James Mitchell, et al.,
Appellants,

vs.

City of Oakdale,
Respondent.

Washington County District Court
File No. C6964063

Stephen Kelly, Bannigan & Kelly, P.A., 1750 North Central Life Tower, 445 Minnesota Street, St. Paul, MN 55101 (for appellants)

Thomas J. Radio, Hinshaw & Culbertson, Piper Jaffray Tower, Suite 3200, 222 South Ninth Street, Minneapolis, MN 55402; and

Tim Keane, 7900 Xerxes Avenue South, Suite 1500, Bloomington, MN 51500 (for respondent)

Considered and decided by Toussaint, Chief Judge, Anderson, Judge and Mulally, Judge.

MULALLY, Judge

Appellants James and Marion Mitchell appeal from the district court’s denial of their Motion for Relief from a special assessment judgment in favor of respondent City of Oakdale. Because the trial court did not clearly abuse its discretion in denying appellants’ Motion for Relief, this court affirms the trial court’s decision.

On July 23, 1996, the City of Oakdale levied a special assessment in the amount of $142,311.69 against 17.06 acres of appellants’ property. Appellants appealed the special assessment to the district court. The special assessment was upheld and the appeal was dismissed on the merits. Appellants filed a Motion for Relief pursuant to Minn. R. Civ. P. 60.02, seeking relief from the judgment entered on January 1, 1998, in favor of the City of Oakdale. Appellants failed to file a proposed order or a memorandum of law. Respondent asked the district court to dismiss appellant’s motion pursuant to Minn. R. Gen. Pract. 115.03, which deals with dispositive motions and states:

(a) No motion shall be heard until the moving party serves a copy of the following documents on opposing counsel and files the original with the court administrator at least 28 days prior to the hearing:

(1) Notice of motion and motion;
(2) Proposed order;
(3) Any affidavits and exhibits to be submitted in conjunction with the motion; and
(4) Memorandum of law.

Specifically, respondent argued that appellants’ failure to file a memorandum of law and a proposed order warranted dismissal of appellant’s motion for relief. The district court denied appellants’ motion.

On appeal, appellants argue that a Rule 60.02 motion is a non-dispositive motion and therefore, the district court erred in dismissing the action. Appellants suggest that the district court erred in applying Minn. R. Gen. Pract. 115.03, and instead, should have applied Rule 115.04, which deals with non-dispositive motions. Rule 115.04 states:

(a) No motion shall be heard until the moving party serves a copy of the following documents on the other party or parties and files the original with the court administrator at least 14 days prior to the hearing:

(1) Notice of motion and motion;
(2) Proposed order;
(3) Any affidavits and exhibits to be submitted in conjunction with the motion; and
(4) Any memorandum of law the party intends to submit.

Minn. R. Gen. Pract. 115.04. Under this rule, appellants would not have been required to file a memorandum of law.

The focus on whether a motion for relief is a dispositive or non-dispositve motion is misplaced. This distinction is irrelevant in this case because appellant failed to file not only a memorandum of law, which is optional under a non-dispositive motion, but also a proposed order, which is required under both types of motions. Because both dispositive and non-dispositive motions require a proposed order, appellants failed to comply with both rules and therefore, the court can take any action consistent with Rule 115.06.

Upon violation of Rule 115.03 or 115.04, the trial court has the discretion to cancel the hearing, allow reasonable attorneys fees, or take "any appropriate action," including hearing the matter. Minn. R. Gen. Pract. 115.06. According to the advisory committee comments, "the court retains the discretion to hear matters even if the rules have been ignored." Minn. R. Gen. Pract. 115.06 1997 advisory comm. cmt. Here, the trial court decided not to cancel the hearing. While it noted that appellants’ failure to file a memorandum of law or proposed order made it difficult for the court or respondent to understand the relief sought, it allowed appellants to argue their case. At the hearing the court and appellants had the following exchange:

The Court: I’d like you to be a little more precise in your pleadings. Mr. Radio has a right to know what he is supposed to defend and I have a right to know what you are asking. It’s really vague.

Mr. Kelly: Okay, your Honor. If your Honor would like, I could submit an amended memorandum.

The Court: We will see after you get finished.

After hearing both sides the trial court denied the motion on the merits. Therefore, the relevant issue in this case is not whether a Motion for Relief is a dispositive or non-dispositive motion, but whether the trial court clearly abused its discretion in denying appellant’s motion for relief. Howard v. Frondell, 387 N.W.2d 205, 207-08 (Minn. App. 1986), review denied (Minn. July 31, 1986).

