Hadeel Taxi, Inc., Appellant, vs. Donald Kirchoffner, Respondent.

Hadeel Taxi, Inc., Appellant, vs. Donald Kirchoffner, Respondent. A06-672, Court of Appeals Unpublished, May 8, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-672

 

Hadeel Taxi, Inc.,

Appellant,

 

vs.

 

Donald Kirchoffner,

Respondent.

 

Filed May 8, 2007

Affirmed Willis, Judge

 

Hennepin County District Court

File No. 27-CV-04-005548

 

 

Mitchell R. Hadler, 701 Fourth Avenue South, Suite 500, Minneapolis, MN  55415 (for appellant)

 

Andrew P. Sherwood, Corrine L. Evenson & Associates, 2700 Snelling Avenue North, Suite 250, St. Paul, MN   55113 (for respondent)

 

            Considered and decided by Willis, Presiding Judge; Klaphake, Judge; and Collins, Judge.*

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            In this suit for property damage arising out of a motor-vehicle accident, appellant argues that the district court erred by declining to vacate its judgment for respondent under Minn. R. Civ. P. 60.02(c) because respondent had perpetrated a fraud during the proceedings.  We affirm.

FACTS

On July 16, 2003, a taxi cab owned by appellant Hadeel Taxi, Inc. was involved in a motor-vehicle accident with a truck driven by Colin Kirchoffner, respondent Donald Kirchoffner's son.  Appellant brought a claim against respondent in conciliation court, and respondent counterclaimed.  The conciliation-court judge assigned each party 50% of the liability for the accident and awarded no damages.  Appellant removed the case to district court. 

At trial, respondent's son testified regarding the circumstances of the accident.  And respondent, after having represented during the litigation that he owned the vehicle that his son was driving at the time of the accident, testified that he did not own the vehicle and that his son in fact owned the vehicle.  There was no testimony from the taxi-cab driver, appellant's employee.  Respondent moved for a directed verdict, and the district court granted respondent's motion, noting that there had been "no proof to a preponderance that [respondent's son] was at fault" for the accident.             

Appellant moved the district court to vacate its judgment for respondent under Minn. R. Civ. P. 60.02(c), alleging that respondent "actively, willfully and repeatedly, on numerous occasions, misrepresented the fact that he was the owner of the vehicle which collided with [appellant's] commercial taxi vehicle."  The district court denied appellant's motion to vacate but amended its order granting respondent's motion for a directed verdict to provide that each party would bear its own costs, rather than appellant bearing respondent's costs, as the original order directed.  This appeal follows.

D E C I S I O N

The decision whether to vacate a judgment is within the district court's discretion, and such a decision will not be reversed on appeal absent a clear abuse of discretion.  Safeco Ins. Co. of Am. v. Dan Bosworth, Inc., 531 N.W.2d 867, 873 (Minn. App. 1995), review denied (Minn. July 20, 1995).  Rule 60.02 of the Minnesota Rules of Civil Procedure 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:

 . . .

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

 

The misconduct required by rule 60.02(c) must not be collateral to, but must affect, the ultimate issue of the case.  Turner v. Suggs, 653 N.W.2d 458, 466 (Minn. App. 2002). 

Appellant argues that the district court erred "as a matter of law" when it denied appellant's motion to vacate the judgment for respondent under Minn. R. Civ. P. 60.02(c) because respondent perpetrated a fraud on the court and because after the fraud was revealed, the court became aware that respondent was not a "proper defendant." 

The district court declined to vacate its judgment for respondent on the ground that "whether [respondent's son] was the Defendant or [respondent] the Defendant would not have changed the directed verdict outcome. . . .  It was the evidence of the circumstances of the accident itself which dictated the Court's ruling."  But the district court amended its directed-verdict order to revoke its award of costs and disbursements to respondent under the provision in Minn. R. Civ. P. 60.02 that allows a district court to "grant such other relief as may be just" when a party has committed fraud. 

Appellant's reliance on Halloran v. Blue & White Liberty Cab Co., 253 Minn. 436, 92 N.W.2d 794 (1958), supports his assertion that respondent committed fraud, but the district court agreed with that assertion, and it is not disputed on appeal.  Appellant provides no support for his argument that fraud discovered before judgment is entered should be treated differently from fraud discovered after judgment is entered, and Minn. R. Civ. P. 60.02(c) draws no distinction.  Appellant also cites no authority to support his implicit assertion that an individual who does not own a vehicle but nonetheless insures it is not an interested party to a suit arising out of an accident involving the vehicle.  Because respondent's misrepresentation regarding his ownership of his son's vehicle was merely collateral to the dispositive issue, the district court did not abuse its discretion when it declined to vacate its judgment.  Any misrepresentation did not affect the ultimate issue of the caserespondent's son's negligence.  See Turner, 653 N.W.2d at 466; see also Minn. R. Civ. P. 61 (providing that this court may ignore harmless error). 

Respondent filed a notice of review with this court but failed to raise in his brief any issues to be reviewed.  He has therefore waived any issues of which he purported to seek review.  See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (noting that an issue that is not raised in the briefs is waived).           

            Affirmed.

           

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