Opinion
A21-0117
09-16-2021
Kallys Albert, Sr., Appellant, v. GEICO General Insurance Company, Respondent, John Does, Defendants.
Hennepin County District Court File No. 27-CV-20-1611
Considered and decided by Hooten, Presiding Judge; Smith, Tracy M., Judge; and Smith, John, Judge.ORDER OPINION
Tracy M. Smith Judge
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. After respondent GEICO General Insurance Company increased the premium for appellant Kallys Albert, Sr.'s car insurance policy, Albert stopped making payments and GEICO terminated the policy for nonpayment of premiums. Albert sued GEICO, alleging at least six causes of action.
2. GEICO moved the district court to (1) dismiss Albert's claims for intentional and negligent infliction of emotional distress (Count IV) and for unlawful and deceptive trade practices (Count VI) for failure to state a claim upon which relief could be granted, (2) order Albert to provide a more definite statement of his claims, and (3) strike all allegations that GEICO or defense counsel acted inappropriately in seeking dismissal of two related federal lawsuits against GEICO by Albert for lack of jurisdiction. The district court granted GEICO's motions. The district court dismissed Counts IV and VI with prejudice and ordered Albert to serve and file an amended complaint that clearly set forth the legal basis or theory for each of his remaining claims and that did not contain irrelevant allegations of misconduct by defense counsel.
3. Albert filed an amended complaint that failed to comply with the district court's order. Based on this noncompliance, as well as on Albert's other violations of court rules and orders, GEICO ultimately moved to dismiss Albert's action. The district court granted GEICO's motion. Albert then brought a motion to vacate the order dismissing the amended complaint, which the district court denied. Albert appeals.
4. Albert argues that (1) the district court clearly erred by dismissing Counts IV and VI for failure to state a claim under Minn. R. Civ. P. 12.02(e); (2) the district court abused its discretion by dismissing his amended complaint for failure to follow court orders under Minn. R. Civ. P. 41.02(a); (3) the district court abused its discretion by denying his motion to vacate a final judgment or order under Minn. R. Civ. P. 60; (4) the district court was biased against him and should have been removed; and (5) the district court abused its discretion by denying a supplemental in forma pauperis application (IFP) for transcript costs. We address each of Albert's arguments.
Dismissal of Counts IV and VI under Rule 12.02(e)
5. Albert argues the district court erred by dismissing Counts IV and VI of his complaint for failure to state a claim. Under rule 12.02(e), a pleading will be dismissed for failure to state a claim "only if it appears to a certainty that no facts, which could be introduced consistent with the pleading, exist which would support granting the relief demanded." DeRosa v. McKenzie, 936 N.W.2d 342, 346 (Minn. 2019) (quotation omitted). We review de novo a district court's dismissal of a case for failure to state a claim. See Hebert v. City of Fifty Lakes, 744 N.W.2d 226, 229 (Minn. 2008).
6. In Count IV, Albert seeks damages for intentional infliction of emotional distress and/or negligent infliction of emotional distress stemming from GEICO's purported bad-faith termination of his car insurance policy.
7. Extra-contractual damages are not recoverable for a breach of contract except in exceptional cases where the breach is accompanied by an independent tort. Langeland v. Farmers State Bank of Trimont, 319 N.W.2d 26, 31 (Minn. 1982). Simply alleging a bad-faith motive in breaching a contract, as Albert does here, is insufficient to state the independent tort required for an exceptional case. See Pillsbury Co. v. Nat'l Union Fire Ins., 425 N.W.2d 244, 248-49 (Minn.App. 1988), rev. granted (Minn. July 28, 1998) and appeal dismissed (Minn. Mar. 12, 1989). Moreover, specifically with respect to negligent infliction of emotional distress, Albert also does not assert any facts consistent with that claim. Emotional-distress damages are recoverable in negligent-infliction-of-emotional-distress actions only in two circumstances-when the claimant is either physically injured or placed in physical danger due to another's negligence. Engler v. Ill. Farmers Ins. Co., 706 N.W.2d 764, 767 (Minn. 2005). Albert alleges neither of those circumstances here. The district court properly dismissed Count IV for failure to state a claim.
8. In Count VI, Albert seeks damages under the Unlawful Trade Practices Act, Minn. Stat. §§ 325D.09-.16 (2020) (UTPA), and the Uniform Deceptive Trade Practices Act, Minn. Stat. §§ 325D.43-.48 (2020) (DTPA).
9. Both claims fail as a matter of law. The UTPA prohibits misrepresentations in connection with the sale of merchandise in the wholesale market, Minn. Stat. § 325D.11, but Albert makes no allegations of such conduct by GEICO. The DTPA authorizes only injunctive relief, see Dennis Simmons, D.D.S., P.A. v. Modern Aero, Inc., 603 N.W.2d 336, 339 (Minn.App. 1999), but Albert seeks damages. The district court properly dismissed Count VI for failure to state a claim.
