                          This opinion will be unpublished and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
                                     A15-1681

                                   Jessica Jane Wittner,
                                        Appellant,

                                            vs.

                                 Joshua Jonathan Phillips,
                                       Respondent.

                                  Filed May 16, 2016
                    Affirmed in part, reversed in part, and remanded
                                     Johnson, Judge

                                Scott County District Court
                                 File No. 70-CV-13-12225

Jessica Jane Wittner, St. Paul, Minnesota (pro se appellant)

Joshua Jonathan Phillips, Lindstrom, Minnesota (pro se respondent)

         Considered and decided by Schellhas, Presiding Judge; Worke, Judge; and Johnson,

Judge.

                         UNPUBLISHED OPINION

JOHNSON, Judge

         Jessica Jane Wittner sued Joshua Jonathan Phillips for breach of contract and

various torts that allegedly were committed during a four-month period during which they

lived together while in an intimate relationship. The district court dismissed Wittner’s

breach-of-contract claims on the ground that they are barred by sections 513.075 and
513.076 of the Minnesota Statutes. The district court also imposed sanctions on Wittner

for violations of the rules governing discovery and the rules governing frivolous litigation.

We conclude that the district court erred by dismissing Wittner’s breach-of-contract claims

but did not err in its rulings on Phillips’s motions for sanctions. Therefore, we affirm in

part, reverse in part, and remand for further proceedings.

                                            FACTS

       Wittner and Phillips began an intimate relationship in August 2012 and began living

together in December 2012. Wittner alleged that Phillips was physically and verbally

abusive while the parties lived together. She also alleged that the relationship ended in

March 2013 after Phillips was arrested for domestic assault, a charge to which he later

pleaded guilty. Wittner’s civil action seeks, among other things, damages for the amounts

of money that Wittner allegedly paid to third parties for their housing-related expenses and

the amounts of loans that Wittner allegedly made to Phillips. Wittner alleged that Phillips

is employed only in certain seasons and had no income while the parties lived together.

Wittner is a licensed attorney and presumably is employed on a year-around basis.

       In May 2013, Wittner commenced this action by serving an eight-count complaint

asserting the following claims: (1) breach of contract (related to rent and utility expenses),

(2) breach of contract (related to non-repayment of loans), (3) harassment and stalking,

(4) negligent infliction of emotional distress, (5) intentional infliction of emotional distress,

(6) assault, (7) battery, and (8) conversion.

       In February 2014, Wittner, appearing as a pro se attorney, moved for summary

judgment on all counts. The district court continued the motion because Phillips obtained


                                                2
new counsel, who requested time to review the matter and respond to the motion.

Thereafter, the parties engaged in unusually contentious discovery. For the sake of judicial

efficiency, we decline to describe each event and each dispute in the discovery phase of

the case, but we note that they are sufficiently described in the district court record.

       In April 2014, Phillips, appearing through counsel, moved to dismiss counts 1 and

2 on the ground that they are barred by sections 513.075 and 513.076 of the Minnesota

Statutes. At the hearing on Wittner’s motion for summary judgment and Phillips’s motion

to dismiss, Wittner agreed to voluntarily dismiss counts 3, 4, and 5. See Minn. R. Civ. P.

41.01(b). In June 2014, the district court granted Phillips’s motion to dismiss counts 1 and

2 and denied Wittner’s motion for summary judgment. As a result, three claims remained:

counts 6, 7, and 8.

       In October 2014, Phillips moved for discovery sanctions. See Minn. R. Civ. P.

37.03. In November 2014, the district court issued an amended scheduling order that set

the case for trial on May 12, 2015. In February 2015, the district court granted Phillips’s

motion for sanctions under rule 37 and required Wittner to reimburse Phillips for attorney

fees and costs in the amount of $3,799.15.

       Meanwhile, in January 2015, Phillips moved for a determination that Wittner is a

frivolous litigant and for appropriate sanctions. See Minn. R. Gen. Prac. 9. In May 2015,

the district court granted the motion. The district court relieved Phillips of the obligation

to respond to Wittner’s outstanding discovery requests. The district court also prohibited

Wittner “from filing or serving further motions, pleadings, or discovery” unless she paid




                                              3
the monetary sanctions imposed in February 2015 and obtained approval from the district

court.

         On the day of trial, Wittner moved to voluntarily dismiss her remaining claims with

prejudice. The district court granted the motion and entered final judgment.

         Wittner appeals and challenges three rulings: the June 2014 order dismissing counts

1 and 2, the February 2015 order imposing discovery sanctions, and the May 2015 order

imposing frivolous-litigant sanctions.

                                      DECISION

                               I. Breach-of-Contract Claims

         Wittner first argues that the district court erred by granting Phillips’s motion to

dismiss counts 1 and 2 for lack of jurisdiction. This court applies a de novo standard of

review to a district court’s ruling on a motion to dismiss for lack of jurisdiction. Rasmussen

v. Sauer, 597 N.W.2d 328, 330 (Minn. App. 1999), review denied (Minn. Sept. 14, 1999).

