This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Mark Fjeld, et al.,
Richard F. Olsen,
Dakota County District Court
File No. C3988461
Mark A. Greenman, 700 Lumber Exchange Building, 10 South 5th Street, Minneapolis, MN 55402; and
Ruth Y. Ostrom, 270 Grain Exchange North, 301 South 4th Street, Minneapolis, MN 55415 (for appellant)
William Davidson, Kent Spellman, Lind Jensen Sullivan & Peterson, P.A., 150 South 5th Street, Suite 1700, Minneapolis, MN 55402 (for respondent)
Considered and decided by Willis, Presiding Judge, Halbrooks, Judge, and Hanson, Judge.
This is an appeal from a dismissal with prejudice of a personal-injury action. Appellants contend that the trial court abused its discretion by denying their motion for a continuance and dismissing their action with prejudice, citing medical incapacity and neglect by their former counsel as reasons justifying the delays and their failure to attend trial. They also contend the court abused its discretion in failing to honor their notice of removal under Minn. R. Civ. P. 63.03. Because the trial court did not err, we affirm.
Appellant Karen Fjeld and respondent Richard Olsen were involved in a motor vehicle accident in November 1995. Karen Fjeld, then a real-estate attorney, was operating her vehicle within the course and scope of employment when the accident occurred. As a result of the accident, Karen Fjeld brought a claim for personal injury and her husband, appellant Mark Fjeld, brought a claim for loss of consortium. Both liability and damages were disputed.
Appellants retained an attorney, but terminated his services in early 1997 before a complaint had been filed. Appellants then retained another attorney, who was subsequently disbarred. After the disbarment, a partner from the same firm, Ronald Meuser, approached appellants and expressed an interest in their case. Represented by Meuser, appellants filed suit in Dakota County District Court in July 1998. A scheduling order set the trial for February 23, 1999. Respondent moved to change venue to Ramsey County District Court. The motion was denied on December 17, 1998, and trial was rescheduled for June 14, 1999.
On May 5, 1999, appellants, respondent, and Karen Fjeld’s workers’ compensation insurer participated in a voluntary mediation. A settlement was reached in which Karen Fjeld’s workers’ compensation insurer agreed to pay appellants $150,000. Appellants signed a settlement agreement at the mediation, but later refused to accept the tendered settlement check or sign a release. Appellants allege that the insurer altered the terms of the agreement and that Meuser made misrepresentations to them regarding the settlement.
Respondent moved to enforce the settlement agreement. Meuser informed appellants that, because he believed the agreement was enforceable, he would not represent them on this issue. Appellants submitted a pro se memorandum in opposition to the motion and retained separate counsel for the hearing. On October 19, 1999, the court denied respondent’s motion, ordered the parties back to mediation, and set a third trial date of April 25, 2000. Appellants refused to attend two subsequently scheduled mediations.
On March 7, 2000, Meuser formally withdrew his representation. A week later, Karen Fjeld wrote a letter to the court requesting a continuance. The court responded immediately with a letter notifying appellants that such relief could only be granted by means of a motion to modify the scheduling order.
On April 11, 2000, the court heard appellants’ continuance motion. Appellants did not attend but were represented by counsel. Respondent opposed the continuance because he was prepared for trial. At the hearing, the court stated
[w]e’re not talking about just a stay for 60 days. What we’re talking about is just moving all the dates in the last scheduling order back, so discovery would remain open.
Later in the hearing, the court again stressed, “I’m just going to move all the dates in the scheduling order 60 to 90 days.” The court also noted that the parties could, at a later date, seek further “relief” if it were necessary. No written order was entered, but the next week, the court administrator issued a scheduling order setting a fourth trial date for July 25, 2000. The order stated that, absent a stipulation of the parties, any subsequent request for a continuance had to be brought by a motion.
On June 6, the court administrator sent the parties a letter informing them that the case had been assigned to a judge for trial and all future hearings. The letter reminded the parties that a pretrial conference was scheduled for June 23 and the trial date remained July 25.
