Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
John R. Danielson,
Kent M. Kjellberg,
Filed May 19, 1998
Wright County District Court
File No. C7-912791
Thomas A. Janson, Schmitt & Janson Law Office, 124 East St. Germain, P.O. Box 1752, St. Cloud, MN 56302-1752 (for respondent)
Brian C. Southwell, Suite 500, 701 Fourth Avenue South, Minneapolis, MN 55415 (for appellant)
Considered and decided by Crippen, Presiding Judge, Lansing, Judge, and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant disputes the trial court's refusal to vacate a five-year-old money judgment. We affirm.
In June 1997, appellant moved to vacate the money judgment, making three assertions: (1) under Minn. R. Civ. P. 60.02 (f) (vacation on other grounds), respondent committed fraud on the court by pretending that the note was owned by him and not by D.A.H., Ltd.; (2) under Minn. R. Civ. P. 60.02 (d), respondent had no standing to sue and the trial court had no subject matter jurisdiction because the ownership of the note was never assigned by D.A.H., Ltd.; and (3) under Minn. R. Civ. P. 60.02 (d), the trial court lacked subject matter jurisdiction because the note was not owned by respondent, but rightfully was the property of the trustee of respondent's 1989 bankruptcy proceedings.
D E C I S I O N
Fraud on the court.
Appellant contends that respondent misrepresented his ownership of the note. While acknowledging evidence that the note was assigned, eventually to respondent, appellant argues that this evidence is contradicted by his showing that in 1987 and 1988, after the alleged assignment to respondent's father, respondent continued to act as the owner of the note in seeking recovery of funds from appellant. Respondent asserts and the trial court agreed that respondent pursued collection of the note on his father's behalf.
Because there is adequate evidence to permit the trial court to conclude that appellant's claim of fraud was not established by clear and convincing evidence, we cannot say that the court abused its discretion. The trial court's determination is especially appropriate in light of the fact that there is no showing that appellant recently discovered evidence regarding the events in 1987 and 1988. The passing of five years is cause to look suspiciously on appellant's current effort to question the proceeding.
Standing to sue.
Appellant contends that D.A.H., Ltd. owned the note and thus, that respondent had no standing to sue. This argument merely restates appellant's assertion of a fraud on respondent's part, a claim, as determined above, that was rejected in a sustainable decision of the trial court. There was no abuse of discretion in the trial court's rejection of appellant's standing argument.
Subject matter jurisdiction.
Appellant argues that the bankruptcy court has exclusive subject matter jurisdiction over the note, because the note should have been included in respondent's bankruptcy estate. On the same assertion, appellant also includes in his fraud claim the contention that respondent committed a fraud against the bankruptcy court.
Appellant notes that respondent did not list the note as an asset in his bankruptcy proceedings but reported himself as the 100% owner of stock in D.A.H., Ltd. and stated that the stock had no value. Evidently, respondent's representations were correct if in fact his father owned the note at the time of the 1989 bankruptcy proceedings. Although appellant raises doubts as to the legitimacy of the assignment, the trial court acted on its view of the evidence that respondent did not own the note in 1989 and that the bankruptcy trustee did not assert ownership of the note. These findings defeat appellant's argument on subject matter jurisdiction, and there is no clear error in the trial court's rendering of the findings.
Dated: May 15, 1998
 Appellant cites to Minn. R. Civ. P. 60.02 (c), but we consider his claim under subdivision f, which allows reopening of a judgment due to fraud on the court.