         Wittner’s argument challenges the district court’s interpretation of the following

statutes:

               513.075. Cohabitation; Property and Financial Agreements.

                       If sexual relations between the parties are contemplated,
               a contract between a man and a woman who are living together
               in this state out of wedlock, or who are about to commence
               living together in this state out of wedlock, is enforceable as to
               terms concerning the property and financial relations of the
               parties only if:

                      (1)    the contract is written and signed by the parties,
               and




                                              4
                     (2)    enforcement is sought after termination of the
              relationship.

              513.076. Necessity of Contract.

                      Unless the individuals have executed a contract
              complying with the provisions of section 513.075, the courts of
              this state are without jurisdiction to hear and shall dismiss as
              contrary to public policy any claim by an individual to the
              earnings or property of another individual if the claim is based
              on the fact that the individuals lived together in contemplation
              of sexual relations and out of wedlock within or without this
              state.

Minn. Stat. §§ 513.075-.076 (2014).

       In essence, sections 513.075 and 513.076 bar a breach-of-contract claim between

unmarried persons who are or were cohabitating unless the claim is based on a written

agreement. See id.; In re Estate of Palmen, 588 N.W.2d 493, 496 (Minn. 1999). But the

supreme court has interpreted the statutes narrowly. The statutes “do not operate to

automatically divest unmarried couples living together of all legal remedies” against each

other. Id. More specifically, the statutes may be applied “only when the ‘sole consideration

for a contract between cohabiting parties is their contemplation of sexual relations . . . out

of wedlock.’” Id. (quoting In re Estate of Eriksen, 337 N.W.2d 671, 674 (Minn. 1983)

(emphasis in original)). Furthermore, the statutes may be applied only if “one party is

merely seeking to ‘preserve and protect [his or] her own property’ and is not ‘seek[ing] to

assert any rights in the property of a cohabitant.’” Id. at 495 (alteration in original) (quoting

Eriksen, 337 N.W.2d at 674).

       Wittner alleges in her complaint that she and Phillips entered into oral agreements

concerning the payment of their housing expenses and loans for other living expenses.


                                               5
More specifically, she has alleged that they agreed that she would pay the rent and utilities

for the first five months of their cohabitation and that Phillips would do so for the next five

months and that they would split those expenses evenly thereafter. She also has alleged

that they agreed that she would lend money or otherwise extend credit to Phillips and that

he would pay off the debt “by the end of his next season of employment.”

       Wittner contends that the district court erred by reasoning that the consideration for

the alleged oral contracts included sexual relations out of wedlock. She contends that the

oral contracts were unrelated to any sexual relations or contemplated sexual relations

between the parties. Wittner’s argument has merit. She makes no allegation in her

complaint that the parties’ oral contracts were based on a promise to engage in sexual

relations. See Palmen, 588 N.W.2d at 496; Eriksen, 337 N.W.2d at 674. Furthermore, her

breach-of-contract claims do not seek “to assert any rights in the property of” Phillips, but,

rather, seek only “to preserve and protect her own property.” See Eriksen, 337 N.W.2d at

674. Her breach-of-contract claims simply are not the type of claims that are barred by

sections 513.075 and 513.076 of the Minnesota Statutes.

       Thus, the district court erred by granting Phillips’s motion to dismiss counts 1 and

2 of the complaint.

                                  II. Discovery Sanctions

       Wittner next argues that the district court erred by granting Phillips’s motion for

discovery sanctions. She contends that her failure to make timely initial disclosures was

harmless. This court applies an abuse-of-discretion standard of review to a district court’s




                                              6
imposition of sanctions under rule 37.03. Knight v. McGinity, 868 N.W.2d 298, 302 (Minn.

App. 2015).

         Wittner argued to the district court that, although she made untimely initial

disclosures, sanctions are inappropriate on the ground that Phillips was not harmed. The

district court noted that Phillips’s defense was not prejudiced because the case was not

scheduled to be tried for several months. But the district court stated that Phillips was

entitled to a remedy because Wittner’s untimely initial disclosures “cost [him] time and

money.” The district court’s statement is supported by Phillips’s motion papers, which

include his attorney’s detailed billing records, which describe the tasks performed and the

fees and costs Phillips incurred as a result of Wittner’s untimely initial disclosures.

         Thus, the district court did not err by granting Phillips’s motion for discovery

sanctions and by ordering Wittner to make payment to Phillips for the reasonable expenses,

including attorney fees, caused by her discovery violations.

                              III. Frivolous-Litigant Sanctions

         Wittner last argues that the district court erred by granting Phillips’s motion for

frivolous-litigant sanctions. This court applies an abuse-of-discretion standard of review

to a district court’s determination that a party is a frivolous litigant under rule 9 of the

general rules of practice. Szarzynski v. Szarzynski, 732 N.W.2d 285, 290, 295 (Minn. App.

2007).

         Wittner’s third argument consists of five parts. First, she contends that the district

court erred by relying on an incorrect definition of the term “frivolous litigant.” She

contends that the correct definition is within rule 9 of the general rules of practice but that


                                               7
the district court incorrectly relied on rule 11 of the rules of civil procedure. In fact, the

district court relied on rule 9.06(b) for the definition of “frivolous litigant.” Rule 9.06(b)

includes a reference to “frivolous motions, pleadings, letters, or other papers.” Minn. R.