On June 12, the trial court issued an order affirming the July 25 trial date and establishing requirements for the pretrial conference. The court maintained that “[n]o further continuances of the trial date shall be considered by the Court.” Also on June 12, Karen Fjeld wrote to the court informing it that she and her husband were still pro se and were having difficulties finding trial counsel. She asserted her understanding that the continuance order did not extend the dates out 90 days but gave appellants at least 90 days to find new counsel.
Despite having been informed of the requirement of motions rather than letters, Karen Fjeld wrote a ten-page, single-spaced letter to the district’s chief judge requesting relief from the June 12 pretrial order. She attached a notice of removal to the letter and requested that the chief judge either grant her relief or file the notice of removal. Karen Fjeld “offer[ed] the removal for filing conditionally then only if there is no other way” to get the relief she requested. Again, she insisted that it was her understanding that the continuance allowed appellants at least 90 days to find new counsel and complained that the scheduling order affirming the July 25 trial date conflicted with the continuance order. The chief judge did not reply to or act upon the letter.
On June 22, Karen Fjeld faxed a six-page, single-spaced letter to the trial court in which she insisted that her “rights” under the continuance order be recognized. She again stated her belief that the court granted her a “minimum” of 90 days to find trial counsel. The next day, at the pretrial conference, the court ruled on various evidentiary motions. The court also granted respondent’s motion to compel appellants to cooperate with discovery requests and to provide respondent with access to medical records, to appear for their depositions, and to supplement previous discovery responses by the end of June. Appellants appeared pro se at the pretrial, and the court suggested that they proceed quickly in finding counsel. Karen Fjeld noted that she needed to do what she “was ordered to do two months ago which is to find a competent attorney to represent us.” Appellants did not provide the court with any documentation of efforts to secure counsel.
On June 27, appellants formally filed the notice of removal with the court administrator. The court denied the notice of removal on the grounds that it was untimely, came after the court had ruled on dispositive issues, and was filed for purposes of delay.
On July 21, four days before the trial date, appellants filed a motion for a continuance for 90 days or until they secured counsel. The motion was based on appellants’ difficulty finding counsel and their medical incapacity, which they alleged precluded them from proceeding pro se. Appellants included letters from their physicians attesting to their medical conditions and inability to represent themselves at trial. On July 24, appellants filed an amended motion requesting that the continuance motion be heard by telephone on July 25, the first day of trial.
On the morning of July 25, Karen Fjeld called the court administrator and stated that she would not be at the trial due to medical reasons. The court received no verification of her condition from her physician. Respondent moved to dismiss the case. The court noted that the case was five years old; it had been scheduled and rescheduled for trial on a number of occasions, and the court had received no “significant credible evidence that would lead [it] to believe that they had made a good faith honest attempt to receive counsel.” Based on appellants’ failure to appear, the court granted respondent’s motion to dismiss without prejudice.
On September 21, respondent moved to dismiss the case with prejudice. Respondent based his motion on two grounds: (1) appellants’ lack of compliance with the court’s directives, and (2) the failure to prosecute in a timely manner. Respondent noted that in the preceding 15 months, appellants had failed to appear at two court-ordered mediations, refused to participate in court-ordered discovery, and did not appear for trial. The court granted the motion to dismiss with prejudice based on appellants’ lack of compliance with court orders. Appellants did not appear at the hearing and provided no explanation for their absence. On October 3, the court amended the order and judgment of dismissal, dismissing appellants’ case with prejudice and awarding respondent costs and disbursements pertaining to offers of judgment and settlement. This appeal follows.
D E C I S I O N
Appellants argue that the trial court abused its discretion when it refused to grant their July 21, 2000 motion for a continuance. The decision to grant or to deny a trial continuance is discretionary, and the trial court’s ruling will not be reversed absent a clear abuse of discretion. Chahla v. City of St. Paul, 507 N.W.2d 29, 31 (Minn. App. 1993), review denied (Minn. Jan. 20, 1994). “The test is whether a denial prejudices the outcome of the trial.” Id. at 32 (quoting Beyer v. Commissioner of Pub. Safety, 358 N.W.2d 713, 715 (Minn. App. 1984)).
First, appellants argue that a continuance should have been granted based on their inability to secure representation. Appellants’ former counsel withdrew on March 7, 2000, following appellants’ refusal to accept the settlement check. The April 25 trial date was moved to July 25 so that they could find counsel. If a party does not have legal counsel after being given a reasonable opportunity to retain such, they party must proceed pro se. Id. The court “should base its [continuance] decision on the facts and circumstances surrounding the request.” Hamilton v. Hamilton, 396 N.W.2d 91, 94 (Minn. App. 1986). In issuing the order to dismiss without prejudice, and implicitly denying the motion for a continuance, the court took the prior continuances into account. The court also noted that it had received no credible evidence of appellants’ effort to retain counsel. We conclude that because appellants were given reasonable time to find representation but did not do so, they could be compelled to proceed pro se. Therefore, the denial of the continuance on this basis is not an abuse of discretion.
Second, appellants assert that they required a continuance due to their medical problems. “Ordinarily, medical incapacity is grounds for a continuance.” Chahla, 507 N.W.2d at 32 (citations omitted). But appellants never presented any evidence of their medical incapacity to appear in support of a continuance on July 25. In addition, the court had seen appellants at the June 23 pretrial conference and received several letters and motions from appellants. See id. at 32 (holding that even when uncontroverted “expert testimony indicated appellant was unable to proceed with trial, the court was not precluded from making its own observations”). On July 24, appellants amended their motion for a continuance and asked that it be heard by telephone July 25. On the morning of trial, they failed to appear or to present any evidence about their inability to appear.
Moreover, we will not reverse a denial of a continuance absent abuse of discretion and prejudice. Id. at 31-32. Here, appellants fail to demonstrate prejudice based on the denial of the continuance. The statute of limitations on this claim had not run by the July 25 trial date. Appellants could have re-filed the case after the dismissal without prejudice was granted, but did not do so. The final outcome of this case was a dismissal with prejudice, a decision that came a month after the dismissal without prejudice. It was not the denial of the continuance that affected the outcome of the case, but appellants’ failure to appear both at trial and the hearing on respondent’s motion to dismiss with prejudice. Therefore, we cannot conclude that the denial of the continuance ultimately determined the outcome. The denial of a continuance under these circumstances was not an abuse of discretion.
Appellants contends that the trial judge should have been removed pursuant to their notice of removal under Minn. R. Civ. P. 63.03. If a removal notice is filed in compliance with the rule’s requirements, the rule mandates reassignment. Citizens State Bank v. Wallace, 477 N.W.2d 741, 742 (Minn. App. 1991). Failure to honor a proper notice is reversible error requiring a new hearing. Id. Whether a removal notice complies with the rules of civil procedure is a question of law, which this court reviews de novo. Id.
Appellants argue that they “substantially complied” with the rule’s 10-day time limit by attaching a notice of removal to Karen Fjeld’s letter written to the chief judge. That letter, dated June 15, requested that the chief judge either file the removal or grant appellants’ relief. The letter was written within ten days of the notice of judicial assignment. Appellants argue that nothing in the rule mandates a method of filing the notice. But this assertion is mistaken, as rule 63.03 specifically states that the notice must be filed with “the administrator.” We refuse to recognize a letter to a chief judge as compliance with the rule’s requirements that the notice be “file[d] with the administrator.” Although courts will give some latitude to persons appearing pro se, and appellants were given much consideration, this court need not permit the bending of rules and requirements. See Liptak v. State, ex rel. City of New Hope, 340 N.W.2d 366, 367 (Minn. App. 1983). Moreover, appellants knew of the requirement to file motions rather than write letters to obtain relief. Despite being specifically informed of the requirement by the court, appellants attempted to file the notice of removal by letter. A court will not modify ordinary rules and procedures because a pro se party lacks the skills and knowledge of an attorney. Gruenhagen v. Larson, 310 Minn. 454, 460, 246 N.W.2d 565, 569 (1976). In this case, Karen Fjeld is an attorney, albeit not a trial attorney. The denial of removal based on timeliness is without error. Because we find the notice of removal untimely, we need not reach the trial court’s additional rationale for denying the removal.
Appellants argue that the trial court erred in dismissing the case with prejudice because they neither “willfully refused” any orders of the court or “failed to prosecute their case in [a] timely manner.” Although appellants base much of their argument on the failure to demonstrate prejudice, a necessary component in a dismissal for failure to prosecute, the transcript demonstrates that the trial court granted respondent’s motion for involuntary dismissal based only on appellants’ lack of compliance with the court’s directives. Because the court’s order did not state the grounds for the dismissal with prejudice, we will address both grounds.
Dismissal under Minn. R. Civ. P. 41.02 is within the sound discretion of the trial court, and a reviewing court will reverse only where there has been an abuse of discretion. Bonhiver v. Fugelso, Porter, Simich & Whiteman, Inc., 355 N.W.2d 138, 144 (Minn. 1984). Accordingly, we must view the record in the light most favorable to the trial court’s order, and the order will be sustained absent a showing of clear abuse. Zuleski v. Pipella, 309 Minn. 585, 586, 245 N.W.2d 586, 587 (1976).
Minn. R. Civ. P. 41.02(a) provides that, upon a motion of a party, the court may dismiss an action or claim for failure to prosecute or comply with any order of the court.
Rule 41.02[(a)] is designed to let the trial court manage its docket and eliminate delays and obstructionist tactics by use of the sanction of dismissal. If a party does not cooperate with the litigation process by failing to comply with the rules of procedure or an order of the court, the judge may dismiss the case with or without prejudice.
Lampert Lumber Co. v. Joyce, 405 N.W.2d 423, 425 (Minn. 1987) (citations omitted). A dismissal with prejudice is a drastic form of relief that should be exercised with circumspection and must be justified by the facts and circumstances of a particular case. Peters v. Waters Instruments, Inc., 312 Minn. 152, 155-56, 251 N.W.2d 114, 116 (1977).
Dismissal for failure to prosecute is appropriate “only when (1) the delay prejudiced the defendants; and (2) the delay was unreasonable and inexcusable.” Bonhiver, 355 N.W.2d at 144 (citation and emphasis omitted). The accident underlying this claim occurred more than five years before the final trial date, and the case has been scheduled for trial four times. But prejudice may not be presumed merely because of delay. Firoved v. General Motors Corp., 277 Minn. 278, 284, 152 N.W.2d 364, 368 (1967). In this case, respondent has made a sufficient showing of prejudice. Appellants repeatedly thwarted respondent’s ability to prepare for trial. As late as the pretrial on June 23, 2000, appellants were ordered to release medical records, to permit the taking of their depositions, and to supplement discovery responses. Expert-witness depositions were scheduled and cancelled multiple times by respondent’s attorney. While arguably not physically injured as a result of the accident, respondent also experienced the effects of the prolonged litigation. Respondent and his family had to live with this lawsuit and disclose it as a liability on any financial disclosure for five years. For these reasons, we find that respondent has demonstrated prejudice.
Even if respondent failed to demonstrate prejudice, under extraordinary circumstances, dismissal for lack of prosecution may be justified even though no prejudice to the defendant is shown. Id. at 283-84, 152 N.W.2d at 368-69. A dismissal for failure to prosecute will be upheld, despite the absence of a separate showing of substantial prejudice to the respondent, based on “compelling evidence that appellant’s delay was unreasonable and inexcusable.” Belton v. City of Minneapolis, 393 N.W.2d 244, 246 (Minn. App. 1986), review denied (Minn. Nov. 19, 1986).
