Opinion
Nos. A06-1221, A06-1522.
Filed July 3, 2007.
Appeal from the District Court, Washington County File No. F3-03-2565.
James C. Selmer, Marc M. Berg, James C. Selmer Associates, P.A., Minneapolis, MN, (for respondent).
Edward L. Winer, Ben M. Henschel, Jana Aune Deach, Moss Barnett, Minneapolis, MN, (for appellant).
Considered and decided by Peterson, Presiding Judge; Shumaker, Judge; and Ross, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).
UNPUBLISHED OPINION
In these consolidated appeals regarding the identification and division of marital property, appellant-husband argues that the district court (a) erred by failing to characterize a portion of the appreciation of husband's business as his nonmarital property to the extent that the increase was a function of market forces; (b) abused its discretion by denying his motion for a new trial when it improperly excluded expert witness testimony from two of husband's experts and associated exhibits, and limited the testimony of two other experts; (c) should have considered certain tax consequences of selling husband's businesses; (d) should not have directed the parties to file joint income tax returns for 2004; and (e) should have treated certain checks as income rather than property. By notice of review, respondent-wife argues that the district court abused its discretion by failing to reserve the issue of maintenance and seeks appellate attorney fees. We affirm the district court's determination that, under Nardini v. Nardini, 414 N.W.2d 184 (Minn. 1987), the increase in value of husband's business during the marriage was marital property. We also conclude that the district court did not abuse its discretion in its evidentiary rulings, by declining to consider the tax consequences of a potential business sale, by treating certain checks as marital property, and by declining to reserve the issue of maintenance. We grant in part wife's motion to strike portions of husband's appendix, but deny wife's motion for appellate attorney fees.
FACTS
The district court dissolved the 14-year marriage of appellant Alan Ellingson (husband) and respondent Pamela Ellingson (wife) after a trial in 2005. The parties had no children together; husband has an adult son by a previous marriage. Husband owns 100% of the common stock of Al's Cabinets, Inc., a C-corporation, which he started in 1974 in his garage. Husband also owns two affiliated businesses, which are S-corporations: R.P.E., Inc., and Quality Kitchens of Minnesota, Inc. All three businesses are located in Burnsville, Minnesota. Wife worked at various jobs for Al's Cabinets before and during the marriage.
Al's Cabinets manufactures custom cabinets for Twin Cities residential homes, with a primary customer base of high-end home builders. The business employs about 75 people and generates about $7.5 million in yearly revenues. R.P.E. is a real estate holding company, started in 1994, which leases a building to Al's Cabinets. Quality Kitchens, which was started in 2000, sells prefabricated kitchen cabinets, manufactured mostly in Canada, to a different customer base from that of Al's Cabinets.
After a temporary-relief hearing, the district court awarded wife $10,000 each month in temporary maintenance and $50,000 in need-based attorney fees. By stipulation, the court appointed Stephen Dennis, CPA, as a neutral business expert to appraise the value of the three businesses. The parties submitted issues of property division and maintenance for trial.
The district court issued a scheduling and discovery order, which was amended twice by stipulation. During discovery, the parties selected and gave notice of experts to give opinions on the valuation of the businesses, real estate, and personal property. Immediately before trial, the parties filed motions in limine. Wife's attorney moved to exclude, on the ground of late disclosure, evidence and testimony from (1) husband's additional business expert, Jay Bartkowski, on the value and tracing of husband's nonmarital interest in Al's Cabinets; and (2) husband's real estate appraiser, Blair Kjetland, on the value of husband's recently-constructed home in Prescott, Wisconsin. The district court excluded the opinions of both challenged experts, but allowed husband to testify on the nonmarital tracing issue and the construction cost of the home. During trial, the district court also sustained wife's objections, on the ground of late disclosure, to specific testimony on (1) from Wayne Brown, husband's primary business expert, on the increase in value of Al's Cabinets during the marriage as a result of market conditions; and (2) from Timothy Niggeling, the parties' certified public accountant, on the tax implications of husband's possible sale of the businesses.
