State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1250

State of Minnesota,
Respondent,

vs.

T. K. S., Defendant,

Peter J. Nickitas,
Appellant.

Filed March 30, 2020
Affirmed in part, reversed in part, and remanded
Smith, Tracy M., Judge

Anoka County District Court
File No. 02-CV-19-4146

David Brodie, Coon Rapids City Attorney, Coon Rapids, Minnesota (for respondent)

Jordan S. Kushner, Law Offi ce of Jordan S. Kushner, Minneapolis, Minnesota (for
appellant)

Considered and decided by Rodenberg, Presiding Judge; Johnson, Judge; and
Smith, Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
On appeal from a final judgment, appellant attorney Peter J. Nickitas challenges a
district court order sanctioning him in the amount of $3,000 under Minn. R. Civ. P. 11 for
his conduct while representing a client in an expungement proceeding. Nickitas argues that

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the district court abused its discretion (1) by applying the rules of civil procedure in the
context of an expungement proceeding and (2) by sanctioning him for petitioning this court
for a writ of prohibition. We affirm in part, reverse in part, and remand for correction of
the judgment.
FACTS
Based on an incident that occurred in Coon Rapids in the summer of 2014, the state
charged Nickitas’s client T.K.S. (petitioner) with disorderly conduct and a no-contact order
(NCO) was issued against pe titioner. The state later dismi ssed the disorderly conduct
charge, and the NCO was vacated. Petitioner then sought an expungement of records from
the district court.1
Petitioner filed his petition for expungement pro se in July 2015 . As part of the
petition, he included a proposed order. The proposed order was apparently based on a form
order, including language (the perjury language) stating that the order restores petitioner to
the status occupied before th e arrest and he “will not be gu ilty of perjury for failure to
acknowledge the arrest or proceeding in resp onse to any inquiry made for any purpose.”
Petitioner’s proposed order included no language related to a lack of probable cause for the
dismissed charge or to the absence of an adequate factual basis for the NCO.
By the time of the expung ement hearing on Septembe r 24, 2015, petitioner had
engaged Nickitas to represent him. Nickitas di d not file another proposed order with the
district court before the heari ng, but he brought a second pr oposed order with him to the

1 While Coon Rapids prosecutors participated in the expungem ent proceeding in district
court, neither the state nor the city of Coon Rapids have filed a brief in this appeal.

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hearing. An assistant city attorney appeared at the hearing as well. After the assistant city
attorney reviewed the second proposed order, the parties informed th e district court that
there was a dispute about the order: specifically, the city believed that the perjury language
constituted inappropriate legal advice.
Discussion followed regarding the perj ury language, and eventually Nickitas
informed the district court that he woul d submit another proposed order, which would
consist of “[t]he form that [petitioner] prepared plus, after that form, paragraphs 5 and 6 of
[Nickitas’s] draft.” The district court direct ed Nickitas to also submit any legal authority
regarding inclusion of the perjury language.
Nickitas emailed his proposed order to the di strict court and the Coon Rapids city
attorney. The final proposed order’s fourth pa ragraph included the perjury language that
was in the proposed order prepar ed by petitioner and that was the topic of debate at the
hearing. Nickitas’s proposed order also c ontained the following in paragraph 6 (the
probable-cause language):
The state, after due and timely notice, and appearing before the
court, does not oppose the petition for expungement. The court
concludes the following:
 The prosecution lacked probable cause ab initio.
 The state lacked predicate f acts to seek, and the court
lacked predicate facts, to imposed [sic] the no-contact order
(NCO).
Nickitas’s email informed the district court a nd the assistant city attorney that the final
proposed order was “conformable to the stipul ation agreed on the re cord by the parties
before the court this afternoon” and that “[petitioner] seeks no additional language beyond
that which the parties stipulated on the record before the court.”

