William L. French, 627 Woodhaven Court N.E., P.O. Box 6323, Rochester, MN 55903 (for appellant)

Ken D. Schueler, Dunlap & Seeger, P.A., 206 South Broadway, Suite 505, P.O. Box 549, Rochester, MN 55903-0549 (for respondent James Paulson, et al.)

Joseph F. Chase, 206 South Broadway, Suite 611, P.O. Box 968, Rochester, MN 55903-0968 (for respondent Don Prow)

Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Short, Judge.

Appellant Samer Taumalla challenges the district court order that: (1) denied Taumalla's motion to vacate a prior order dissolving a temporary restraining order (TRO) related to the sale of a building to Taumalla; and (2) discharged Taumalla's notice of lis pendens on the building, which was owned by respondents James Paulson and Paulson Library Family. We affirm.

Taumalla moved to vacate the district court's order dissolving the TRO under Minn. R. Civ. P. 60.02(f). The decision to vacate an order under rule 60.02 rests within the district court's discretion and will not be reversed absent a clear abuse of that discretion. Meyer v. Best Western Seville Plaza Hotel, 562 N.W.2d 690, 694 (Minn. App. 1997), review denied (Minn. June 26, 1997). Rule 60.02(f) permits vacation of an order for judgment for "any * * * reason justifying relief from the operation of the judgment" other than a reason specified in clauses (a) through (e) provided that the motion for relief is "made within a reasonable time." Minn. R. Civ. P. 60.02(f).

Relief under this residual clause is appropriate when the equities weigh heavily in favor of the party seeking relief and relief is required to avoid an unconscionable result.

Hovelson v. U.S. Swim & Fitness, Inc., 450 N.W.2d 137, 142-43 (Minn. App. 1990) (citations omitted), review denied (Minn. Mar. 16, 1990); see also Chapman v. Special Sch. Dist. No. 1, 454 N.W.2d 921, 924 (Minn. 1990) (stating that relief under rule 60.02(f) "is available only under exceptional circumstances").

Taumalla contends the district court order dissolving the TRO should be vacated because it was issued without an explanation of the reasons affected parties were not notified, and therefore did not comply with the requirements of Minn. R. Gen. Pract. 3.01. We disagree. Rule 3.01 provides:

In any application for ex parte relief, the court may require a demonstration or explanation of the efforts made to notify affected parties, or the reasons why such efforts were not made. The reasons supporting ex parte relief should be recited in the order.

Minn. R. Gen. Pract. 3.01 (emphasis added). Because the language of rule 3.01 is not mandatory, we conclude the district court did not violate the rule.

Further, the ex parte relief requested--dissolution of the TRO--was expressly deferred to allow Taumalla an additional three days to comply with a $50,000 bond required by an order continuing the TRO filed three weeks earlier. Taumalla's attorney concedes that he: (1) agreed to the $50,000 bond requirement; and (2) received notice of the bond deadline in a voice mail from the district court clerk the day it was set. Yet Taumalla failed to either post a bond or request additional time before or immediately after the TRO dissolution became effective. Instead, Taumalla waited four months to file a motion to vacate the order dissolving the TRO, during which time respondents had found another buyer for the building and signed a second purchase agreement. Under these circumstances, we conclude Taumalla did not act with due diligence after entry of the order dissolving the TRO. Therefore, the district court did not abuse its discretion in denying the motion to vacate the order. Further, we reject Taumalla's argument that the bond deadline violated her due process rights because Taumalla knew the TRO protecting her property interest was conditioned on posting of a bond and Taumalla was notified of the deadline.

The TRO obtained by Taumalla prevented respondents from canceling the purchase agreement. See Minn. Stat. §§ 559.21, 559.211 (1998) (if proper notice of cancellation served, a seller may terminate a purchase contract unless the prospective buyer cures the default or obtains a district court order suspending cancellation). Once the TRO was dissolved, respondents properly canceled the purchase agreement, leaving Taumalla with no further interest in the property. We conclude, that in the absence of any rights to the property, Taumalla was no longer entitled to lis pendens and the district court did not err in discharging the notice of lis pendens.

Affirmed.