Opposition Brief — Radloff v. First American National Bank

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Kogctaie Court, Ut

a FIT ED

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ae FEB 17 1995

No. 94-1243 {

Dig ertixih

In The

Supreme Court of the United States

October Term, 1994

STEVEN I RADLOFF and BARBARA RADLOFF,

Petitioners,

VS.

FIRST AMERICAN NATIONAL BANK OF ST. CLOUD,

N.A.; and FIRST FARM CORPORATION, INC. OF ST.

CLOUD, a Minnesota Corporation; and LINDA SINOTTE,

in her official capacity as a Court Administrator,

Respondents.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

—— °

Kevin J. HuGHes

Counsel of Record

Jean M. Divier

Hucues, MatHews & Dipier, P.A.

Suite 200

110 South 6th Avenue

St. Cloud, MN 56301

(612) 251-4399

Attorneys for Respondents,

First American National Bank

of St. Cloud, N.A., and First Farm

Corporation, Inc. of St. Cloud

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 42-2431

| BEST AVAILABLE COPY |

QUESTIONS PRESENTED

WHETHER THE FEDERAL DISTRICT COURT

ERRED IN GRANTING SUMMARY JUDGMENT ON

THE GROUND THAT IT LACKED JURISDICTION

UNDER THE “ROOKER-FELDMAN DOCTRINE” OVER

A CASE PREVIOUSLY LITIGATED IN THE MINNESOTA

STATE COURTS.

AND

WHETHER THE FEDERAL DISTRICT COURT

ERRED IN GRANTING SUMMARY JUDGMENT ON

THE GROUND THAT IT LACKED JURISDICTION

UNDER THE DOCTRINE OF RES JUDICATA OVER A

CASE PREVIOUSLY LITIGATED IN THE MINNESOTA

STATE COURTS.

TABLE OF CONTENTS

Page

QUESTIONS PIRMGMECUMED 6606 ccaciecvdbacdseteusuces i

pee Be Bee ere ere ii

FARES CF AUER IeS Oe 6 0 6s senscctecuevasuaeens iii

SEATS GP CI oc ks cncnnkanannesesnunvaees 2

A. Proceedings and Disposition in the Federal

Comes ORO «0 0ccscncnansencsnasaeaeeees 2

B. Proceedings and Disposition in the Minnesota

ee ree eae 2

C. Misstatements of Fact in Petitioners’ Statement

OF CONOR 6 66s vad cncndcseeateueeeeee eee 6

REASONS FOR DENYING THE WRIT............. 12

ian. 600 occ Reds ce eweeassaneaeee 12

II. There is no important Federal Question which

has not been settled by the Supreme Court or

which has been decided in a manner which

conflicts with Supreme Court decisions ...... 13

A. The Federal District Court and the Eighth

Circuit Court of Appeals correctly applied

the Rooker-Feldman doctrine to this case.. 13

B. The Federal District Court and the Eighth

Circuit Court of Appeals correctly applied

the doctrine of res judicata to this case.. 16

CORNING 6 send ienivscasecUdetmawaneseeeeenees 19

INDEX TO APPENDIX AND APPENDIX Resp. App. A.i

ili

TABLE OF AUTHORITIES

Page

CASES FROM THE UNITED STATES SUPREME CourRT

District of Columbia Court of Appeals v. Feldman, 460

eons e saeco ccescec., 2, 13, 14, 15, 16

Migra v. Warren City School District Board of Educa-

em, Ger WS. 75 (1984) .................5...... 17, 18

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 toy 14

Radloff v. First American National Bank of St. Cloud,

N.A., 502 U.S. 858 (1991), reh’g denied, 502 U.S.

i656 oo oye ki be oes 6d ob vce cc ee 6

ok eS ee ae er 2, 13, 14, 15

CASES FROM THE UNITED STATES Circuit Courts

Keene Corp. v. Cass, 908 F.2d 293 (8th Cir. 1990) ..13, 14

Leaf v. Supreme Court of State of Wisconsin, 979 F.2d

589 (7th Cir. 1992), cert. denied, 113 S.Ct. 2417

Ee og ods coy vob odo oc eee ccns cn gk 14, 16

Lynk v. LaPorte Superior Court No. 2, 789 F.2d 554

os ihn ee eel daecescckcdcesss... 15

Robinson v. Ariyoshi, 753 F.2d 1468 (9th Cir. 1985),

vacated on other grounds, 477 U.S. 902 (1986)........ 16

CASES FROM THE UNITED STATES District Courts

Hermandad v. Monge, 613 F. Supp. 96 (D. P.R. 1985) .... 15

Tancrel v. Mayor and Council of T.P. of Bloomfield,

583 F. Supp. 1548 (D. N. J. 1984) ................. 18

Oneida Motor Freight, Inc. v. United Jersey Bank, 848

F.2d 414 (3rd Cir. 1988), cert. denied, 488 U.S. 967

I ro isos Sve Siok bdo ons cone cec, 12

TABLE OF AUTHORITIES - Continued

Page

CASES FROM THE STATE OF MINNESOTA

Dorso Trailer v. American Body & Trailer, 482

8 ee Se er rer ere rec TS ere 18

Mattson v. Underwriters at Lloyds of London, 414

ea eg a es eee eer ree 6, 17, 18

Mattsen v. Packman, 358 N.W.2d 48 (Minn. 1984)..... 18

Radloff v. First American National Bank of St. Cloud,

470 N.W.2d 154 (Minn.App.1991) rev. denied

CE i Rs os ek hae ee ue vas ba eae eas 5

STATUTES

Be re hc hap anes banka aet a eeeere eee 15

ee ee i i ss eo a ho ae aa eee 18

ee ee ES Vos 6 ook cass on buedaaue ceca ene ies 2

RULES

No. 94-1243

In The

Supreme Court of the United States

October Term, 1994

STEVEN I. RADLOFF and BARBARA RADLOFF,

Petitioners,

Vs.

FIRST AMERICAN NATIONAL BANK OF ST. CLOUD,

N.A.; and FIRST FARM CORPORATION, INC. OF ST.

CLOUD, a Minnesota Corporation; and LINDA SINOTTE,

in her official capacity as a Court Administrator,

Respondents.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

ft cilttin Vistas:

Respondents First American National Bank of St.

Cloud, N.A. and First Farm Corporation, Inc. of St. Cloud

(hereinafter “Bank”) respectfully oppose the petition for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Eighth Circuit entered

October 20, 1994, affirming the trial court’s grant of sum-

mary judgment to Respondents and denial of Petitioners’

motions for a preliminary injunction and partial sum-

mary judgment.

— ot we

aia Deine pa dad

STATEMENT OF CASE

A. Proceedings and Disposition in the Federal

Courts Below.

On April 1, 1993, Petitioners brought a 42 U.S.C.

§ 1983 action against Respondents in the Federal District

Court in Minnesota. The District Court granted Respon-

dent Bank’s summary judgment! on the basis that the

Court lacked jurisdiction under the Rooker-Feldman doc-

trine and the matters were res judicata. The District

Court’s Order dated August 27, 1993, and the transcript

explaining it are set forth in Petitioners’ Appendix

(Pet.App. A.5 and A.6). Petitioners appealed this judg-

ment to the Court of Appeals for the Eighth Circuit.