In their Notice of Motion and Motion, appellants state that they seek relief due to excusable neglect, newly discovered evidence, and any other reason justifying relief from the operation of the judgment. A court may relieve a party from a final judgment for "excusable neglect" or "any other reason justifying relief from the operation of the judgment." Minn. R. Civ. P. 60.02 (a), (f). In analyzing motions seeking relief under rule 60.02, the supreme court has adopted a four-part test. A party must show (1) a reasonable claim on the merits, (2) a reasonable excuse for failure or neglect to act, (3) due diligence after notice of entry of judgment, and (4) that no substantial prejudice will result to the opponent. Lund v. Pan Am. Mach. Sales, 405 N.W.2d 550, 552 (Minn. App. 1987) (citation omitted). A court may also relieve a party from a final judgment due to "newly discovered evidence." Minn. R. Civ. P. 60.02 (b).

In order for relief from a judgment to be granted on the basis of newly discovered evidence, the evidence must be relevant and likely to have an effect on the result of the case, and must be such that with reasonable diligence it could not have been found.

Bankers Life & Cas. Co., v. Slater, 437 N.W.2d 109, 112 (Minn. App. 1989), review denied (Minn. May 18, 1989) (citation omitted). The right to be relieved of a judgment, however, is not absolute. Absent a clear abuse of discretion, a trial court's decision will be upheld. Frondell, 387 N.W.2d at 207-08.

The record indicates that at the February 2, 1999, hearing appellants did not demonstrate or even argue that relief from the prior judgment should be granted based on "excusable neglect" or "any other reason justifying relief from the operation of the judgment." Instead, appellants argued that relief should be granted due to "newly discovered evidence." During the February 2, 1999 hearing, appellants briefly argued that a recent decision by another district court judge in which that district court judge determined that there had been a taking by the City on May 1, 1994, constituted "newly discovered evidence" which should be considered in the current case.

In order that relief may be granted from a prior judgment, appellant must show that the evidence: (1) is relevant; (2) is likely to have an effect on the result of the case; (3) could not be found with reasonable diligence. Slater, 437 N.W.2d at 112 (citation omitted). Appellants’ pleadings at the hearing were minimal and unclear. While appellants do not state directly why the evidence of the May 1, 1994, taking is relevant, they note that the special assessment, as well as the taking, involved the same land.

Appellants also allege that the special assessment proceeding is the only forum in which they can get relief. They argue that the condemnation proceeding is not the proper forum because in such proceedings, the valuation date will be May 1, 1994, the date of condemnation. However, they argue that because on that date there was no assessment on the land, the appraisers will have no appraisal value to follow, and therefore, the assessment that was assessed against them on January 28, 1997, cannot be recouped in the condemnation proceeding. Other than these statements to the court, it is difficult to determine from the record why appellants believed that the "newly discovered evidence" was relevant. Appellants’ pleadings also fail to state clearly what effect the newly discovered evidence will have on the result. Finally, appellants never demonstrated that with reasonable diligence this evidence could not be found. In fact, this requirement was never addressed at the hearing. Given appellants’ lack of clarity as to the issue of relevance, and failure to provide evidence as to the last two requirements, appellants did not demonstrate that relief was warranted in this case.

In spite of failing to provide the court with a proposed order and a memorandum of law, the district court allowed appellants to argue their case. Nevertheless, appellants’ arguments during the February 2, 1999, hearing were unclear and failed to address some of the issues necessary to determine if relief should be granted. Absent a memorandum of law or a proposed order, the oral arguments at the hearing were insufficient to entitle appellants to relief. The trial court did not clearly abuse its discretion in denying appellants’ motion for relief after hearing appellants’ argument and reviewing appellant’s pleadings.

ANDERSON, Judge (concurring specially)

Minn. R. Civ. P. 60.02 permits relief from final judgments or orders only in narrowly defined circumstances. Carter v. Anderson, 554 N.W.2d 110, 113 (Minn. App. 1996), review denied (Minn. Dec. 23, 1996). The district court’s decision to vacate a judgment is a discretionary act and will normally not be reversed on appeal absent a clear abuse of discretion. Safeco Ins. Co. of America v. Dain Bosworth, Inc., 531 N.W.2d 867-873 (Minn. App. 1995), review denied (Minn. July 20, 1995).

The failure to supply a memorandum (or an order, for that matter) along with the rule 60.02 motion is an easily curable defect. In light of other, less severe, sanctions available to ensure compliance with the rules by appellants’ counsel, the decision of the district court to use the ultimate sanction, dismissal, does present a difficult question for this court. In this case, however, because the motion is without substantive merit, I concur in the result and find it unnecessary to address the more troubling issue of what sanction, if any, to impose here.

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