This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-97-116

Donald T. Bethke,

Respondent,

vs.

Ron Haken,

Appellant.

Filed July 8, 1997

Affirmed, Motion Granted in Part

Kalitowski, Judge

Hennepin County District Court

File No. 9611430

Donald T. Bethke, 6741 Sheridan Avenue South, Richfield, MN 55423 (Pro Se Respondent)

Ronald E. Haken, 3304 Nicollet Avenue South, Minneapolis, MN 55408 (Pro Se Appellant)

Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Holtan, Judge.[*]

U N P U B L I S H E D O P I N I O N

KALITOWSKI, Judge

This matter arose out of a July 1, 1996, American Arbitration Association arbitration award granting respondent Donald T. Bethke $3,875 plus $400 in costs against appellant Ronald Haken. Appellant challenges the district court orders granting respondent's motion to confirm the arbitration award and denying appellant's motion to vacate the same, contending his due process rights were violated. We affirm.

D E C I S I O N

I.

In the absence of a contrary agreement between the parties, arbitration proceedings in Minnesota are governed by Minn. Stat. ch. 572 (1996). Component Systems, Inc. v. Murray Enters. of Minn., Inc., 300 Minn. 21, 23, 217 N.W.2d 514, 515 (1974). Unless a motion to vacate an arbitration award is based on corruption, fraud, or other undue means, it must be brought within 90 days of receipt of the award. Minn. Stat. § 572.19, subd. 2 (1996); Great Am. Ins. Co. v. Lemieux, 439 N.W.2d 733, 734 (Minn. App. 1989), review denied (Minn. July 12, 1989).

Appellant claims his due process rights were violated because he did not receive notice of the September 26, 1996, hearing on respondent's confirmation motion. We disagree. It is undisputed that appellant received a copy of the arbitration award dated June 28, 1996, and mailed on July 1, 1996. In addition, appellant admits to receiving the initial motion to confirm documents. The district court granted respondent's motion to confirm on October 9, 1996, in excess of 90 days after the date of the arbitration award. At the time of confirmation, appellant had not contacted the court to request vacation or modification of the award and had not inquired about the motion to confirm. Because the 90-day limitation period had run, the district court was obliged to confirm the award. See Minn. Stat. § 572.18 (1996) (once time limits for vacation, modification or correction of an award have run, the court shall confirm an award upon application of a party). Likewise, the district court properly denied appellant's motion to vacate, filed on November 5, 1996, well after the time limit for vacation of the award. Wacker v. Allstate Ins. Co., 312 Minn. 242, 249, 251 N.W.2d 346, 349-50 (1977) (running of statutory period precludes challenge to award of arbitration on appeal).

Further, we reject appellant's argument based on respondent's allegedly fraudulent mailing of court documents to an incorrect address. Appellant does not dispute receipt of respondent's July 3, 1993, certified letter requesting payment of the arbitration award. The domestic return receipt indicates that appellant received that mailing at the Forest Lake address on July 5, 1996. Appellant did not inform respondent that this was an incorrect address and respondent continued to send materials to the Forest Lake address. In addition, appellant should have discovered that respondent was using an incorrect address more than 90 days before confirmation of the award. Thus, even if we could construe using an incorrect address as fraud, appellant failed to make his motion to vacate within the applicable time limit. See Minn. Stat. § 572.19, subd. 2 (where request to vacate is based upon fraud, the 90-day limitation period runs from the time the fraud is discovered or should have been discovered).

Finally, we have reviewed the following assertions set forth by appellant: (1) the district court improperly engaged in ex parte communications with respondent; (2) the district court improperly assisted respondent; (3) the district court had a predisposed position on the case; and (4) respondent made hand-written notes in the case file after the materials had been filed with the court. We conclude these arguments are without merit.

II.

An appellate court may not base its decision on matters outside the record on appeal and may not consider matters not produced and received in evidence by the trial court. Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988). We agree that respondent's brief improperly included the following: (1) homestead verification at 6741 Sheridan Ave. So.; (2) a financial disclosure form; and (3) responsive memorandum received by respondent on September 26, 1996. Because these documents are outside the record on appeal, we grant in part appellant's motion to strike.

Affirmed, motion granted in part.

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