On October 20, 1994, the Eighth Circuit panel

affirmed the judgment upon a finding of no error that

would require reversal. (Pet.App. A.2.)?

B. Proceedings and Disposition in the Minnesota

State Courts.

The Federal Court 42 U.S.C. § 1983 action concerned

prior proceedings in the Minnesota State Courts.

On June 3, 1988, Petitioners commenced an action

against the Respondent Bank in the Minnesota State Dis-

trict Court, Morrison County, Minnesota. Seventeen

1 Petitioners’ unsupported reference to this motion as

“untimely” is denied. (Petition, p.3.)

2 Petitioners’ reference to conversations with the clerk’s

office are unsworn. The purpose for their inclusion in the Peti-

tion is unclear. (Petition, p.3.)

causes of action were advanced by Petitioners over the

course of two years. There were 17 hearings, 12 on unsuc-

cessful motions by the Petitioners.

In May 1990, after lengthy discovery, Respondent

Bank prepared a motion for summary judgment. Peti-

tioners voluntarily dismissed eight claims. The Respon-

dent Bank again moved for summary judgment and on

July 11, 1990, a hearing was held.

On July 12, 1990, the Trial Court Judge, Timothy J.

Baland, initiated a telephone call to Jean Didier, counsel

for the Respondent Bank. (Pet.App. A.25). The Judge at

that time was (1) trying to locate a document referenced

by both counsel at the July 11 Summary Judgment hear-

ing; and (2) trying to determine whether the Respondent

Bank agreed with Petitioners’ contention (made at the

hearing) that Petitioners’ claims against the Respondent

Bank had been abandoned in the Petitioners’ bankruptcy.

(Id.). Counsel for the Respondent Bank agreed, as the

Trial Court points out at pages 6-7 and 11-12 of its

December 10, 1991 Order (Resp. App. A.1) that Peti-

tioners’ abandonment in bankruptcy was final. While the

discussion dealt with a substantive? albeit minor, aspect

of the case, the finality of abandonment determination

inured to the benefit of the Petitioners; if the abandonment

was not final, the dispute would have been in the bank-

ruptcy court, not state court. (Resp. App. A.12-14).

On July 19, 1990, the Court granted the Respondent

Bank’s Motion for Summary Judgment on all counts.

2 Respondent uses the term “substantive”, as compared to

“procedural.”

Later, Respondent Bank moved for sanctions. At the sanc-

tions hearing on September 17, 1990, Petitioners’ counsel

first raised the issue of the allegedly improper ex parte

contact. Petitioners’ counsel found an entry in Respon-

dent Bank counsel’s computer time records regarding the

call from the Trial Court. Mr. Pinotti stated:

“Then I look at it and I see here on the day after -

where is it? The day after the motion for Summary

Judgment there is an entry on here “telephone

conference with Judge Baland’s law clerk for an

half an hour [sic]; Judge Baland for two hours [sic];

correspondence with Judge Baland a half an hour

[sic].” I wasn’t on any of those.

* * +

I haven’t had a chance to go through this time

record. And I think I - my clients have the right

to confront the witness if we have to. And we

still don’t have a straight answer of what hap-

pened on July 12, why we weren’t invited in the

conversation, why there is - why the Respon-

dent Bank is billing Mr. Radloff for a conversa-

tion that Ms. Didier had with you and your law

clerk that I wasn’t invited to. Why are we being

billed for that? Why do we have to pay for that?

Assuming the thing was in bad faith.”

(Resp. App. A.3) (emphasis added).

Counsel for the Respondent Bank responded as follows:

The reference Mr. Pinotti makes to our bill state-

ment, which was filed by Ms. Didier on Friday

of last week, is a reference to conversation that

she had with the Court’s clerk concerning col-

lection of some documents for the Court’s per-

usal following the Court’s point.

(Resp. App. A.3).

Petitioners at that point did not make any further

motions to the Trial Court regarding the so-called ex

parte contact.

After the September 17, 1990 hearing, Petitioners had 15

days before their appellate brief on the merits was due (the

first track of appeals). No motion or special steps were taken

before the Appellate Court at that point. (Resp. App. A.4).

Petitioners raised the issue before the Appellate

Court for the first time in the text and at footnote 7 of

their appellate brief on sanctions (the second track of

appeals) claiming that the ex parte contact resulted in “a

denial of both the client’s and their counsel’s due process

rights to an impartial tribunal.” See Appellant’s Brief at

23 n.7, Radloff v. First American National Bank of St. Cloud,

470 N.W.2d 154 (Minn. App. 1991); (Resp. App. A.4). The

Court of Appeals did not address those claims. Radloff v.

First American National Bank of St. Cloud, 470 N.W.2d 154

(Minn. App. 1991); (Resp. App. A.18).

Thereafter, in separate Petitions for Rehearing to the

Minnesota Supreme Court on the merits and on sanctions,

the Petitioners specifically raised the denial of due process

and access issues to the Trial Court, requesting the Minne-

sota Supreme Court review pursuant to Rule 117, Minn. R.

Civ. App. P. (Resp. App. A.34, 39, 45, 48). All Petitions were

denied, including specific requests by Petitioners to permit

additional reply or, alternatively, to strike an Affidavit of

Jean M. Didier explaining the nature of the allegedly

improper ex parte contact (Resp. App. A.53, 54).

Petitioner sought United States Supreme Court

review of the first track of appeals (on the merits). That

Petition for Writ of Certiorari was denied on October 7,

1991. A subsequent Petition for rehearing was denied on

December 9, 1991. See Radloff v. First American National

Bank of St. Cloud, N.A., 502 U.S. 858 (1991), reh’g denied,

502 U.S. 1009 (1991).

In September 1991, Petitioners moved the Trial Court

to remove itself and to vacate the two judgments, raising

the constitutional arguments as the bases. On December

9, 1991, a hearing was held. The Trial Court denied these

motions, reasoning in the alternative that: 1) it lacked

jurisdiction over a matter not properly preserved at the

trial and appellate levels; and 2) no actual prejudice

resulted from the allegedly improper ex parte contact.

The Trial Court in great detail explained its reasoning

under both theories. (Resp. App. A.1). Petitioners

appealed (the third track), and the Court of Appeals

denied review in an Order dated February 4, 1992 stating:

1) an Order Refusing to Vacate was not appealable as of

right and 2) “[a]ppellants’ failure to preserve the [consti-

tutional] issues for this Court’s determination in the sec-

ond or third appeals precludes further review. See,

Mattson v. Underwriters at Lloyds of London, 414 N.W. 2d

717, 721 (Minn. 1987).” (Resp. App. A.55). The Minnesota

Supreme Court denied review by Order dated April 1,

1992. (Resp. App. A.57).

C. Misstatements of Fact in Petitioners’ Statement

of Case

The Petition contains numerous factual statements

which Respondent Bank denies. These statements rely on

inappropriate reference to the record, as is readily appar-

ent. The following is a partial list of these misstatements

of the evidence:

“On July 12, 1990, Judge Baland initiated a

substantive ex parte hearing with the

bank.” (Petition, p. 4.)

