Thorp Loan and Thrift Co. v. Morse

451 N.W.2d 361, 1990 Minn. App. LEXIS 185, 1990 WL 13454
CourtCourt of Appeals of Minnesota
DecidedFebruary 20, 1990
DocketC9-89-1675
StatusPublished
Cited by17 cases

This text of 451 N.W.2d 361 (Thorp Loan and Thrift Co. v. Morse) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thorp Loan and Thrift Co. v. Morse, 451 N.W.2d 361, 1990 Minn. App. LEXIS 185, 1990 WL 13454 (Mich. Ct. App. 1990).

Opinion

OPINION

LANSING, Judge.

FACTS

Roger Anderson appeals pro se from Thorp Loan’s default judgment against him. In its complaint Thorp alleged that Anderson committed continuing trespass on Thorp’s property and denied Thorp rightful entry onto the property. In its request for relief Thorp demanded actual damages of $1,566.58 and “such other sums as are determined through discovery and accounting.” Thorp additionally requested treble damages under Minn.Stat. § 557.08 (1988) and injunctive relief.

Anderson’s attempt to answer the complaint was unsuccessful. His submitted answer was never officially filed with the trial court. Anderson was notified by the trial court administrator on April 21, 1989 that his answer was rejected because he had not paid the proper filing fee and had not provided the court with an affidavit of service upon Thorp. Anderson did not remedy the problem.

On August 8, 1989, after receiving an affidavit of no answer from Thorp, the trial court ordered judgment against Anderson by default. The court awarded Thorp in-junctive relief, $4,230 in actual damages, and treble damages under Minn.Stat. § 557.09 (1988). Rather than moving to vacate the default judgment, Anderson seeks relief through .appeal. On appeal Anderson claims a leasehold interest in the property deriving from previous owners.

ISSUES

1. Are appellant's claims of trial court’s factual and procedural errors reviewable on an appeal from a default judgment?

2. Is appellant in a default judgment entitled to relief from extra-pleading damages when appellant failed to raise this issue in the trial court?

ANALYSIS

I.

At the outset, we note that appellate review is limited to the record. Grinolds v. Independent School District No. 597, 346 N.W.2d 123, 128 (Minn.1984). Evidence not produced and received below may not be considered by an appellate court. Anderson has filed with this court several documents which were not presented at the trial court level. These documents will not be considered on appeal.

It is a well-settled principle of law that a party is not entitled to raise a ques *363 tion for the first time on appeal. Duenow v. Lindeman, 223 Minn. 505, 510, 27 N.W.2d 421, 425 (1947); In re Estate of Magnus, 436 N.W.2d 821, 823 (Minn.Ct.App.1989). Based on this premise, our supreme court has ruled that on appeal from a default judgment, a party in default may not deny facts alleged in the complaint when such facts were not put into issue below. Doud, Sons & Co. v. Duluth Milling Co., 55 Minn. 53, 56, 56 N.W. 463, 463-464 (1893); Cf. Keegan v. Peterson, 24 Minn. 1, 3-4 (1877). By the same token, a party in default may not assert facts on appeal which were not asserted below. Finally, a party in default may not raise procedural irregularities on appeal which were not raised below, provided that adequate and expeditious relief is available by motion in the trial court. Whipple v. Mahler, 215 Minn. 578, 581-582, 10 N.W.2d 771, 774 (1943).

In this litigation Anderson ignores these appellate rules. On appeal, he denies for the first time the amount of actual damages claimed in Thorp’s complaint. He asserts for the first time a contractual right to occupy Thorp’s property. He argues for the first time that the trial court committed procedural error by rejecting his answer. Because Anderson did not raise these questions at the trial level, he may not raise them on appeal. When an appellant acts as attorney pro se, appellate courts are disposed to disregard defects in the brief, but that does not relieve appellants of the necessity of providing an adequate record and preserving it in a way that will permit review. Noltimier v. Noltimier, 280 Minn. 28, 29, 157 N.W.2d 530, 531 (1968).

