This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


Charles J. Reineke,


David Allen Berglund,

Filed October 19, 1999
Reversed and remanded
Harten, Judge

Hennepin County District Court
File No. 974858

John O. Murrin, III, Michael Milo, Murrin Law Firm, 4018 West 65th Street, Edina, MN 55435 (for appellant)

Emilio R. Giuliani, Jr., Lee L. LaBore & Associates, Ltd., P.O. Box 70, Hopkins, MN 55343 (for respondent)

Considered and decided by Harten, Presiding Judge, Short, Judge, and Holtan, Judge.[*]

U N P U B L I S H E D   O P I N I O N


The district court ordered appellant's attorney to pay the cost of appellant's missed independent medical examination and dismissed appellant's case as a sanction when the attorney did not pay. Because we hold that it was an abuse of discretion to require the attorney to pay the cost of the examination and to dismiss appellant's case, we reverse and remand for trial.


Appellant Charles Reineke brought this action against respondent David Berglund for injuries suffered when respondent rear-ended appellant's car. Respondent's attorney notified appellant's attorney of an independent medical examination (IME) scheduled for appellant, and appellant's attorney sent appellant a copy of the notice and a cover letter.

Appellant did not attend the scheduled IME; he later explained that he had been out of town and did not recall receiving a notice or letter about it. Respondent's attorney moved the district court for an order compelling appellant's appearance for the IME; the district court granted the motion, and appellant complied with the order by attending the rescheduled IME.

Respondent's attorney also sought reimbursement for the $1,300 cost of the missed IME. The district court ordered appellant's attorney to pay the $1,300 and directed that "[f]ailure to timely pay these costs shall result in additional sanctions, up to and including dismissal of [appellant's] claim with prejudice." When respondent's attorney informed the district court that appellant's attorney had not paid the $1,300, the district court dismissed appellant's case for failure to comply with the reimbursement order.

The district court denied appellant's motion to vacate the dismissal. Appellant challenges the denial, arguing that the district court abused its discretion both in ordering his attorney to pay the cost of the missed IME and in dismissing his case as a sanction for nonpayment.


1. Order Imposing Sanctions

The imposition of civil penalties is within a trial court's discretion. State v. Alpine Air Prods., 490 N.W.2d 888, 897 (Minn. App. 1992), aff'd, 500 N.W.2d 788 (Minn. 1993). We therefore consider whether the district court abused its discretion in ordering appellant's attorney to pay the $1,300 charge incurred when appellant missed the IME.

Minn. R. Civ. P. 37.02 provides:

[T]he court shall require the party failing to obey the order [to provide or permit discovery] or the attorney advising that party or both to pay the reasonable expenses, including attorney fees, caused by the failure * * *.

The rule was applied to failure to attend an IME in Wood v. Chicago, Milwaukee, St. Paul & Pac. R.R. Co., 353 N.W.2d 195, 198 (Minn. App. 1984) (reversing an award of the fee for a missed IME).

If a party voluntarily agrees to submit to an adverse medical examination and then fails to appear, the sanctions of Rule 37.02 are not available because there is no court order requiring him to submit to this examination.

Id. Here, no court order was in effect at the time appellant missed the IME; appellant attended the second IME as ordered by the court. Therefore, appellant's attorney is not subject to sanction under Minn. R. Civ. P. 37.02.[1]

2. Dismissal of Appellant's Case

The district court dismissed with prejudice appellant's case pursuant to Minn. R. Civ. P. 41.02(a), providing that a court may on its own initiative "dismiss an action or claim for failure * * * to comply with * * * any order of the court."

Use of [Rule 41.02(a)] is infrequent and is within the sound discretion of the trial court. * * * We will reverse an involuntary dismissal under [the rule] only when the trial court abused its discretion.

Bonhiver v. Fugelso, Porter, Simich & Whiteman Inc., 355 N.W.2d 138, 144 (Minn. 1984).

The primary factor to be considered in dismissing a case is prejudice to the parties; there must be a showing of particular prejudice of such a character that some substantial right or advantage will be lost or endangered. Sudheimer v. Sudheimer, 372 N.W.2d 792, 794 (Minn. App. 1985). The district court made no finding that respondent was prejudiced by appellant's failure to attend the first IME; nor did respondent allege prejudice. Appellant attended a subsequent court-ordered IME. Absent a finding or even an allegation of prejudice, case dismissal as a sanction is an abuse of discretion because it "runs counter to the primary objective of the law to dispose of cases on the merits." Id.; (citation and quotation omitted).[2]

Because we hold that the district court abused its discretion in ordering appellant's attorney to pay the cost of appellant's missed IME and in dismissing appellant's case, we reverse and remand for trial.

Reversed and remanded.

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

[1] The district court relied on Little v. Miklya, 403 N.W.2d 228, 230 (Minn. 1987) (holding that sanctions can be imposed on an attorney whose client fails to attend an IME that has been stipulated to by counsel for both parties). But in Little, plaintiff's counsel failed to notify his client of the IME after stipulating in writing to the client's appearance at the IME; Little is therefore distinguishable.

[2] Cases in which dismissal has been upheld are readily distinguishable. See, e.g., Breza v. Schmitz, 311 Minn. 236, 248 N.W.2d 921, 922 (1976) (willful and repeated failure to cooperate with discovery orders); Zuleski v. Pipella, 309 Minn. 585, 245 N.W.2d 586, 587 (1976) (failure to be ready for trial).