“In response to Radloffs’ petition to the

Minnesota Supreme Court on the ‘sanction’

case, Bank’s counsel on June 21, 1991,

finally revealed substance was discussed in

the July 12, 1990, ex parte hearing. A17.”

(Petition, p. 5.)

“This ruling shows that Judge Baland knew

that his initiation of the ex parte contact

violated the constitution, when he dis-

cussed substance on July 12, 1990.” (Peti-

tion, p. 5.)

“The June 21, 1991, affidavit did not itself

admit that substance was discussed on July

12, 1990, but the morsel of fact stated fully

indicated to all involved that a major issue

was communicated. See, Judge Baland’s

Dec. 9, 1991 statement, A27.” (Petition, p.

“What has been disclosed, concerning the

ex parte hearing, is that Judge Baland initi-

ated the hearing to determine, allegedly,

the legality and finality of Radloffs’ right to

sue Bank for pre-bankruptcy wrongs. A17.”

(Petition, p. 6.)

“Echoing the content of the July 12, 1990,

ex parte hearing Judge Baland not only

‘found’ that Radloffs’ representations [to

the bankruptcy trustee] were “false, they

knew it”; but he granted practical immu-

nity to Bank for all the wrongs it committed

against Radloffs. A30.” (Petition, p. 6.)

10.

11.

12.

“More alarming is that the finality of

Radloffs’ right to sue Bank for the pre-

bankruptcy claims was completed more

than six (6) months prior to Judge Baland’s,

July 12, 1990, ex parte hearing. A39.” (Peti-

tion p. 6.)

“Only after the ex parte consultation, did

Judge Baland make his biased proclama-

tion.” (Petition, p. 7.)

“In sum, this state case was one of extremely

intentional misconduct by Bank, which has

been buried by the bias of the state court

judge.” “Deception has occurred when the

state court judge initiated at least one sub-

stantive ex parte hearing, acquiesced in a

knowingly false disclosure by Bank’s counsel

on September 17, 1990, and then refused to

allow Radloffs’ jurisdiction of the court to

correct it. A19.” “His bias so permeated the

state court proceedings so as to poison the

entire process.” (Petition, p. 8)

“Judge Baland would admit (15 months

later in his December 9, 1991, order) that

Mr. Hughes’ disclosure did not reveal that

matters of substance were discussed. A27.”

(Petition, p. 4.)

“The matters discussed were manifested in

the July 19, 1990, opinion written by Judge

Baland, finding, on summary judgement no

less, that Radloffs’ representations were false,

and they knew it.” A31. (Petition, p. 5.)

“The Bank’s false representations, coupled

with the state judge’s silent acquiescence

deceived the Radloffs.” (Petition, p. 5.)

13.

14.

33.

16.

17.

18.

19.

“Bank also had contact with appellate

Judge Jack Davies (who later authorized

the opinion published at 470 N.W.2d 154).

Before he was appointed to the appeals

court bench, Bank asked Judge Davies for

advice on a question involved in the first

appeal, 455 N.W. 490.” (Petition, p. 5.)

“Respondent Linda Sinotte is sued only in

her official capacity for she failed to record

the existence of the July 12, 1990, to keep

minutes of the ex parte meetings that

occurred.” (Petition, p. 6.)

“One additional known contact occurred

on February 9, 1990, (the content of which

is still unknown despite Radloffs’

requests).” (Petition, p. 6.)

“None of Radloffs claims survived and

bank’s chemical attacked [sic] against Rad-

loffs crops was dispensed with deliberate

ignorance.” (Petition, p. 6.)

“The state court litigation was commenced

on June 3, 1988. Bank asked the interim

trustee to intervene. After the pleadings

were reviewed and consultation with the

United States Trustee, the interim trustee

decided not to intervene.” (Petition, p. 6.)

“Bank had a year and a half to contest the

interim trustee’s transfer of the estate’s

right to sue the bank, and did nothing.”

(Petition, p. 6.)

“The trustee sold Radloffs the right to sue

Bank before Bank chemically attacked and

destroyed Radloffs’ asparagus crop, which

was the original impetus for the state court

action, A42.” (Petition, p. 6.)

20.

21.

22.

“Bank’s purpose was to prevent the Rad-

loffs from acquiring the crops and compet-

ing with them in the marketplace. A28,

40-41. Bank’s admitted motive was to pre-

vent Radloffs from acquiring and selling

the crop in competition with Bank in the

marketplace. A 28.” (Petition, p. 7.)

“All 35 acres were killed or rendered com-

mercially worthless, verified by Radloffs’

expert. These asparagus crowns were

perennial crops (lasting 15 - 20 years) and

the net present value calculated by an agri-

cultural economic expert to be worth over

$500,000. The chemical attack was admitted

and the value of the entire crop uncon-

tested. Bank did claim a disputed interest

in 25 of the 35 acres, but Radloffs had an

uncontested right to at least 10 acres.”

(Petition, vo. 7.)

“Bank, became a competitor of Radloffs by

taking or withholding up to $53,000 of Rad-

loffs’ money and transferring at least

$10,000 of it to their co-conspirator Mr.

James Ambuehl. Bank with Ambuehl

formed or operated several companies and,

through such economic coercion, took over

Radloffs’ agri-business. Eventually First

Farm, (bank’s alter ego) became active in

the asparagus market. On May 15, 1986,

Bank’s right to harvest twenty-five of the

thirty-five acres expired. By that time very

little (about 1 acre) of the asparagus crop

was harvested. Bank demanded an exten-

sion and Radloffs initially refused. Then

Bank, through its same co-conspirator Mr.

Ambuehl, threatened Mr. Radloff with

i Pitas

physical harm. Bank then secretly paid

Ambuehl $9,215.00 for services rendered.

Due to the threat, Radloffs agreed to extend

the 25-acre lease to expire on midnight May

27, 1986. On the evening of the last day of

this coercively extended 25-acre lease, Bank

had all 35 acres of asparagus drenched with

a deadly combination of Roundup 2 (a con-

tact killer) and crop oil (an inoculant).”

(Petition, p. 7.)

23. “When these asparagus crowns are trans-

planted into production beds, every acre of

crowns expands to 7 acres of plants pro-

ducing spears for 12 to 15 years. Bank

effectively destroyed 250 acres of produc-

tion asparagus.” (Petition, p. 7.)

24. “On July 18, 1986, Bank threatened to

‘chemically burn’ (Petition, p. 8) more

asparagus crops. This threat was renewed

in July 1987. A seller was influenced by

such threat to convey the property (previ-

ously owned by Radloffs) to Bank; despite

Radloffs’ higher bid, which would have

closed before Bank’s. A46.”