The district court ordered judgment dissolving the marriage. The court found that the value of the nonmarital component of Al's Cabinets was $470,000, the figure presented by Dennis, the neutral expert, as its value on December 31, 1990, before the parties' marriage. This value fell between the book value of $418,000 on that date and Brown's adjusted-value appraisal of $550,000. The district court rejected husband's theory of an increased nonmarital component to Al's Cabinets based on appreciation caused by inflation or market forces during the marriage. The district court declined to order maintenance and divested itself of jurisdiction to award maintenance in the future.
Husband moved for amended findings, or, in the alternative, a new trial, alleging that expert testimony was improperly excluded. The district court ordered amended findings, but denied husband's motion for a new trial.
The judgment was not immediately entered because of a clerical error. Husband filed an appeal from the undocketed judgment and the order denying the new-trial motion; wife filed a notice of review. This court dismissed as premature the part of the appeal arising from the judgment. After the judgment was properly entered, husband filed a new appeal, which was consolidated with the original appeal. On appeal, wife moves to strike certain portions of husband's appendix and seeks appellate attorney fees.
DECISION I
On dissolution, a district court has broad discretion in dividing marital property, and an appellate court will not reverse absent abuse of that discretion. Gottsacker v. Gottsacker, 664 N.W.2d 848, 852 (Minn. 2003). An abuse of discretion occurs when the district court reaches "a clearly erroneous conclusion that is against logic and the facts on record." Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). The determination whether property is marital or nonmarital, however, presents a legal question, which is reviewed de novo, although we give deference to the district court's findings of fact. Gottsacker, 664 N.W.2d at 852.
A presumption exists that all property acquired during a marriage is marital property. Minn. Stat. § 518.003, subd. 3b (2006). A party may overcome this presumption with a showing that the property is nonmarital. Id. Nonmarital property includes property that (1) is acquired as a gift or inheritance by one party to the marriage; (2) is acquired by a party before the marriage; (3) is acquired by a party after the valuation date for the dissolution; (4) is excluded by a valid antenuptial contract; or (5) "is acquired in exchange for or is the increase in value of [nonmarital property]." Id.
In examining property that falls into the final category, we consider whether the appreciation of the property is active or passive. Active appreciation of a nonmarital asset is considered marital property, while passive appreciation of a nonmarital asset is considered nonmarital property. Gottsacker, 664 N.W.2d at 853. An increase in value of a nonmarital asset is classified as "active appreciation" when it is "the result of marital effort." Id. at 854. Further, if an interest in a nonmarital asset represents income from that asset, the income is marital. Id.
In Nardini v. Nardini, 414 N.W.2d 184, 195 (Minn. 1987), the Minnesota Supreme Court held that the increase in value during a marriage of a closely-held business owned by the husband was marital property. The Nardini court stated that
the increase in the value of nonmarital property attributable to the efforts of one or both spouses during their marriage, like the increase resulting from the application of marital funds, is marital property. Conversely, an increase in the value of nonmarital property attributable to inflation or market forces or conditions, retains its nonmarital character.
Nardini, 414 N.W.2d. at 192. The court determined that the character of income earned by the parties' efforts during the marriage was not changed by its retention as shareholder equity in a closely-held corporation. Id. at 195. The court commented that although
more than 35 years of essentially prosperous and mildly inflationary conditions provided a favorable climate in which a budding business could grow and flower[,] . . . a business, like a garden, must be tended if it is to flourish. . . . What [husband] really invested in was the opportunity to turn his talents toward the development of an enterprise in which he had a personal stake.
Id. at 194-95.
After Nardini, Minnesota appellate courts have determined that the increase in value of nonmarital property remains nonmarital when the party owning the property had no control over the disposition of earnings from that property, and when the parties did not increase the property's value through active effort. See, e.g., Gottsacker, 664 N.W.2d at 857-58 (holding that wife's Accumulated Adjustment Account (AAA) in subchapter S corporation was nonmarital because former wife had no control over whether to retain or distribute earnings from account and no marital effort was expended to increase value of stock interest); Reynolds v. Reynolds, 498 N.W.2d 266, 272 (Minn.App. 1993) (remanding for determination of specific part of increase in value of parties' real property that was due to market forces); Duffey v. Duffey, 416 N.W.2d 830, 833 (Minn.App. 1987) (holding that appreciation of husband's nonmarital stock due to retained earnings over course of marriage remained nonmarital because retained earnings were not generated through efforts of either party), review denied (Minn. Feb. 24, 1988); cf. Berenberg v. Berenberg, 474 N.W.2d 843, 847 (Minn.App. 1991) (holding that, under Nardini, increased value in close corporation was marital property when evidence supported findings that husband's efforts contributed to the business), review denied (Minn. Nov. 13, 1991).
