Charson v. Temple Israel

405 N.W.2d 895

• Court: Court of Appeals of Minnesota
• Decided: July 15, 1987
• Docket: C6-86-2087
• Status: Published

Opinions

OPINION

WOZNIAK, Judge.

Larry Charson appeals from the judgment and the order denying his motion to vacate the dismissal of his action on grounds of excusable neglect. Charson argues that his attorney had a reasonable excuse for the neglect that resulted in the dismissal. We affirm.

FACTS

In February 1985, Charson served a summons and complaint on respondent Temple Israel. The complaint alleged breach of an employment contract and defamation. Charson’s attorney, however, did not file the summons and complaint in district court. Shortly thereafter, Temple Israel served its answer on Charson and also filed it in Hennepin County District Court, together with interrogatories and a request for production of documents. Temple Israel received a notice from the court’s filing department that the case was assigned File No. 85-4448. Charson’s attorney insists that he never received notice of the filing. The case was not assigned to a judge.

Over the next several months, the parties prepared the case. The court file number appeared in the caption on the documents prepared by Temple Israel and sent to Charson’s attorney, which included: (1) Interrogatories and Demand for Production of Documents, dated February 6, 1986; (2) Answers to Interrogatories, dated June 6, 1985; (3) Notice of Deposition, dated July 30, 1985; and (4) Charson’s deposition transcript, dated September 23, 1985.

Charson’s attorney had scheduled depositions of Temple Israel witnesses in February 1986, but cancelled the depositions. According to an affidavit from Temple Israel’s attorney, Charson had fired his attorney at that time and wanted the depositions continued indefinitely. The affidavit further states that in late February 1986, Charson himself made a settlement demand which Temple Israel rejected, advising Charson’s attorney that the demand was unacceptable. Temple Israel also asked Charson’s attorney to have Charson respond to discovery requests and to schedule depositions. Charson, however, did not respond and made no attempt to prosecute the claims from February 1986 to August 1986. Charson apparently rehired his attorney during this time, but the record does not disclose when or under what circumstances this occurred.

Meanwhile, Hennepin County District Court had promulgated new procedures designed to implement a block assignment system for its civil cases. On April 10, 1985, Chief Judge Patrick Fitzgerald issued the following order, stating in part:

THEREFORE, IT IS ORDERED:

1. All existing cases certified ready for trial and not resolved prior to July 1, 1985, will be assigned under the block system on a random basis.

2. Cases filed with the Court prior to July 1, 1985, but not certified ready for trial, will be assigned to a judges’ block at the time of the next filing activity.

3. Cases filed with the Court prior to July 1, 1985, but not certified ready for trial, will be activated effective July 1, 1985, for the purposes of the initial filing date. All cases activated on this date will be dismissed on July 1, 1986, unless a Note of Issue/Certificate of Readiness has been filed or the case has been continued prior to the expiration of 12 months, under Rule 41.02, Rules of Civil Procedure.

4. The amended rules of the Fourth Judicial District will apply to all cases effective July 1, 1985, with the exception that the cases activated by the Court on its own motion will be dismissed under Rule 41.02, rather than Rule 41.01.

Order, reprinted in Minnesota Rules of Court, 501 (1986) (emphasis added).

Charson’s attorney did not file a Note of Issue/Certificate of Readiness, and no other filing activity occurred in this case from June 1985 through July 1, 1986. Consequently, the case was never assigned to a judge. On July 2, 1986, this case was dismissed pursuant to Judge Fitzgerald’s order of April 10, 1985.

On August 12, 1986, Charson’s attorney filed the summons and complaint in district court in order to obtain subpoenas to depose certain of Temple Israel’s employees. He then learned the case had been dismissed. On August 22, 1986, Charson’s attorney brought a motion to vacate the dismissal on grounds of excusable attorney neglect under Minnesota Rule of Civil Procedure 60.02.

At the hearing, Charson’s attorney admitted he knew of the new rules governing dismissal of cases filed prior to July 1, 1985. In his affidavit, he stated that he had searched his files for cases subject to dismissal under the new rule. He said no action was taken in this case because he was not aware the case had been filed with the court. Although the court file number appeared on documents prepared by Temple Israel, Charson’s attorney told the court he was not concerned with the caption on the documents, but with the text.

The trial court denied the motion to vacate, explaining in an accompanying memorandum that it was clear the case had been filed by Temple Israel and that a court file number had been assigned to the case. The court found that Charson’s attorney should have been aware that the case had been filed and was subject to dismissal unless either a Certificate of Readiness or a motion for continuance was filed.

ISSUE

Did the trial court abuse its discretion in denying the motion to vacate the order dismissing the action on grounds of excusable attorney neglect?

ANALYSIS

Under basic agency principles, an attorney’s neglect is chargeable to the party. Finden v. Klaas, 268 Minn. 268, 271, 128 N.W.2d 748, 750 (1964). Notwithstanding this principle of agency, a party may be relieved from the attorney’s neglect, by which the party is otherwise bound, if the party can show that it is entitled to relief under Rule 60.02, which provides in part:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment (other than a divorce decree), order, or proceeding and may order a new trial or grant such other relief as may be just for the following reasons: (1) Mistake, inadvertence, surprise or excusable neglect * * *.