Dismissal of Claims under Rule 41.02(a)
10. Albert contends that the district court abused its discretion by dismissing his amended complaint under Minn. R. Civ. P. 41.02(a). Under that rule, the district court may "dismiss an action or claim for failure . . . to comply with these rules or any order of the court." The primary factor considered when determining whether to grant dismissal under rule 41.02(a) is the prejudicial effect of the order on the parties. Firoved v. Gen. Motors Corp., 152 N.W.2d 364, 368 (Minn. 1967). Dismissal with prejudice is appropriate when there are "considerations of willfulness and contempt for the authority of the court or the litigation process, in addition to prejudice to the parties involved." Peters v. Waters Instruments, Inc., 251 N.W.2d 114, 116 (Minn. 1977) (quotation omitted). We review the district court's dismissal of a complaint under rule 41.02(a) for an abuse of discretion. See Bonhiver v. Fugelso, Porter, Simich & Whiteman, Inc., 355 N.W.2d 138, 144 (Minn. 1984).
11. The district court found that Albert flouted the district court's order to provide a definite statement of his claims; continued to file baseless motions against the defendants, including motions claiming misfeasance by defense counsel in previous litigation despite the district court's directive that Albert refrain from making those claims; and violated discovery rules without explanation. The district court found that allowing the matter to move forward would prejudice GEICO because it was nearly impossible for GEICO to respond to Albert's allegations in a precise manner and GEICO was being forced to defend already-dismissed causes of action. It also found that Albert's conduct was "nothing short of willful contempt." The district court's findings are supported by the record. The record reflects that Albert filed ten motions in the district court and indicated that he would continue to file motions to spite GEICO. It also reflects that Albert consistently refused to comply with rules and court orders. On this record, the district court did not abuse its discretion by dismissing the action.
Denial of Rule 60 Motion
12. Albert asserts that the district court abused its discretion by denying his motion to vacate a final judgment or order under Minn. R. Civ. P. 60.
13. Under Minn. R. Civ. P. 60.01, clerical errors in a judgment or order may be corrected by the court or upon motion of a party. A clerical "mistake ordinarily is apparent upon the face of the record and capable of being corrected by reference to the record only." Medtronic, Inc. v. Advanced Bionics Corp., 630 N.W.2d 438, 447 (Minn.App. 2001) (quotation omitted). The district court determined that Albert did not allege any clerical mistake needing correction. Because Albert does not point to any clerical mistake that is "apparent upon the face of the record," the district court did not abuse its discretion by denying his rule 60.01 motion.
14. Under Minn. R. Civ. P. 60.02(c), (d), and (f), the district court may order relief if there was fraud, if the judgment is void, or for any other reason justifying relief. We review a district court's denial of a rule 60.02 motion for an abuse of discretion. Safeco Ins. Co. v. Holmgren Bldg. Repair, Inc., 946 N.W.2d 638, 644 (Minn.App. 2020), rev. denied (Minn. Sept. 15, 2020). The district court concluded that Albert "provides no legally cognizable argument to support his blanket assertions that the Court's November 25, 2020 order was procured as a result of fraud, that it is void, or that relief is appropriate for any other reason." Because Albert did not offer any evidence to support his arguments, the district court did not abuse its discretion by denying his rule 60.02 motion.
Denial of Motion to Remove Judge
15. Albert argues that the district court abused its discretion by denying his motion to remove the judge. We review the denial of such a motion for an abuse of discretion. Haefele v. Haefele, 621 N.W.2d 758, 766 (Minn.App. 2001), rev. denied (Minn. Feb. 21, 2001).
16. A judge may be removed upon an affirmative showing that the judge is disqualified under the Code of Judicial Conduct. Minn. R. Civ. P. 63.03. Under the Minnesota Code of Judicial Conduct, a judge must disqualify herself when her impartiality may be questioned, which includes personal prejudice or bias against a party. Minn. Code Jud. Conduct Rule 2.11(A)(1). Adverse rulings are not a basis for imputing bias to a judge. See Olson v. Olson, 392 N.W.2d 338, 341 (Minn.App. 1986).
17. Other than adverse rulings, Albert points to nothing in the record to demonstrate judicial bias. "The mere fact that a party declares a judge partial does not in itself generate a reasonable question as to the judge's impartiality." State v. Burrell, 743 N.W.2d 596, 601-02 (Minn. 2008). The district court did not abuse its discretion by concluding that removal of the judge was not warranted.
Denial of In Forma Pauperis Application
18. Finally, Albert challenges the district court's denial of his IFP application for the cost of a June 11, 2020 hearing transcript. To the extent that Albert was seeking a transcript for appeal purposes, the issue is moot because, when he filed this appeal in January 2021, the district court granted him IFP status and payment of transcript expenses, including preparation costs for the June 11, 2020 hearing.
19. To the extent that Albert was seeking a transcript for district court purposes, the district court did not abuse its discretion by concluding that he failed to show it was reasonably necessary to have a transcript of those proceedings because Albert was at the hearing. Alberts argues that he needed the transcript to better understand court rules and governing law, but court rules and the governing law are available elsewhere.
IT IS HEREBY ORDERED:
1. The district court's judgment is affirmed.
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel.