This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-03-264

 

Patrick Takuanyi,
Appellant,

vs.

Harold Francis Savage, et al.,
Respondents.

 

Filed September 9, 2003

Affirmed

Wright, Judge

 

Ramsey County District Court

File No. C2014464

 

 

Patrick Takuanyi, P.O. Box 75341, St. Paul, MN 55175 (pro se appellant)

 

Leo I. Brisbois, Kenneth W. Dodge, Stich, Angell, Kreidler, & Dodge, P.A., The Crossings, Suite 120, 250 Second Avenue South, Minneapolis, MN  55401-2122 (for respondents)

 

            Considered and decided by Wright, Presiding Judge, Lansing, Judge, and Peterson, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

Appellant sued respondents for injuries suffered in an auto accident.  When appellant failed to appear for trial, the district court dismissed the action with prejudice and subsequently denied appellant’s motion to vacate the judgment.  Appellant argues that the district court erred in denying the motion.  We affirm. 

FACTS

 

On January 6, 1996, while driving in St. Paul, appellant Patrick Takuanyi was hit by a courier vehicle driven by Harold Savage.  Takuanyi allegedly suffered multiple injuries as a result of the accident. 

            Takuanyi commenced this action against respondents Express Messenger Systems, Inc. and Savage (respondents collectively) on May 15, 2001.  The district court set the trial for May 6, 2002, and ordered the parties to complete discovery by January 15, 2002.  On April 2, 2002, the district court granted Takuanyi’smotion for a continuance, reset the trial for June 17, 2002, and ordered Takuanyi to complete discovery by April 30, 2002, and to pay respondents $250 in sanctions for failing to comply with the first scheduling order.  The district court granted a second continuance on May 29, 2002, because Takuanyi’s attorney withdrew as counsel and Takuanyi was not prepared for trial.  The district court continued the trial to August 26, 2002, ordered Takuanyi to pay respondents the previously imposed sanctions of $250 by the trial date, and admonished the parties that “[n]o further continuances shall be allowed.”

            At the pre-trial conference on August 7, Takuanyi moved for a third continuance because his former attorney had not turned over Takuanyi’s files.  The district court stated that, if this were so, the court would address the attorney’s conduct on the trial date.  The district court then denied Takuanyi’s motion for a continuance and ordered Takuanyi to disclose expert witnesses to respondents by August 14. 

            In their August 15, 2002, letter, respondents advised the district court that Takuanyi had not disclosed the witnesses as ordered.  Four days later, respondents received a list of doctors from Takuanyi.  The list includes the names and addresses of doctors who examined Takuanyi but does not provide summaries of their opinions regarding Takuanyi’s injuries. 

            On August 26, Takuanyi did not appear for trial.  Respondents moved for judgment and dismissal of the case with prejudice, which the district court granted.  Takuanyi later moved to vacate the judgment, pursuant to Rule 60.02 of the Minnesota Rules of Civil Procedure, and filed a memorandum in support of the motion with five letters attached.

            On November 21, 2002, at a hearing on the motion, Takuanyi appeared with new counsel and argued that he has a reasonable case on the merits and a reasonable excuse for failing to appear, that he proceeded with due diligence, and that vacating the judgment would not result in any prejudice to respondents.  Takuanyi’s counsel also advised the district court at the hearing that he had retained two expert witnesses to testify as to the injuries Takuanyi sustained in the accident.   

As his excuse for failing to appear for trial, Takuanyi claimed that he arrived on time for trial on August 26, but he must have been in the restroom when the case was called.  When he returned from the restroom, Takuanyi found the courtroom locked.  After waiting 20 minutes, he reported to the judge’s chambers, where he was advised by the law clerk that the case had been dismissed.  Upon hearing this excuse, the district court advised Takuanyi that it was aware that, on the day of trial, Takuanyi gave the law clerk a different excuse, which was that Takuanyi was unable to locate the courtroom.  The district court found that both explanations lacked credibility because (1) they were conflicting, (2) Takuanyi had been to the courtroom several times prior to the date of trial, and (3) the courtroom door was not locked on that morning.  The district court denied Takuanyi’s motion to vacate the judgment.  This appeal followed. 

D E C I S I O N

 

A district court may relieve a party from a final judgment on the basis of mistake, inadvertence, surprise, excusable neglect, or “any other reason justifying relief from the operation of the judgment.”  Minn. R. Civ. P. 60.02.  The decision to grant relief from final judgment rests within the district court’s discretion.  Lund v. Pan Am. Mach. Sales, 405 N.W.2d 550, 552 (Minn. App. 1987). Onappeal from the district court’s decision on a Rule 60.02 motion, we view the record in the light most favorable to the district court’s decision.  Bentonize, Inc. v. Green, 431 N.W.2d 579, 583 (Minn. App. 1988).  Absent a clear abuse of discretion, we will uphold the district court’s decision.  Lund, 405 N.W.2d at 552

The right to relief from final judgment is not absolute.  Id.  A party seeking such relief must demonstrate:

(1) [it has] a reasonable case on the merits, (2) [there is] a reasonable excuse for the failure to act, (3) that it acted with due diligence after notice of the entry of judgment, and (4) that there would be no substantial prejudice to the opposing party if the motion to vacate is granted.

