This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §. 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-96-1275

Heidi Reidell,

Appellant,

vs.

Royal Bank of Jamaica,

Limited, et al.,

Respondents.

Filed December 10, 1996

Affirmed

Foley, Judge

[*]

Hennepin County District Court

File No. 768152

Heidi Reidell, c/o A. Hill, 5861 Creek Valley Road, Edina, MN 55439 (Appellant Pro Se)

Ben Campbell, Rider, Bennett, Egan and Arundel, 2000 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for Respondents)

Considered and decided by Kalitowski, Presiding Judge, Toussaint, Chief, and Foley, Judge.

U N P U B L I S H E D O P I N I O N

FOLEY, Judge

We affirm the trial court's order dismissing appellant's claim, which she originally brought in 1980, for failure to prosecute under Minn. R. Civ. Pro. 41.02(a).

FACTS

In 1978, appellant Heidi Reidell invested in a country club and golf course in Jamaica with three others. To secure her contribution, appellant pledged a $12,500 saving certificate from a Minnesota bank as collateral to obtain a line of credit with respondent Royal Bank of Jamaica, Limited. The country club's corporate account with respondent soon incurred a $100,000 debt, and two partners disappeared. Respondent applied appellant's saving certificate toward the debt.

Appellant brought claims against respondent in both Minnesota and Jamaica, alleging fraud and unauthorized transactions. In 1982, the Minnesota trial court denied respondent's motion for summary judgment and granted a discovery motion brought by appellant. Although respondent did not raise a conflicts of law argument, the trial court expressed doubts about the application of Minnesota law and noted that it considered Jamaica a more appropriate jurisdiction. In 1983, appellant's attorney withdrew as counsel. The Board of Professional Responsibility subsequently admonished the attorney in response to a complaint brought by appellant.

Between 1983 and 1993, the court file remained dormant. In 1986, respondent terminated its relationship with its law firm, and after waiting five years, the firm destroyed the case file. In 1993, appellant sent the court an update letter. Appellant apparently retained new counsel in 1986, but the court did not become aware of the representation until the attorney filed a substitution of counsel in 1995, indicating that appellant would proceed pro se.

In 1995, appellant scheduled a hearing on the matter, her first affirmative action on the case in twelve years. After appellant brought a motion for summary judgment, respondent brought a motion to dismiss for failure to prosecute. The trial court granted respondent's motion, finding that appellant had unreasonably delayed the case by taking no action on the matter for twelve years. It noted that at least two attorneys had represented appellant, that the case was "now impossible to defend" because respondent's counsel had destroyed its files, and that Jamaica provided her with a forum in which to litigate. The Jamaica case apparently is no longer pending. This appeal followed.

D E C I S I O N

An involuntary dismissal for failure to prosecute lies within the sound discretion of the trial court, and we will only reverse such a dismissal for an abuse of discretion. Bonhiver v. Fugelso, Porter, Simich & Whiteman, Inc., 355 N.W.2d 138, 144 (Minn. 1984). We review the record in the light most favorable to the trial court. Dvoracek v. Lovely, 366 N.W.2d 391, 393 (Minn. App. 1985).

A court may "dismiss an action or claim for failure to prosecute" upon its own initiative or upon the motion of a party. Minn. R. Civ. P. 41.02(a). Before a court may dismiss a claim for failure to prosecute, it must find that the delay prejudiced the defendants and that the delay was unreasonable and inexcusable. Bonhiver, 355 N.W.2d at 144.

The twelve-year delay in this case exceeds the length of delays in other cases where Minnesota courts have found the delays "unreasonable." State v. St. Paul Fire & Marine Ins. Co., 434 N.W.2d 6, 8 (Minn. App. 1989) (seven-year delay), review denied (Minn. Mar. 17, 1989); Ryan v. Ballentine VFW Post No. 246, 407 N.W.2d 105, 108-09 (Minn. App. 1987) (nine years); Dorenkemper v. City of Eden Prairie, 394 N.W.2d 546, 548-49 (Minn. App. 1986) (eight years), review denied (Minn. Dec. 12, 1986); Belton v. City of Minneapolis, 393 N.W.2d 244, 246 (Minn. App. 1986) (six years), review denied (Minn. Nov. 19, 1986); Copeland v. Bragge, 378 N.W.2d 35, 38-39 (Minn. App. 1985) (nine years); Dvoracek, 366 N.W.2d at 394 (eight years). Thus, this case rests on whether appellant has provided adequate explanation to excuse the delay and whether the delay has prejudiced respondent.