Husband argues that the district court erred by characterizing the entire increase in value of Al's Cabinets during the marriage as marital property. He maintains that economic conditions — the growth of the housing market, inflation, and the growth of the business's three largest customers — contributed in significant part to the increased value of Al's Cabinets during the parties' marriage. He argues, therefore, that the portion of the increased value attributable to these passive forces should remain nonmarital.
But the record shows that, like the business in Nardini, Al's Cabinets relied on husband's active management to remain competitive in the marketplace during the parties' 14-year marriage. Testimony established that husband, the business's founder and chief executive officer, had ultimate authority and responsibility for establishing and maintaining customer relationships, hiring employees, making major decisions about equipment purchasers and suppliers, incorporating Al's Cabinets, deciding to form R.P.E. Inc., spinning off the prefabricated business into Quality Kitchens of Minnesota; and moving Al's Cabinets to its present facility and later expanding the facility. Although husband delegated day-to-day operation of the business to Ray Olsen as chief financial officer in 1998, husband still contacted the business every day. The district court did not clearly err in finding that husband's involvement "evidences his persistent oversight and continuing, undeniable role as the boss."
Thus, to use Nardini's garden analogy, a strong housing market provided "fertile ground" for Al's Cabinets to grow. But the business, like a garden, has only been able to flourish because husband made active efforts to tend it in response to favorable economic conditions. Husband argues that the growth of Al's Cabinets' three largest customers created passive appreciation that was not attributable to his efforts. But these customers could at any time have taken their business elsewhere, if the company had not made active efforts to provide acceptable service to them. The district court did not clearly err by finding "that the increase in value of Al's Cabinets since the date of marriage is attributable to the efforts of both parties. . . ." The record also supports the district court's finding that "the company has grown because its earnings have grown, earnings over which [husband] has always had authority to reinvest or distribute as income." Therefore, the district court did not err by determining that the entire increase in value of Al's Cabinets during the period of the marriage was marital property; and the evidence supports the district court's valuation for the nonmarital portion of the business as $470,000, the value determined by the neutral business expert at the time of the parties' marriage.
II
Husband argues that the district court abused its discretion by failing to order a new trial on the ground that the district court improperly excluded testimony and exhibits from four of his expert witnesses. The decision whether to admit or exclude expert testimony rests within the district court's sound discretion. Benson v. N. Gopher Enters., 455 N.W.2d 444, 445 (Minn. 1990). "To require a new trial, the exclusion of evidence must be both an abuse of discretion and prejudicial." Blatz v. Allina Health Sys., 622 N.W.2d 376, 387 (Minn.App. 2001). Prejudice is established only if the excluded "evidence might reasonably have changed the result of the trial if admitted." Poppenhagen v. Sornsin Constr. Co., 300 Minn. 73, 79-80, 220 N.W.2d 281, 285 (1974).
Generally, failure to timely disclose an expert's identity results in suppression of expert testimony only if "counsel's dereliction . . . is inexcusable and results in disadvantage to his opponent." Dennie v. Metro. Med. Ctr., 387 N.W.2d 401, 405 (Minn. 1986) (quotation omitted). The crucial question is whether the late disclosure resulted in any appreciable degree of prejudice. Id.
Husband maintains that the district court abused its discretion by excluding all testimony from two of his experts, Jay Bartkowski and Blair Kjetland, and by limiting the testimony of two other experts, Wayne Brown and Timothy Niggeling. Husband also asserts that the district court improperly failed to allow his attorney to make an offer of proof on the record regarding Niggeling's testimony.
Husband also asserts, in passing, three additional arguments: that the district court abused its discretion by (1) allowing wife to submit trial exhibits not timely disclosed, (2) determining the value of two assets based solely on wife's witness's offer of proof, and (3) determining the cash value of the parties' frequent flier miles absent evidence in the record. He does not, however, support these arguments with legal authority. An assignment of error "based on mere assertion" and not supported by argument or authority is waived "unless prejudicial error is obvious on mere inspection." State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn.App. 1997) (quotation omitted).