In Firoved, a case relied on by appellants, the supreme court reversed an order of dismissal, but noted that the delay was the result of the “neglect and delinquencies” of counsel and not the “personal neglect” of the plaintiff. 277 Minn. at 285, 152 N.W.2d 369. Here, unlike the situation in Firoved, appellants are guilty of “personal neglect.” From the beginning of the litigation through its dismissal, appellants failed to comply with court orders. The record reflects that appellants refused to comply with court-ordered discovery and were given notice of, but refused to attend, two court-ordered mediations, the trial, or the September 21 hearing on the respondent’s motion to dismiss with prejudice. Other than mere assertions by appellants that their file was in disarray, there is no evidence of neglect by appellants’ attorneys that affected their claims. No complaint was filed until appellants retained their third lawyer. After that lawyer withdrew, the court granted appellants an additional continuance of 90 days.
Appellants argue that their failure to appear for trial was excusable due to their medical incapacity. But appellants presented no evidence, other than Karen Fjeld’s self-serving statement to the court administrator that she was medically unable to attend. The court was never provided a physician’s verification of her condition on the day of trial or any other documentation of incapacity as a basis for their absence from the September 21 hearing.
A party who willfully and without justification or excuse fails to comply with discovery orders with an intent to delay trial and continues to refuse to cooperate with the court forfeits the right to a trial on the merits.
State by Humphrey v. Ri-Mel, Inc., 417 N.W.2d 102, 108-09 (Minn. App. 1987) (citation omitted), review denied (Minn. Feb. 17, 1988). Appellants’ unsupported claim of medical incapacity cannot excuse the numerous instances in which appellants failed to cooperate with court orders, including compliance with discovery. Respondent diligently prepared for trial, which appellants delayed multiple times. Appellants either refused or were unable to heed persistent admonitions to retain counsel. Considering appellants’ repeated disregard for and disrespect of court orders and the resulting delays, this is a case with extraordinary circumstances justifying a dismissal even without a showing of prejudice. The trial court did not abuse its discretion in ordering an involuntary dismissal with prejudice.
HANSON, Judge (concurring in part, dissenting in part)
While I concur in the decision of the majority to affirm the district court’s denial of the motions for a continuance and for removal, I must respectfully dissent from the majority’s affirmance of the district court’s order dismissing the case with prejudice.
Respondent did not provide evidence of, and the district court did not find, legal prejudice to respondent, as required by Firoved v. General Motors Corp., 277 Minn. 278, 283-84, 152 N.W.2d 364, 368 (1967), and Bonhiver v. Fugelso, Porter, Simich & Whiteman, Inc., 355 N.W.2d 138, 144 (Minn. 1984). Further, this case does not fit the profile of the “extraordinary circumstances” cases, where prejudice to respondent need not be shown, as recognized in Firoved, 277 Minn. at 283, 152 N.W.2d at 368, and applied in Belton v. City of Minneapolis, 393 N.W.2d 244, 246 (Minn. App. 1986), review denied (Minn. Nov. 19, 1986). To the contrary, this case more appropriately fits the equitable exception to dismissal with prejudice, to avoid unjust enrichment of a defendant, followed in Peters v. Waters Instruments, Inc., 312 Minn. 152, 156-57, 251 N.W.2d 114, 117 (1977), and recognized in Belton, 393 N.W.2d at 247.
When respondent moved the court to amend the judgment to dismiss with prejudice, he failed to make the requisite showing. As the majority recognizes, dismissal with prejudice for failure to prosecute is appropriate “only when (1) the delay prejudiced the defendants; and (2) the delay was unreasonable and inexcusable.” Bonhiver, 355 N.W.2d at 144 (emphasis in original). As noted in Firoved:
Obviously, the prejudice to plaintiff of such a dismissal is certain and usually permanent. As to defendant, the ordinary expense and inconvenience of preparation and readiness for trial, which can be adequately compensated by the allowance of costs, attorney’s fees, or the imposition of other reasonable conditions, are not prejudice of the character which would justify either a refusal to permit plaintiff to dismiss without prejudice or a dismissal with prejudice. The defense has the burden of showing particular prejudice of such a character that some substantial right or advantage will be lost or endangered if plaintiff is permitted to dismiss and reinstitute the action. Such prejudice should not be presumed nor inferred from the mere fact of delay.
