Barbara Johnson, Respondent, vs. Steven Wagner, Appellant.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C2-98-1203

Barbara Johnson,
Respondent,

vs.

Steven Wagner,
Appellant.

Filed February 2, 1999
Affirmed
Halbrooks, Judge

Ramsey County District Court
File No. C19710685

Barbara Johnson, 1589 Woodbridge Street, St. Paul, MN 55117 (pro se respondent)

Steven Wagner, PO Box 4003, St. Paul, MN 55104 (pro se appellant)

Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

Pro se appellant challenges the trial court's order that directed him to pay respondent $3,000 pursuant to the terms of an oral agreement, alleging that the court was biased and he was denied due process. Because we conclude that the record contains evidence supporting the trial court's findings and no indication of bias, we affirm.

FACTS

Appellant Steven Wagner and respondent Barbara Johnson are children of Leon Wagner, who died intestate. When Leon Wagner was hospitalized prior to his death, he gave his jewelry to a nurse, who entrusted it to appellant. The rightful ownership of this jewelry was disputed at trial.

After their father's death, appellant and respondent orally agreed that appellant would pay respondent $3,000 for their father's car. The other siblings assigned their interest in the vehicle to respondent. Appellant eventually took possession of the vehicle, but did not pay respondent. The parties appeared in conciliation court on October 3, 1997, and appellant was ordered to pay respondent $3,000.

Upon appellant's removal of the case to the district court, this matter was tried to the court on May 11, 1998. Both parties appeared pro se. The court found that an oral agreement existed between the parties and ordered appellant to pay respondent $3,000 plus interest of $188.21. The trial court did not enter judgment with regard to the jewelry, concluding that its ultimate disposition was beyond the court's jurisdiction. Appellant subsequently wrote the district court chief judge on June 2, 1998, requesting a review of the file for a determination of possible bias on the part of the trial court. The chief judge responded to appellant by correspondence dated June 19, 1998 stating, among other things, that there was no indication of improper conduct in the record and no basis for reconsideration. This appeal followed.

D E C I S I O N

Appellant makes numerous arguments that were not issues at trial. This court will generally not consider matters not argued and considered in the court below. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Appellant also submits evidence on appeal that was not presented to the trial court. Appellant is precluded by law from presenting new information on appeal. Plowman v. Copeland Buhl & Co., 261 N.W.2d 581, 583 (Minn. 1977) (evidence that was not received below may not be considered on appeal).

1. Due process at trial

Appellant alleges he was prejudiced at trial because the court conducted both direct and cross-examination. Although the record does not reflect that the court asked appellant if he wanted to question the witnesses, appellant neither expressed this desire nor objected to the court's procedure. Courts have a duty to allow reasonable accommodation to pro se litigants so long as no prejudice results. Kasson State Bank v. Haugen, 410 N.W.2d 392, 395 (Minn. App. 1987).

Upon careful review of the trial transcript, it is clear the court was concerned with the procedural fairness of the trial. The judge permitted each witness to testify thoroughly and asked each witness if he or she had anything else to say before stepping down from the witness stand. Throughout the trial, appellant, respondent, and several other witnesses continually attempted to testify to matters not relevant to the issues before the court. The trial court's questions and rulings were designed to elicit relevant facts and maintain a focus on the pertinent issues in the context of an emotional dispute amongst family members.

In his brief, appellant scrutinized the trial transcript and, to each response, proposed a question he would have asked had he been allowed to question the witnesses at trial. Appellant had the opportunity to establish a record at trial and cannot attempt to do so in his brief to this court. The record on appeal consists of "[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings." Minn. R. Civ. App. P. 110.01.

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.

Thorp Loan and Thrift Co. v. Morse, 451 N.W.2d 361, 363 (Minn. App. 1990), review denied (Minn. Apr. 13, 1990).

Furthermore, the trial court is in the best position to make witness credibility determinations and those determinations will not be disturbed on appeal. Brennan v. Joseph G. Brennan, 425 N.W.2d 837, 839-40 (Minn. 1988). The fact that a party offers a plausible alternative explanation of what occurred does not compel the trier of fact to accept his explanation. State v. Larson, 393 N.W.2d 238, 241-42 (Minn. App. 1986).

Based upon a thorough review of the record, it is clear each witness was given ample opportunity to testify to the relevant issues at trial. Appellant was not prejudiced or denied due process of law.

2. Trial court bias

Appellant alleges that the court was biased. However, other than making broad assertions, appellant provides no support for this allegation. Furthermore, the Chief Judge of Ramsey County District Court found no improper conduct on the part of the trial judge.

Appellant filed a notice of removal after judgment was entered. Generally, a party who fails to remove a judge before the start of trial waives the opportunity to do so unless there is prejudice or "implied or actual bias." Uselman v. Uselman, 464 N.W.2d 130, 139 (Minn. 1990). While courts may provide some latitude to pro se litigants, bending of all rules and requirements or disruption of trial schedules is not permitted. Liptak v. State ex rel. City of New Hope, 340 N.W.2d 366, 367 (Minn. App. 1983).

Due to the court's considerate and diligent effort to ensure that each witness was provided the opportunity to be heard and to keep each witness's testimony focused on the issues before the court, there was no evidence of bias toward this appellant. Appellant's claims are unsupported by the record.

Additionally, the court concluded the jewelry issue was beyond its jurisdiction. We agree.

We have reviewed all remaining issues raised by appellant and find them to be without merit.

Affirmed.