Petitioners repeatedly characterize Judge Baland’s

telephone calls as a “substantive ex-parte hearing” (Peti-

tion P.4-7). The term “substantive” is used in the context

of “substance” and “prejudice”. Yet, as Federal District

Court Judge Rosenbaum stated: “Remarkably, other than

a recitation of the fact of the ex-parte communication, the

Plaintiffs have never, from the date of this first reference

until this date, stated or even suggested any actual preju-

dice which may have resulted from the call”. See

(Pet.App.A.18)

To the extent “finality” of the abandonment of claims

in the bankruptcy was discussed during the telephone

call, (Pet.App.A.26), this was an issue of law regarding

the application of judicial estoppel, see Oneida Motor

Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 416 (3rd

Cir. 1988), cert. denied, 488 U.S. 967 (1988), which was

reviewable on appeal from the trial court’s summary

judgment. Instead, Petitioners, without support in the

record, attempt to fashion this contact into an argument

that the trial court’s “bias so permeated the State Court

proceeding so as to poison the entire process” (Petition,

p. 8). In support of this, Petitioners recite unsupported

slurs on the Trial Court Judge, parties, counsel for the

Respondents and others. Petitioners’ Statement of Case

tol

sets forth the same litany of “conspiracy”, “bias” “aerial

attacks on asparagus crowns” and “threats” that have

been presented to every previous court in this matter.

REASONS FOR DENYING THE WRIT

I. Introduction

A writ in this case is neither necessary nor warranted

because there exists no special and important reasons for

the exercise of the Supreme Court’s discretionary power

of review. The Eighth Circuit Court of Appeals did not

decide an important question of federal law which has

not been, but should be, settled by the Supreme Court,

nor did it decide a federal question in a way that conflicts

with applicable decisions of the Supreme Court.

II. There is no important Federal Question which has

not been settled by the Supreme Court or which has

been decided in a manner which conflicts with

Supreme Court decisions.

A. The Federal District Court and the Eighth Cir-

cuit Court of Appeals correctly applied the

Rooker-Feldman doctrine to this case.

This case is disposed of under the established

Rooker-Feldman doctrine, as explained recently in Keene

Corp. v. Cass, 908 F.2d 293 (8th Cir. 1990); see also, District

of Columbia Court of Appeals v. Feldman, 460 U.S. 462

(1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).

The Rooker-Feldman line of cases teaches that Federal

District Courts may not sit in review of state court judg-

ments. As succinctly stated in Keene, “[w]here a litigant

attempts to circumvent the requirement of seeking direct

review in the United States Supreme Court by casting her

lawsuit as a Section 1983 action, Feldman’s jurisdiction bar

applies.” Keene, 908 F.2d at 297 (citations omitted).

In Feldman, the Court held that a Federal Court may

not review a constitutional challenge to a state court

judgment if the challenge is “inextricably intertwined”

with claims asserted in the state court proceeding. 460

U.S. at 482 n.16. Under Feldman:

[T]he federal claim is inextricably intertwined

with the state-court judgment if the federal

claim succeeds only to the extent that the state

court wrongly decided the issues before it.

Where federal relief can only be predicated

upon a conviction that the state court was

wrong, it is difficult to conceive the federal pro-

ceeding as, in substance, anything other than a

prohibited appeal of the state court judgment.

Keene, 908 F.2d at 296-7, quoting Pennzoil Co. v. Texaco, Inc.,

481 U.S. 1, 25 (1987) (Marshall, J. concurring).

Here, Petitioners’ arguments are entirely premised on

the fact that, in their view, the Minnesota State Courts

wrongly decided the issues before them. The ex parte

contact issue, along with the claimed denial of due pro-

cess, infringement of the right to free access to the courts

and misrepresentation by a party to the court, were

raised to the Minnesota Appellate and Supreme Courts

by Petitioners in appeals on the merits and sanctions. The

constitutional issues and any review of them are inex-

tricably intertwined with the state court proceedings.

Petitioners claim they had no meaningful oppor-

tunity to be heard on the issues and therefore the Rooker-

Feldman cases do not apply, but the Petitioners did raise

their constitutional claims in the proceedings in state

court. That the Minnesota courts found them meritless

does not change the analysis. As was stated in Leaf v.

Supreme Court of State of Wisconsin, 979 F.2d 589, 599 (7th

Cir. 1992):

“There is no requirement that the state court

allow a party to fully develop a claim that the

state court determines is frivolous and without

merit. To the contrary, when a court labels a

contention as without merit, it has considered

the claim in rendering its ensuing judgment,

and a rejection of such claim becomes part of the

judgment.”

Leaf, 979 F.2d at 599 (discussing Rooker-Feldman doctrine).

See also, Hermandad v. Monge, 613 F. Supp. 96, 101 (D.C.

P.R. 1985) (asserting that Feldman applies to plaintiff who

assails constitutionality of statute or rule for the first time

in motion for reconsideration before appeals court).

Moreover, these issues were also raised in a totally

separate track of hearings and appeals through a motion

to vacate. The state court judge denied Petitioners’

request on alternate grounds - that it lacked jurisdiction

and that the claim had no merit. The Minnesota Court of

Appeals dismissed the appeal on the jurisdictional

ground. The Minnesota Supreme Court denied review.

This particular determination was then appealable to the

United States Supreme Court. See, 28 U.S.C. § 1257 (Law.

Co-op. 1988). As was stated in Lynk v. LaPorte Superior

Court No. 2, 789 F.2d 554 (7th Cir. 1986):

[Jurisdiction does not depend * * * on the

proceedings having gone to final judgment in

the usual sense, for a litigant who is stymied by

a procedural rule from which he cannot appeal

can ask the U.S. Supreme Court to review that

ruling; it is the final decision rendered “by the

highest court of a State in which a decision

could be had.” 28 U.S.C. § 1257; see Stern,

Gressman & Shapiro, Supreme Court Practice,

§§ 3.14-15 (6th ed. 1986). Nor does the Supreme

Court’s jurisdiction depend on whether the

State Court addressed the question; it is enough

that a federal claim was made and not accepted.

Lynk, 789 F.2d at 564 (citations omitted). Having failed to

avail themselves of this procedure, Petitioners’ claims in

the Federal District Court are barred.

The upshot of Petitioners’ arguments to this Court is

that numerous state court decisions would have to be

reopened and reexamined. Not only the State Court’s

decision to deny jurisdiction over issues not properly

raised, but also the merits and sanctions judgment would

be subject to vacation. This the Federal District Court is

not empowered to do and its Order, on appeal to this

Court, was appropriate.

B. The Federal District Court and the Eighth Cir-

cuit Court of Appeals correctly applied the doc-

trine of res judicata to this case.

Although closely related to the jurisdiction issue dis-

cussed supra, an alternative basis for dismissal is found in

the concepts embodied in res judicata.*

Petitioners claim that they were somehow precluded

from bringing in state court the due process right to

access and misrepresentation claims alleged here. Peti-

tioners are not being candid with the Court. While it is

true Petitioners have been precluded, in part, from litigat-

ing these issues on jurisdictional grounds, it has been a

problem of their own making.

4 Federal Circuits have analyzed the relationship between

Rooker-Feldman and res judicata in various ways. Compare Robin-

son v. Ariyoshi, 753 F.2d 1468 (9th Cir.) vacated on other grounds,

477 U.S. 902, 106 S. Ct. 3269 (1985) (res judicata and Feldman

analysis are “two sides of the same coin”) with Leaf, 979 F.2d at

600 (separate res judicata and Rooker-Feldman analyses). In Feld-

man, the Court declined to reach the defendant’s res judicata

argument, remanding it for consideration by the District Court.

Feldman, 460 U.S. at 487-88.