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The assistant city attorney replied by email, copying the district court, stating that
his “only concern” remained the language that he thought gave legal advice about whether
petitioner could be charged with perjury. Nickitas responded, saying, “[N]othing is added
to the prepared forms except the two paragraphs to which you stipulated in court.” The
district court, based on its understanding th at the only disputed language had been the
perjury language in paragraph 4, decided to remove the pe rjury language and enter the
expungement order as otherwis e proposed by Nickitas. Th e expungement order, filed on
October 7, 2015, thus exclude d the perjury language but it included Nickitas’s proposed
probable-cause language in paragraph 6.
In December 2015, the city became aware that the expungement order contained the
probable-cause language when petitioner sued th e city in federal court for arresting him
without probable cause. The c ity moved to modify the expungement order to remove the
probable-cause language. At a hearing on the mo tion, the assistant city attorney testified
under oath that he only learned of the probable-cause language when petitioner brought his
lawsuit against the city. The dist rict court found that the assi stant city attorney credibly
testified that the probable-cause language ha d not been in the second proposed order that
Nickitas had brought with him to the earlier expungement hearing. The district court then
amended the expungement order to remove the probable-cause language.
Petitioner appealed the amended order. This court reversed and remanded the case
for additional findings and consideration of whether modification of the order was
permissible under Minn. R. Civ. P. 60.02. State v. T.K.S. , No. A16-0541, 2016 WL
7188701 (Minn. App. Dec. 12, 2016) (T.K.S. I). The district court ordered a hearing on the

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remanded issue and set a briefing deadline. A w eek before the hearing, on the day of the
briefing deadline, petitioner filed in this court a petition for writ of prohibition, arguing that
the district court did not have jurisdiction to hear the case. The district court continued the
hearing pending the re solution of the petition. We denied the petition eight days after it
was filed, stating that the district court had jurisdiction because we had remanded the case
to it. State v. T.K.S., No. A17-0104 (Minn. App. Jan. 31, 2017) (order) (TKS II).
The district court eventually held its hearing over a month after it was initially
scheduled. At the end of the hearing, the district court requested additional briefing on the
motion to modify the expungement order, as well as on possible sanctions under Minn. R.
Civ. P. 11 in connection with the probable-c ause language and the petition for the writ of
prohibition. After receiving the additional briefing, the district court filed an order granting
the city’s request to modify the expungement order. The district court also determined that
Nickitas’s insertion of the probable-cause language and his pursuit of a petition for a writ
of prohibition were potential grounds for sancti ons. The district court ordered Nickitas to
show cause as to why it should not impose rule 11 sanctions based on his conduct.
Petitioner appealed the district court’s ruling to modify the expungement order. We
affirmed. State v. T.K.S., No. A17-1365, 2018 WL 3966223 (Minn. App. Aug. 20, 2018)
(T.K.S. III). We declined to reach the issue of sanc tions, as the district court had not yet
entered a final judgment on the matter. Id. at *5.
In a December 2018 show-cause hearing at the district court, Nickitas argued that
sanctions were improper because there was no evidence of bad faith in his actions and that
he was simply being a zealous advocate. He also argued that the city had an opportunity to

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object to the additions but did not. The district court noted at the hearing on sanctions that
the only way for a court to conclude that the prosecution lacked probable cause was through
a stipulation or an evidentiary hearing, neither of which had occurred.
The district court issued an order imposing sanctions on Nickitas, determining that
he had improperly added the probable-cause language to the order without adequately
disclosing the contents of the language. Th e district court concluded that Nickitas’s
argument that it was the city’s responsibility to notice the added language amounted to a
“gotcha” tactic and was without merit. It al so noted that it was tr oubled by Nickitas’s
conduct after the language was found: rather th an seek a stipulation or an evidentiary
hearing, Nickitas instead fought to keep th e language in the order. The district court
concluded that these actions constituted bad faith and imposed a sanction of $1,500.
The district court also determined that Nickitas’s petition to this court for a writ of
prohibition was a frivolous motion intended to delay proceedings. The district court
concluded that Nickitas’s mo tion was frivolous because it essentially amounted to a
petition to this court to reverse its decision to remand the issue to the district court. Given
the frivolousness of the petition, the district court determined that filing the petition
constituted bad faith and imposed another $1,500 sanction. The district court then entered
judgment.
This appeal follows.

