Opinion
No. C5-97-1279.
Filed January 27, 1998.
Appeal from the District Court, Hennepin County, File No. DW153911.
Amireh Shiri Ebrahimi, (appellant pro se)
Jeffrey A. Jones, Robichaud Nepp, P.A., (for respondent)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant Amireh Shiri Ebrahimi appeals the denial of her motion to vacate a dissolution judgment. She also asks this court to accept a late transcript. Respondent Taghi Ebrahimi Kalahroudi moves to dismiss the appeal. We deny appellant's motion to accept the transcript and dismiss the appeal.
FACTS
The district court has twice rejected appellant's attempt to reopen the judgment for fraud. She appeals. Appellant first stated that a transcript was required, but after the district court revoked her eligibility to proceed in forma pauperis, she indicated she would not file a transcript on appeal. After the parties filed briefs, respondent moved to dismiss. When appellant then asked this court to accept a late transcript, we continued the case pending resolution of the transcript issue. Both parties made additional filings.
DECISION
Respondent moves to dismiss the appeal for appellant's failure to order a transcript. See Minn.R.Civ.App.P. 110.02, subds. 1, 2 (if transcript is required, appellant shall order transcript within 10 days after appeal is filed and transcript certificate shall be filed within 10 days thereafter). An appellant must provide the appellate court with a record to substantiate claims of district court's errors. Truesdale v. Friedman , 267 Minn. 402, 404, 127 N.W.2d 277, 279 (1964). Appellant is not absolved of this duty by her pro se status, and failure to provide an adequate record can justify dismissal of an appeal. Noltimier v. Noltimier , 280 Minn. 28, 29, 157 N.W.2d 530, 531 (1968).
Failure to provide a transcript does not require dismissal if an appellant challenges only the district court's conclusions of law. Duluth Herald News Tribune v. Plymouth Optical Co. , 286 Minn. 495, 498, 176 N.W.2d 552, 555 (1970). But here, appellant challenges the district court's fact-based refusal to reopen the judgment for fraud. See Venier v. Forbes , 223 Minn. 69, 74, 25 N.W.2d 704, 707 (1946) (fraud claim involved fact issues).
Respondent claims the district court could not reopen the maintenance issue because the judgment deprived the district court of jurisdiction over maintenance after June 1996. Because respondent did not file a notice of review, we do not address the issue. See Furrer v. Campbell's Soup Co. , 403 N.W.2d 658, 660 (Minn.App. 1987) (refusing to address jurisdiction issue raised by respondent when respondent had not filed notice of review), review denied (Minn. May 28, 1987).
When addressing motions to dismiss for failure to follow the rules, a court considers whether: (1) the party seeking dismissal has been prejudiced; (2) the nonmoving party has shown justifiable cause for not complying with the rules; (3) the defect has been cured so the merits of the appeal can be evaluated; and (4) the underlying appeal is meritorious. Boom v. Boom , 361 N.W.2d 34, 36 (Minn. 1985). Here, respondent will be prejudiced if this court considers the transcripts because he filed his brief after appellant indicated a transcript would not be provided and before she asked this court to accept the transcripts.
Appellant claims that she could not use the back maintenance she received to pay for a transcript because she needed those funds to pay debts. Even if accepted, this claim does not explain why she could not use her monthly maintenance to procure the transcript (after enforcing the judgment, if necessary). If appellant was having problems financing the transcripts, she should have explained these problems at the time she indicated she would not file transcripts, not after the briefs had been filed.
While part of the defect of the missing transcripts has been cured by appellant's production of a partial transcript, respondent asks that he get additional time to respond if the proffered transcripts are accepted. Respondent's request is reasonable. Acceptance of the late transcripts would further delay the appeal, which has already been significantly delayed.
On a review of the entire record, including the partial transcripts appellant asks us to accept, we conclude the underlying appeal lacks merit. For these reasons, we deny appellant's motion for acceptance of the transcript and dismiss the appeal for failure to provide a transcript.
Because we dismiss the appeal on transcript-related grounds, we need not address the parties' other claims.