The record is replete with Petitioners’ attempts to

raise these issues in the Minnesota States Courts. The

issues were not, however, properly preserved at the State

Court level. In Mattson v. Underwriters at Lloyds of London,

414 N.W.2d 717 (Minn. 1987), the Minnesota Supreme

Court outlined the process for preserving issues discov-

ered while appeal is pending. Petitioners could have:

1. Sought relief on acccunt of the allegedly

improper ex parte contact from the trial court.

2. Moved in the Court of Appeals for a remand

on that issue; or

3. Explained the situation to the Court of

Appeals and sought reservation of jurisdic-

tion on any issues raised by the allegedly

improper ex parte contact.

Id. at 721-722.

Instead of raising the issues as prescribed by Mattson,

the Radloffs specifically raised the issues in the Appellate

Courts under Minn. R. Civ. App. P. 117. When the Appel-

late Court did not address or remand the issues, they

became final. Mattson, 414 N.W.2d at 720.

Federal Courts apply the res judicata law of the

applicable state to federal actions commenced after the

conclusion of the State Court action. “[A] federal court

must give to a state court judgment the same preclusion

effect as would be given that judgment under the law of

the state in which the judgment was rendered.” Migra v.

Warren City School District Board of Education, 465 U.S. 75,

81 (1984)5; Tancrel v. Mayor and Council of Bloomfield T.P,

583 F. Supp. 1548 (D. N. J. 1984). See also, 28 U.S.C. § 1738

(Law. Co-op. 1989) (full faith and credit statute requires

federal courts to respect state judgments).

This Court need not look any further than the law

cited by the Minnesota Court of Appeals in this case. The

State Appellate Court did not simply deny review with-

out comment. It cited the Mattson case, which bars

relitigation of the issues in the Minnesota Courts. See also,

Mattson, 414 N.W.2d at 720 (“the scope of the finality of

the appellate decision depends on what the Court intends

to be final, and this is determined by what the Court's

decision says.”). These concepts have been reiterated

recently by the Minnesota Supreme Court:

A judgment on the merits constitutes an abso-

lute bar to a second suit for the same cause of

action, and is conclusive between parties and

privies, not only as to every other matter which

was actually litigated, but also as to every mat-

ter which might have been litigated therein.

Dorso Trailer v. American Body & Trailer, 482 N.W.2d 771,

774 (Minn. 1992), quoting Mattsen v. Packman, 358 N.W.2d

48, 49 (Minn. 1984).

The Federal District Courts simply cannot address

the issues raised and disposed of in the Minnesota State

Courts.

> Petitioners incorrectly cite Migra, for exactly the cpposite

proposition. Perhaps this gives rise to Petitioners’ claim of the

conflict of the judgment appealed from with applicable deci-

sions of the Supreme Court.

CONCLUSION

For the foregoing reasons, Respondents First Ameri-

can National Bank of St. Cloud, N.A., and First Farm

Corporation, Inc. of St. Cloud request that _ Court

deny the Petition for Certiorari.

Dated: February 17, 1995

Respectfully submitted,

HucuHes, MatHews & Dipier, P.A.

Kevin J. HuGHes

JEAN M. Dipter

Attorneys for Respondents

First American National Bank of

St. Cloud, N.A., and First Farm

Corporation, Inc. of St. Cloud

Suite 200

110 South 6th Avenue

P.O. Box 548

St. Cloud, MN 56302-0548

(612) 251-4399

tii

Resp. App. A.i

INDEX TO RESPONDENTS’ APPENDIX

Page

Order and Memorandum of Opinion dated

December 9, 1991 of Timothy J. Baland of the

AME THEME CONE... ice escanstas Resp. App. A.1

Minnesota Court of Appeals Decision, Radloff v. First

American, dated May 14, 1991........ Resp. App. A.18

Petition for Rehearing in the Minnesota Supreme

Court dated April 4, 1991.......... Resp. App. A.34

Petition for Review in the Minnesota Supreme

Court dated June 12, 1991.......... Resp. App. A.39

Petitioners’ Motion in the Minnesota Supreme

Court dated June 25, 1991.......... Resp. App. A.45

Petition for Rehearing in the Minnesota Supreme

Court dated August Z, 1991........ Resp. App. A.48

Order of Minnesota Supreme Court dated July 24,

MOOR Paenes ba boee keuade a Ae Renee tae Resp. App. A.53

Order of Minnesota Supreme Court dated August

SU BORG hae soo 48 Sina sea e oa Resp. App. A.54

Order of Minnesota Court of Appeals dated Feb-

is ann Abin: Phe ok oe EE LTO eee Resp. App. A.55

Order of Minnesota Supreme Court dated April 1,

ig EEE Pe PEPE LS ERTL RUT ERT eT Resp. App. A.57

Resp. App. A.1

STATE OF MINNESOTA IN DISTRICT COURT

COUNTY OF MORRISON SEVENTH JUDICIAL

DISTRICT

Steven I. Radloff and Barbara

Radloff,

Plaintiffs, ORDER

VS.

First American National Bank of Court File No.

St. Cloud, N.A.; and First Farm C3-88-455

Corporation, Inc. of St. Cloud, a

Minnesota Corporation,

Defendants.

The above-entitled matter came on for hearing the

9th day of December, 1991, at the Courthouse in the City

of Little Falls. Plaintiffs, who were personally present,

were represented by their attorneys, Michael A. Pinotti

and John Thomas. Defendants were represented by their

attorneys, Kevin J. Hughes, Jean M. Didier and Paul

Harris.

Having heard and considered the arguments of coun-

sel, having reviewed and considered the documents that

were filed in support of or in opposition to the motion,

being fully advised in the premises, and on all the files,

records and proceedings herein, the Court now makes the

following:

Resp. App. A.2

ORDER

1. Radloffs’ motion seeking entry of an Order for

my removal from the case pursuant to Minn. R. Civ. P.

60.02-.03 is denied.

2. Radloffs’ motion seeking entry of an Order vacat-

ing the Judgment dated July 19, 1990 is denied.

3. Radloffs’ motion seeking entry of an Order vacat-

ing the Judgment dated October 1, 1990 is denied.

4. Radloffs’ motion seeking entry of an Order vacat-

ing an Order dated May 31, 1990 is denied.

5. The attached Memorandum is incorporated into

and made part of this Order.

Dated this 9th day of December, 1991.

/s/ Timothy J. Baland

TIMOTHY J. BALAND

Judge of District Court

MEMORANDUM

A. PERTINENT FACTS

Mr. and Mrs. Radloff appealed three different trial

court decisions. Those three decisions were the May 31,

1990 decision regarding Judicial Notice; the July 19, 1990

decision regarding Summary Judgment; and the October

1, 1990 decision regarding sanctions. Radloff’s attorney

was required to submit his appellate brief on the appeal

of the first 2 trial court decisions by October 3, 1990 or

thereabouts. The trial court hearing on the bank’s request

Resp. App. A.3

for sanctions took place on September 17, 1990. So far as I

am aware, the first expression of concern by Radloff’s

attorney regarding allegedly improper ex parte contact by

the trial court with the bank’s attorney occurred at that

time.

