Kallys Albert, Sr. v. Chon Xiong, Jared J. Timmer (Progressive Claims Generalist), ...

• Court: Court of Appeals of Minnesota
• Decided: January 29, 2024
• Docket: a230053
• Status: Unpublished

Opinion

This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA IN COURT OF APPEALS A23-0053

Kallys Albert, Sr., Appellant,

vs.

Chon Xiong, Respondent,

Jared J. Timmer (Progressive Claims Generalist), Defendant,

John Does, Defendants.

Filed January 29, 2024 Affirmed Bratvold, Judge

Anoka County District Court File No. 02-CV-21-2199

Kallys Albert, Sr., Minneapolis, Minnesota (pro se appellant)

Jessica C. Richardson, Michael J. Vetter, Jr., Gabriel V. Wolski, Tomsche, Sonnesyn & Tomsche, P.A., Minneapolis, Minnesota (for respondent)

Considered and decided by Bratvold, Presiding Judge; Ross, Judge; and Schmidt,

Judge. NONPRECEDENTIAL OPINION

BRATVOLD, Judge

In this appeal from a final judgment dismissing appellant’s complaint with prejudice

as a sanction for appellant’s failure to cooperate with discovery, appellant argues that the

district court abused its discretion. Based on applicable caselaw and the district court’s

findings, which are fully supported by the record, we affirm.

FACTS

Appellant Kallys Albert alleged that respondent Chon Xiong drove recklessly and

“crashed and damaged” Albert’s vehicle while on Interstate 694 near the Brookdale Clinic

on February 19, 2021. Albert sued Xiong, serving a summons and complaint alleging

damage to “his property and person.” During discovery, Albert appeared to narrow the

issues by repeatedly asserting that he sought damages for property loss only, not personal

injury.

Discovery also led to many conflicts. More than once, Albert refused to respond to

discovery or cooperate with Xiong’s counsel in scheduling Albert’s deposition. For

example, Albert asked Xiong’s attorney to provide “security personnel” to escort him to

and from the deposition and transportation “to and from the facility.” When Xiong’s

attorney offered to hold the deposition over a web-based video-conference platform, Albert

asked Xiong’s attorney to provide an electronic device for him participate, even though

Albert had participated in a court hearing via a web-based video-conference platform.

Xiong’s attorney offered to conduct the deposition by telephone, but Albert did not respond

2 to the offer. In short, Xiong filed more than one motion to compel discovery and asked the

district court to order Albert to appear for a deposition.

On August 5, 2022, the district court granted Xiong’s motion to compel discovery,

first finding that Albert had failed to cooperate with discovery, as described above, and

then ordering Albert to respond to interrogatories and requests for production of documents

and statements within 14 days of the order and to make himself available for a deposition

via video conference within 30 days. The order also stated that if Albert violated these

directives, “Xiong’s counsel may file an affidavit with the Court attesting to [Albert’s]

failure to abide by this Order” and “the Court may consider a motion to dismiss this

matter.”

On August 22, 2022, Albert appeared for his deposition. Albert refused to answer

some questions. For example, Albert declined to answer with “yes” or “no” when Xiong’s

attorney asked if Albert had been known by any other names. Some of Albert’s responses

were evasive. For example, when Xiong’s attorney asked Albert which lane of traffic

Xiong was in before the collision, Albert stated, “I’m not going to keep dancing around

your questions here. . . . If you have any responsible questions, please ask them.” And

when Xiong’s attorney asked if Albert was exiting onto East River Road, he answered,

“That is your understanding. I’m not going to go back through that.” Albert also requested

an “English-to-English” translator more than once during the deposition, claiming that

Xiong’s attorney did not understand English.

Xiong moved for sanctions against Albert based on “his intentional frustration of

his deposition and obstruction of the discovery process” or for an order compelling Albert

3 to appear for a deposition before the district court. Albert filed a memorandum in response

to Xiong’s motion and “in support of his repeated counter motions and motions for

sanctions and for dismissal with prejudice against defendants, Xiong and Timmer and for

continuance.” We understand Albert’s memorandum to have requested default judgment,

among other relief. Although Albert’s written request was unclear, during the hearing on

Xiong’s motion, Albert stated that he sought “a default judgment under the law.” When the

district court inquired to clarify his requests, Albert stated that he was not seeking default

judgment.

In November 2022, the district court granted Xiong’s motion for sanctions,

dismissed Albert’s case with prejudice under Minn. R. Civ. P. 37.02, and directed entry of

judgment. The district court’s order also denied Albert’s motion for default judgment,

reasoning that Albert’s argument that he was entitled to default judgment because “Xiong

did not file an answer for property damage” was “not persuasive” because Xiong filed an

answer that addressed “both personal injury and property damage.”

This appeal follows.

