All in the Family: Frivolous litigant case deserves further review

On July 6, 2020, the Minnesota Court of Appeals issued a lengthy opinion concerning frivolous litigation in the context of Rule 9 of the Minnesota General Rules of Practice. A split decision, the issues raised appear ripe for review by the Minnesota Supreme Court – despite the fact that it was an unreported case.

In Kedrowski v. Kedrowski, Husband and Wife were married in March 2010. They separated in August 2015. Thereafter, Husband petitioned for dissolution of the parties’ marriage.

Throughout the litigation, Husband threatened to sue Wife’s attorney and sent him correspondence that “might be euphemistically described as uncivil.” Husband also sued Wife in a separate action. Said action was dismissed by summary judgment.

The District Court dissolved the parties’ marriage, following a two-day trial, in December 2017. The April 2018 judgment and decree, among other things, awarded Wife conduct-based attorney fees.

Husband moved the District Court for a new trial and/or amended findings. He also moved for temporary relief from, or modification of, his maintenance and child support obligations. Husband further sought to vacate the decree based upon alleged fraud and the discovery of new evidence. Finally, he moved for sanctions against Wife’s attorney.

In August 2018, the District Court denied Husband’s motions for a new trial, amended findings and sanctions. Husband’s modification requests were taken under advisement.

Husband appealed the denial of his motions for a new trial and/or amended findings. Concurrently, he pursued other relief from the District Court, seeking the referee’s removal and a decision concerning his modification requests. In correspondence to Wife and the District Court, Husband described himself as a “tireless litigation machine … who will not stop whether he wins this or not.”

The District Court denied Husband’s motions for temporary relief, modification and vacation.

Husband then filed another motion for modification, a notice to remove the referee and a request for reconsideration. Additionally, he moved to amend the order denying his modification request and again requested sanctions against Wife’s attorney.

The District Court decided all of the substantive issues on April 5, 2019. The District Court’s order went further and announced that it would convene a hearing to determine whether Husband was a frivolous litigant and whether an order for sanctions was appropriate, citing Rule 9 of the Minnesota General Rules of Practice.

The District Court’s order recounted the history of Husband’s “concerning behavior,” including: (1) failing to pay Wife her property settlement; (2) failing to cooperate in dividing property; (3) repeatedly threatening lawsuits; (4) repeatedly deriding Wife’s attorney; and (5) repeatedly expressing an overly litigious intent.

The order of the District Court further precluded Husband from filing any motions before it decided whether he was a Rule 9 frivolous litigant. The referee recused from the case because Husband was in contact with at least one member of the referee’s family regarding the litigation.

The District Court conducted the Rule 9 hearing. Husband argued it was procedurally improper because he had no action remaining in District Court. The District Court rejected Husband’s argument and issued its Rule 9 order in August 2019, finding Husband a frivolous litigant. Husband was ordered to post $10,000 bond as security for future sanctions.

Husband appealed, asking the Court of Appeals to reverse. Husband reiterated his argument that the Rule 9 order was untimely.

Judge Ross clarified that the Court of Appeals was only considering the timing of the Rule 9 order, rather than whether Husband was a frivolous litigant. He suggested that “construing and applying the terms of the rule presents no easy question; the circumstances here offer a round hole, and although the rule is not square, it is certainly oblong.”

Minnesota General Rule of Practice 9.01 defines the period during which the District Court may grant frivolous litigant relief as “any time until final judgment is entered.”

Husband suggested that the District Court lacked authority to issue its Rule 9 order because “final judgment had already been entered.”

Judge Ross began by suggesting that “final judgment is entered” refers to the time that a judgment with determinative effect is “entered” in the District Court. He also noted that “final” may describe two discreet contexts: (1) finality if no appeal is taken within the relevant filing deadline; and (2) finality as to litigation on the merits, leaving nothing more for the lower court to do.

As to Husband’s position, Judge Ross noted that “until final judgment is entered” references the actual entry of a judgment, rather than a passive process of awaiting an appeal deadline to pass without action.

Judge Ross also opined that Rule 9 applies in proceedings other than those pending the entry of a strictly defined “final judgment.” In other words, Rule 9 applies to post-decree relief, even though the initial judgment (a “final judgment”) has been entered. Of course, the original “final judgment” may still be “final” if a post-decree motion is denied.

The Court of Appeals determined that the District Court abused its discretion by entering a Rule 9 order after it entered its April 5, 2019, order that disposed of “all motions and issues pending in the litigation.” Judge Ross noted that the District Court issued its Rule 9 Order in August 2019, “more than four months” too late.

Judge Reyes authored a dissent, suggesting there had been no “final judgment” for purposes of a Rule 9 order as of April 5, 2019. He contrasted the differences between traditional civil actions and those in family court – including the inherent continuing jurisdiction to modify “final” orders in dissolution actions on issues such as custody, parenting time, child support and spousal maintenance.

Judge Reyes noted that “[t]his stands in contrast to other civil proceedings, in which the district court’s jurisdiction terminates once ‘the time for appeal from an order expires without appeal having been taken.”

All said, it appears Judge Reyes got it right. As family lawyers, we often humorously follow the unwritten rule to “never close a file.” The majority seemed to stretch further than Judge Reyes in rendering a reversal.

On a more practical level, Rule 1.02 of the General Rules of Practice provides that “[a] judge may modify the application of these rules in any case to prevent manifest injustice.” Even if the majority’s position on “finality” is accepted as true, it seems the District Court had the discretion to relax the timing requirements found in Rule 9 under these circumstances.

Jason and Cynthia Brown, husband and wife, are the founding shareholders in the Brown Law Offices, P.A., a northwest Twin Cities divorce and family law firm.