This is what Mr. Pinotti said:

Then I look at it and I see here on the day after —

Where is it? The day after the Motion for Sum-

mary Judgment there is an entry on here “Tele-

phone conference with Judge Baland’s Law

Clerk for a half an hour; Judge Baland for two

hours; correspondence with Judge Baland a half

an hour.” I wasn’t on any of those.

* * +

I haven't had a chance to go through this time

record. And I think I - My clients have the right

to confront the witness if we have to. And we

still don’t have a straight answer what- hap-

pened on July 12, why we weren’t invited in the

conversation, why there is - why the Bank is

billing Mr. Radloff for a conversation that Ms.

Didier had with you and your Law Clerk that I

wasn't invited to. Why are we being billed for

that? Why do we have to pay for that? Assuming

the thing was in bad faith.

See Bank’s Exhibit A, p. 3 and p- 6; (emphasis added). Mr.

Hughes’ response, on behalf of the Bank, was as follows:

The reference Mr. Pinotti makes to our Bill State-

ment, which was filed by Ms. Didier on Friday

of last week, is a reference to conversation that

she had with the Court’s Clerk concerning col-

lection of some documents for the Court's per-

usal following the Court's point.

Resp. App. A.4

Bank Exhibit A, p. 5. This is all that was said, by either

side, regarding any allegedly improper ex parte contact at

the sanctions hearing. Until the motion now under con-

sideration was served and filed, the September 17, 1990

comments by Mr. Pinotti constituted the only attempt or

effort made by Radloff to raise at the trial court level an

issue based upon the allegedly improper ex parte contact.

_ Mr. Pinotti made passing reference to the allegedly

improper ex parte contact in a footnote on the last page of

his brief in Radloff’s appeal of the trial court’s sanctions

decision. See p. 32 in Bank Exhibit A. Radloffs did not

raise the issue in their brief on the appeal of the trial

court’s summary judgment decision, even though 15 days

went by between September 17 and October 3, the date

on which that brief was submitted to the Court of

Appeals. Radloffs likewise took no special steps during

the entire time that the summary judgment decision was

pending before the Court of Appeals to seek relief on

account of the allegedly improper ex parte contact from

that Court.

Radloffs have petitioned the Minnesota Supreme

Court on three different occasions for a hearing, and for

relief, on account of the allegedly improper ex parte con-

tact. See Bank Exhibit A, pp. 7-10; 11-15; 16-17a; 18-21. All

three petitions for review or reconsideration were denied

by the Minnesota Supreme Court. The U.S. Supreme

Court has also denied certiorari.

eee eee ee ee

Resp. App. A.5

B. ANALYSIS, REASONS FOR DECISION

1. Jurisdiction.

Radloffs have moved to vacate the trial court judg-

ments previously entered, and simultaneously seek my

removal pursuant to Minn. R. Civ. P. 63.02 — 03. However,

since Radloffs have exhausted their rights of appellate

review, the threshold question presented by their present

motions is whether the trial court has jurisdiction.

Here, as in Matson v. Underwriters at Lloyds, 414

N.W.2d 717 (Minn. 1987), “the question . . . is one of the

finality of appellate judgments.” 414 N.W.2d at 720. Here,

as in Matson, and during the pendency of the appeal of

the summary judgment decision or during the pendency

of the appeal of the sanctions decision, the Radloffs could

have:

a) sought relief on account of the allegedly

improper ex parte contact from the trial

court, or

b) moved in the Court of Appeals for a remand

on that issue, or

c) explained the situation to the Court of

Appeals and sought reservation of jurisdic-

tion on any issues raised by th [sic]

allegedly improper ex parte contact.

See discussion in Matson opinion on p. 721. Radloffs did

none of the things suggested as options in Matson.

Instead, they chose to pursue the matter under Minn. R.

App. P. 117. When they did so, they left themselves

“vulnerable” (to use the term found in Matson) to a

finality determination as was reached in Matson.

Resp. App. A.6

Radloffs could have taken steps in either appeal to

preserve trial court jurisdiction on issues raised by the

allegedly improper ex parte contact. They chose not to do

so. The trial court judgments have become final, either as

entered (summary judgment decision), or as modified

(sanctions decision). The trial court is without jurisdiction

to hear, consider or decide Radloffs’ present motions.

2. The Merits of the Present Motions.

I recognize the possibility that I may be wrong in my

analysis of the jurisdiction question. For that reason, and

to (hopefully) bring this protracted litigation to a final

conclusion, I will proceed to address the merits of Rad-

loffs’ present motions. I note in passing that the same

approach was employed by the trial judge in Matson.

3. Motion to Vacate Prior Judgments.

To succeed on a motion to vacate a judgment, the

moving party must establish entitlement to such relief

under one of the provisions in Minn. R. Civ. P. 60.02.

Here, as in Regents of University of Minnesota v. Medical,

Inc., 405 N.W.2d 474 (Minn. App. 1987), relief is not

available on the ground that the trial judge should have

been disqualified. See Rule 66.02(b) and discussion in

Part B, Section 5c of this Memorandum.

Radloffs argue that their motion should be granted

under clause (c) of Rule 60.02. But as was held in Artz v.

Artz, 361 N.W.2d 135 (Minn. App. 1985), Rule 60.02(c) “is

intended to correct mistake or inadvertence by a

Resp. App. A.7

party, ... not to correct judicial error.” 361 N.W.2d at 136.

Thus, relief is not available under Rule 60.02(c).

Clauses (a), (d) and (e) of Rule 60.02 do not apply.

Relief is likewise unavailable under the residual clause,

Rule 60.02(f), which provides that the court “may relieve

a party ... from a final judgment... for. . . any other

reason justifying relief. ...” In Chapman v. Special School

District No. 1, 454 N.W.2d 921 (Minn. 1990), the Minne-

sota Supreme Court reaffirmed prior holdings that relief

under clause (f) is “available only under exceptional cir-

cumstances. ...” Id. at 924. If the allegedly improper ex

parte contact did not justify review by the Supreme Court,

despite three separate requests for such review, it neces-

sarily follows that the judgments themselves cannot be

set aside on that ground. The facts here fall far short of

being sufficient to constitute one of those “exceptional

circumstances” where relief under Rule 60.02(f) would be

proper.

4. The Nature of the Ex Parte Contact.

As the transcript of the July 11, 1990 summary judg-

ment hearing reveals, I had concerns at that time about

whether an effective, enforceable and legally valid “aban-

donment” by the bankruptcy trustee of its (Radloffs’)

claims against the Bank had ever occurred. See pp. 30-31

of Bank Exhibit A and Pp. 9-11 of the transcript of the

July 11, 1990 hearing. Mr. Pinotti responded to my

remarks on this issue by calling my attention to local

Bankruptcy Court Rule 115(b) and other authority which,

he contended, made it clear that the “abandonment” had

occurred in accordance with applicable rules and was

Resp. App. A.8

therefore final and binding. See Transcript of July 11, 1990

hearing at pp. 11-15. Mr. Hughes, for his part, responded

as follows on this issue:

With respect to the colloquy that just occurred

between yourself and Mr. Pinotti, I think there

may, there may be an issue about the interplay

with the Federal Court cases and the local Bank-

ruptcy Rules on the effect of abandonment, the

legal effect of Trustee’s actions on abandonment.

