This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-00-1225

 

Donald D. Kallestad,

Respondent,

 

vs.

 

Weavewood, Inc.,

Appellant.

 

Filed January 23, 2001

Affirmed

Kalitowski, Judge

 

Hennepin County District Court

File No. CT983488

 

Robert T. Stich, Louise A. Behrendt, Stich, Angell, Kreidler, Brownson & Ballou, P.A., The Crossings, Suite 120, 250 Second Avenue South, Minneapolis, MN 55401-2122 (for respondent)

 

Floyd E. Siefferman, Jr., Saliterman & Siefferman, P.C., Northstar Center East, Suite 1000, 608 Second Avenue South, Minneapolis, MN 55402 (for appellant)

 

††††††††††† Considered and decided by Crippen, Presiding Judge, Randall, Judge, and Kalitowski, Judge.

U N P U B L I S H E D†† O P I N I O N

KALITOWSKI, Judge

††††††††††† Appellant Weavewood, Inc., challenges the district courtís denial of its motion to vacate a judgment in favor of respondent Donald Kallestad.† Appellant contends the district court abused its discretion by concluding that the affidavit of appellantís forensic document examiner did not establish that the judgment was based on respondentís† fraud.† We affirm.

D E C I S I O N

In pertinent part, Minn. R. Civ. P. 60.02(c) provides that a court may relieve a party from a final judgment if it is based on fraud of an adverse party and the motion is brought within one year of the final judgment.† When reviewing a denial of a motion† under rule 60.02, this court need only determine whether the district courtís refusal to grant the motion involved an abuse of discretion.† Regents of Univ. of Minn. v. Medical, Inc., 405 N.W.2d 474, 481 (Minn. App. 1987), review denied (Minn. July 15, 1987).† Where fraud is alleged

the moving party must establish by clear and convincing evidence that the adverse party engaged in fraud or other misconduct which prevented it from fully and fairly presenting its case.

 

Id. at 480.† The fraud alleged must go to the ultimate issue in the case and cannot be used merely to impeach a witness.† Id.

Here, appellant argues that the district court erred in denying its motion to vacate the judgment because an affidavit of a forensic document examiner, obtained by appellant after summary judgment, established that respondentís employment contract was fraudulent.† We disagree.

The affidavit of the forensic document examiner asserts that there are irregularities with regard to the signatures of the two witnesses to the employment contract.† Specifically, the affidavit indicates that in the expert examinerís opinion, two contracts allegedly signed approximately six months apart were witnessed at one sitting.† But the affidavit does not question the other signatures on the contracts or otherwise challenge the validity of the contracts.† Thus, at most, the affidavit only raises inferential questions about the validity of the contract and provides evidence that could be used to impeach witness testimony about when the contracts were witnessed.

But the affidavit does not provide sufficient evidence of fraud to require vacation of the judgment.† As this court held in Regents of University of Minnesota, even strong impeachment evidence regarding fraud does not require that a judgment be vacated under rule 60.02(c).† 405 N.W.2d at 480-81 (holding that even when misconduct/fraud is found it must have prevented a party from fully and fairly presenting its case and it must be more than merely helpful in impeaching a witness).† Under these facts, we conclude the district court did not abuse its discretion in determining that appellant failed to present the requisite clear and convincing evidence to establish its allegation of fraud.

††††††††††† Affirmed.