This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. sec. 480A.08, subd. 3 (1994).


Kimberly Ann Mielke,


Colleen May Nelson,

Filed September 10, 1996
Randall, Judge

Morrison County District Court
File No. C9-95-000992

John D. Hanson, Nelson, Hanson, Personal Injury Attorneys, First Bank Place, 1010 West St. Germain Street, Suite 440, St. Cloud, MN 56301 (for Appellant).

Dyan J. Ebert, Quinlivan, Sherwood, Spellacy, Tarvestad, P.A., 600 Norwest Center, Box 1008, St. Cloud, MN 56302 (for Respondent).

Considered and decided by Parker, Presiding Judge, Randall, Judge, and Schultz, Judge. 1


Appellant challenges the trial court's order granting respondent's motion to vacate a conciliation court judgement. We affirm.

On April 6, 1993, respondent Kimberly Ann Mielke (f/k/a Kimberly Ann Langer) was involved in an automobile accident with appellant Colleen May Nelson. Appellant hit respondent's vehicle as respondent was attempting to cross U.S. Highway 10 near Cushing, Minnesota.
The vehicle driven by respondent was registered in the name of her father Wesley Murrell. On May 5, Murrell filed a conciliation court action in both his name and his daughter's name (respondent) against appellant for property damage. The conciliation court hearing was held on May 24, 1993. Appellant admitted her negligence. The trial court entered judgment against appellant in the amount of $3,553.23.
On August 19, 1993, respondent consulted with the Gempeler Law Firm. On August 24, respondent received a letter from the law firm confirming her retention of the firm to represent her in a personal injury action against appellant.
Respondent began receiving medical treatment for her injuries sometime around the date of the conciliation court hearing. On October 27, 1993, she had her first visit with Dr. John Stark of the Metropolitan Spine Group in Minneapolis. By November 15, 1993, respondent had incurred medical expenses in the amount of $3,421.51. This figure reached $4,707.57 by January 17, 1994. On March 15, 1995, Dr. Stark determined that respondent had sustained permanent injuries to her lower back as a result of the accident.
On September 6, 1995, pursuant to Minnesota Rule of Civil Procedure 60.02, respondent moved the district court for an order vacating the conciliation court judgment so she could pursue a personal injury action against appellant without risking dismissal on the grounds of res judicata . Appellant opposed the motion as untimely and inappropriate. The district court granted respondent's motion and vacated the conciliation court judgment pursuant to Minn. R. Civ. Pro. 60.02 (f) (1994).
Appellant argues the trial court abused its discretion when it granted respondent's motion because it should have been brought under clause (a) rather than clause (f) and therefore, is untimely under the one year requirement governing clause (a). Alternatively, appellant argues that even if properly brought under clause (f), respondent's motion was not brought within a reasonable time.

Rule 60.02 provides, in relevant part:
On motion and upon such terms as are just, the court may relieve a party or the party's legal representatives from a final judgment (other than a marriage dissolution decree), order, or proceeding and may order a new trial or grant such other relief as may be just for the following reasons:

(a) Mistake, inadvertence, surprise, or excusable neglect;

The motion shall be made within a reasonable time, and for reasons (a), (b), and (c) not more than 1 year after the judgment, order, or proceeding was entered or taken.

Minn. R. Civ. P. 60.02. Generally, relief may not be granted under clause (f) of Rule 60.02 when the grounds for granting the motion properly fall under clauses (a), (b), or (c) of the rule. Sommers v. Thomas , 251 Minn. 461, 466-67, 88 N.W.2d 191, 195 (1958); Haukland v. Peterson , 396 N.W.2d 79, 80-81 (Minn. App. 1986), review denied (Minn. Jan. 16, 1987).
Appellant argues vigorously that respondent, as a named plaintiff to the conciliation court action, 2 was part of the judgment and is therefore bound by the judgment. Appellant claims that respondent may not now split her cause of action between conciliation court and district court. We disagree. Kimberly Langer Mielke had no cause of action to split.
First, the mere fact that respondent's father, as the car owner, chose to join his daughter, the driver, as a plaintiff in a property damage conciliation court lawsuit is not binding on this court. On appellate review, we do a de novo review of a question of law. The legal issue is not confined simply to what names did Wesley Murrell, acting pro se, put on a conciliation court face sheet. We note that Wesley Murrell only, not Kimberly Langer (respondent Mielke), signed the face sheet indicating who the parties were. As proof of the inadequacy of a pro se-drawn conciliation court complaint, for the purposes of identifying the real parties in issue, we take judicial notice that all of the named defendants except Colleen May Nelson are not a part of the case, could not be sued, and the court and the parties conducted the property damage lawsuit purely as an action between Wesley Murrell, for damage to his car, and appellant Nelson, the other driver. We can only speculate that Wesley Murrell sued a bank, an insurance agency, and an insurance company to be sure that somehow the bank with the lien on his car, and the liability/collision carrier(s) involved got him his money. His view of who he thought he needed to name as a party defendant has nothing to do with the case.
The legal issue is simply whether respondent Mielke improperly split a cause of action and is now barred from pursuing her personal injury case. We conclude she did not. No in-depth analysis of Rule 60.02 is needed. Respondent Mielke had no cause of action in this conciliation court dispute. Thus, she had nothing to split.
Appellant cites to Mattsen v. Packman , 358 N.W.2d 48 (Minn. 1984), in which the supreme court stated that the general rule prohibiting a plaintiff from splitting a cause of action applies to conciliation court proceedings. The Mattsen court held that a party may not first obtain a judgment in conciliation court and then bring a second similar suit in district court. However, the Mattsen court did indicate that in certain instances, the res judicata effects of an earlier conciliation court judgment could be avoided. The court stated:
This is not to say that a party who is excusably ignorant of the effect of a judgment should have no remedy. Relief may be had for cause; the judgment may be re-opened through proceedings to vacate pursuant to Rule 60.02, Minn. R. Civ. P., or, when appropriate, by an independent action to set aside the judgment.