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D E C I S I O N
The standard of review for sanctions imposed under Minn. R. Civ. P. 11 is whether
the district court abused its discretion. Collins v. Waconia Dodge, Inc. , 793 N.W.2d 142,
145 (Minn. App. 2011), review denied (Minn. Mar. 15, 2011).
Under rule 11.02, when an a ttorney presents a document to the court, the attorney
certifies that, to the best of that attorn ey’s knowledge, information, and belief, the
following is true about the document:
(a) it is not being presented for any improper purpose,
such as to harass or to caus e unnecessary delay or needless
increase in the cost of litigation;
(b) the claims, defenses, and other legal contentions
therein are warranted by exis ting law or by a nonfrivolous
argument for the extension, m odification, or reversal of
existing law or the establishment of new law;
(c) the allegations and othe r factual contentions have
evidentiary support or, if specif ically so identified, are likely
to have evidentiary support af ter a reasonable opportunity for
further investigation or discovery;

Minn. R. Civ. P. 11.02(a)-(c). Because one of th e primary purposes of rule 11 is to deter
litigation abuse, the district court or the injured party should provide notice of the alleged
violation “as early as possible during the proceedings to provide the attorney and party the
opportunity to correct future conduct.” Uselman v. Uselman, 464 N.W.2d 130, 143 (Minn.
1990).
If the district court determines that rule 11.02 has been violated, the district court
may impose appropriate sanctions on the violating attorney. Minn. R. Civ. P. 11.03. “The
[district] court should impose the least severe sanction necessary to effectuate the purpose
of deterrence and may also consider the presence or absence of bad faith in determining an

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appropriate sanction.” Uselman, 464 N.W.2d at 145 (citati ons omitted). The conduct is
measured against an objective standard, but sanctions are not appropriate simply because
a party does not prevail on the merits. Radloff v. First Am. Nat’l Bank of St. Cloud, N.A. ,
470 N.W.2d 154, 157 (Minn. App. 1991), review denied (Minn. July 24, 1991). “The extent
to which the offender persiste d in advancing a position while on notice that the position
was not well grounded in fact or law is an aggravating factor.” Id. (quotation omitted).
Nickitas challenges both the sanctions imposed for the contents of the expungement
order and the sanctions imposed for petitioning this court for a writ of prohibition. We
address each issue in turn.
I. The district court did not abuse its di scretion by sanctioning Nickitas for his
conduct in connection with the probable-cause language in the proposed order.

Nickitas argues that the district court abus ed its discretion by sanctioning him in
connection with the probable-cause language in the proposed expungement order because
(1) Minn. R. Civ. P. 11 does not apply in a criminal expungement proceeding, and (2) even
if it did apply, his conduct did not warrant sanctions.
A. The rules of civil procedure apply to this case.

Nickitas argues that an expungement is a criminal proceeding and, as such, the
district court should not have applied sanctions to him under rule 11 of the Minnesota Rules
of Civil Procedure. He makes this argument despite an earlier ruling in this case in which
this court held that the exp ungement was a special proceeding in which Minn. R. Civ. P.
60.02 applies. T.K.S. III, 2018 WL 3966223, at *3-4. He points to State v. Scheffler, which
noted that T.K.S. III , as an unpublished decision, was not precedential authority

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establishing that an expungement action is a civil action. 932 N.W.2d 57, 60-61, 61 n.3
(Minn. App. 2019).
But, while unpublished opinions are not generally precedential, they are
precedential as the law of the case. Minn. R. Civ. App. P. 136.01, subd. 1(b). “Law-of-the-
case doctrine commonly applies to issues decide d in earlier stages of the same case. [It]
provides that when a court decides upon a rule of law, that decision should continue to
govern the same issues in subsequent stages in the same case.” State v. Miller, 849 N.W.2d
94, 98 (Minn. 2014) (emphasis omitted) (quotations omitted). In T.K.S. III, we decided that
an expungement was a special proceeding be cause an expungement arises from a law-
conferred right that the court enforces after a party makes a special application. T.K.S. III,
2018 WL 3966223, at *3 (citing Fiduciary Found., LLC v. Brown, 834 N.W.2d 756, 761
(Minn. App. 2013)). We noted th at special proceedings may be civil actions, even if the
proceeding arose from an underlying criminal matter. Id. We then concluded that Minn. R.
Civ. P. 60.02 applied to expungement proceedings, permitting the district court to modify
its expungement order. Id. Thus, we concluded that the rule s of civil procedure apply to
this expungement action.
Nickitas points out that this court only determined th at rule 60.02 applied to
expungements in T.K.S. III, not that other rules of civil procedure apply. It is true that this
court did not specifically address whether rule 11 also applied to expungement
proceedings. But Nickitas offers no explanati on for why rule 11 wo uld not apply to an
expungement proceeding when rule 60.02 does, other than claiming that an expungement
proceeding is more akin to a criminal proceeding than a civ il one. Concluding that an

