This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Amy Swendra,



Robert Nelson,


Filed January 19, 1999


Willis, Judge

Hennepin County District Court

File No. 9518458

Tamara M. Haas, Law Offices of Tamara M. Haas, 527 Marquette Avenue South, Suite 1925, Minneapolis, MN 55402; and Logan N. Foreman, III, 701 Fourth Avenue South, Suite 300, Minneapolis, MN 55415 (for appellant)

Jeanne H. Unger, Deborah C. Eckland, Rider, Bennett, Egan & Arundel, 2000 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent)

Considered and decided by Crippen, Presiding Judge, Willis, Judge, and Foley, Judge.[*]



Appellant Amy Swendra challenges the district court's failure to award her costs and disbursements and its determination that respondent Robert Nelson is entitled to costs and disbursements. We affirm.


Swendra sued Nelson for alleged damages resulting from an automobile accident. On February 7, 1997, pursuant to Minn. R. Civ. P. 68, Nelson made a written offer of settlement in the amount of $500, "inclusive of interest, attorneys' fees, and costs and disbursement accrued to date." Swendra did not accept the offer, and the case went to trial.

Pursuant to a jury verdict for Swendra, the district court ordered the entry of judgment for her in the amount of $297.80, plus costs and disbursements. Nelson moved for an amended order on the ground that his rule 68 offer was more favorable to Swendra than was the final judgment. The district court agreed and amended its order for judgment, giving Swendra her damages only and awarding Nelson his costs and disbursements.

Judgment was entered on January 6, 1998, but the dollar amount awarded to Swendra as damages was in error. The district court ordered an amended judgment, which was entered on February 12, 1998, but it omitted Swendra's damage award altogether. On March 11, 1998, yet another amended judgment was entered, which awarded the correct amount in damages to Swendra. Upon Swendra's motion challenging the amount of Nelson's costs and disbursements, the court ordered a final amended judgment, which reduced the amount of the costs and disbursements awarded to Nelson. Judgment was entered on that order on April 6, 1998, and this appeal followed.


I. Swendra's Right to Tax Costs and Disbursements

Interpretation of the rules of civil procedure is a question of law, which this court reviews de novo. Barrera v. Muir, 553 N.W.2d 104, 108 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996).

Swendra argues that because she was the prevailing party at trial, the district court erred in failing to award her costs and disbursements pursuant to Minn. Stat. § 549.04 (1996), citing Borchert v. Maloney, 581 N.W.2d 838, 840-41 (Minn. 1998) (concluding that prevailing party has statutory right to tax costs and disbursements regardless of allocation of costs and disbursements under rule 68). But on appeal from an amended judgment, the scope of this court's review "is limited to issues directly affected by the amended judgment, which were not reviewable on appeal from the original judgment." Geckler v. Samuelson, 438 N.W.2d 740, 741 (Minn. App. 1989). Here, Swendra appealed from the April 6, 1998, amended judgment, which affected only the amount of the costs and disbursements awarded to Nelson. Because that judgment did not directly affect Swendra's recovery of costs and disbursements, the issue is not properly before us.

The time to appeal the district court's failure to award costs and disbursements to Swendra began to run when the judgment was entered on January 6, 1998, without such an award. See E.C.I. Corp. v. G.G.C. Co., 306 Minn. 433, 435, 237 N.W.2d 627, 629 (1976) (stating time to appeal from judgment "begins at the time that issue first becomes appealable"); Bolitho v. Bolitho, 422 N.W.2d 29, 31 (Minn. App. 1988) (ruling appeal from amended judgment was untimely because district court's decision on issue appealed was known when original judgment was entered). Swendra filed this appeal on July 1, 1998, more than 90 days after entry of the January 6, 1998, judgment. See Minn. R. Civ. App. P. 104.01 ("An appeal may be taken from a judgment within 90 days after its entry * * * ."). Her appeal of the issue is, therefore, untimely.

Swendra alternatively argues that this court should accept her appeal on the issue of her costs and disbursements in the interests of justice, citing E.C.I., 306 Minn. at 436, 237 N.W.2d at 629 (stating that "justice [was] better served by allowing the appeal" even though it was untimely). But this court does not have the authority to extend the time to file an appeal. Minn. R. Civ. App. P. 126.02; see Township of Honner v. Redwood County, 518 N.W.2d 639, 641 (Minn. App. 1994) (stating that supreme court has not extended authority to court of appeals to review untimely appeals in interests of justice), review denied (Minn. Sept. 16, 1994). We therefore do not review the district court's failure to award Swendra her costs and disbursements.

II. Nelson's Right to Tax Costs and Disbursements

Swendra also contends that the district court erred in awarding costs and disbursements to Nelson, claiming that the final judgment was more favorable to her than was Nelson's rule 68 offer. See Minn. R. Civ. P. 68 (stating that if final judgment "is not more favorable to the offeree than the offer [of settlement], the offeree must pay the offeror's costs and disbursements"). Here, the final judgment entered for Swendra was $310.12. Swendra argues that because Nelson's $500 rule 68 offer included "costs and disbursements accrued to date," and because her costs and disbursements at that time exceeded $189.88, the rule 68 offer was not more favorable to her than was the final judgment. But the determinative facts are that Nelson offered $500 and the final judgment entered for Swendra was $310.12. Rule 68 requires comparison of the judgment finally entered with the amount of the written offer of settlement. Id.; see, e.g., Bucko v. First Minn. Sav. Bank, 471 N.W.2d 95, 98 (Minn. 1991) (comparing amount of judgment finally entered with amount of rule 68 offer). Because the final judgment was not more favorable to Swendra than was Nelson's rule 68 offer, the district court did not err in awarding costs and disbursements to Nelson.


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