I guess our position was that notwithstanding

that - and you're right, that my [sic] be disposi-

tive depending on the determination you make

on the argument that Mr. Pinotti has just

advanced -, the Oneida case is a four-square,

four-corner understanding and implementation

of the basic Commercial Law Doctrine that if

you go to the United States Bankruptcy Court,

that’s where they handle the matter.

Id. at p. 15.

At the conclusion of the July hearing, there was

uncertainty in the record and in my mind on whether the

Bank agreed with Mr. Pinotti that compliance with local

Bankruptcy Rule 115(b) meant that the abandonment was

valid and final.

Despite my attempt on July 11 to have the location of

the pertinent abandonment documents called to my

attention (see pp. 6-9 of the July 11, 1990 transcript), I

found, as I continued work on the case on July 12, that I

was still having trouble locating the documents that I

wanted to review. I believe I may also have been unable

to locate a copy of the Oneida case to which Mr. Hughes

had made reference in his presentation. I note that the

Morrison County Law Library did not then carry the

Resp. App. A.9

Federal Reporter. At my direction, my law clerk contacted

Ms. Didier for assistance in trying to obtain the docu-

ments or guidance on where they could be found in the

Court file. Recall in this connection that some of the

pertinent documents had been filed in support of or in

opposition to a prior summary judgment motion heard by

the Hon. Roger Klaphake, the judge to whom the case

had been assigned prior to my involvement.

As Ms. Didier’s affidavit of June 21, 1991 (Bank

Exhibit A, pp. 22-25) reflects, she and I spoke about these

matters on July 12. It was a brief conversation, a matter of

a few minutes at most, not the two hours referred to by

Mr. Pinotti. Ms. Didier’s response to the questions I asked

about the Bank’s position on the validity of the abandon-

ment effectively constituted acknowledgment that Mr.

Pinotti was correct about the applicability of local Bank-

ruptcy Rule 115(b).

In any event, I came to conclude, upon my indepen-

dent review of the rules and cases which Mr. Pinotti had

called to my attention, that the abandonment had been

properly obtained, albeit pursuant to rules which did not

require disclosure to the Bank that the abandonment was

being sought. See discussion and analysis of this aspect of

the case as set forth on pp. 9 through 16 of my Summary

Judgment Memorandum, pp. 106-113 in Bank’s Exhibit A.

5. The Law Which Applies to Ex Parte Contacts

by the Court.

Canon 3.A.(4) of the Code of Judicial Conduct pro-

vides, in pertinent part, that a judge should “except as

Resp. App. A.10

authorized by law, neither initiate nor consider ex par-

te . . . communications concerning a pending proceed- |

ing.” Common sense and common experience, as well as

cases such as Graham v. Special School District No. 1, 472

N.W.2d 114, 119, n.6 (Minn. 1991), permit us to conclude

that not all court-initiated ex parte contacts with counsel

are impermissible or improper. Court-initiated ex parte

contact regarding scheduling or other similar administra-

tive, non-substantive matters appear to fall outside the

parameters of Canon 3.A.(4). Since my request of Ms.

Didier for assistance in locating or obtaining a document

involved purely an administrative or “housekeeping”

matter, my contact in that regard did not, in my judg-

ment, violate the prohibition contained in Canon 3.A(4)

of the Code of Judicial Conduct.

The same cannot be said for my questions of Ms.

Didier regarding Bank’s position on the finality or val-

idity of the bankruptcy abandonment. Those questions

dealt with substantive matters of fact or law. My inquiry

into that subject matter, however innocent or well-inten-

tioned, nonetheless constituted a violation of Canon

3.A.(4).

5. Does the Violation of Canon 3.A.(4) of the

Code of Judicial Conduct which occurred in

this Case Entitle Radloffs to Entry of an

Order Vacating Either Judgment or Justify

My Removal from the case under Minn. R.

Civ. P. 63.02., 63.03?

dial

Resp. App. A.11

a. The Summary Judgment Decision.

Mr. Pinotti’s affidavit and memorandum contain a

number of statements or assumptions which are not accu-

rate. He proceeds, in part, on the theory that some

request or demand was made of me to account for’the ex

parte contact that occurred on July 12, 1990 and he implies

that I refused to respond. Until I received the documents

transmitted with Mr. Pinotti’s cover letter of November 7,

1991, I was unaware of (a) the existence of Ms. Didier’s

affidavit of June 21, 1991, or (b) that Radloffs had sought

relief in the appellate courts on account of allegedly

improper ex parte contact with Ms. Didier on my part.

Nor had anyone called to my attention the remarks made

by Mr. Pinotti at the July 11, 1990 summary judgment

hearing, as quoted in Part A of this memorandum. Had

anyone sought from me an explanation of the ex parte

contact, it would be as is set forth in Part B, Section 3 of

this memorandum.

Mr. Pinotti contends that “inquiry concerning this ex

parte contact . . . was made to the court at the September

17, 1990 hearing.” What Mr. Pinotti said at that hearing

about the ex parte contact was quoted verbatim as the

outset of this memorandum. His “inquiry” was limited.

He raised two questions: why did the conversation occur

without his knowledge or participation, and why were

the Radloffs being asked to pay for Bank attorney time

spent on that activity. Mr. Hughes, to the best of his

ability, provided an answer to the first question at the

time of the hearing. Those remarks are quoted verbatim

at the outset of this memorandum. The second question

Resp. App. A.12

was answered in my sanctions decision of October 1,

1990.

As was previously noted, and as Ms. Didier’s affi-

davit of June 21, 1991 makes clear, there was no 2 hour

long conversation with the Court. It was a brief conversa-

tion, limited in time and scope, for which she put down

(for the reasons noted in her affidavit) .2 hours of time in

her file billing records.

The conversation about the Bank’s position on the

validity of the abandonment occurred in the context

described in Part B, Section 3 of this memorandum. Yet in

bringing the present motions, Mr. Pinotti made no effort

to find out from me what had happened, or why. He

assumed skullduggery or worse. That is what he has

done from the outset. I note and emphasize Mr. Pinotti’s

final remark, made at the September 17, 1990 sanctions

hearing, about the allegedly improper ex parte contact. He

there made clear that his argument was all premised on

the assumption that “the thing [ex parte contact] was

[done] in bad faith.”

That is the problem here. Mr. Pinotti has made

assumptions, and then made accusations based on those

assumptions. He has relied not on inquiry or facts, but on

assumptions almost wholly divorced from reality. Given

the true nature of the context in which the ex parte contact

by the Court with Ms. Didier occurred, and given the

nature of Ms. Didier’s response to the substantive ques-

tions that were asked at that time, it is plainly evident

that there is no basis for Mr. Pinotti’s assumption of bad

faith. It is likewise evident that the substantive ex parte

contact which occurred does not provide a basis upon

Resp. App. A.13

which to vacate or set aside either of the judgments that

have been entered.

Let me start by repeating two points already made.

First, what happened here does not constitute ane of

those “exceptional circumstances” where relief under

Rule 60.02(f) is appropriate. Second, Mr. Pinotti has

raised the ex parte contact issue four different times with

the appellate courts, and has not even been able to per-

suade those courts of the need for a hearing on the issue.