Instead of directly appealing the default judgment, Anderson should have brought a motion in the trial court to vacate the judgment. In support of this motion, he would be able to submit a proposed answer fortified by affidavits. Hinz v. Northland Milk & Ice Cream Co., 237 Minn. 28, 30, 53 N.W.2d 454, 456 (1952). Then the trial court, in its discretion, could vacate the judgment, provided that Anderson (1) had a reasonable excuse for failure or neglect to answer, (2) acted with due diligence after notice of entry of judgment, (3) demonstrated no substantial prejudice resulted to Thorp, and (4) possessed a reasonable defense on the merits. See Thompson v. Spring Lake Township, 257 N.W.2d 388, 389 (Minn.1977). An order denying a motion to vacate a default judgment is appealable. Spicer v. Carefree Vacations, Inc., 370 N.W.2d 424, 425 (Minn.1985).

This alternative and appropriate route to appellate review would preserve the issues which Anderson unsuccessfully raised on appeal. See 3 D. McFarland & W. Keppel, Minnesota Civil Practice § 1666 (1979) (to avoid dismissal of an appeal improperly brought, practitioners should always seek relief from default judgments at trial court level first).

II.

Notwithstanding our analysis of the first issue, there are a limited number of issues which may be raised for the first time on appeal from a default judgment. For example, a defendant in default may argue for the first time on appeal that the plaintiff’s complaint did not state a cause of action or that the relief granted was not justified by the complaint. Union Central Life Insurance Co. v. Page, 190 Minn. 360, 363-364, 251 N.W. 911, 913 (1933); Halvorsen v. Orinoco Mining Co., 89 Minn. 470, 472, 95 N.W. 320, 321 (1903); Northern Trust Co. v. Albert Lea College, 68 Minn. 112, 113, 71 N.W. 9, 9-10 (1897).

In this case, the trial court granted money damages to Thorp in excess of that which was specifically requested in the complaint, contrary to Rule 54.03 of the Minnesota Rules of Civil Procedure. In a default judgment the relief awarded to the plaintiff must be limited in kind and degree to what is specifically demanded in the complaint even if the proof would justify greater relief. Halvorsen, 89 Minn. at 472, 95 N.W. at 321. Because the power of the court to grant relief in a default judgment is limited to that demanded in the complaint, it follows that Anderson is entitled to have the error corrected on appeal by a *364 modification of judgment. See Northern Trust, 68 Minn, at 113, 71 N.W. at 9-10; Halvorsen,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Mark Michael Dwyer v. Tamara Jo Molde
Court of Appeals of Minnesota, 2015
Ramsey County, A. L. A. v. E. v. S.
Court of Appeals of Minnesota, 2015
State of Minnesota v. Marlon Terrell Pratt
Court of Appeals of Minnesota, 2015
State of Minnesota v. David Brian Triemert
Court of Appeals of Minnesota, 2014
Michaels v. First USA Title, LLC
844 N.W.2d 528 (Court of Appeals of Minnesota, 2014)
Yuanzong Fu v. Rhodes
2013 UT App 120 (Court of Appeals of Utah, 2013)
Meindl v. Genesys Pacific Technologies, Inc.
18 P.3d 895 (Hawaii Supreme Court, 2001)
In Re: Genesys Data Technologies, Incorporated
204 F.3d 124 (Fourth Circuit, 2000)
Meindl v. Genesys Pacific Technologies, Inc.
204 F.3d 124 (Fourth Circuit, 2000)
Scroggins v. Solchaga
552 N.W.2d 248 (Court of Appeals of Minnesota, 1996)
Marriage of Mesenbourg v. Mesenbourg
538 N.W.2d 489 (Court of Appeals of Minnesota, 1995)
Hooters of America v. CAROLINA WINGS
655 So. 2d 1231 (District Court of Appeal of Florida, 1995)
Marriage of Nazar v. Nazar
505 N.W.2d 628 (Court of Appeals of Minnesota, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
451 N.W.2d 361, 1990 Minn. App. LEXIS 185, 1990 WL 13454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thorp-loan-and-thrift-co-v-morse-minnctapp-1990.