "Costs and disbursements shall be allowed as provided by statute."  Minn. R. Civ. P. 54.04.  A defendant is entitled to recover costs "[u]pon discontinuance or dismissal or when judgment is rendered in the defendant's favor on the merits, $200."  Minn. Stat. § 549.02, subd. 1 (2006).  The district court retains discretion to determine which party, if any, qualifies as a prevailing party when considering requests for costs incurred.  Benigni v. County of St. Louis, 585 N.W.2d 51, 54-55 (Minn. 1998).  Here, appellant is not entitled to recover costs because judgment on the merits was rendered in favor of Thomas.  And the district court determined that Thomas was a prevailing party and entitled to recover $200 in costs plus $1,069.95 in disbursements. 

"In every action in a district court, the prevailing party . . . shall be allowed reasonable disbursements paid or incurred . . . ."  Minn. Stat. § 549.04, subd. 1.  "[T]he district court has discretion to determine not only the amount of an award of costs and disbursements, but also who the prevailing party is for purposes of such an award."  Posey v. Fossen, 707 N.W.2d 712, 714 (Minn. App. 2006).  A district court only "abuse[s] its discretion . . .  when the district court resolves the matter in a manner that is against logic and the facts on [the] record." O'Donnell v. O'Donnell, 678 N.W.2d 471, 474 (Minn. App. 2004) (quotation omitted). 

In Posey, a plaintiff brought a negligence action against a defendant and the defendant brought a claim against a third-party defendant.  707 N.W.2d at 713-14.  The plaintiff then amended her complaint to allege negligence against the third-party defendant.  Id.at 714.  The jury found the plaintiff 90% at fault and the defendant 10% at fault.  Id. The third-party defendant sought costs and disbursements from the defendant as a prevailing party in the third-party action.  Id.  This court held that the district court did not abuse its discretion by determining that the third-party defendant was a prevailing party and entitled to an award of costs and disbursements. Id.at 715.  This court noted that "[d]ifferent factors enter into the determination of prevailing party status."  Id.at 714. And that the determination "depends on a careful weighing of the relative success of the parties to a lawsuit, a process that invests a certain amount of discretion in the district court."  Id.at 715.

Although unlike Posey, when the district court determined that the third-party defendant was a prevailing party, and here, the district court determined that appellant was not a prevailing party, in both cases the district court was within its discretion to determine who the prevailing parties were.  Here, the district court held one hearing on appellant's motion for summary judgment and Thomas's motion for costs and disbursements and determined that Thomas was a prevailing party and entitled to recover $1,269.95 in costs and disbursements.  The district court ordered that the $1,269.95 be taxed against appellant, the city, and McKenzie/Underdog.  The district court did not abuse its discretion when it denied appellant's motion for costs and disbursements.  It was logical for the district court to rule that Thomas was the prevailing party because she succeeded in recovering the dog from appellant.  Although appellant was entitled to recover damages for the purchase price and related costs of caring for the dog, appellant did not succeed in her efforts to keep the dog.  Additionally, it would be illogical for the district court to award Thomas costs and disbursements, tax the award against appellant, and then award appellant disbursements.  The district court was within its discretion when it denied appellant's motion for costs and disbursements, and, therefore, we affirm on this issue.

Affirmed in part, reversed in part, and remanded.

 

[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.