This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-577

 

In re the Matter of:
Craig H. Hansen, petitioner,
Appellant,

vs.

James Wennblom,
Respondent.

 

Filed December 5, 2006

Affirmed

Peterson, Judge

 

Sherburne County District Court

File No. C4-05-383

 

Ronald Resnik, 6200 Shingle Creek Parkway, Suite 340, Brooklyn Center, MN  55430 (for appellant)

 

Burton D. Anderson, Votel, Anderson, McEachron & Godfrey, 444 Cedar Street, Suite 1250, St. Paul, MN  55101 (for respondent)

 

            Considered and decided by Willis, Presiding Judge; Peterson, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            This appeal is from a judgment dismissing appellant’s case because appellant failed to comply with a discovery order and failed to prosecute.  We affirm.

FACTS

            In July 1999, appellant Craig H. Hansen brought this action against respondent James Wennblom alleging that Wennblom had damaged Hansen’s cabin property by pushing over and skinning trees, pushing large amounts of fill onto Hansen’s lot, and using trash as fill on Hansen’s lot. 

            On December 17, 1999, Wennblom served interrogatories and a request for production of documents on Hansen.  On January 17, 2000, Wennblom’s attorney sent a letter to Hansen’s attorney requesting responses to the discovery.  On January 27, 2000, Hansen’s attorney responded that Hansen “has provided his answers to your discovery to this office and we are in the process of preparing them in proper form.”  On February 29, 2000, Wennblom’s attorney sent a second letter to Hansen’s attorney requesting responses to the discovery.  On June 2, 2000, Wennblom’s attorney sent a letter to Hansen’s attorney stating:

[Y]ou have not responded to the discovery which was served upon you on December 17, 1999.  My office[] has made several attempts either by phone or by correspondence to obtain your responses to discovery.  The last attempt was a phone call made on May 19, 2000 in which you informed my office that you would have the discovery responses to us within 10 days.  As of today I still do not have your discovery responses. 

 

On October 16, 2000, and July 3, 2001, Wennblom’s attorney again sent letters to Hansen’s attorney requesting responses to the discovery.  On April 29, 2002, Wennblom’s attorney sent a letter to Hansen’s attorney stating:

The discovery that we sent to you and your client goes back to December, 1999.  It would seem that perhaps we should either go forward with this case if your client is so disposed, or else we would like to close our file.  If you intend to proceed with this matter, please provide us with discovery responses at your very earliest convenience. 

 

In addition to the letters, Wennblom’s attorney’s staff contacted Hansen’s attorney or the attorney’s staff by telephone 12 times between April 4, 2000, and November 25, 2002.    On December 17, 2002, Hansen’s attorney served answers to interrogatories on Wennblom directly, not on Wennblom’s attorney.  Hansen’s signature on the answers to interrogatories was notarized on December 27, 2000, almost two years before his attorney served the answers on Wennblom.  Hansen provided the following answers to questions about damages:

            18.  State in detail what, if any damages you claim to have sustained in the alleged incident, including the nature and extent of same.

 

            Answer:  The damages sustained include trash being used as fill, trees uprooted, large mature trees being scarred, ground cover being scraped away adding to the possibility of erosion.  The slope of the property being altered and substantial stress put on my family, both financially and emotionally.

 

            19.  List and item in detail all monies expended or owed by you or on your behalf to correct or repair or otherwise alleviate or mitigate the damages allegedly sustained by you as set forth in your Complaint relative to this lawsuit.

 

            Answer:  Cost of the survey [requested by Wennblom] is $393.00.  Estimated cost to replace trees, cost of excavation, removal and proper disposal of trash, replanting of ground cover are unknown at this time.  Postage, photo developing, long distance phone calls estimated at $40.00 at this time.  Legal fees are unknown. 

 

            Apparently, no further activity occurred in the case until February 25, 2005, when Hansen filed the action in district court.  A scheduling order was filed on August 4, 2005.  Wennblom then filed a motion to compel discovery.

            On October 7, 2005, the district court issued an order directing Hansen “to provide fully executed answers to [Wennblom’s] Interrogatories and Demand for Production within ten (10) days of the Order of this Court.”  The order provided that failure to comply would result in dismissal of the case and directed Hansen to pay attorney and filing fees incurred by Wennblom in pursuing the motion. 

            On October 17, 2005, Hansen served his answers to interrogatories and response to the request for production of documents.  The updated answers to questions 18 and 19, which pertained to damages, were identical to the initial answers.  The district court issued an order dismissing Hansen’s action with prejudice for failing to comply with the discovery order and failing to prosecute.  The court issued an amended order, directing that judgment be entered, and judgment was entered.  This appeal followed.