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expungement proceeding is a cr iminal proceeding would contra dict this court’s earlier
decision in T.K.S. III. Under the doctrine of law of the case, rule 11 applies to petitioner’s
expungement proceedings.
B. The district court did not abuse its discretion by imposing sanctions on
Nickitas related to the probable-cause language.

Nickitas argues that sanctions are not warrant ed under rule 11. He contends that the
record does not support the district court’s de termination of bad faith and that the district
court was retaliating against him for providing “zealous and aggressive advocacy.”
Fleshing out these arguments, Nickitas firs t asserts that he presented the changes
that he had planned to make to the propos ed order openly in court and provided the
prosecution “ample opportunity” to respond. He claims that he made a full disclosure that
he was adding language beyond what is typica lly included in expungement orders in the
initial expungement hearing and in his later emails.
But Nickitas overstates how transparent he was about adding th e language to the
proposed order. Nickitas bro ught a second proposed order to the initial expungement
hearing. He argues that it is undisputed that the second proposed order contained
paragraphs 5 and 6, including the probable- cause language. But the district court later
found that the second proposed order did not include the probable-cause language. And
whether the second proposed order contained the probable-cause language or not, it is clear
from the transcript that the parties never discussed the probable-cause language at the
hearing. Instead, they and the district court focused on the appropriateness of the perjury
language. Nickitas then informed the district court that he would submit another proposed

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order. He stated that that proposed order woul d be “[t]he form that [petitioner] prepared
plus, after that form, paragraphs 5 and 6 of th e draft.” At no point during the hearing did
Nickitas provide any description about the cont ents of paragraphs 5 or 6. There was no
acknowledgement by either party or the district court that the probable-cause language in
paragraph 6 would expose the ci ty to civil liability , even though this admission would
clearly be unusual in an expungement proceeding.
Not only was Nickita s not forthcoming about the pr obable-cause language at the
expungement hearing, but he was far from tran sparent about it in his later emails to the
court and opposing counsel. After the hearing, Nickitas emailed the final proposed order
to the district court, indicating that the city had stipulated to the added paragraphs: Nickitas
described the final proposed order as “conformable to the stipulation agreed on the record
by the parties before the court,” stating that it only contained language to which “the parties
stipulated on the record before the court.” As reflected in the transcript, the exchange that
comes closest to a “stipulation” occurred after Nickitas explained that he would be emailing
a proposed order that includes a form order and “paragraphs 5 and 6”:
THE COURT: It appears there’s no objection to that, right?
ASSISTANT CITY ATTORNEY: Yeah, I don’t know if this
whole business of including some sort of paragraph about
doesn’t need to disclose about—
THE COURT: He’s not indicating that that shou ld be in the
order.
ASSISTANT CITY ATTORNEY: Yeah, and I don’t know if
that’s appropriate that that should be in the order.

The district court then decided to have Nickitas submit his proposed order with authorities
related to the perjury language and asked the city attorney if that was “fair enough.” The

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city attorney replied that he thought so. What Nickitas descri bed as a “stipulation” in his
email to the district court dramatically overstates the level of agreement from the city. The
assistant city attorney never stipulated to the probable-cause language. Thus, Nickitas’s
final proposed order, especially in light of his email statements to the district court
describing the probable-cause language as “stipulated to” by the parties, was presented for
the improper purpose of misleading the court. It was sanctionable under rule 11.02(a).
Nickitas argues that it is not his fault that neither the district court nor the city
attorney sufficiently reviewed the final proposed order. If either had caught the language,
it is true this case would likely have resolved more quickly. But the issue under review is
Nickitas’s conduct and the conten t of his presentations to the district court, not whether
other parties promptly noticed his actions.
Nickitas next argues that he did not violate rule 11 b ecause there is no statutory
prohibition on a finding that there was no probable cause. But Nickitas offers no statutory
authority suggesting that an expungement proceedi ng is an appropriate place to assess
whether there was probable cause to support an arrest. Expungement orders are used to seal
certain criminal records. See Minn. Stat § 609A.02, subd. 3 (2018). Yet Nickitas attempted
to use an expungement order to establish fact ual findings that would support a civil suit
without an affirma tive stipulation or an evidentiary he aring. Nickitas certainly knew the
implications of what he was as king the district court to do with the proposed order, as
petitioner, his client, promptly used the order to sue the city in federal court.
Nickitas also argues that the district court’ s delay in raising the issue of rule 11
sanctions reveals an inappropriate, retaliatory motive. The district court did not raise the