Appellant contends that respondent created the lengthy delay because it did not comply with appellant's 1982 discovery requests and that she relied on the trial court's declaration in 1982 that it considered Jamaica a more appropriate jurisdiction. Although respondent's apparent failure to satisfy the discovery requests and the trial court's statements offer some explanation regarding appellant's inability to resolve her claim, appellant did nothing to pursue these requests for twelve years. Furthermore, appellant had no contact with the trial court between 1983 and 1993. While respondent's conduct and the trial court's statement may justify part of the delay, they do not excuse the entire twelve-year period of dormancy.

Appellant next asserts that her ineffective counsel contributed to the delay. A court reluctantly should penalize a party for a delay primarily attributable to its attorney. Scherer v. Hanson, 270 N.W.2d 23, 25 (Minn. 1978) (per curiam); see Firoved v. General Motors Corp., 277 Minn. 278, 284-86, 152 N.W.2d 364, 369-70 (1967) (reversing dismissal for failure to prosecute where plaintiff's Minnesota counsel unexpectedly withdrew and his out-of-state counsel could neither try the case nor find substitute counsel). The record, however, must establish that the attorney's delinquency, not the client's own lack of diligence, caused the delay. Ryan, 407 N.W.2d at 109; Copeland, 378 N.W.2d at 39; Dvoracek, 366 N.W.2d at 394; Housing & Redev. Auth. v. Kotlar, 352 N.W.2d 497, 500 (Minn. App. 1984). In particular, Minnesota courts have excused delays where clients regularly contacted their attorneys. Scherer, 270 N.W.2d at 25 (seven year delay); Peters v. Waters Instruments, Inc., 312 Minn. 152, 155-57, 251 N.W.2d 114, 116-17 (1977) (per curiam) (six years); Ed H. Anderson Co. v. A.P.I., Inc., 411 N.W.2d 254, 256-57 (Minn. App. 1987) (eight years). The record does not indicate that appellant maintained regular contact with her attorneys in an effort to prosecute her claim during this twelve-year period.

Appellant also cites her first attorney's misconduct and, to a lesser degree, her legal inexperience to justify the delay. While appellant did file a complaint that led to the admonishment of her first attorney, the pursuit of an action against a former attorney does not excuse a party's neglect of the underlying claim. Dorenkemper, 394 N.W.2d at 548-49 (finding that plaintiff's successful malpractice litigation against his original attorneys, which lasted four years, did not excuse eight-year delay). Furthermore, pro se status does not excuse a delay where the party's own lack of diligence, not a lack of counsel, caused the delay. Ryan, 407 N.W.2d at 109. Thus, the attorney's misconduct and appellant's inexperience do not excuse the twelve-year delay because appellant made little effort to bring the case to a resolution. We conclude that appellant's circumstances do not excuse the unreasonable delay.

While appellant did not address the prejudice issue, we examine the record to determine whether the trial court abused its discretion in finding that the delay prejudiced respondent. Although a court may not base prejudice on either the mere fact of the delay or the ordinary expense and inconvenience of defending a claim, the loss of a file may support a finding of prejudice. Dorenkemper, 394 N.W.2d at 548. Moreover, a court may consider appellant's failure to offer a reasonable excuse for unnecessary delay as prejudicial. Ryan, 407 N.W.2d at 108. After many years of unnecessary delay, "the need to search for identifiable and concrete examples of prejudice diminishes." Belton, 393 N.W.2d at 246. In this case, the trial court cited at least one "identifiable and concrete" example of prejudice, the destruction of the law firm's file. Furthermore, appellant has not provided a reasonable excuse for this delay. Therefore, the trial court acted within its discretion in finding that the lost file and the unreasonably long delay sufficiently prejudiced respondent to warrant a dismissal for failure to prosecute.

Reviewing the record in the light most favorable to the trial court, we conclude that the trial court did not abuse its discretion when it granted respondent's motion to dismiss for failure to prosecute. This case has been in the courts for some sixteen years, and it is time to give it a formal burial.

Affirmed.

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