This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-96-1377

James C. Isaacson, a/k/a

James Isaacson,

Respondent,

vs.

Reginald C. Runingen, et al.,

Defendants,

Dick J. Fingerholz,

Appellant.

Filed February 11, 1997

Affirmed

Harten, Judge

Pine County District Court

File No. C4-94-1159

Rhonda Marie Swanson, Spear & Swanson Law Office, 615 Third Avenue West, Pine City, MN 55063 (for Respondent)

Dick J. Fingerholz, 2108 Douglynn Lane, St. Paul, MN 55119 (Pro Se Appellant)

Considered and decided by Harten, Presiding Judge, Crippen, Judge, and Kalitowski, Judge.

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

HARTEN, Judge

Appellant Dick J. Fingerholz challenges the district court's denial of his motion to vacate a judgment. Appellant alleges (1) that because of his adverse possession claim, he meets that four-prong test for vacating judgments and (2) that he should have been declared the owner of the property free from encumbrances of the contract vendor and the subsequent purchaser. We affirm.

FACTS

Until her death, appellant's wife, as contract for deed vendee of a parcel of Pine County realty, was making payments to vendor Reginald C. Runingen. After his wife's death, appellant failed to probate her estate and to pay a balloon payment due on the contract for deed. Runingen initiated procedures to cancel the contract for deed. In November 1993, appellant obtained a temporary restraining order (TRO) staying cancellation of the contract for deed. The TRO was effective until February 15, 1994. By that date, appellant had neither probated the estate nor paid the balloon payment. The contract for deed cancellation thus became effective.

In August 1994, appellant filed a complaint to reclaim the property but the complaint was dismissed for failure to state a claim upon which relief could be granted. On appeal, this court affirmed, concluding that appellant refused to cooperate in efforts to satisfy the outstanding balloon payment on the contract, which led to contract cancellation.

Runingen sold the property to Isaacson who commenced a quiet title action. Appellant contested the quiet title action. In January 1996, the district court found:

Dick J. Fingerholz has been given an opportunity to legally establish any claims or defenses within the time period granted by this Court in its restraining Order dated November 29, 1993. No new, valid claims or defenses have been raised in Defendant's various filings in response to Plaintiff's Complaint for judgment to quiet title. Further, Defendant, Dick J. Fingerholz, has not proven that he has adversely possessed the subject property.

Thereafter, for the first time, appellant hired legal counsel to represent him. He filed a motion to vacate judgment claiming that through mistake, inadvertence, or excusable neglect, he failed to assert a meritorious defense of adverse possession to Isaacson's quiet title claim.

In June 1996, the district court denied appellant's motion to vacate, stating:

This motion for relief under Rule 60 is predicated on excusable neglect, and claims Mr. Fingerholz, who was pro-se until this motion, didn't understand the importance of alleging title by adverse possession in the quiet title action, hence making him the victim of his own excusable neglect, and a person who may have a valid claim if he is allowed to present it now.

The trouble with Mr. Fingerholz's position is that it flies in the face of the facts. In the earlier action, at least two Judges strongly advised him to obtain counsel to resolve his relatively uncomplicated problem. Mr. Fingerholz ignored that advice and pressed on with ill conceived legal positions he was in questionable position to advance, as he was not a party to the original contract, and could only assume that position if he probated his deceased wife's estate, which he refused to do.

Having lost his bid to avoid contract cancellation, which he could have done by paying a balance due and first obtaining the right to conclude the contract, he now wishes to wage a battle against a subsequent good faith purchaser, after having attempted to prevail in the quiet title action, pro-se, by asserting a non-meritorious claim, and failing to assert the one he now wishes to assert. There is nothing negligent or excusable about Mr. Fingerholz's actions. He quite wilfully took himself from a position of advantage and destroyed his opportunity to acquire property for which he had nearly paid full price, despite repeated warnings from Courts, and the attorney for the original plaintiff. It would be completely inequitable to allow him now to have a second bite at the apple, to the [dis]advantage of the innocent, good faith purchaser of this land.

This appeal resulted.

D E C I S I O N

This court will not overturn a district court's decision regarding a motion to vacate absent a clear abuse of discretion. Johnson v. Hunter, 447 N.W.2d 871, 873 (Minn. 1989). A court may vacate a judgment for "[m]istake, inadvertence, surprise, or excusable neglect" or "[a]ny other reason justifying relief from the operation of the judgment." Minn. R. Civ. P. 60.02(a), (f).

A party seeking to vacate a judgment * * * must show (1) a reasonable claim on the merits, (2) a reasonable excuse for failure or neglect to act, (3) due diligence after notice of entry of judgment, and (4) that no substantial prejudice will result to the opponent.

Lund v. Pan Am. Machs. Sales, 405 N.W.2d 550, 552 (Minn. App. 1987) (citing Hinz v. Northland Milk & Ice Cream Co., 237 Minn. 28, 30, 53 N.W.2d 454, 456 (1952)).

The district court's finding on each of these elements will not be set aside unless clearly erroneous. See Minn. R. Civ. P. 52.01 (findings of fact not set aside unless clearly erroneous).

Appellant alleges that the district court abused its discretion by denying his motion to vacate based on his adverse possession claim. The district court denied the motion finding (1) that appellant's failure to assert the adverse possession claim was neither negligent nor excusable and (2) that substantial prejudice would result to Isaacson as a purchaser of the parcel.

There is sufficient record evidence to support the district court's findings. At the inception of this dispute, counsel for Runingen urged appellant to retain an attorney to protect his rights. Additionally, at least two district court judges separately urged appellant to retain counsel to safeguard any claims and defenses he might have. Appellant did not do so. We conclude that the district court's finding of no excusable neglect is not clearly erroneous.

The record also supports the district court's finding that substantial prejudice would result to Isaacson if the motion to vacate were granted. Appellant's attorney fairly acknowledged that in terms of time and expense, granting the motion to vacate could result in prejudice to Isaacson. Delay and additional expense alone, however, do not equate to substantial prejudice. Finden v. Klaas, 268 Minn. 268, 272, 128 N.W.2d 748, 751 (1964). But these factors, coupled with the potential total loss of the property that he purchased in good-faith, would result in substantial prejudice to Isaacson were the motion to vacate granted. Thus, the district court's finding was not clearly erroneous.

We conclude that because appellant failed to show that two of the four factors existed, the district court did not abuse its discretion by denying the motion to vacate. See Wiethoff v. Williams, 413 N.W.2d 533, 536 (Minn. App. 1987) ("Although one weak factor may be overcome by three strong factors, there is no authority by which we can conclude that two weak factors are overcome by two strong factors."); Gelco Corp. v. Crystal Leasing, Inc., 396 N.W.2d 672, 675 (Minn. App. 1986) (affirming district court's denial of motion to vacate where only two of four factors satisfied).

Appellant also states in his notice of appeal that he would like to "get some of [his] money back," presumably payments made before cancellation of the contract for deed. Because this court has previously reviewed appellant's general claim that he should recover the property or the money he paid for it, we need not again review these issues. See In Re Trusts by Hormel, 543 N.W.2d 668, 671 (Minn. App. 1996) (citing Beutz v. A. O. Smith Harvestore Products, Inc., 431 N.W.2d 528, 531 (Minn. 1988)) (doctrine of res judicata, claim preclusion, prevents relitigation of causes of action determined in prior proceeding); see also Deli v. Hasselmo, 542 N.W.2d 649, 656 (Minn. App. 1996) ("purpose of collateral estoppel is to prevent needless consideration of issues decided in earlier litigation"), review denied (Minn. Apr. 16, 1996).

Affirmed.