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issue of rule 11 sanctions until after the first appeal and this court’s denial of the petition
for a writ of prohibition. As Nickitas points out , this delay occurred despite the fact that
the district court knew of the probable-cause language mistake before the first appeal had
even been filed. One could view this dela y as suggesting that th e district court was
retaliating against Nickitas for the appeal ra ther than attempting to deter Nickitas from
future bad conduct. But the district court’s delay is also consistent with a growing
recognition of the nature and scope of Nickitas’s behavior. What may have appeared at
first to the district court to simply be aggr essive advocacy may have begun to look more
like a “gotcha” trick as the litigation wore on. The district court noted that, rather than
recognize the misunderstanding and allow the city to correct what appears to have been a
clear mistake, Nickitas fought for years to ke ep the probable-cause language in the order.
This behavior culminated in Nickitas filing with this court a dubious petition for a writ of
prohibition , arguing that the district court did not have jurisdiction, shortly after this court
had remanded the issue. The district court ra ised the possibility of sanctions at the very
next hearing. We conclude that the sanctions were not retaliatory.
Nickitas also complains that the delay in raising sanctions violates the principle that
rule 11 should be invoked as soon as allege d abuse occurs so a party can correct their
conduct. It is true that the district court’s delay in imposing sanctions for Nickitas’s actions
is not completely in line w ith the caselaw describing th e deterrence-minded goals of
rule 11. But, given that the district court was witnessing additional conduct that continued
to inform its assessment of th e original conduct, it does not appear that the delay rises to
the level of an abuse of discretion.

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Finally, Nickitas asserts that, while he is not requesting a hearing on the amount of
the sanctions, the district court’s failure to consider his ability to pay the sanctions was
indicative of the district court’s arbitrariness in the proceedings. Th e district court here
concluded that $1,500 for each violation was sufficient to deter repetition of such conduct.
“If the court chooses to impose a monetary sanction, it might consider the attorney’s or
party’s ability to pay.” Uselman, 464 N.W.2d at 145. In Uselman, however, the sanction
was $190,200. Id. Here, the district court’s conclusion does not seem unreasonable,
particularly given that Uselman states that a court might, not must, consider an attorney’s
ability to pay. The amount of sanctions imposed by the district court does not show that
the district court abused its discretion.
II. The district court abused its discret ion by sanctioning Nickitas for filing a
petition for a writ of prohibition from this court.

Similar to his arguments with respect to the probable-cause language, Nickitas
argues that the district court abused its discretion by imposing sanctions on him for
petitioning this court for a writ of prohibition because (1) the district court could not impose
sanctions under Minn. R. Civ. P. 11 for an appellate proceedi ng and (2) in any event, his
conduct did not warrant sanctions.
Rule 11.02 applies to “pleading[s], written motion[s], or other document[s]” that are
“present[ed] to the court,” Minn. R. Civ. P. 11.02 (emphasis added). This language plainly
implies that the district court is limited to imposing sanctions on pa rties under rule 11.03
for documents presented to the district court itself. The district court cannot impose rule 11
sanctions on a party for presenting documents to another court. Instead, it falls upon the

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court in which the party presents the docum ents to determine wh ether sanctions are
appropriate. The district court therefore a bused its discretion by imposing sanctions on
Nickitas for petitioning this court for a writ of prohibition, and we reverse the $1,500
sanction imposed on that basis and remand for correction of the judgment. We do not reach
Nickitas’s second argument that his conduct in filing the petition did not rise to the level
of sanctionable conduct.
Affirmed in part, reversed in part, and remanded.