This opinion will be unpublished and

may not be cited except as provided by

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




Lynn E. Bowe,



Dean P. Anderson,


Filed May 18, 1999

Affirmed; motion denied

Klaphake, Judge

Sherburne County District Court

File No. CX-97-1006

John E. MacGibbon, 261 E. Broadway, P.O. Box 999, Monticello, MN 55362 (for appellant)

Felix A. Mannella, Marnie J. Zak, Babcock, Locher, Neilson & Mannella, 118 E. Main St., Anoka, MN 55303 (for respondent)

Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Short, Judge.



Appellant Lynn E. Bowe challenges the district court's denial of his motion to remove the district court judge and the court's grant of summary judgment sua sponte to respondent Dean P. Anderson on appellant's quiet title action. Because we conclude the district court properly denied appellant's motion to remove and did not err in granting summary judgment sua sponte, we affirm.


This is the third action between the parties concerning the same tract of real estate. Six months after receiving notice of which district court judge was assigned to the matter, appellant moved to remove the judge. The district court denied this motion and granted summary judgment sua sponte to respondent.

A party must serve and file a notice to remove "within ten days after the party receives notice" of the presiding judge. Minn. R. Civ. P. 63.03. Further, once a judge has presided over proceedings in a matter, the judge may not be removed "except for an affirmative showing of prejudice." Id. An order denying a removal motion should not be reversed absent a clear abuse of discretion. Carlson v. Carlson, 390 N.W.2d 780, 785 (Minn. App. 1986) review denied (Minn. Aug. 20, 1986).

After our review of the record, we conclude the district court did not abuse its discretion in denying appellant's motion to remove. Appellant was properly notified on November 12, 1997 of the identity of the judge assigned to the matter. Thus, appellant's notice of removal was untimely.

A judge shall not "sit in any case if that judge is interested in its determination or if that judge might be excluded for bias from acting therein as a juror." Minn. R. Civ. P. 63.02; see In re Matter of D.L., 486 N.W.2d 375, 382 (Minn. 1992). The district court held a pre-trial hearing, and appellant was unable to show the affirmative act of prejudice required to remove the judge after proceedings had begun. Appellant's affidavit alleged bias because the district court had presided over one of the previous matters between the parties concerning the same tract of land, which resulted in an adverse decision.

[A] judge who feels able to preside fairly over the proceedings should not be required to step down upon allegations of a party which themselves may be unfair or which simply indicate dissatisfaction with the possible outcome of litigation.

Uselman v. Uselman, 464 N.W.2d 130, 139 (Minn. 1990) (quoting McClelland v. McClelland, 359 N.W.2d 7, 11 (Minn. 1984)). While appellant argues a juror would be subject to disqualification if predisposed to the parties or issues, jurors have been allowed to sit despite relationships with the parties when no showing of prejudice was made. State v. Stufflebean, 329 N.W.2d 314, 318 (Minn. 1983) (fact that two jurors of 20- member panel were employees of corporation owned by victim's family and corporation president was victim's father did not constitute automatic grounds for juror's dismissal); see also State v. Hanson, 286 Minn. 317, 176 N.W.2d 607 (1970) (allowing impaneling of juror who was sheriff's cousin).

Further, even if a presumption exists that the predisposition of a juror will prevent the juror from being sufficiently impartial, there exists an independent presumption that a judge presiding over a bench trial relies only on proper evidence in reaching its determination on the merits. People v. Beasley, 438 N.E.2d 1305, 1310 (Ill. App. 1982). The presumption is strong enough that the fact that a judge has ruled adversely to a party in a prior case is not ordinarily grounds to disqualify the judge from sitting in a subsequent case with the same party or parties. Id. Because appellant has failed to demonstrate any bias on the part of the district court judge, the district court did not abuse its discretion in denying appellant's motion to remove.

The district court granted summary judgment sua sponte based on appellant's complaint and the judgments contained in the previous matters finding respondent the property owner subject to appellant's life estate. During the hearing, the district court stated:

I reviewed the complaint, and the complaint specifically requests judgment that plaintiff is the owner in fee of the premises and that the defendants have no estate or interest therein or lien thereon. * * * This court cannot envision under any circumstances that this Court would grant a judgment requesting the relief or ordering the relief requested by Mr. Bowe given the previous judgments over this property that presently exist that remain in full force and effect. * * * I believe that a judgment of dismissal is appropriate today.

In extremely limited circumstances the trial court may grant summary judgment sua sponte. Modern Heating and Air Conditioning, Inc. v. Loop Belden Porter, 493 N.W.2d 296, 299 (Minn. App. 1992). The matter currently before this court is one of those limited circumstances. Appellant's current action is barred by collateral estoppel. Collateral estoppel applies if:

(1) the issue was identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue.

Johnson v. Consolidated Freightways, Inc., 420 N.W.2d 608, 613 (Minn. 1988) (citation omitted).

Appellant is attempting to litigate the question of who is the lawful owner of the property, the identical issue determined in the previous actions. In the previous actions, judgments on the merits grant respondent title to the property, subject to appellant's life estate. Appellant was given a full and fair opportunity to be heard concerning ownership of the property in the previous actions. In fact, appellant entered into a stipulation with respondent in the first action granting respondent title to the property, subject to appellant's life estate. In the second action, appellant testified at a court trial concerning his ownership of the property. All material facts and issues of law were decided in the previous actions. Because the doctrine of collateral estoppel applies, the district court did not err in granting summary judgment sua sponte to respondent. See Fabio v. Bellamo, 504 N.W.2d 758, 761 (Minn. 1993) (setting forth legal basis for granting summary judgment).

While this appeal borders on the frivolous, we decline to award attorney fees.

Affirmed; motion denied.