Minn.R.Civ.P. 60.02. Although Charson’s attorney argues that the case was improperly dismissed under Rule 41.02(1)¹, he moved to vacate the dismissal under Rule 60.02. This appeal turns on whether Char-son is entitled to relief on grounds of excusable attorney neglect.

Rule 60.02 is often invoked to set aside a default judgment on grounds of excusable attorney neglect. E.g., Finden, 268 Minn. 268, 128 N.W.2d 748. The Minnesota Supreme Court has stated that a trial court

should relieve a defendant from the consequences of his attorney’s neglect in those cases where defendant—

“ * * * (a) is possessed of a reasonable defense on the merits, (b) has a reasonable excuse for his failure or neglect to answer, (c) has acted with due diligence after notice of the entry of judgment, and (d) [shows] that no substantial prejudice will result to the other party.”

Id. at 271,128 N.W.2d at 750 (quoting Hinz v. Northland Milk & Ice Cream Co., 237 Minn. 28, 30, 53 N.W.2d 454, 455-56 (1952)) (footnote omitted). Rule 60.02 relief is not limited to default judgments, however, and the same four-part test applies where a plaintiff seeks to vacate the dismissal of an action on grounds of excusable neglect. See Sand v. School Service Employees Union, Local 284, 402 N.W.2d 183 (Minn. Ct.App.1987), pet. for rev. denied (Minn. Apr. 29, 1987).

In this case, the trial court did not specifically address the four factors in determining whether relief should be granted under Rule 60.02. The court relied exclusively on the reasonableness of Charson’s excuse, which was the only factor Charson presented. Charson’s attorney argued that he was not aware the case had been filed and that he overlooked the file number on the documents because he was concerned with the text and not the caption. The trial court found, however, that Charson’s attorney should have been aware that the case had been filed and was subject to dismissal.

Charson argues that he should have received some kind of notice from the district court that the case was filed by Temple Israel. He claims that the subsequent dismissal of the case, without prior notice of its filing, violated due process. His argument, however, speaks to the reasonableness of his excuse and does not raise a separate due process issue. Although Charson received no formal notice of the filing, he was put on notice by the court file number that appeared in the caption of the documents. Because Charson had not filed his case in district court, he might reasonably overlook the file number on one document. His excuse pales considerably, however, because he. failed to notice the court file number on at least four documents, including the transcript of his own deposition. Nevertheless, a weak excuse can be offset by a strong showing on the other factors. See Guillaume & Associates, Inc. v. Don-John Co., 371 N.W.2d 15, 19 (Minn.Ct.App.1985).

The next factor is whether Charson has a meritorious claim. Charson failed to show, either by affidavit or other proof, that he has a meritorious claim. See Hengel v. Hyatt, 312 Minn. 317, 252 N.W.2d 105, 106 (1977) (“[i]f no affidavit of merit or other proof of a valid defense is provided, the motion to vacate will be denied”) (citing Vrooman Floor Covering, Inc. v. Dorsey, 267 Minn. 318, 126 N.W.2d 377 (1964). The affidavit submitted in support of the motion to vacate the dismissal did not address the merits of the claim. The only information of record that speaks to the merits of Charson’s claim is the complaint. The complaint, however, contains only the barest allegations of breach of contract and defamation. No facts are recited as to how the breach or defamation occurred. Charson has failed to present even a colorable claim of merit.

The next factor to consider is whether Charson acted with due diligence after notice of the dismissal. Charson brought his motion for relief shortly after learning of the dismissal. Clearly, he acted promptly and satisfied this requirement.

The final factor is whether substantial prejudice will result to the other party if the order is vacated. Temple Israel claims no prejudice other than delay, which by itself does not rise to the level of substantial prejudice. See Finden, 268 Minn, at 272, 128 N.W.2d at 751. Thus, Charson has also satisfied this requirement.

Trial courts are given much discretion in deciding Rule 60.02 motions, and their decisions will not be reversed unless that discretion is abused. See Kosloski v. Jones, 295 Minn. 177, 180, 203 N.W.2d 401, 403 (1973). Although the weakness of one factor may be overcome by the strength of the others, here, two of the four factors weigh heavily against Charson. His excuse is not a strong one, and his claims for breach of contract and defamation are unaccompanied in the record by affidavit or other proof of their merit.

The dissent would excuse Charson because he himself was not guilty of inexcusable neglect. However, any analysis under Rule 60.02 which seeks to distinguish between a party’s conduct and the attorney’s conduct is inconsistent with our system of representative litigation and ignores the principle that a party is bound by the acts of the lawyer-agent. See Link v. Wabash Railroad Co., 370 U.S. 626, 633-34, 82 S.Ct. 1386, 1390-91, 8 L.Ed.2d 734 reh’g denied, 371 U.S. 873, 83 S.Ct. 115, 9 L.Ed.2d 112 (1962). One purpose of the excusable neglect provision of Rule 60.02 is simply to provide an escape hatch for a party that can show it is entitled to relief and should not otherwise be bound by the attorney’s conduct. Although we favor the trial of causes on their merits, we believe Charson has simply failed to show that he is entitled to relief under the rule. Under the circumstances, the trial court did not abuse its discretion in refusing to vacate the order dismissing this case.

DECISION

Affirmed.

CRIPPEN, J., dissents.

1 . Minnesota Rule of Civil Procedure 41.02(1) provides:

The court may on its own motion, 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.