27-CV-16-4132

Filed in Fourth Judicial District Court 6/28/2016 1:43:39 PM Hennepin County, MN

SKOLNICK & JOYCE, P.A. ATTORNEYS AT LAW 2100 RAND TOWER 527 MARQUETTE AVENUE SOUTH MINNEAPOLIS, MINNESOTA 55402-1308 (612) 677-7600 TEL. (612) 677-7601 FAX E-MAIL [email protected] WILLIAM R. SKOLNICK AMY D. JOYCE* ANDREW H. BARDWELL SAMUEL M. JOHNSON

OF COUNSEL

SEAN A. SHIFF, PLLC

*ALSO LICENSED IN ILLINOIS

June 28, 2016

VIA EFS ONLY The Honorable Mary R. Vasaly 300 South Sixth Street MC 332 Minneapolis, MN 55487-0332 Re:

Wildwood Meadows Townhomes Association v. Michele Furman Court File No. 27-CV-16-4132

Dear Judge Vasaly: Defendant Michele Furman submits this letter in response to Leonard, O’Brien, Spencer & Gale, Ltd. and Mr. Burton’s (collectively “Petitioners”) request to file a motion for reconsideration. True to form, Mr. Burton and his office have not learned their lesson nor been deterred by the sanctions imposed by the Court. Again they abuse the litigation process, Ms. Furman, and the Court by submitting an improper request for reconsideration. The Advisory Committee Comments to Rule 115.11 make crystal clear that a motion for reconsideration is only appropriate in limited circumstances, none of which are present here. With respect to granting a motion for reconsideration, the Committee states: They are likely to do so only where intervening legal developments have occurred (e.g. enactment of an applicable statute or issuance of a dispositive court decision) or where the earlier decision is palpably wrong in some respect. (Rule 115.11 Advisory Committee Comment 1997 Amendments). The Comment goes on to caution that such motions “are not opportunities for presentation of facts or arguments available when the prior motion was considered.” (Id.). Petitioners have not and cannot cite to any intervening law. Nor do they present any factual or legal argument that was unavailable when the Court heard and decided the initial motion. Thus, the only possibility is that they are arguing the court was palpably wrong, which

27-CV-16-4132

Filed in Fourth Judicial District Court 6/28/2016 1:43:39 PM Hennepin County, MN

Hon. Mary R. Vasaly June 28, 2016 Page 2

is clearly not the case. The closest Petitioners get to making a legal argument is that “there is a potential dichotomy and ambiguity in the two sets of rules.” As Ms. Furman previously argued, if Wildwood or Petitioners believed the Conciliation Court erred, they had two remedies available, removal to District Court or a motion under Rule 60. They chose a third, improper course of action, and are now unhappy with the result of their choice. Conspicuously absent from Petitioners’ letter, however, is any explanation of why they opted to ignore the remedies available to them. Instead, they argue that the Conciliation Court referee made a mistake. Petitioners inexplicably argue “there is little difference here between an appeal from conciliation court to the district court and a direct action in district court.” The differences are many and are substantive. There was a deadline to appeal to District Court, and an appeal would have vacated the judgment that was entered against and satisfied by Ms. Furman. See Conciliation Court Rule 521 (d). Entry and payment of a $2,500.55 judgment may not matter to Mr. Burton or his firm, but it does matter to Ms. Furman. Mr. Burton had an opportunity to voluntarily dismiss the flawed lawsuit during the safeharbor period, but chose to proceed. In doing so, he ignored controlling law, i.e. Kern v. Janson, 800 N.W.2d 126 (Minn. 2011); Mattsen v. Packman, 358 N.W.2d 48 (Minn. 1984). Accordingly, the Court sanctioned Mr. Burton and his firm noting that their conduct “did not spring from mere negligence.” (Order dated 6/13/2016 at p. 9). Undeterred, Mr. Burton has now doubled down on his improper litigation tactics by seeking leave to file a motion for reconsideration, and his conduct should not go unpunished. Thus, Ms. Furman respectfully requests that the Court deny Petitioners’ request to file a motion for reconsideration and impose an additional monetary sanction against Mr. Burton and his firm sufficient to deter this wrongful conduct in the future. Should Your Honor have any questions, please feel free to contact our office. Thank you. Yours truly, SKOLNICK & JOYCE, P.A. s/Andrew H. Bardwell Andrew H. Bardwell c: Client (via email)