DECISION

We first consider which issues are presented in this appeal. Albert’s brief to this

court challenges the district court’s decision to dismiss his complaint with prejudice. While

Xiong’s brief to this court addresses whether the district court erred by denying Albert’s

default motion, Albert did not raise this issue in his initial brief and mentions it only in his

4 reply brief. 1 Since Albert did not raise the default-judgment motion in his initial brief, we

need not address this issue. Wood v. Diamonds Sports Bar & Grill, Inc., 654 N.W.2d 704,

707 (Minn. App. 2002) (“If an argument is raised in a reply brief but not raised in an

appellant’s main brief, and it exceeds the scope of the respondent’s brief, it is not properly

before [the court of appeals] and may be stricken from the reply brief.”), rev. denied (Minn.

Feb. 26, 2003). Thus, we proceed by considering the district court’s decision to dismiss

Albert’s complaint with prejudice. 2

Albert argues that the district court abused its discretion by dismissing his complaint

with prejudice as a discovery sanction and that the district court improperly “refuse[d] a

Court supervised deposition.” Appellate courts review a district court’s decision to impose

discovery sanctions for an abuse of discretion. Frontier Ins. Co. v. Frontline Processing

Corp., 788 N.W.2d 917, 922 (Minn. App. 2010), rev. denied (Minn. Dec. 14, 2010); see

Cornfeldt v. Tongen, 262 N.W.2d 684, 697 (Minn. 1977) (“Trial courts must have

discretion to determine the sanction appropriate to a violation of the discovery rules, for

they are in the best position to assess the degree of prejudice that will arise from the

violation and the efficacy of the remedies available . . . .”). A district court abuses its

1 In fact, Albert’s reply brief asserts that he did not move for default judgment and that Xiong’s briefing on this issue is a “concocted falsehood.” 2 Albert’s initial brief to this court also challenges the district court’s order granting summary judgment for defendant Jared J. Timmer, an insurance-claims analyst. This court issued a special term order granting Timmer’s motion to dismiss the appeal against him, stating that Albert “cannot seek relief against Timmer in this appeal” due to his failure to timely serve a notice of appeal on Timmer. We therefore do not consider Albert’s arguments about the district court’s order granting summary judgment for Timmer.

5 discretion if it makes “findings [of fact] unsupported by the evidence or . . . improperly

appl[ies] the law.” Underdahl v. Comm’r of Pub. Safety (In re Comm’r of Pub. Safety),

735 N.W.2d 706, 711 (Minn. 2007).

Courts enforce civil discovery through a two-step process, which is reflected in the

procedural history of this case. See 1A David F. Herr & Roger S. Haydock, Minnesota

Practice § 37:1 (6th ed. 2018) (describing the two-step process). First, a party “must seek

and obtain an order compelling discovery.” Id. “If discovery is not forthcoming” after the

first step, “that party may seek the imposition of sanctions” against the party who failed to

comply with the order. Id. This provides “the recalcitrant party with a warning of what

sanction may be imposed if the discovery order continues to be violated.” Id. Our supreme

court approved a district court’s conclusion that a plaintiff has “forfeited [their] right to a

trial of [their] case on the merits” if they “willfully and without justification or excuse

refused to comply with discovery orders and deliberately and in bad faith, with the intent

to delay trial, continued to refuse to cooperate with the court and defendants’ counsel to

bring the case to a prompt and expeditious conclusion.” Breza v. Schmitz, 248 N.W.2d 921,

922 (Minn. 1976) (quotation marks omitted).

Minnesota Rule of Civil Procedure 37.02(b)(3) authorizes the district court to issue

sanctions for discovery violations, including dismissing “the action or proceeding,” if a

party fails to “obey an order to provide or permit discovery.” Minnesota caselaw articulates

6 five factors for determining whether a district court has abused its discretion by imposing

discovery sanctions:

(1) if the court set a date certain by which compliance was required, (2) if the court gave a warning of potential sanctions for non-compliance, (3) if the failure to cooperate with discovery was an isolated event or part of a pattern, (4) if the failure to comply was willful or without justification, and (5) if the moving party has demonstrated prejudice.

Frontier Ins. Co., 788 N.W.2d at 923.

Here, the district court made specific findings on each of the five factors before

deciding whether to dismiss Albert’s complaint with prejudice. First, the district court

determined that it “set out a specific deadline for [Albert’s] deposition.” The district court

ordered Albert “to make himself available for a deposition . . . within 30 days of the

Court’s Order and . . . all discovery had to be completed within 90 days.”

Second, the district court found that it had warned Albert that he could be sanctioned

for noncompliance. The district court’s order issued August 4, 2022 “included a clear

warning that if [Albert] failed to comply with the deadline, the Court may . . . consider”

sanctions including “a motion to dismiss the matter in its entirety.”

Third, the district court considered whether Albert’s failure to cooperate was an

isolated incident or a pattern of conduct. Xiong filed three motions to compel based on

Albert’s ongoing failure to cooperate with discovery. The district court found that Albert

failed to respond or object to Xiong’s discovery requests, failed to communicate with

Xiong’s counsel to clarify his claims, made unreasonable demands related to his

deposition, and provided “unresponsive and evasive” answers during his deposition. The

7 district court accordingly concluded that Albert “engaged in a pattern of conduct that has

interfered with discovery and the taking of his deposition by opposing counsel.”