 

Imperial Premium Fin., Inc. v. GK Cab Co., Inc., 603 N.W.2d 853, 857 (Minn. App. 2000) (citing Finden v. Klaas, 268 Minn. 268, 271, 128 N.W.2d 748, 750 (1964)).  While all four of these factors must be satisfied in order to justify relief under Rule 60.02, Charson v. Temple Israel, 419 N.W.2d 488, 491-92 (Minn. 1988); Nelson v. Siebert, 428 N.W.2d 394, 395 (Minn. 1988), a strong showing on some factors may offset a relatively weak showing on others.  Armstrong v. Heckman, 409 N.W.2d 27, 29 (Minn. App. 1987), review denied (Minn. Sept. 18, 1987).  A liberal application of these factors is favored to further the policy of resolving cases on their merits.  Kemmerer v. State Farm Ins. Cos., 513 N.W.2d 838, 841 (Minn. App. 1994), review denied (Minn. June 2, 1994).

A.         A Reasonable Case on the Merits

Before relief is properly granted under Rule 60.02, the moving party must “establish to the satisfaction of the court that it possesses a meritorious claim.”  Imperial, 603 N.W.2d at 857 (quoting Charson, 419 N.W.2d at 491).  Respondents argue that, based on the pretrial discovery, Takuanyi failed to present even a prima facie case on his claims.  Takuanyi counters that, although he could not afford to retain experts previously, he now “can and will” retain the necessary expert witnesses.  At the hearing, Takuanyi sought leave to submit written expert reports.  Yet, in response to the district court’s inquiry, Takuanyi’s counsel could not explain why these reports were not available at the hearing.  The district court did not find credible Takuanyi’s claim to have retained experts.   

Takuanyi failed to comply with the district court’s order to disclose his witnesses by August 14, 2002.  The record contains an “M.D. Disclosure” list dated August 15, 2002.  In addition, letters of physicians were attached to Takuanyi’s memorandum in support of the motion to vacate the judgment.  Of the physicians disclosed on August 15, 2002, only two submitted letters.  One letter describes injuries from two accidents involving Takuanyi that occurred subsequent to the accident at issue here.  The other letter does not link the symptoms Takuanyi described to the accident.  Our review of the record establishes that Takuanyi failed to demonstrate that he possesses a meritorious claim.  

B.          Reasonable Excuse for Failure to Act

“It is for the [district] court to determine whether the excuse offered by a defaulting party is reasonable.”  Howard v. Frondell, 387 N.W.2d 205, 208 (Minn. App. 1986), review denied (Minn. July 31, 1986).  The district court found that Takuanyi’s excuses—that the door to the courtroom was locked and that he could not find the courtroom—were unfounded.  In reaching this conclusion, the district court noted that, on the trial date, numerous people, including the judge, were able to go to and from the courtroom and that Takuanyi had been to that courtroom on several prior occasions.  

The district court’s finding as to this factor is based on a credibility determination, to which we defer.  Straus v. Straus, 254 Minn. 234, 235, 94 N.W.2d 679, 680 (1959).  Thus, we conclude that the record supports the district court’s determination as to this factor. 

C.        Due Diligence

A motion to vacate must be made within a reasonable time, and not more than one year after the judgment or order.  Minn. R. Civ. P. 60.02.  What constitutes a reasonable time varies with the circumstances of each case and is determined by the district court in the exercise of its discretionary power.  Hovelson v. U.S. Swim & Fitness, Inc., 450 N.W.2d 137, 142 (Minn. App. 1990), review denied (Minn. Mar. 16, 1990).  The district court found that Takuanyi’s motion was timely, and the record supports this determination. 

D.        Absence of Prejudice to Non-moving Party

The party seeking to vacate a judgment has the burden of establishing that no substantial prejudice will result to the other parties.  Nelson, 428 N.W.2d at 395.  In the context of Rule 60.02, the distress, delay, and expense of additional litigation, without more, do not create sufficient prejudice to defeat a motion to vacate.  Charson, 419 N.W.2d at 491-92; Finden,268 Minn. at 272, 128 N.W.2d at 751 (concluding that insufficient prejudice established by delay and added expense incurred by reason of the default proceedings, “coupled with the inconvenience and distress understandably caused by an adversary who changes his position from an attitude of conciliation and negotiation to an attitude of resistance”).  We have held that substantial prejudice existed where a key witness had died and, as a result of relying on the judgment against a third party, the party opposing the motion confessed judgment and forfeited the right to contest liability.  Imperial, 603 N.W.2d at 859. 

Here, the district court found:

With regard however to lack of prejudice on the opposing party, all I can say is that [respondent] has been here every time he is supposed to be here.  He has been ready to go every time he is supposed to be ready to go, which means he keeps preparing this case and getting ready for this case just to have Mr. Takuanyi delay it further.  And [Mr. Takuanyi] has not provided [respondents] with the expert medical opinions he is suppose to provide.  He has not provided them with the discovery he is supposed to provide.  He has prejudiced in my opinion [respondents’] ability to proceed with the defense of this case.

 

The prejudice established here by Takuanyi’s failure to appear is akin to the insufficient prejudice shown in Finden, which was due to delay and inconvenience.  Unlike Imperial, there is no evidence that respondents relied on the judgment to their detriment or that critical evidence is no longer available because of the delay.  Takuanyi’s failure to comply with his discovery obligations is more probative of whether he has a reasonable case on the merits than whether substantial prejudice would result from vacating the judgment. 

Takuanyi, however, has demonstrated only two of four factors necessary to prevail on a motion for relief from judgment. The record supports the district court’s credibility and factual determinations as to the absence of a reasonable excuse for failing to appear for trial on August 26 and the absence of a reasonable case on the merits.  Accordingly, the district court did not abuse its discretion in denying Takuanyi’s motion to vacate the judgment.

Affirmed.