Mary Roe, Respondent, vs. Frank L. King, Appellant.

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-97-1507

Mary Roe,

Respondent,

vs.

Frank L. King,

Appellant.

Filed April 21, 1998

Reversed

Kalitowski, Judge

Washington County District Court

File No. C2964433

Harry T. Neimeyer, Owen L. Sorenson, Stringer & Rohleder, Ltd., 1200 Norwest Center, 55 East Fifth Street, St. Paul, MN 55101; and

Bjorn J. Ulstad, Professional Building, 311 Ramsey Hill, St. Paul, MN 55102 (for respondent)

Charles E. Lundberg, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for appellant)

Considered and decided by Davies, Presiding Judge, Kalitowski, Judge, and Foley, Judge.*

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

U N P U B L I S H E D O P I N I O N

KALITOWSKI, Judge

Appellant Frank L. King challenges the district court's decision to vacate a judgment of dismissal pursuant to Minn. R. Civ. P. 60.02 (f). We reverse.

D E C I S I O N

Appellant, a psychologist, provided marriage counseling to respondent Mary Roe beginning in February 1978. The counseling relationship ended in August 1978 when appellant moved to California. Respondent alleges that appellant convinced her to engage in improper sexual contact with him under the guise of therapy for her marital and personal problems. In January 1992, respondent brought a claim against appellant. Because the district court concluded that respondent knew of her injury by early 1985 at the latest, it dismissed her claim as outside the six-year statute of limitations.

In early 1995, respondent determined that appellant was in the military service between 1980 and 1991 and that the Soldiers' and Sailors' Civil Relief Act, 50 App. U.S.C. § 521 (1994), tolled the statute of limitations for military personnel. Respondent attempted to reopen the suit against appellant on September 9, 1996, arguing that appellant's attorneys' failure to disclose appellant's whereabouts and military status constituted fraud. The district court did not determine there was fraud, but vacated the 1992 judgment, citing Minn. R. Civ. P. 60.02 (f).

Appellate courts will reverse a district court's decision to vacate a judgment under rule 60.02 only if there was a clear abuse of discretion. Sand v. School Serv. Employees Union, Local 284, 402 N.W.2d 183, 186 (Minn. App. 1987), review denied (Minn. Apr. 29, 1987). This court need not defer to the district court's interpretation of law if no material facts are in dispute. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989).

Rule 60.02, in relevant part, provides:

On motion and upon such terms as are just, the court may relieve a party or the party's legal representatives from a final judgment (other than a marriage dissolution decree), order, or proceeding and may order a new trial or grant such other relief as may be just for the following reasons:

(a) Mistake, inadvertence, surprise, or excusable neglect;

(b) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial pursuant to Rule 59.03;

(c) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;

* * * *

(f) Any other reason justifying relief from the operation of the judgment.

The motion shall be made within a reasonable time, and for reasons (a), (b), and (c) not more than one year after the judgment, order, or proceeding was entered or taken.

Minn. R. Civ. P. 60.02.

Appellant argues that because respondent's motion could have been brought under clauses (a), (b), or (c), the motion had to be brought within one year of the judgment, and thus, the district court erred in vacating the judgment under clause (f). We agree.

We conclude this case is controlled by Chapman v. Special Sch. Dist. No. 1, 454 N.W.2d 921 (Minn. 1990). In Chapman, the supreme court considered a situation where the plaintiff did not learn from her attorney that her case was dismissed until more than three years after the dismissal. Id. at 923. The court determined that because the asserted basis for the motion to vacate fell under clause (a), the motion was untimely under the rule's one-year limit. Id. Further, the court rejected the plaintiff's argument that clause (f) could be used, stating that

[c]lause (f) has been designated as a residual clause, designed only to afford relief in those circumstances exclusive of the specific areas addressed by clauses (a) through (e).

Id. at 924. Similarly, here, if respondent had discovered appellant's whereabouts and military status within one year of the 1992 judgment, the appropriate motion to vacate the judgment would have been under clause (a) or clause (b). Further, if respondent's failure to learn of appellant's whereabouts was attributable to fraud or misrepresentation by appellant, clause (c) would apply. Thus, following Chapman, we conclude the district court erred in relying on clause (f) to vacate the 1992 judgment.

Reversed.