This opinion will be unpublished and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

A03-1312

 

 

Lisa Formo,

Appellant,

 

vs.

 

Scott Formo,

Respondent.

 

 

Filed April 13, 2004

Affirmed; motions denied
Klaphake, Judge

 

Pope County District Court

File No. C7-99-58

 

 

DeAnna M. McCashin, Schoep & McCashin, Chtd., 1321 Broadway, Suite 100, P.O. Box 909, Alexandria, MN  56308 (for appellant)

 

Lee L. Labore, Steven L. Viltoft, LaBore, Giuliani, Cosgriff & Viltoft, 10285 Yellow Circle Drive, P.O. Box 70, Hopkins, MN  55343-0070 (for respondent)

 

 

            Considered and decided by Klaphake, Presiding Judge, Harten, Judge, and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Lisa Formo sued her husband, respondent Scott Formo, for personal injuries she received in an automobile accident in which she was the passenger and he was the driver.  The accident occurred in October 1992, when respondent rear-ended another vehicle that had slowed suddenly in front of him while he was changing lanes on the interstate.

            At the end of the first trial in March 2000, the jury returned a verdict finding that appellant sustained $65,000 in damages but that respondent was not negligent.  Appellant thereafter moved for judgment notwithstanding the verdict (JNOV) on the issue of liability or, in the alternative, a new trial on all issues.  The district court granted JNOV and ordered judgment on the jury’s $65,000 verdict.  Upon reconsideration, however, the court determined that it had erred in granting JNOV because “this case was not one, as the Court had previously concluded, where reasonable minds could reach only one conclusion, which was against the jury’s verdict.”  The district court ordered a new trial on all issues.

            Following a second trial in May and June 2001, the jury again found that respondent was not negligent and that appellant’s damages were only $6,650.  On appeal, this court affirmed the judgment and the district court’s denial of appellant’s post-trial motions.  See Formo v. Formo, 2002 WL 1968562, C4-01-2001 (Minn. App. Aug. 19, 2002), review denied (Minn. Oct. 29, 2002) (Formo I).

            In April 2003, appellant brought a motion for sanctions against respondent’s attorneys and against State Farm, respondent’s insurance company.  Claiming newly discovered evidence and fraud, she also brought a motion for relief under Minn. R. Civ. P. 60.02 and Minn. Stat. § 548.14 (2002).  Respondent moved for sanctions against appellant and her attorney.

            The district court denied appellant’s motions and granted respondent’s motion for sanctions, awarding his first attorney $2,260 and his current attorney $1,650.  On appeal, appellant contends that the district court erred or abused its discretion by (1) denying her motion to reinstate JNOV and order judgment on the first jury verdict, which found she sustained $65,000 in damages; (2) denying her motion for sanctions against respondent’s attorneys and State Farm; and (3) imposing sanctions against appellant and her attorney.[1]  Respondent filed motions to strike and for attorney fees, which were deferred to this panel.

            Because appellant failed to show that she is entitled to relief under Minn. R. Civ. P. 60.02 or Minn. Stat. § 548.14, and because the district court did not abuse its discretion by awarding sanctions against appellant, we affirm the court’s decisions.  Because respondent seeks to strike materials that were part of the district court record and because additional bad faith attorney fees are not warranted at this point, we deny respondent’s motions on appeal.

 

D E C I S I O N

I.

            Appellant moved to reinstate the district court’s grant of JNOV on the first jury verdict and to “instate” the jury’s finding that she sustained damages of $65,000.  She claimed that she was entitled to this relief due to newly discovered evidence in the form of documents prepared by State Farm investigators, who opined that respondent was 100% at fault.  Appellant also alleged fraud on the part of respondents’ attorneys, who failed to disclose a written statement signed by the driver of the other vehicle involved in the 1992 accident.

            Appellant first sought to set aside the judgment under Minn. R. Civ. P. 60.02(a) (mistake, inadvertence, surprise), (b) (newly discovered evidence), and (c) (fraud).  The district court determined that appellant’s rule 60.02 motion was time-barred because not brought within one year of entry of final judgment.  Rule 60.02 requires motions under (a), (b), or (c) to be brought within one year from the date judgment was entered.  Here, judgment was entered following the second trial on October 25, 2001.  Although an appeal was taken, the pendency of an appeal generally “does not extend the one year limit unless the ruling of the appellate court results in a substantive change in the judgment.”  2A David F. Herr & Roger S. Haydock, Minnesota Practice § 60.26, at 29 (1998).  We therefore affirm the district court’s denial of appellant’s motion to set aside the judgment under rule 60.02.