277 Minn. at 283-84, 152 N.W.2d at 368.
Respondent’s motion to dismiss with prejudice does not meet this burden. The affidavit supporting the motion refers only to the costs incurred by the respondent and his insurer for experts, trial materials and attorney’s fees, and to the discovery efforts that had been undertaken. As noted in Firoved, those costs do not justify dismissal with prejudice, nor does the fact that discovery has been undertaken, since reimbursement of the costs, or the condition that such discovery could be used in any reinstituted action, could be imposed with a dismissal without prejudice. Id.
In the argument before the district court, respondent’s counsel also referred to the emotional stress on respondent and his obligation to disclose this claim as a contingent liability on his financial statements. These matters, of course, are incidental to every lawsuit and do not constitute the loss of some substantial right or advantage sufficient to be considered legal prejudice. Moreover, respondent did not provide, by affidavit or otherwise, any evidentiary basis to support this statement by counsel and it should be given no weight.
Just as respondent failed to supply the requisite evidence of prejudice, the district court made no findings on the issue of prejudice. In fact, the district court’s orders and judgments do not explain the legal basis for the dismissal with prejudice. Thus, this case is quite comparable to Halter v. Board of Regents of Univ. of Minn., 410 N.W.2d 50, 52 (Minn. App. 1987), where this court reversed the district court’s dismissal with prejudice, stating:
In this case, respondent failed to make any showing on the prejudice factor. The record lacks any indication that the trial court considered this factor in reaching its decision.
In Belton, we determined that the need to prove identifiable prejudice diminishes as the length or the willfulness of the delay increases. 393 N.W.2d at 246. Belton did not eliminate prejudice as the first element of the Bonhiver guidelines, but emphasized the strength of the second element of the Bonhiver guidelines: that the delay was unreasonable and inexcusable. Id.; see also Ed H. Anderson Co. v. A.P.I., Inc., 411 N.W.2d 254, 257 (Minn. App. 1987) (stating “exceptional circumstances must be considered in light of the second guideline for dismissal, the reasonableness and excuse for delay.”)
The facts in this case do not fit the profile of cases such as Belton, where the delay was so unreasonable and inexcusable as to warrant dismissal with prejudice without a showing of actual prejudice. The delay here was not extraordinary. In fact, had the action not yet been commenced, the statute of limitations would not have run. While the district court stated “this case is five years old,” this was an imprecise reference. It is true that the case was scheduled for trial five years from the date of the accident, but it actually had been pending for only two years, having been commenced in July of 1998. This is not the type of delay normally found when a case is dismissed with prejudice for failure to prosecute. See, e.g., Belton, 393 N.W.2d at 245 (action pending for six years was based on claims that arose four years before the action was commenced); Dvoracek v. Lovely, 366 N.W.2d 391, 393 (Minn. 1985) (action pending seven years and no excuse for delay was given); Reichert v. Union Fid. Life Ins. Co., 360 N.W.2d 664, 668 (Minn. App. 1985) (action pending over six years and no excuse for delay was given). Where there was no evidence of prejudice, a dismissal with prejudice was reversed even though there had been an eight-year delay. See, e.g., Ed H. Anderson Co., 411 N.W.2d at 256; Scherer v. Hanson, 270 N.W.2d 23, 24 (Minn. 1978).
Moreover, appellants did explain the reasons for the delays, based on both their mental incapacity to participate and the difficulties caused by the precipitous withdrawal of counsel. Ms. Fjeld’s unwillingness or inability to obtain counsel or to respond to the directions of the district court may in part be a product of the very injury for which she brings her claim. The July 19, 2000, letter from her treating physician, supplied with her affidavit in support of her motion for a continuance, certified that Ms. Fjeld had been continuously, totally and permanently disabled; that the single most significant cause of her disability was incapacitating headaches that could not be controlled by medication; and that such condition caused other severe medical problems (vomiting, dehydration, etc.) which have required frequent emergency room visits, including those as near to trial as June 28 and July 8. Her treating physician further stated that her brain injury from the collision caused vision problems that interfered with her ability to read and produced depression, severe anxiety, and incapacity to perform routine tasks.