Jay Bartkowski
The record shows that husband disclosed Bartkowski as an expert witness in March 2004. By the parties' agreement, the court issued amended scheduling orders in May 2004 and July 2004. The last order required that by October 1, 2004, "[o]pinions and reports of all party-retained experts and court-appointed neutrals shall be disclosed" for trial in January 2005. Neither party strictly met the October 1, 2004 discovery deadline. The record shows that on November 30, 2004, husband's attorney furnished to wife's attorney a prehearing statement with attached schedules on nonmarital tracing. At a pretrial hearing on December 10, the parties agreed that by December 17 they would exchange all exhibits and expert reports. On December 17, wife's attorney received a revised version of the tracing schedules, but no formal report. The district court granted the motion in limine with respect to Bartkowski's testimony and exhibits.
The record appears unclear as to whether furnishing the exhibits one day before the discovery deadline, in schedule form, materially prejudiced wife's attorney's ability to prepare for trial. But we conclude that the district court did not abuse its discretion by denying a new trial because there has been no showing that had Bartkowski's testimony on tracing and the accompanying exhibits been admitted, the result of the trial would have been different. The district court determined, as a matter of law, that the increase in value of Al's Cabinets during the marriage is "attributable to efforts of both parties and is therefore marital property." On the tracing issue, the district court received husband's testimony, which the court expressly determined to be credible. Based on this testimony, the district court determined nonmarital interests in the parties' Hastings residence ($140,000); the Prescott property ($62,500); the Associated Bank account ($38,500); and a promissory note signifying a loan to husband's son ($45,000). The district court also credited husband's testimony tracing funds from the sale of his premarital homestead and an airplane to a portion of the money loaned to his son and the Associated Bank account. In fact, the record shows that the district court determined nonmarital interests of nearly $10,000 more in these assets than was asserted on husband's proposed property-settlement schedule. Therefore, allowing Bartkowski to testify would not have materially altered the result at trial.
Blair Kjetland
The record shows that after an agreed-on neutral real-estate appraiser was unable to perform, wife's attorney retained a different appraiser, Fred Nagel, with his understanding that Nagel would also act as a neutral. After both parties reviewed Nagel's appraisal, husband's attorney retained Kjetland to perform a different appraisal using a replacement-cost method, which wife's attorney received on November 29, 2004, without prior notice. The district court excluded Kjetland's testimony.
Because neither party strictly complied with October 1 discovery deadline, wife may not have been prejudiced by the late disclosure of Kjetland's appraisal. But the record does not establish prejudice to husband, who testified on the cost of building his home. The district court valued the home based on Nagel's fair-market-value appraisal ($771,000), which fell between Nagel's replacement-cost appraisal ($810,000) and husband's cost-of-construction testimony ($605,000). Because the district court rejected Nagel's appraisal based on the replacement-cost valuation method and husband's cost-of-construction testimony, husband was not prejudiced by the failure to allow Kjetland's appraisal, which also used the replacement-cost method.
Wayne Brown
Husband argues that the district court abused its discretion by failing to allow Wayne Brown to testify on the portion of growth of Al's Cabinets during the marriage attributable to market factors. The district court sustained wife's objection based on lack of disclosure, stating "[i]f it's not in the report we're not going to have testimony about it. . . ." By offer of proof, the witness then gave his opinion that, based on his report, the market growth factor would be 11%, calculated on the difference between the company growth of 17% and the company's company-specific risk premium of six percent. But Brown's report did not support his opinion testimony because the report used the company-specific risk premium as an "additional risk factor" in valuing the company using a capitalized earnings method, rather than as a measure of the company's growth attributable to husband's efforts. Therefore, the contents of the report did not adequately disclose Brown's opinion testimony. See Minn. R. Evid. 705, cmt. (stating that "if there is to be effective cross-examination the adverse party must have advance knowledge of the nature of the opinion and the basis for it"). And even if we were to conclude that the district court abused its discretion by not allowing this testimony, because the district court rejected the theory that any increase in value of Al's Cabinets during the marriage was nonmarital, husband has failed to show that the excluded evidence "might reasonably have changed the result" at trial. Poppenhagen, 300 Minn. at 79-80, 220 N.W.2d at 285.