Gen. Pract. 9.06(b)(2). The district court also relied on rule 11 for the standards that an

attorney must follow when signing a pleading, motion, or other paper. See Minn. R. Civ.

P. 11.02(a)-(d). It was not inappropriate to engage in such legal analysis in order to

determine whether Wittner had served or filed frivolous motions, letters, or other papers.

       Second, Wittner contends that the district court erred by not properly conducting the

seven-factor balancing test prescribed by rule 9.02(b).         The district court expressly

discussed each of the seven factors, as required by rule 9.02(b). Wittner challenges the

district court’s analysis of the first, second, and fourth factors. The district court did not

misanalyze the first factor by reasoning that Wittner’s voluntarily dismissed claims were

pursued to “an adverse result” because the dismissal of a plaintiff’s claim is an adverse

result. See Minn. R. Gen. Pract. 9.02(b)(1). The district court did not misanalyze the

second factor, even in light of our reversal of the dismissal of the breach-of-contract claims,

because the district court’s frivolous-litigant findings are based primarily on the manner in

which Wittner conducted discovery. And the district court did not misanalyze the fourth

factor by considering the financial burden on Phillips in light of the fact that rule 9 allows

a district court to consider each party’s interest in “the efficient administration of justice.”

Minn. R. Gen. Pract. 9.02(b)(4). The district court did not abuse its discretion in applying

the seven-factor balancing test in rule 9.02(b).




                                               8
       Third, Wittner contends that the district court erred by violating the following

provision of rule 9: “No determination or ruling made by the court upon the motion shall

be, or be deemed to be, a determination of any issue in the action or proceeding or of the

merits thereof.” Minn. R. Gen. Pract. 9.02(d). Wittner contends that the district court

violated this part of rule 9 by relieving Phillips of his obligation to respond to Wittner’s

outstanding discovery requests. Wittner’s contention fails because the challenged part of

the district court’s order did not determine any substantive issue concerning a claim or a

defense. Rather, the challenged part of the district court’s order concerns a matter of

discovery.

       Fourth, Wittner contends that the district court erred by considering Phillips’ rule 9

motion even though he served and filed his memorandum of law seven days before the

motion hearing, rather than 14 days, as specified in the applicable rule governing non-

dispositive motions. See Minn. R. Gen. Pract. 115.04(a). The 14-day requirement,

however, is not absolute. As an initial matter, the language of rule 115.04(a)(4) indicates

that a memorandum of law is not required but, rather, is optional. See id. Also, if a moving

party’s motion papers are not properly served and filed, the rules provide that a district

court “may” cancel the hearing on the motion, which indicates that the district court is not

required to do so. Minn. R. Gen. Pract. 115.06. In addition, a district court “may waive or

modify the time limits established by” rule 115. Minn. R. Gen. Pract. 115.07. Furthermore,

the rule providing for frivolous-litigant sanctions allows a district court to impose sanctions

“on its own initiative.” Minn. R. Gen. Pract. 9.01. For all these reasons, the district court




                                              9
was within its discretion when it accepted Phillips’s untimely memorandum in support of

his rule 9 motion.

       Fifth and finally, Wittner contends that the district court erred by refusing to

consider the memorandum she filed on January 15, 2015, in opposition to Phillips’ rule 9

motion. Wittner’s premise is without support in the record; the district court did not state

in its order that it would not consider the memorandum. Rather, the district court stated

that it struck a non-dispositive motion filed by Wittner because she did not appear for the

hearing on the motion.

       Thus, the district court did not err by granting Phillips’s motion for frivolous-litigant

sanctions.

       Before concluding, we caution Wittner that she must avoid intemperate language in

future proceedings in this case as well as future proceedings in any other case in which she

appears. In district court proceedings, she repeatedly attacked the district court in ways

that were unreasonable and unproductive, and she repeatedly resisted the district court’s

warnings to cease her overzealous advocacy. In her appellate brief, she continues to engage

in the same type of verbal conduct. Although this court generally is not empowered to

enforce the rules of professional conduct, we think it may be useful to point out to Wittner,

sooner rather than later, that her form of advocacy may be beyond the limits of professional

conduct for persons licensed to practice law in the State of Minnesota. See, e.g., In re

Disciplinary Action against Michael, 836 N.W.2d 753, 765 (Minn. 2013) (affirming

referee’s finding that attorney engaged in unprofessional conduct toward tribal court in

written communications); Matter of Discipline of Getty, 401 N.W.2d 668, 671 (Minn.


                                              10
1987) (disciplining attorney for unprofessional conduct toward district court during

courtroom proceedings).

      In sum, we affirm the district court’s rulings on Phillips’s motions for sanctions,

reverse the district court’s dismissal of Wittner’s breach-of-contract claims, and remand

for further proceedings on the breach-of-contract claims.

      Affirmed in part, reversed in part, and remanded.




                                           11