Fourth, the district court considered whether Albert’s “failure to cooperate was

willful and without justification.” The district court found that Xiong had “attempted to

afford [Albert] all possible assistance and courtesies,” but Albert “has willfully and without

justification or excuse, refused to comply with discovery orders and deliberately and in bad

faith, with the intent to delay the trial, continued to refuse to cooperate with the Court and

defense counsel.” Although Albert appeared for his deposition, he did not cooperate during

the deposition. The district court found that Albert “provided unresponsive and evasive

answers to defense counsel’s reasonable and relevant questions.” The district court also

found that Albert’s conduct during the deposition was “not courteous or respectful.” The

district court concluded that Albert’s failure to cooperate was willful and without

justification. 3

Fifth, the district court determined that Albert’s failure to comply with the discovery

order prejudiced Xiong. Specifically, Albert’s “unresponsive and evasive answers during

his deposition prejudiced Defendant Xiong by depriving him of the necessary information

to form a defense.” The district court pointed out, for example, that Xiong was “entitled

3 In his brief to this court, Albert claims that his refusal to respond to discovery was based on his constitutional right not to incriminate himself. This argument fails for two reasons. First, he raises this issue for the first time on appeal, and appellate courts seldom address issues that were not presented to and considered by the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Second, Albert’s argument is a “mere assertion” that is not supported by any understandable argument or legal authority, and therefore, we need not consider it. Schoepke v. Alexander Smith & Sons Carpet Co., 187 N.W.2d 133, 135 (Minn. 1971).

8 to” responses to questions about whether Albert had testified before at a deposition or been

known by other names to determine whether he had “made any prior admissions” or

participated in “any other lawsuits or criminal matters.”

Applicable caselaw supports the district court’s analysis of these five factors. In

Breza, the Minnesota Supreme Court affirmed a district court’s decision to dismiss a

plaintiff’s complaint as an appropriate discovery sanction under Minn. R. Civ. P. 37.02.

248 N.W.2d at 922. The district court found that the plaintiff repeatedly ignored discovery

orders in bad faith to delay the resolution of the case. Id. Like the appellant in Breza, Albert

refused to cooperate throughout the discovery process, acted in bad faith, made

unreasonable demands as conditions for attending his deposition, and refused to answer

Xiong’s attorney’s discovery requests and deposition questions. “[A]n evasive or

incomplete disclosure, answer, or response” is considered a “failure to disclose, answer, or

respond.” Minn. R. Civ. P. 37.02(c).

Our review of the record also supports the district court’s analysis of the five factors.

The record shows that Albert failed to follow a district court order to comply with discovery

and that Albert engaged in an unjustified pattern of uncooperative behavior. The district

court aptly summarized the record as showing Albert’s “persistent, willful failure to

provide meaningful discovery and refusal to cooperate with the Court and Defendant

Xiong’s counsel to bring this case to a prompt and expeditious conclusion, prejudicing

Defendant Xiong by preventing him from preparing a defense and continually incurring

costs for each motion hearing.” The district court also did not abuse its discretion by

declining to order a court-supervised deposition. The district court stated that it did not

9 “believe a deposition before the Court would be fruitful given [Albert’s] repeated attempts

to remove the . . . judge, his assertions that th[e] Court does not have subject matter

jurisdiction, and his belief that this matter should be removed to federal court.” Thus, we

conclude that the district court did not abuse its discretion by imposing discovery sanctions

against Albert and dismissing his case with prejudice.

Finally, in his brief to this court, Albert argues for reversal based on four grounds

unrelated to the district court’s reasons for dismissing his complaint with prejudice. Albert

argues that (A) Xiong and the district court improperly considered his case a

personal-injury case and wrongfully listed the case type as “personal injury” in court

filings; (B) Xiong asserted personal-injury defenses, and the district court lacked

subject-matter jurisdiction over these defenses; (C) the district court judge was biased

against Albert; and (D) the district court violated Albert’s constitutional rights, for which

he is entitled to relief under 42 U.S.C. § 1983 (2018).

In support of these four grounds, Albert cites caselaw, statutes, and rules; however,

despite our careful review of the cited authorities, they do not support Albert’s assertions.

Nor does Albert provide understandable argument explaining how the cited authorities

support his challenge to the district court’s order dismissing his complaint with prejudice.

Appellate courts will not address issues that are inadequately briefed. State Dep’t of Labor

& Indus. by the Special Comp. Fund v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480

(Minn. 1997). “An assignment of error based on mere assertion and not supported by any

argument or authorities in appellant’s brief is waived and will not be considered on

appeal . . . .” Schoepke, 187 N.W.2d at 135. Minnesota courts require all parties, including

10 self-represented litigants, to comply with standard rules of court procedure. Fitzgerald v.

Fitzgerald, 629 N.W.2d 115, 119 (Minn. App. 2001).

“[O]n appeal error is never presumed. It must be made to appear affirmatively before

there can be reversal . . . [and] the burden of showing error rests upon the one who relies

upon it.” Waters v. Fiebelkorn, 13 N.W.2d 461, 464-65 (Minn. 1944). Thus, as to the four

other grounds Albert asserts for reversal, he fails to meet his burden to show error because

he adequately briefed his arguments. We therefore do not consider these four arguments.

Affirmed.