# Opposition Brief — Radloff v. First American National Bank

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1995
- **Citation:** 514 U.S. 1017

## Text

Kogctaie Court, Ut
a FIT ED
{ Z
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.

il

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

iv
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
4

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.
S)

“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.

10

“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

11

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)

12

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.

13

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

14

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.”

15

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.

16

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.

17

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,

18

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.

19

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:

a)

b)

d)

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.

a

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,
v.

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.

See also, 455 N.W.2d 490.

1. Appeal and Error 490

Attorney fee issue was “other matter” independent
of merits of litigation and was not subject to stay of
further proceedings in trial court during appeal. 51r
M.S.A., Rules Civ.App.Proc., Rule 108.03.

Resp. App. A.19

See publication Words and Phrases for other
judicial constructions and definitions.

2. Appeal and Error 984(5)

Standard of review of decisions on attorney fees and
costs is whether trial court abused discretion. M.S.A.
§ 549.21; 48 M.S.A., Rules Civ.Proc., Rule 11.

3. Costs 2

Good faith argument for a change in law excuses
advancement of claim that is unwarranted under existing
law and that would otherwise warrant sanctions. M.S.A.
§ 549.21.

4. Costs 2

Conduct is measured by objective standard under
Rule 11 and attorney fee Statute; sanctions are not appro-
priate merely because party does not prevail on merits.
M.S.A. § 549.21; 48 M.S.A., Rules Civ. Proc., Rule 11.

5. Costs 2

Attorney fee award of $22,037 to be paid by bor-
rowers and their attorney to lender was warranted by
serving lender to obtain jurisdiction over two entities
separate from lender, improperly listing entities as defen-
dants, bringing Racketeer Influenced and Corrupt Orga-
nizations Act (RICO) claim without factual basis to prove
criminal activity by lender, violating trial court deadline
for adding parties, bringing claims for negligent infliction

Resp. App. A.20

of emotional distress and concomitant physical effects
without linking lender’s commercial activities with bor-
rowers’ medical problems, repeatedly arguing that trial
court should take judicial notice of 22-year-old criminal
conviction of one of lender’s witnesses, alleging tort the-
ory of breach of duty of good faith or fair dealing, and
withdrawing eight claims after lender prepared summery
judgment memorandum. M.S.A. § 549.21; 48 M.S.A.,
Rules Civ.Proc., Rule 11; 18 U.S.C.A. § 1961 et seq.

6. Torts 6

There is no tort cause of action for breach of duty of
good faith or fair dealing.

7. Attorney and Client 24
Costs 2

Claim of borrowers and their attorney that they
would have disclosed intent not to pursue certain claims
had they been asked directly was not defense for failure
to make timely disclosure and did not relieve them of
liability for attorney fees for dismissing claims after
lender prepared summary judgment motion. M.S.A.
§ 549.21; 48 M.S.A., Rules Civ.Proc., Ruie 11.

8. Costs 2

Borrowers whose claims against lender were dis-
missed prior to trial could not recover attorney fees on
basis of lender’s alleged misrepresentation that bor-
rowers contested lender’s right to set off adverse jury
award against balance of loan discharged in bankruptcy.

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ry
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Resp. App. A.21

9. Attorney and Client 24
Costs 2

Summary judgment orders and numerous other
orders denying relief to borrowers were ample warning
to alert borrowers and their attorney that they could be
subject to sanctions; explicit warning was not required.
M.S.A. § 549.21; 48 M.S.A., Rules Civ.Proc., Rule 11.

Syllabus by the Court

Sanctions are justified where the party and attorney
advance multiple theories that are factually and legally
unwarranted.

Michael A. Pinotti, Roseville, John E. Thomas, St.
Paul, for appellants.

Kevin J. Hughes, Jean M. Didier, Hughes, Thoreen,
Mathews & Knapp, St. Cloud, for respondents.

Considered and decided by DAVIES, P.J., and LANS-
ING and MULALLY,’ JJ.

OPINION
DAVIES, Judge.

Respondent bank, after being vindicated of any
lender liability by summary judgment on all claims,

“Retired judge of the district court, acting as judge of the
Court of Appeals by appointment pursuant to Minn.Const. art.
VI, § 2.

