Dietz v. Kautzman
Decision Date | 31 August 2004 |
Docket Number | No. 20030362.,20030362. |
Citation | 2004 ND 164,686 N.W.2d 110 |
Parties | Rachel M. DIETZ, Plaintiff and Appellee, v. Robert A. KAUTZMAN, Paul Kautzman and Kautzman Millwright, Inc., Defendants and Appellants, George A. Wyum, Kautzman Family Trust, Valarie Torgerson, and B. & G. Enterprises, L.L.C., Defendants, Jonathan T. Garaas, Appellant. |
Court | North Dakota Supreme Court |
Steven A. Johnson (on brief), Vogel Law Firm, Fargo, for plaintiff and appellee.
Jonathan T. Garaas (argued), Garaas Law Firm, Fargo, for defendants and appellants.
[¶ 1] Robert A. Kautzman, Paul Kautzman, Kautzman Millwright, Inc., and their attorney, Jonathan T. Garaas, appealed from an October 13, 2003 judgment holding them jointly and severally liable for $1,000 in attorney fees and costs assessed as a sanction for failure to comply with the discovery rules. They also appealed from an underlying May 9, 2003 order compelling discovery, a July 18, 2003 second order compelling discovery and ordering sanctions, and an October 8, 2003 order for judgment and contempt ordering payment of an additional $250 in sanctions. We conclude we have jurisdiction over the appeal and the district court did not abuse its discretion in imposing the sanctions. We affirm.
[¶ 2] This case arises from litigation related to Rachel M. Dietz's 1995 divorce action against Robert Kautzman. The divorce action itself has spawned seven appeals to this Court. See Dietz v. Kautzman, 2004 ND 119, 681 N.W.2d 437; Kautzman v. Kautzman, 2003 ND 140, 668 N.W.2d 59; Kautzman v. Kautzman, 2002 ND 118, 647 N.W.2d 684; Kautzman v. Kautzman, 2000 ND 190, 618 N.W.2d 500; Kautzman v. Kautzman, 2000 ND 116, 611 N.W.2d 883 (two appeals), and Kautzman v. Kautzman, 1998 ND 192, 585 N.W.2d 561. In February 2002, Dietz sued the Kautzmans and Kautzman Millwright, Inc., in state district court alleging they had fraudulently and deceitfully transferred property to avoid Robert's property distribution and spousal support obligations imposed by the divorce decree and seeking to avoid those transfers. The defendants unsuccessfully attempted to remove the case to federal district court.
[¶ 3] After successfully moving to add additional defendants, Dietz served interrogatories and a demand for production of documents on the defendants in January 2003. In March 2003, Dietz filed a motion to compel discovery, alleging the defendants' responses were inadequate and seeking attorney fees incurred in bringing the motion. On May 9, 2003, the district court granted the motion to compel, but refused to assess costs or attorney fees "at this time." Still unsatisfied with the supplemental responses, Dietz moved on June 5, 2003 for sanctions against the Kautzman defendants and an order requiring the defendants and their attorneys to pay the attorney fees she incurred in bringing the motion. On July 18, 2003, the district court issued a second order compelling discovery and ordered sanctions. In addition to requiring all answers to interrogatories and requests for production of documents be provided within 10 days of service of the order, the court ruled:
The Defendants Robert A. Kautzman, Paul Kautzman, and Kautzman Millwright, Inc. are in contempt of the Court's previous Order Compelling Discovery on this matter. Costs and attorney's fees shall be assessed at this time in favor of Plaintiff and against Defendants Robert A. Kautzman, Paul Kautzman, Kautzman Millwright, and their attorney Jonathan T. Garaas, jointly and severally, in the amount of $1,000. Harsher sanctions will be considered if this matter comes before the Court again and it is shown that Defendants have not complied with this Order.
[¶ 4] Dietz did not receive the $1,000 in costs and attorney fees ordered in August 2003. Dietz moved under N.D.R.Civ.P. 37 that judgment be entered against the Kautzman defendants and Garaas for $1,000, sought an order holding them in contempt until the money was paid, and requested that the court issue a bench warrant. The district court found the Kautzman defendants and Garaas "in contempt based on their failure to pay the Plaintiff $1,000 pursuant to this Court's order dated July 18, 2003," and ordered them to pay an additional $250 in legal fees incurred by Dietz "within three days of the date of this order." The court did not issue a bench warrant and Garaas paid the $250. On October 13, 2003, a judgment was entered holding the Kautzman defendants and Garaas jointly liable to Dietz for "$1,000 representing attorney's fees and costs assessed by the Court in favor of the Plaintiff." This appeal followed.
[¶ 5] Dietz argues these orders compelling discovery are not appealable.
[¶ 6] This Court must have jurisdiction before we can consider the merits of an appeal. Kostrzewski v. Frisinger, 2004 ND 108, ¶ 8, 680 N.W.2d 271. In Gast Constr. Co., Inc. v. Brighton P'ship, 422 N.W.2d 389, 390 (N.D.1988) (citations omitted), this Court set forth the two-part test for determining whether jurisdiction over an appeal exists:
First, the order appealed from must meet one of the statutory criteria of appealability set forth in NDCC § 28-27-02. If it does not, our inquiry need go no further and the appeal must be dismissed. If it does, then Rule 54(b), NDRCivP, must be complied with. If it is not, we are without jurisdiction.
[¶ 7] Orders compelling discovery are not appealable. See, e.g., Polum v. North Dakota Dist. Court, 450 N.W.2d 761, 763 (N.D.1990); Northwest Airlines, Inc. v. State Bd. of Equalization, 244 N.W.2d 708, 710 (N.D.1976). This Court has also held that "[a]n order awarding attorney's fees and costs which relates to pretrial discovery procedures is interlocutory in nature and is not appealable." State ex rel. Olson v. Nelson, 222 N.W.2d 383, 385 Syll.2 (N.D.1974).
[¶ 8] In Nelson, the State refused to answer two interrogatories, prompting the defendant to petition the district court for an order compelling answers to the interrogatories and assessing attorney fees and costs against the State. The court granted the motion and ordered the State to pay $100 in attorney fees and costs "`on or before April 10, 1974.'" Nelson, 222 N.W.2d at 385. The State complied with the order compelling answers, but on April 15, 1974, filed a notice of appeal from the part of the order assessing the $100 in attorney fees and costs. The State contended that "although the order is partially interlocutory the assessment of attorney's fees and costs in a sum certain, to be paid by a definite date, is a final order involving a substantial legal right and, thus, is appealable under § 28-27-02(5), N.D.C.C." Nelson, 222 N.W.2d at 386. This Court rejected the argument:
[¶ 9] Numerous jurisdictions follow this rule. See, e.g., Estate of Drayton v. Nelson, 53 F.3d 165, 167 (7th Cir.1994) ( ); M.A. Mortenson Co. v. United States, 877 F.2d 50, 52 (Fed.Cir.1989) ( ); State Farm Fire and Cas. Co. v. Bellino, 976 P.2d 342, 344 (Colo.App.1998) ( ); Gourmet Delights, Inc. v. Edgewater Country Club, Inc., 185 Ga. App. 660, 365 S.E.2d 514, 515 (1988) ( ); Matter of Hornsby and Landry, 532 So.2d 559, 560 (La.App.1988) ( ); Kennedy v. Chalfin, 38 Ohio St.2d 85, 310 N.E.2d 233, 235 (Ohio 1974) ( ).
[¶ 10] But, this case is distinguishable from State ex rel. Olson v. Nelson, because the State in Nelson, and the sanctioned parties in the cases...
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