The district court made no finding that extraordinary circumstances existed.
In Belton, we observed that “where termination of litigation involves a high prospect of unjust enrichment, justice and equity may require reversal of a dismissal with prejudice.” 393 N.W.2d at 247 (citing Peters, 312 Minn. at 156-57, 251 N.W.2d at 117). Here, there is no dispute that the accident occurred and that Karen Fjeld was seriously injured. In fact, on June 21, 2000, shortly before the scheduled trial date, respondent made an offer of judgment in the sum of $150,000, which suggests that the primary issue to be tried was the amount of damages, not liability.
Under these circumstances, I would reverse the judgment dismissing the Fjelds’ claims with prejudice and remand with directions that the district court reinstate the July 25, 2000, judgment of dismissal without prejudice.
In Firoved, the supreme court acknowledged the frustration of the district court when plaintiff’s counsel refused to proceed on the day the case had been scheduled for trial, citing unpreparedness. 277 Minn. at 285, 152 N.W.2d at 369. The court concluded that it was more accurate to view the basis of dismissal as the refusal to proceed as directed, rather than as failure to prosecute. Id. at 285-86, 152 N.W.2d at 369-70. Without intending to reduce the district court’s authority to dismiss cases for failure to comply with court rules or orders, the supreme court held that “the purpose of the rules would have been best served” by dismissing the action without prejudice and imposing appropriate conditions on any reinstitution. Id. at 286, 152 N.W.2d at 370.
Respondent’s September 21, 2000, motion sought dismissal with prejudice or, alternatively, dismissal without prejudice with the condition that (1) Fjeld may not reinstitute the action without payment of costs and disbursements and (2) respondent be allowed to use the trial depositions, already taken in any reinstated action. This alternative remedy would best serve the purpose of the rules under these facts.
Of course, the conditions to be imposed on any reinstituted action should not be so onerous as to effectively bar appellant’s reinstituted action. For example, respondent requested both the taxation of costs for the trial deposition and the right to use those depositions. It would seem that the right to use the depositions (or any other discovery materials) would obviate the need to impose the costs on appellants.
Finally, to the extent that the judgment of dismissal is viewed as being a default judgment, based upon appellants’ failure to appear at the scheduled trial, it should be clarified that the affirmance of that judgment does not preclude a motion by appellants to the district court for relief from the judgment under Minn. R. Civ. P. 60.02(a), based upon a showing of mistake, inadvertence, surprise or excusable neglect.
 Appellants have had the same counsel for the hearing on respondent’s motion to enforce settlement, the April 2000 continuance, and this appeal, but these attorneys do not practice in the personal-injury area.
 Karen Fjeld claims mental and physical illnesses as a result of the accident and the ensuing litigation. Mark Fjeld is diagnosed with attention-deficit disorder and as bipolar. Both of their physicians asserted that it was inappropriate for them to act as their own attorneys.
 Respondent moves to strike affidavits filed after the September 21 hearing date. We have limited our review to the papers actually filed in the district court prior to issuance of the decisions from which this appeal is taken. See Cressy v. Grassmann, 536 N.W.2d 39, 43 (Minn. App. 1995) (holding that the court “will grant a motion to strike material submitted in a party’s appendix when that material did not come before the trial court” (citation omitted)), review denied (Minn. Sept. 28, 1995). Respondent’s motion is granted.
 Minn. R. Civ. P. 63.03 provides in part that:
Any party or attorney may make and serve on the opposing party and file with the administrator a notice to remove. The notice shall be served and filed within ten days after the party receives notice of which judge or judicial officer is to preside at the trial or hearing, but not later than the commencement of the trial or hearing.
 The disbarment of appellants’ first two attorneys, although unusual, is irrelevant since both were disbarred before appellants filed a claim.