This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß480A.08, subd. 3 (1998).


Carter F. Johnson, et al.,


Builders & Labors Commonwealth, et al.,

Filed December 7, 1999
Anderson, Judge

St. Louis County District Court
File No. C4-90-20553

James W. Balmer, Eric W. Beyer, Falsani, Balmer, Berglund & Peterson, 1200 Alworth Building, 306 West Superior Street, Duluth, MN 55802 (for appellants)

Michael E. Orman, Nancy C. von Seggern, Orman & Nord Law Office, 1301 Miller Trunk Highway, Suite 400, Duluth, MN 55811 (for respondents)

Considered and decided by Halbrooks, Presiding Judge, Klaphake, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N


Appellants challenge the district courtís dismissal of their complaint, with prejudice, for failure to prosecute. Because appellantsí delay prejudiced the respondents and was unreasonable and inexcusable, we affirm.


Appellants, Carter Johnson and Cheryl Larson, contracted with respondents, Builders & Laborers Commonwealth and Arno S. Kahn, to build a commercial office building. Respondents completed construction of the building in 1978 or 1979. Over the next ten years appellantsí building suffered water damage due to the accumulation of condensation in the interior of the building. Appellants claimed that $50,000 in water damage was attributable to respondentsí failure to install a vapor barrier in the walls and roof of the building.

On May 6, 1988 appellants initiated a breach of contract action against respondents. On April 9, 1990 appellants filed the complaint and certified that the case was ready to proceed to trial. The next month appellants requested that the trial court strike the certificate of readiness. A year later, appellants re-certified the case as ready for trial but again revoked certification. Appellants did not pursue the action again until October 28, 1998, when they requested that the case be placed back on the active calendar.

Respondents filed a motion to dismiss for failure to prosecute pursuant to Minn. R. Civ. P. 41.02(a). Respondents claimed their defense had been prejudiced in three ways: (1) the manufacturer of the roofing system is now bankrupt; (2) respondents no longer possess the construction records for the original project; and (3) the roof originally installed by respondents has been replaced.

The district court granted respondentsí motion and dismissed the complaint with prejudice, holding that delay by appellants was prejudicial to respondents, unreasonable, and inexcusable.

Appellants challenge the district courtís dismissal of their case with prejudice.


The Minnesota Rules of Civil Procedure provide that a court may dismiss a case for failure to prosecute the claim. Minn. R. Civ. P. 41.02(a). Unless stated otherwise, a dismissal under rule 41.02 results in an adjudication of the case upon the merits. Minn. R. Civ. P. 41.02(c). Therefore, a district court should only dismiss a case with prejudice for failure to prosecute under exceptional circumstances. Firoved v. General Motors Corp., 277 Minn. 278, 283, 152 N.W.2d 364, 368 (1967). We review a district courtís decision to dismiss a claim with prejudice under an abuse of discretion standard. Scherer v. Hanson, 270 N.W.2d 23, 24 (Minn. 1978); Firoved, 277 Minn. at 283, 152 N.W.2d at 368.

Although the primary objective of the law is to dispose of cases on their merits, the supreme court has also recognized that overcrowded calendars as well as excessive and inexcusable delays affect the disposition of other cases and the fair administration of justice. Firoved, 277 Minn. at 284, 152 N.W.2d at 369. Therefore, the district court is given great discretion (1) to enforce calendar rules, (2) to prevent delay, and (3) to keep the dockets free of stale claims. Lampert Lumber Co. v. Joyce, 405 N.W.2d 423, 425-26 (Minn. 1987).

In recognizing the competing objectives of these two public policies, the supreme court has established two guidelines for trial courts to follow when exercising discretion under rule 41.02. A case may only be dismissed for failure to prosecute if it is shown that the delay in action (1) prejudiced the defendant and (2) was unreasonable and inexcusable. Bonhiver v. Fugelso, Porter, Simich and Whiteman, Inc., 355 N.W.2d 138, 144 (Minn. 1984).