            Appellant’s motion also sought to set aside the judgment under Minn. Stat. § 548.14 (2002) (allowing party aggrieved by judgment procured by “perjury, subornation of perjury, or any fraudulent act, practice, or representation” to bring action within three years after discovery of such perjury or fraud).  For several reasons, appellant’s request for relief under this statute is inappropriate.

            First, by its terms, this statute plainly contemplates a separate action to set aside a judgment.  See Minn. Stat. § 548.14 (stating any judgment obtained by fraud may be set aside in an action brought for that purpose by the aggrieved party).  Because this is not a separate action, but merely an attempt to reopen and continue the underlying tort action, relief under Minn. Stat. § 548.14 is not available to appellant. 

            Next, appellant fails to show that her motion was brought within three years after “discovery” of the fraud.  Minn. Stat. § 548.14 is not designed to excuse a party from exercising due diligence in preparing for trial or in moving for a new trial on the ground of surprise or newly discovered evidence.  See Betcher v. Midland Nat’l Bank, 167 Minn. 484, 485, 209 N.W. 325, 326 (1926) (stating that statute not designed to give retrial of same issues tried and determined in original action).  Nor is it designed to allow a party a second opportunity to challenge a jury verdict or a district court’s denial of post-trial motions.

            The instances of fraud cited by appellant tend to involve facts that she knew, information that she could have obtained with due diligence, or claims that she has already raised.  In particular, appellant claims that respondent and his attorneys committed fraud when they failed to disclose the opinions of State Farm adjusters that respondent was 100% at fault and the contents of a statement by the other driver.  While this information might have been helpful to appellant, it involves information that she already knew or that she could have obtained with due diligence.

            Other instances of fraud cited by appellant have already been addressed and rejected by the district court and by this court.  In appellant’s first post-trial motion, she alleged that respondent had been suborned by his first attorney to perjure himself at trial.  The district court essentially agreed with her claim, and she was eventually given the alternative relief she requested:  a new trial on all issues.  Following the second trial, appellant again brought post-trial motions, based in part on allegedly unfair conduct by respondent’s attorneys.  These motions were denied by the district court, and this court affirmed the district court’s decision in Formo I.

            Appellant also alleged that State Farm has engaged in unfair insurance practices and that a “collusive and fraudulent relationship” existed between State Farm and the attorneys who represented her prior to 1996, when she retained her current attorney.  These issues, too, have been raised before by appellant and rejected by the district court; this court affirmed those decisions in Formo I.

            Because appellant has failed to provide any basis upon which the district court might have granted her relief under rule 60.02 or Minn. Stat. § 548.14, we affirm the district court’s denial of her motion to set aside the judgment.

II.

            The district court denied appellant’s request for sanctions against respondent’s attorneys and granted respondent’s motions for sanctions under Minn. R. Civ. P. 11.  The court concluded that it could not find that either of respondent’s attorneys acted in bad faith, but that “[t]he same cannot be said about [appellant] and her counsel.”  The court determined that by “continuing to raise the same issues dressed in a different coat, [appellant] and her counsel [have been] acting in bad faith.”

            On review of an award or denial of bad-faith sanctions, we consider whether the district court abused its discretion.  Uselman v. Uselman, 464 N.W.2d 130, 145 (Minn. 1990).  Because the issues currently raised by appellant have all been addressed before, in various forms and forums, and because, as the district court concluded, it is time for this case to be over, we cannot conclude that the district court abused its discretion in awarding sanctions against appellant and her attorney.  The award reflects a reasonable correlation between the amount of sanctions imposed, expenses incurred by respondent in defending against appellant’s unfounded claims, and the basis for the court’s imposition of sanctions.  See Mears Park Holding Corp. v. Morse/Diesel, Inc., 426 N.W.2d 214, 219-220 (Minn. App. 1988).

III.

            On appeal, respondent moves to strike a number of documents that were submitted by appellant’s attorney to the district court in connection with her motions.  He argues that these documents show an obvious intent on the part of appellant’s counsel to broaden the scope of this appeal, by slipping inflammatory and hearsay documents into the record.  Even if true, these documents are part of the record and were considered by the district court.  See Minn. R. Civ. App. P. 110.01 (record on appeal consists of papers filed in trial court).  Because respondent objects to documents and arguments that were made to the district court, we deny his motion to strike.

            Respondent finally moves for bad-faith attorney fees on appeal.  Because we do not believe that additional sanctions are warranted at this point, we deny respondent’s motion.

            Affirmed; motions denied.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

 

[1] Appellant and respondent’s first attorney stipulated to dismiss that part of her appeal relating to assessment of sanctions against her and in favor of the first attorney.  By order dated December 10, 2003, this court dismissed that part of the appeal.