Timothy Niggeling
Husband argues that the district court abused its discretion by refusing to allow testimony from Timothy Niggeling, the parties' personal and business CPA, on the tax consequences of husband's proposed sale of the business. At trial, the district court sustained wife's attorney's objection, for lack of disclosure, to Niggeling's testimony and a schedule showing the tax effect of selling Al's Cabinets, R.P.E., and Quality Kitchens. Wife's attorney stated that, at Niggeling's deposition, there was no indication that Niggeling would offer an opinion on the tax consequences of selling the businesses.
Although Niggeling was identified in advance as an expert, wife was prejudiced by not knowing in advance the contents of his opinion testimony. Therefore, the district court did not abuse its discretion by failing to allow, without prior notice to wife, his opinion on the tax consequences of selling the businesses, and did not abuse its discretion in denying a new trial.
Husband also argues that the district court was required to receive an offer of proof of Niggeling's testimony stated on the record. But because the rules of civil procedure do not specify a required form for an offer of proof, the district court had discretion to receive a written exhibit for that purpose. See Minn. R. Evid. 103(a) (stating that evidentiary error must be predicated on ruling that affects a party's substantial rights, and if evidence is excluded, "the substance of the evidence [must be] made known to the court").
III
Husband argues that the district court, in dividing marital property, abused its discretion by failing to consider the tax consequences of his proposed sale of the businesses. Whether to consider tax consequences of a property distribution is discretionary with the district court. Maurer v. Maurer, 623 N.W.2d 604, 607 (Minn. 2001).
The district court should not consider tax consequences of a property division when to do so would force it to speculate. Miller v. Miller, 352 N.W.2d 738, 744 (Minn. 1984). In Maurer, the Minnesota Supreme Court held that the district court's consideration of future tax consequences in valuing a party's deferred compensation and retirement plans was not speculative. 623 N.W.2d at 609. But the Maurer court rejected the idea of a "bright-line rule" for determining when the district court is required to consider tax consequences of a future event. Id. at 607.
Husband argues that the district court ignored credible evidence that he plans to sell the businesses to his 29-year-old son, who is currently a pilot making about $30,000 per year. Husband testified that he had plans to retire and that he was training his son to see if his son wanted to buy the businesses. But the record shows that the son currently owes his father $180,000, and husband testified that he had "no idea where [his son] is financially." He testified that if his son did not wish to purchase the businesses, he would hire a broker to sell them in about a year, but he expressed concern about the percentage fee a broker would charge.
The district court found that "from [husband's] testimony, it does not appear reasonably certain, or even probable, . . . that he will sell his business in the near term and incur the liability." This finding is not clearly erroneous. On this record, when the evidence of imminent sale of the businesses is speculative, the district court did not abuse its discretion by declining to consider the tax consequences of a possible sale.
IV
Husband maintains that the district court abused its discretion by ordering the parties to file a joint income-tax return for 2004 and to split equally any tax refund. Whether the parties to a dissolution must file a joint tax return presents a question of property division, which falls within the district court's broad discretion. Theroux v. Boehmler, 410 N.W.2d 354, 356 (Minn.App. 1987); Hedelius v. Hedelius, 361 N.W.2d 421, 424 (Minn.App. 1985).
Husband argues that because Niggeling was precluded from testifying about tax issues, the record contains no evidence on which to base a decision to order a joint return for 2004. But wife correctly points out that husband's offer of proof on Niggeling's testimony related only to the tax consequences of selling the businesses, rather than the financial implications of joint versus separate tax filing. The record contains copies of the parties' previous tax returns, which were jointly filed. Ray Olsen, the CFO of Al's Cabinets, testified that he was "waiting for direction from [the parties]" on whether they would file jointly or separately for 2004. Based on the parties' historical pattern of filing joint tax returns, the district court did not abuse its discretion by ordering them to file joint returns for 2004.
V
Husband argues that the district court erred by including in the property division the proceeds of certain paychecks, totaling $173,504, which he spent before the dissolution valuation date on ordinary living expenses and to construct his new home. Husband maintains that (1) the proceeds from the checks represented income to him, not property; (2) the district court's order amounted to "double-counting" because the value of his new home was included in the property division, and (3) the judgment improperly required him to share his income with wife when she was already receiving temporary maintenance.