If his allegations are insufficient to justify an appellate

court hearing, they necessarily fall short of being suffi-

cient to justify entry of an order vacating the judgments,

which, incidentally, those same appellate courts have

found to have been proper.

Mr. Pinotti also ignores two other salient points.

First, the upshot of the substantive portion of the ex parte

contact was receipt by the court of confirmation that the

Bank’s attorney agreed with Mr. Pinotti that the abandon-

ment of Radloffs’ claims against the Bank by the bank-

ruptcy trustee had been validly obtained. The outcome of

the substantive portion of the ex parte contact did not

serve then to prejudice Radloffs, but rather, it worked to

their advantage. Because the abandonment was valid, no

consideration could be given to the possibility that the

Bank was entitled to summary judgment on the ground

that the Radloffs’ right to sue was still vested in the

bankruptcy trustee.

Second, Mr. Pinotti ignores the fact that the substan-

tive portion of the ex parte contact had no bearing on the

summary judgment decision. Any questions which I had

about the validity or finality of the bankruptcy trustee’s

Oe a reas

Resp. App. A.14

abandonment of Radloffs’ claims against the Bank were

resolved in Radloffs’ favor. The fact that the Radloffs

obtained the bankruptcy trustee’s abandonment of their

claims against the Bank without ever giving the Bank

notice of the fact that abandonment was being sought was

pivotal in my summary judgment decision. See Section D

of my Summary Judgment Memorandum. But the lack of

notice is separate and distinct from, and only becomes

significant because of, the validity and finality of the

abandonment.

Because there was no connection of any kind

between the substantive matter discussed in the ex parte

contact and my consideration, analysis or decision of the

Bank’s summary judgment motion, there is no basis upon

which to grant the relief sought by the Radloffs on their

present motions. I point out in connection with this con-

clusion that Mr. Pinotti has not cited a single case where,

on facts even remotely comparable to those present here,

relief of the type here sought has ever been granted.

b. The Sanctions Decision.

No attorney’s fees were ordered to be paid by either

Mr. Pinotti or the Radloffs for time spent by Ms. Didier in

connection with the ex parte contact. Given the fact, and

for the reasons set forth in Part B, Section 5a of this

memorandum, and because there was no connection of

any kind between the substantive matter discussed in the

ex parte contact and my resolution of the Bank’s sanctions

motion, there is no basis upon which to grant the relief :

sought by the Radloffs on their present motions. an

Resp. App. A.15

c. Motion for Removal.

Radloffs have the burden of proof to demonstrate

(that is, to make an affirmative showing) of actual preju-

dice or bias. Baskerville v. Baskerville, 75 N.W.2d 762

(Minn. 1956). The mere fact that the judge whose removal

is sought has previously made a ruling in the case con-

trary to the position taken by the party who seeks the

judge’s removal is an insufficient basis to establish actual

bias or prejudice. Schack v. Schack, 354 N.W.2d 871 (Minn.

App. 1984). My July, 1990 ruling on the Bank’s summary

judgment motion was a function of my understanding of

the facts and the requirements of the applicable law. The

same is true for my decision on the sanctions issue. Both

of those decisions were affirmed on appeal. Mr. Pinotti’s

disagreement (and/or frustration with) those decisions

does not establish actual bias or prejudice under Rule

62.02 or 62.03.

The ex parte contact that occurred between myself

and Ms. Didier on July 12, 1990 likewise fails to constitute

a basis for my present removal from this case. I reiterate

here the points made in Part B, Sections 3, 5a and 5b of

this memorandum. There was no connection between the

one substantive matter discussed in the ex parte contact

and the decisions that were rendered. What I learned of

substance from the ex parte contact worked to Radloffs’

advantage, not their disadvantage. Here, as in Nachsheim v.

Wartnick, 411 N.W.2d 882 (Minn. App. 1987), the violation

of a provision in the Code of Judicial Conduct falls short

of being a sufficient basis for removal. As was noted in

Wartnick:

Resp. App. A.16

Wartnick argues the trial court should have dis-

qualified himself because his presiding over the

trial violated Canon 3(C)(1) of the Code of Judi-

cial Conduct. Even assuming the Canon applies,

it is not a basis for disqualifying a judge: Rule

63.03 explicitly makes an “affirmative showing

of prejudice” the exclusive ground for removing

a judge.

411 N.W.2d at 890. The insufficiency of Radloffs’ proof of

actual bias or prejudice is documented and demonstrated

by, among other things, the following:

Radloffs have not met their burden of proof to make an

affirmative showing of actual bias or prejudice. I note in

their failure to raise the issue in an appro-

priate manner at the time the ex parte con-

tact was first called to their attention;

the context in which the ex parte contact

occurred, and the limited nature of the con-

tact;

the fact that the information conveyed to the

Court during the ex parte contact served to

confirm Radloffs’ position on the validity

and finality of the bankruptcy trustee’s

abandonment of their claims against the

Bank;

the absence of a connection between the ex

parte contact and subsequent rulings by the

trial court;

the fact that the same allegations made by

the Radloffs in support of their motion for

removal have been advanced, without suc-

cess in the appellate courts.

Resp. App. A.17

passing that nothing in Liljeberg v. Health Services Acquisi-

tion Corp., 108 S. Ct. 2194 (1987), requires a different

outcome. The provisions in 28 U.S.C. § 455 do not apply

to state court trial judges, and our facts would not bring

this case within § 455 even if it did apply.

C. CONCLUSION.

I regret and apologize for the improper ex parte con-

tact. In hindsight, obviously, it would have been better if |

had not spoken ex parte to Ms. Didier, or if I had imme-

diately either called or written Mr. Pinotti to disclose the

substance of the conversation. Had I followed up in

either fashion, I would like to think that the present

motions would not have been pursued. I would like to

think that had prompt disclosure been made, the inconse-

quential nature of the ex parte contact would have been

recognized by Mr. Pinotti and his clients.

Be that as it may, it is my view that once again Mr.

Pinotti has (unfortunately) rushed to judgment; that he

has, once again without sufficient investigation of the

facts or research of the law, rushed in where angels fear

to tread. Once again, Mr. Pinotti has sought to make a

mountain out of a molehill. In litigation, as in life, that

strategy seldom works. It is wholly ineffective here.

For the reasons set forth in this memorandum, RadlI-

offs’ motions have been, must be and are hereby denied.

TJB

Resp. App. A.18

Steven I. RADLOFF, et al., Appellants,

FIRST AMERICAN NATIONAL BANK

OF ST. CLOUD, N.A., et al.,

Respondents.

No. C6-90-2658.

Court of Appeals of Minnesota.

May 14, 1991.

Review Denied July 24, 1991.

Lender moved for award of attorney fees after sum-

mary judgment was entered against borrowers on all

lender liability claims, including fraud, tortious interfer-

ence with contract, breach of fiduciary duty, and wrong-

ful repossession. The District Court, Morrison County,

Timothy J. Baland, J., awarded attorney fees against bor-

rowers and their attorneys, and appeal was taken. The

Court of Appeals, Davies, J., held that: (1) attorney fee

issue was “other matter” independent of merits of litiga-

tion and was not subject to stay of further proceedings in

trial court during appeal, and (2) attorney fee award was

permissible sanction.

Affirmed as modified.