Id. at 50.
In Jorissen v. Miller , 399 N.W.2d 82 (Minn. 1987), which respondent argues is controlling, the supreme court articulated an exception to the rule laid down in Mattsen . In that case, plaintiff moved to vacate a conciliation court judgment nearly 13 months after it was satisfied. The supreme court affirmed the trial court's order vacating the conciliation court judgment, noting that at the time of the conciliation court proceeding, plaintiff was not represented by counsel, he was unaware of such legal concepts as tort thresholds or the rules against splitting causes of actions, and that, even if plaintiff knew the extent of his injuries, he had not met the tort threshold amount. Id. at 84.
Respondent claims this case falls squarely within Jorissen . We conclude it does not. Respondent prevails, but for other reasons. Jorissen is totally distinguishable. Here, unlike Jorissen , respondent knew of her injuries, had retained counsel to represent her in a personal injury lawsuit, and had satisfied her tort threshold, all several months before the one year was up . Respondent, through her counsel, had more than enough time to bring her motion within the one year. See Lemkau v. Fout , 385 N.W.2d 418 (Minn. App. 1986) (it was not impossible for plaintiff to comply with the one-year requirement where it was apparent plaintiff was represented by counsel and had reached the tort threshold within the one year following entry of the conciliation court judgment), review denied (Minn. Jul. 16, 1986).
The surface facts of this case are far closer to Mattsen than to Jorissen . But, unlike Mattsen and its progeny, this is not a case where a plaintiff is attempting to split a cause of action. Here, respondent's father was the plaintiff and sued for the property damage to his vehicle. He was the registered owner of the vehicle and nothing in the record indicates otherwise. Following the accident he sued in conciliation court to recover the damages to his car, including repairs, towing costs, and one month's car rental. He received payment for the full judgment amount and used that money to make repairs to his car. Respondent, on the other hand, was no more than a witness in this conciliation court case. She had no cause of action for the damages to the car arising from the accident. The right to sue for those property damages belonged solely to her father, Wesley Murrell.
Appellant's attorney repeatedly points to the small claims court face sheet as an argument that Wesley Murrell and Kimberly Langer (respondent Mielke) are co-plaintiffs and therefore, since she did not bring her personal injury lawsuit at that time, she can no longer split her cause of action.
As stated before, we are not required to rely on Wesley Murrell's pro se interpretation of who was a plaintiff in this lawsuit and who was a defendant. Murrell properly named the other driver, Colleen Nelson, but then went on to also name an insurance agency, an insurance company, and the Randall State Bank. The agency, the insurance company, and the bank have nothing to do with this lawsuit other than that there was insurance on the vehicles and a loan. The fact that Wesley Murrell sued the bank that had loaned him the money to buy the car does not mean that the bank is a real defendant. Neither the insurance agency, the insurance company, nor the bank made an appearance on the record and they were, properly so, ignored in this lawsuit.
We disagree with appellant's attorneys that since Mielke was a named plaintiff, she is now bound by her "win" in small claims court. She won nothing because she had nothing to sue for. Her father properly sued for the property damage to his car, he won, and he collected.
Because respondent had no cause of action in conciliation court, she has nothing now to be concerned about splitting in district court. We understand respondent's desire to avoid the anticipated defense of res judicata , and thus, respondent's insistence that Jorissen is controlling. Jorissen is not, nor is Mattsen . But respondent is not required to defeat res judicata . There is no res judicata here. When she brings her personal injury lawsuit, it will be her first. Respondent has the standard six years to bring this personal injury
lawsuit. See Minn. Stat. § 541.05 (1994) (an action for personal injuries shall be commenced within six years).
Affirmed .

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

2 The conciliation court face sheet reads essentially as follows:

Plaintiff #1 Plaintiff #2
Wesley F. Murrell Kimberly Langer
717 9th St. N.E. 717 9th St. N.E.
Little Falls, MN 56345 Little Falls, MN 56345

Defendant #1 Defendant #2
Colleen May Nelson Randall St. Ins. Agency
Rt. 1 Box 165-1 Randall State Bank
Randall, MN 56475 Randall, MN 56475

Minnesota Mutual Ins. Co.
P.O. Box 1233
Mpls., MN