"All property acquired by either spouse subsequent to the marriage and before the valuation date is presumed to be marital property." Minn. Stat. § 518.003, subd. 3b (2006). Even if this court would have reached a different conclusion, the district court's division of property will be accepted if it has an acceptable basis in fact and principle. Servin v. Servin, 345 N.W.2d 754, 758 (Minn. 1984).
Husband acknowledges that the district court's inclusion of the proceeds from husband's paychecks received before the valuation date was tied to the determination that the parties would file joint tax returns for 2004 and share equally in the income and tax liabilities for that year. To that end, the district court also assigned to wife, as marital property, funds from wife's liquidation of the parties' Hartford, Dain, and Schwab accounts, which totaled over $130,000. And because husband's testimony on whether the proceeds from the checks went toward the house was equivocal, double-counting did not necessarily occur. We cannot presume that the district court disproportionately divided the marital assets. See Custom Farm Servs., Inc. v. Collins, 306 Minn. 571, 572, 238 N.W.2d 608, 609 (1976) (stating that appellate courts cannot presume error). Because the district court's property division has an acceptable basis in fact and principle, we decline to disturb it.
VI
Wife filed a notice of review, challenging the district court's failure to reserve the issue of maintenance. Whether to reserve jurisdiction over the issue of maintenance is within the district court's discretion. Minn. Stat. § 518A.27, subd. 1 (2006). "When the district court . . . neither awards [maintenance] nor retains jurisdiction to award [maintenance] at some future time, its jurisdiction to do so is lost following the dissolution." Berger v. Berger, 308 Minn. 426, 428, 242 N.W.2d 836, 837 (1976). Wife argues that if this court reverses the district court's determination that all of the increase in value of Al's Cabinets during the marriage is marital property, she would receive significantly less in the property division, and the district court's failure to reserve the issue would amount to an abuse of discretion. But because we affirm the property division, which allocates over $3,000,000 to wife, she will have ample resources to invest for income, and the district court did not abuse its discretion by declining to reserve jurisdiction over maintenance.
Husband argues that because wife did not file a second notice of review after the appeals were consolidated, she has only noticed review of the order denying husband's motion for amended findings or a new trial. Husband cites no authority for this position. Minn. R. Civ. App. P. 106 does not condition the right to file a notice of review on the order being appealable by respondent. Kostelnik v. Kostelnik, 367 N.W.2d 665, 669 (Minn.App. 1985), review denied, (Minn. July 26, 1985). The purpose of a notice of review is to allow an appellate court to consider a matter already before it in its entirety. Id. Once the appeals were consolidated, any issue noticed for review was properly before this court.
Wife also filed a motion for conduct-based appellate attorney fees. See Minn. R. Civ. App. P. 139.06. A court may award additional fees, costs, and disbursements against a party "who unreasonably contributes to the length or expense of the proceeding." Minn. Stat. § 518.14, subd. 1 (2006). The district court awarded wife $50,000 in need-based fees while the proceeding was pending in district court and $30,000 in additional attorney fees on judgment. On this record, when both parties received substantial assets and litigated vigorously, we decline to order further need or conduct-based attorney fees on appeal.
VII
Wife has moved to strike approximately 200 pages of husband's appendix on the ground that the material contained in those pages is not part of the record on appeal. The record on appeal is limited to "[t]he papers filed in the [district] court, the exhibits, and the transcript of the proceedings." Minn. R. Civ. App. P. 110.01. Because requests for reconsideration are allowed only by permission of the court, Minn. R. Gen. Pract. 115.11, and the district court denied husband's request for reconsideration, the affidavits submitted in support of that request are stricken from his appendix. See Midway Nat'l Bank v. Bollmeier, 462 N.W.2d 401, 404-05 (Minn.App. 1990), aff'd, 474 N.W.2d 335 (Minn. 1991) (striking materials submitted in connection with motion to reconsider after grant of summary judgment). Similarly, we strike from husband's appendix the documents containing additional evidence that was submitted in support of the motion for amended findings. See Rathbun v. W. T. Grant Co., 300 Minn. 223, 238, 219 N.W.2d 641, 651 (1974) (stating that the court may not consider new evidence on a motion for new findings). We deny, however, the motion to strike from the appendix the remaining documents that are properly part of the record before the district court.