This opinion will be unpublished and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

C5-96-2356

Raymond Frank Formanek, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed May 6, 1997

Affirmed

Schumacher, Judge

Hennepin County District Court

File No. 472289

Ronald S. Latz, Latz & Latz, P.L.L.P., 120 South Sixth Street, Suite 2500, Minneapolis, MN 55402 (for Appellant)

Hubert H. Humphrey III, Attorney General, Joel A. Watne, Assistant Attorney General, 200 Capitol Office Building, 525 Park Street, St. Paul, MN 55103-2106

Considered and decided by Schumacher, Presiding Judge, Parker, Judge, and Huspeni, Judge.

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

SCHUMACHER, Judge

Raymond Frank Formanek appeals from the denial of his motion for relief from the revocation of his driver's license for refusal to submit to alcohol concentration testing, arguing newly discovered evidence entitles him to a new trial. We affirm.

FACTS

On June 21, 1994, Formanek was arrested for DWI. The police officers determined that Formanek refused to submit to alcohol concentration testing for which respondent Commissioner of Public Safety revoked his driver's license pursuant to Minn. Stat. § 169.123 (1996).

At the revocation hearing, Formanek argued the police officers beat him and that the officers never asked him to submit to testing. The arresting officer testified that Formanek was offered testing, but that he became threatening and resistant and force was necessary to restrain him.

On November 1, 1994, the trial court sustained the license revocation, concluding Formanek refused testing and that his refusal was not reasonable. This court affirmed in an unpublished decision. Formanek v. Commissioner of Pub. Safety, C5-94-2496 (Minn. App. May 23, 1995).

On May 22, 1996, Formanek filed a motion seeking relief from his license revocation under Minnesota Rule of Civil Procedure 60.02(b). Formanek argued newly discovered evidence of a previously unknown witness to the arrest, Wilson Etter, would prove that the police beat him. The trial court denied the motion, concluding the motion was untimely and that Etter offered nothing new that would affect the outcome of the revocation hearing.

On October 17, 1996, Formanek filed a motion seeking reconsideration of the May 22 motion, or alternatively, relief under Rule 60.02(f) because another witness was found. The trial court denied Formanek's motion for reconsideration. Formanek appeals.

D E C I S I O N

1. Formanek argues his motion for relief based on newly discovered evidence was not untimely because his first appeal of the revocation tolled the one-year limit on motions for relief. This is an issue of first impression.[1]

The rules of civil procedure allow for relief from judgment:

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:

* * * *

(b) Newly discovered evidence which by due diligence could not

have been discovered in time to move for a new trial pursuant

to Rule 59.03;

Minn. R. Civ. P. 60.02. Such a 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.

Id.

Minnesota Practice provides that

[a]s a result of Minnesota's close following of the federal rules, federal court cases decided under the federal rules are of significant precedential value in construing the Minnesota rules. The federal cases are especially valuable because many important procedural questions have not been addressed by the Minnesota Supreme Court, and the federal cases provide the only decisions to guide the trial courts in Minnesota.

1 David F. Herr and Roger S. Haydock, Minnesota Practice, § 1.2 (1985). In reference to appeals and timing of Rule 60.02, Minnesota Practice provides:

The pendency of an appeal does not extend the one year limit unless the ruling of the appellate court results in a substantive change in the judgment. The pendency of an appeal while not extending the one year limit may be considered in determining whether a motion has been made within a reasonable time within the one year. The concept of reasonable time cannot be used to expand the one year limit. A motion under subdivisions [(a), (b), or (c)] must be denied as untimely if brought more than one year after judgment, regardless of whether the delay was reasonable. A court has no power to enlarge the time limits of the rule.

Id., Vol. 2A, § 60.21 (citations omitted).[2]

Formanek's first appeal did not change the judgment because it was affirmed. We hold that an appeal does not toll the one-year time limit for motions for relief pursuant to rule 60.02.

Because Formanek's rule 60.02(b) motion was not filed within one year of the filing of the revocation, the motion was untimely. We need not, therefore, reach the merits of that motion.

2. Formanek argues the trial court erred in denying his second motion for relief. The trial court denied Formanek's motion for reconsideration of the 60.02(b) motion, but did not address Formanek's motion for relief under the "residual" clause of rule 60.02(f). The trial court properly denied Formanek's motion for reconsideration because the rules of civil procedure do not authorize a motion for "reconsideration." Welch v. Commissioner of Pub. Safety, 545 N.W.2d 692, 694 (Minn. App. 1996).

Formanek's rule 60.02(f) motion argued that the second witness, Andre Mack, would provide information showing the arresting officer gave perjured testimony at the revocation hearing. Minnesota Rule of Civil Procedure 60.02(f) provides relief from judgment for "[a]ny other reason justifying relief from the operation of the judgment."

Formanek's second motion was not a proper rule 60.02(f) motion. There is no difference between Mack's and Etter's testimony. Both seek to discredit the arresting officer's testimony, not prove perjury.

Therefore, we hold that Formanek's rule 60.02(f) motion was in reality a motion for relief based on newly discovered evidence and should have been brought under rule 60.02(b). Because relief may not be granted under subdivision f if it should have been brought under subdivisions a, b or c, Formanek's "rule 60.02(f)" motion is void. See Sommers v. Thomas, 251 Minn. 461, 466-67, 88 N.W.2d 191, 195 (1958).

Affirmed.

[ ]1 No Minnesota or Eighth Circuit cases have addressed tolling of the one-year time limit by an appeal. Formanek cites Disch v. Helary, Inc., 382 N.W.2d 916 (Minn. App. 1986) review denied (Minn. Apr. 24, 1986), for support that an appeal tolls the one-year limit. Formanek is incorrect. Disch only discussed new trial motions made under Minn.R.Civ.P. 59.01. Disch does not apply to motions for relief made under Rule 60.02.

[ ]2 Other jurisdictions have held that an appeal does not toll or extend the one-year limit of federal rule 60. See, e.g., Jones v. Capital Cities/ABC, Inc., 168 F.R.D. 477, 479 n.3 (S.D.N.Y. 1996) (holding appeal does not toll one-year time limit of rule 60); Nevitt v. United States, 886 F.2d 1187, 1188 (9th Cir. 1989) (same); Talbert v. Mauney, 343 S.E.2d 5, 7 (N.C. Ct. App. 1986) (same).