Bruce William Luther, Appellant, Lynette C. Luther, Plaintiff, vs. American National Bank of Minnesota, Respondent.

Bruce William Luther, Appellant, Lynette C. Luther, Plaintiff, vs. American National Bank of Minnesota, Respondent. A06-1462, Court of Appeals Unpublished, August 28, 2007.

This opinion will be unpublished and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

A06-1462

 

 

Bruce William Luther,

Appellant,

 

Lynette C. Luther,

Plaintiff,

 

vs.

 

American National Bank of Minnesota,

Respondent.

 

 

Filed August 28, 2007

Affirmed

Parker, Judge*

 

Douglas County District Court

File No. CX-03-001579

 

 

Bruce William Luther, 15932 Garden View Drive, Apple Valley, MN 55124 (pro se appellant)

 

Kelly L. Jenzen, Scott T. Johnston, Johnston Law Office, 510 22nd Avenue East, Suite 101, P.O. Box 1218, Alexandria, MN 56308 (for respondent)

 

            Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Parker, Judge.

U N P U B L I S H E D   O P I N I O N

PARKER, Judge

            On appeal from summary judgment in this collection dispute, pro se appellant debtor argues that the district court judge should have recused himself, and the district court judge abused his discretion by failing to grant relief from the summary judgment against him.  We affirm.

D E C I S I O N

            Appellant argues that the judge was biased against him as shown by the record.  Whether a district court judge should recuse from a case is discretionary with the district court.  Carlson v. Carlson, 390 N.W.2d 780, 785 (Minn. App. 1986), review denied (Minn. Aug. 20, 1986).  Minn. Code Jud. Conduct 3D(1) provides that "[a] judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where . . . the judge has a personal bias or prejudice concerning a party."  But "[a] judge . . . who has presided at a motion or other proceeding . . . may not be removed except upon an affirmative showing of prejudice on the part of the judge ."  Minn. R. Civ. P. 63.03 (emphasis added). 

            Appellant states that the district court "has continuously and consistently demonstrated an unfounded and unexplained prejudice against this pro se [appellant], repeatedly, by the Judge[']s character, tone of voice, overall and specific conduct, nonverbal gesticulation and by the choice of words and the manner and context in which they were used."  A review of the record indicates that throughout the proceedings, the district court was patient with appellant.  The district court could have denied appellant a hearing because he did not comply with procedural requirements or state the form of relief he sought, but the district court allowed oral argument for appellant to explain.  Likewise, the district court could have sanctioned appellant for using captioning more appropriate for federal courts than Minnesota courts, but instead alerted him to the error. 

            In addition, the questions the district court asked at the hearing gave appellant an opportunity to explain himself, but the district court also corrected appellant, who misstated some facts already found judicially.  At other times, the district court furthered appellant's line of argument by asking questions of respondents.  Finally, the district court gave appellant an additional 20 days to provide a supplemental written argument in response and then granted an extension.    

            Appellant claims that the judge's bias is shown by his failure to distinguish between the evidentiary force of a photocopy and the actual promissory note.  But a decision with which a party disagrees does not create bias or prejudice.  Appellant also claims that "the court seems to belittle" appellant when the judge asked, "So you named [respondent] a party to a lawsuit.  Why don't they now have standing to appear and defend themselves in that lawsuit?"  But sarcasm, if it occurred, is far more trivial than bias or prejudice.  And here, the district court sought to clarify appellant's argument that respondent lacked standing to a case it did not initiate.  In total, the record therefore supports the judge's impartiality.

            Appellant also appeals the district court's grant of summary judgment.  The district court's decision on a motion for relief will not be reversed absent an abuse of discretion.  Carter v. Anderson, 554 N.W.2d 110, 115 (Minn. App. 1996), review denied (Minn. Dec. 23, 1996).

            Within one year after entry of judgment, a party may move for relief from judgment for (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence; or (c) the adverse party's fraud, misrepresentation, or misconduct.  Minn. R. Civ. P. 60.02.  The one-year period begins to run after entry of the district court's order.  Chapman v. Special Sch. Dist. No. 1, 454 N.W.2d 921, 923 (Minn. 1990).  An order is "entered and signed by the court administrator in the judgment roll; this entry constitutes the entry of the judgment; and the judgment is not effective before such entry."  Minn. R. Civ. P. 58.01.  A party may seek relief from judgment within a reasonable time that may be more than a year after entry of judgment for "[a]ny other reason justifying relief," Minn. R. Civ. P. 60.02, but only for situations not covered by the preceding sections of the rule, and then only for "exceptional circumstances."  Chapman, 454 N.W.2d at 924.

            Here, appellant claims that respondent, his lender, violated federal and state laws in handling his loan and that respondent hid its misconduct by failing to produce before the district court a complete copy of all loan documents, endorsements, and allonges.[1]  To

establish respondent's fraud, appellant argues that further discovery is necessary.[2]  Appellant's claim for relief from judgment thus involves evidentiary issues and respondent's alleged fraud.  Therefore, appellant was required to make the motion within one year after the order was entered.  But the order was filed on January 3, 2005.[3]  Appellant filed the motion on January 5, 2006.  Because appellant's filing was more than one year after the entry of judgment, his motion for relief from judgment was time barred.

            Affirmed.

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

[1]  Allonge is defined as "[a] slip of paper sometimes attached to a negotiable instrument for the purpose of receiving further indorsements when the original paper is filled with indorsements."  Black's Law Dictionary 76 (7th ed. 1999).

 

[2] However, respondent provided copies of the loan documents and twice during the litigation produced the originals before appellant and the district court.  Therefore, there is nothing for appellant to discover.  In addition, at no time did appellant produce his copies of the loan documents received at closing to support his assertion that respondent produced incomplete documents.  Appellant's only argument appears to be "I don't believe [respondent's] story."  But this is insufficient to prove fraud or justify additional discovery.

 

[3] Notice of entry of judgment upon appellant was served on January 10, 2005.