Prejudice to the defendant

The defense has the burden of demonstrating that it was prejudiced by the delay for failure to prosecute. Firoved, 277 Minn. at 283-84, 152 N.W.2d at 368. The prejudice that defendants suffer must be so severe "Ďthat some substantial right or advantage will be lost or endangeredí" if plaintiff is allowed to pursue its action. Ryan v. Ballentine VFW Post No. 246, 407 N.W.2d 105, 108 (Minn. App. 1987) (quoting Firoved, 277 Minn. at 283, 152 N.W.2d at 368).

Liability in this action is contingent on proof by appellants of a breach of contract; the ability to establish a breach as well as a defense to an alleged breach has grown weaker as a result of appellantsí own actions. When appellants replaced the roof, they destroyed the best piece of evidence supporting their claim for breach of contract. Appellants stated that they replaced the roof in order to mitigate any further damage, and that replacing the roof does not change the fact that a vapor barrier was not installed. But, the existence of a vapor barrier is disputed. Respondentsí expert inspected the leaky roof in 1990 and determined that the building problems were due to the absence of a proper ventilation system. Because liability is disputed, the availability of the physical evidence is essential. Details concerning the roof, the leakage, and the damage are all necessary to assess liability. A liability determination will be much more difficult to determine now that the roof has been replaced and ten years have passed.

Although the district court did not elaborate on the effect of the roof supplierís bankruptcy on respondentsí liability, or on the reasonableness of respondentsí failure to maintain records of this transaction, the replacement of the original roof alone is a substantial disadvantage to respondents in defending this action. The district court did not clearly err in finding appellantsí delay prejudiced respondents. See Minn. R. Civ. P. 52.01 (findings of fact not set aside on appeal unless clearly erroneous).

Unreasonable and Inexcusable Delay

When dismissing a case for failure to prosecute the court must also consider the length of delay and the reasons given for the delay. Firoved, 277 Minn. at 284, 152 N.W.2d at 369. Appellants filed suit in 1988. Two years later they certified the case as ready for trial but then revoked the certificate of readiness. The case remained dormant for nearly eight years. Appellants provide no reason for the delay in prosecuting this case. In light of absence of any excuse, let alone a reasonable excuse, for the eight-year delay in pursuing this action, the district court did not clearly err in finding the delay both unreasonable and inexcusable.

Extraordinary Circumstances

Although respondents met their burden of showing sufficient prejudice to justify dismissal, the mere length of delay in this case is an extraordinary circumstance that provides further support for the district courtís dismissal. When reviewing a case for dismissal, the courtís primary concern is the prejudicial effect on the defendant. Extraordinary circumstances, however, may also justify a dismissal despite lack of great prejudice to the defendant. Firoved, 277 Minn. at 283, 152 N.W.2d at 368.

This court has repeatedly affirmed a trial courtís finding that a significant delay may constitute extraordinary circumstances justifying dismissal without a concrete showing of prejudice to the defendant. Wherley v. Foss, 416 N.W.2d 463, 464-65 (Minn. App. 1987) (six-year delay in initiating the action and seven-year delay in filing the complaint); Belton v. City of Minneapolis, 393 N.W.2d at 244, 246-47 (Minn. App. 1986) (eleven-year delay and weak evidence of prejudice), review denied (Minn. Nov. 16, 1986); Reichert v. Union Fidelity Life Ins. Co, 360 N.W.2d 664, 668 (Minn. App. 1985) (six and a half year delay and failure to comply with trial court deadline). In this case, appellants filed their action more than ten years ago. In addition, there has been a delay of nearly eight years since appellants actively pursued this case. In light of this courtís previous decisions on this issue, eight years is a sufficient delay to justify a dismissal of the case due to extraordinary circumstances regardless of prejudice to the respondents.

The evidence supports a finding of prejudice, unreasonable and inexcusable delay, and extraordinary circumstances sufficient to dismiss this case pursuant to Minn. R. Civ. P. 41.02.