This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
James G. Peirce,
Melanie D. Peirce,
Homecomings Financial Network, Inc., et al.,
Homecomings Financial Network, Inc.,
John Doe, et al.,
Filed July 5, 2005
LeSueur County District Court
File No. C1-03-1185
James G. Peirce, Melanie D.
Lawrence P. Zielke, Sharpiro
& Nordmeyer, L.L.P.,
Considered and decided by Stoneburner, Presiding Judge; Hudson, Judge; and Dietzen, Judge.
U N P U B L I S H E D O P I N I O N
On February 18, 2004, pro se
appellants James and Melanie Peirce filed a complaint against Homecomings,
Shapiro & Nordmeyer, LLP (Shapiro)
and Lawrence P. Zielke (Zielke),
alleging violations of Minnesota statutes for foreclosure by advertisement,
illegal foreclosure, breach of contract, violation of the federal fair-debt-collection-practices
act, violations of the truth-in-lending law, and fraud upon the court. Homecomings, Shapiro, and Zielke answered and
service was completed by mail on January 30, 2004. On April 20, 2004, appellants filed an “Amended
Complaint and Joinder of Party,” which was identical to the original complaint
Respondents moved the district court
to dismiss appellants’ amended complaint against
On August 9, 2004, respondents brought an eviction action against appellants. On September 2, 2004, the district court granted summary judgment in favor of respondents. Appellants challenge the judgments entered on both the district court’s orders regarding appellants’ lawsuit following the mortgage foreclosure and respondents’ eviction action. This court consolidated the appeals.
Additionally, we conclude that appellants
have not fully briefed their argument that the district court weighed evidence
on summary judgment. Appellants merely
allege that the district court “decided factual issues in its order of
September 2, 2004,” and fail to articulate the specific factual issues that the
district court allegedly weighed. Therefore, appellants have waived this
argument. See Melina v. Chaplin,
327 N.W.2d 19, 20 (
Accordingly, the district court did not err by granting summary judgment in its June 30, 2004 and September 2, 2004 orders.
Appellants argue that the district court abused its discretion by denying appellants’ motion to compel discovery and by granting summary judgment in its June 30, 2004 order before appellants could complete discovery.
The district court has considerable
discretion regarding discovery, and absent an abuse of that discretion, this
court will not reverse the district court’s decision regarding whether to
compel discovery. Shetka v. Kueppers,
Kueppers, Von Feldt & Salmen,
454 N.W.2d 916, 921 (
In its memorandum in support of its order denying appellants’ motion to compel discovery, the district court explained: (1) respondents Homecomings, Shapiro, and Zielke made a good faith effort to respond to appellant’s discovery requests; (2) appellants requested documents that are either already in their possession, are a matter of public record, or simply do not exist; and (3) Fairbanks has no obligation to provide discovery because appellants never completed service of process nor requested discovery from Fairbanks.
Appellants argue that the district court erroneously failed to “compel the respondents to produce the documents that prove that they had the rights to foreclose the mortgage.” But appellants fail to specify what additional discovery they sought. Therefore, appellants have not shown that the district court abused its discretion in denying appellants’ motion to compel discovery or by granting summary judgment when it did.
Appellants argue that the district
court violated their due process rights by failing to join
The district court granted respondents’ motion to dismiss appellants’ amended complaint against Fairbanks, explaining that it assumed that appellants intended to join Fairbanks by submitting an “Amended Complaint Joinder of Party” that was identical to their original complaint except that Fairbanks was named as a defendant. The district court explained that appellants did not comply with the Minnesota Rules of Civil Procedure regarding amendment of pleadings, joinder of parties, or service of process.
Appellants argue that they properly
Appellants’ arguments lack merit. First, attempting service of process through the office of the Minnesota Secretary of State does not guarantee that service is sufficient. Indeed, the Secretary of State “Service of Process Acknowledgement” that appellants cite states, “The Office of the Secretary of State does not determine or attempt to determine if your service of process is valid.” Further, this document states, “Substituted service of process through the Office of the Secretary of State does not guarantee that the service will be sufficient and permit a court to obtain or accept jurisdiction over the business entity against whom service is made.”
Here, appellants do not allege that they satisfied Minn. R.
Civ. P. 4.03(c), personal service upon a corporation. Further, appellants did not satisfy Minn. R.
Civ. P. 4.05, service by mail, because they did not file an affidavit of
Finally, appellants argue that the
district court erred by “precluding the appellants from bringing any action
Appellants argue that the district
court violated their due process rights by denying their motion to take
mandatory judicial notice of 57 facts. Appellants
assert that they brought “a mandatory judicial notice under MN statue (sic)
559.04 and MN Rules of Civ. Pro. Rule 201 (d), (e) & (f).” But the statute that appellants cite does not
address judicial notice. See
Minn. Stat. § 559.04 (2004) (addressing joinder of claimants under a common
grantor). Additionally, “MN Rules of
Civ. Pro. Rule 201” does not exist. We
presume appellants meant to cite Minn. R. Evid. 201, which governs judicial
notice of adjudicative facts in civil cases.
The district court presumed that appellants submitted the 57 facts in an effort to defeat respondents’ summary judgment motion. In refusing to take judicial notice, the district court explained:
[T]his Court will summarize the document as containing dozens of factual assertions, most of which are not disputed by [respondents] and therefore do not constitute “issues” of material fact to be preserved for trial. The document also includes many facts that, if true and disputed, would not constitute “material” facts to be preserved for trial. The remaining assertions are again conclusory statements and are not appropriate for consideration on a summary judgment motion.
After reviewing the 57 facts, we conclude that the district court did not abuse its discretion in refusing to take judicial notice.
Finally, appellants argue that the district court erred by denying their motion for declaratory judgment. Appellants argue that the district court should have vacated the mortgage foreclosure because “Homecomings did not have legal authority to foreclose the mortgage.”
Here, appellants make the same argument regarding Homecomings’ purported lack of authority to foreclose the mortgage that they make in their challenge to the district court’s grant of summary judgment. Thus, for the same reasons that the district court did not err by granting summary judgment, the district court did not err by not granting appellants’ motion for a declaratory judgment.