D E C I S I O N

1.         Discovery

            We review a district court’s discovery sanction for an abuse of discretion.  Chicago Greatwestern Office Condo. Ass’n v. Brooks, 427 N.W.2d 728, 730 (Minn. App. 1988).  The sanction of dismissal may be imposed against a party who willfully, without justification or excuse, and with the intent to delay trial fails to comply with discovery orders or refuses to cooperate with the court and counsel to resolve the case promptly and expeditiously.  Breza v. Schmitz, 311 Minn. 236, 237, 248 N.W.2d 921, 922 (1976).  In determining whether a severe sanction is warranted, courts consider the extent of the noncompliance, the reasons for delay, the motivation for it, and whether the party being sanctioned had a pattern of misconduct.  Firoved v. Gen. Motors Corp., 277 Minn. 278, 283-84, 152 N.W.2d 364, 368-69 (1967); Williams v. Grand Lodge of Freemasonry AF & AM, 355 N.W.2d 477, 480 (Minn. App. 1984) (considering history of refusing to appear at depositions), review denied (Minn. Dec. 20, 1984).  The paramount consideration is the resulting prejudice to the parties.  Firoved, 277 Minn. at 283, 152 N.W.2d at 368.

            The significant problem with Hansen’s responses to Wennblom’s discovery requests is that they fail to inform Wennblom about the extent of the claimed damages to Hansen’s property.  The answer to interrogatory number 18 identifies the damage sustained as “trash being used as fill, trees uprooted, large mature trees being scarred, ground cover being scraped away,” and the property’s slope being altered.  The answer to interrogatory number 19 states, “Estimated cost to replace trees, cost of excavation, removal and proper disposal of trash, replanting of ground cover are unknown at this time.” 

            More than six years passed from the time this lawsuit was commenced until Hansen provided the updated discovery responses, and the updated responses describe the claimed damages only in very general terms.  Because the claimed damages involve items like plants, which change over time, and the possibility of erosion, which may or may not have occurred over time, the updated discovery responses do not inform Wennblom about the damages that Hansen claims to have incurred years earlier.  The responses also fail to describe or quantify the damages that Hansen claims to have suffered as the result of emotional and financial stress.  Without a meaningful description of the claimed damages, Wennblom cannot prepare a meaningful response.

            Hansen argues that events that occurred before October 2005 are irrelevant to the issue of whether the district court erred in dismissing this lawsuit.  But caselaw expressly provides that consideration of a pattern of misconduct is relevant to whether an action may be dismissed for failing to comply with discovery.  Hansen correctly argues that some of Wennblom’s discovery requests appear to be form questions that are not relevant to this action.  But Wennblom’s claim that Hansen’s discovery responses are incomplete is directed only to Hansen’s failure to identify and quantify damages, which are relevant to this case.

2.         Failure to prosecute

            “The court may upon its own initiative, or upon motion of a party, and upon such notice as it may prescribe, dismiss an action or claim for failure to prosecute or to comply with these rules or any order of the court.”  Minn. R. Civ. P. 41.02(a).  “[The u]se of Rule 41.02[a] is infrequent and is within the sound discretion of the trial court.”  Bonhiver v. Fugelso, Porter, Simich & Whiteman, Inc., 355 N.W.2d 138, 144 (Minn. 1984).  This court “will reverse an involuntary dismissal under Rule 41.02[a] only when the trial court abused its discretion.”  Id. A district court’s decision to dismiss “necessarily depends upon circumstances peculiar to each case, considered with reference to the right of the parties to the action to a ‘just, speedy, and inexpensive’ disposition of the case and the policy underlying the dismissal rules of preventing harassment and unreasonable delays in litigation.”  Firoved, 277 Minn. at 283, 152 N.W.2d at 368; see, e.g., Kielsa v. St. John’s Lutheran Hosp. Ass’n, 287 Minn. 187, 192, 177 N.W.2d 420, 423 (1970) (affirming dismissal when “the trial court without doubt took into account” facts and circumstances peculiar to the case).  On appeal from an order dismissing a claim, “a reviewing court [is] charged with the duty to view the record most favorably to sustain an order involving the exercise of discretionary authority by a trial court.”  Kielsa, 287 Minn. at 192, 177 N.W.2d at 423.

            The same factors that are relevant to whether the district court properly dismissed this action for failure to comply with discovery are relevant to the dismissal for failure to prosecute.  Hansen did not respond to Wennblom’s initial discovery requests until three years after they were served.  After providing those answers, Hansen took no further action on the case for more than two years.  More than six years passed from the time Hansen discovered the alleged damage to his property until he provided updated answers to Wennblom’s repeated requests for discovery, and the updated answers provided only a general description of damages.  Under these circumstances, and particularly in light of the fact that the claimed damages appear to involve conditions that can change over time, the district court did not abuse its discretion by dismissing Hansen’s action either for failing to prosecute or for failing to comply with the district court’s discovery order.

            Affirmed.