Resp. App. A.22

moved the trial court for attorney fees and costs under
Minn. Stat. § 549.21 and Minn.R.Civ.P. 11. The trial court
sanctioned appellants and their attorneys by awarding
attorneys fees of $22,037. We modify the award of fees
and affirm.

FACTS

This lawsuit in the context of a farmer-lender dis-
pute. Plaintiffs Steven and Barbara Radloff alleged the
First American National Bank of St. Cloud (bank), by
various acts, forced them into bankruptcy in 1985, wrong-
fully destroyed 25 to 35 acres of asparagus crowns in
1986, and interfered with their purchase of a farm in 1987.

More than 17 causes of action were advanced by
Radloffs during these proceedings. After the bank had
prepared its May 1990 memorandum in support of its
motion for summary judgment, Radloffs voluntarily dis-
missed eight claims. The complaint was amended twice
to add additional claims. During the proceeding, the trial
court denied Radloffs’ motion to add a RICO claim and
an additional defendant. The court also dismissed a claim
for personal injury and actions against two separate
defendants. There were 17 hearings, 12 on unsuccessful
motions by the Radloffs.

Nine separate causes of action survived after the
voluntary withdrawal of claims: fraud, duress, tortious
interference with contract or business advantage, viola-
tion of the bank holding company act, restraint of trade,
outrage, trespass, breach of fiduciary duty, and wrongful
repossession. On July 19, 1990, the trial court granted
summary judgment for the bank on each of the nine

Resp. App. A.23

claims, and this court affirmed on February 5, 1991. Radl-
offs’ petition for review was denied on March 27, 1991.

On October 2, 1990, while the appeal to this court
was pending, the trial court, upon the bank’s motion,
awarded attorney fees of $22,037 against Radloffs and
their attorneys, collection of which was stayed until after
the disposition of any appeals.

ISSUES

I. Was it lawful to award attorneys fees while the
underlying action was on appeal?

II. Did the trial court abuse its discretion in order-
ing attorney fees to be paid by Radloffs and their attor-
neys?

III. Did the trial court abuse its discretion in not
awarding attorney fees to the Radloffs?

IV. Was adequate notice given that sanctions could
be imposed?

ANALYSIS

Several threshold matters must be addressed initially.
We first note that costs and disbursements of $6,104.37
were assessed against the Radloffs. The costs are not
being appealed as unreasonable, however, so we decline
to comment on them. See Minn.Stat. § 549.04 (1988).

Next we consider the propriety of this appeal by
Radloffs’ attorney, Michael A. Pinotti, when he neither
intervened to become a party in this case nor filed a
separate appeal. Had he filed a separate appeal, it could

Resp. App. A.24

have been consolidated with this appeal for purposes of
efficiency. While we do not advocate bypassing proper
procedures, we will, to move this protracted litigation
along, allow Pinotti’s appeal in conjunction with the
Radloffs’ appeal.

I.

Trial Court Jurisdiction

[1] Radloffs’ motion to postpone the trial court
hearing on fees and costs until the appeals had run their
course was denied by the trial court. We affirm the trial
court on this matter. Minn.R.Civ.App.P. 108.03, which
stays further proceedings in the trial court during appeal,
was inapplicable because the attorney fees issue was an
“other matter,” independent of the merits of the litiga-
tion. Moreover, all of the requests for sanctions related to
causes of action that were not on appeal. The policy of
efficiency was served, as it was anticipated that any
appeal of the fees could be consolidated with the then
pending appeal of the merits of the action. This pro-
cedure is consistent with Spaeth v. City of Plymouth, 344
N.W.2d 815, 825-26 (Minn.1984), where a trial court
retained jurisdiction to award attorney fees while the
substantive issues of the case were on appeal. We adopt
this rationale for upholding trial court jurisdiction to
award fees. See Seiberlich v. Burlington N.R.R. Co., 447
N.W.2d 896, 899 (Minn.App.1989) (trial court retained
jurisdiction to award trial costs while case was on appeal
because they were “collateral and supplemental to deci-
sion on the merits”), pet. for rev. denied (Minn. Jan. 12,
1990).

Resp. App. A.25

Additionally, we note that there was minimal preju-
dice to the Radloffs, as collection of the judgments for
attorney fees and costs was stayed pending the disposi-
tion of any appeals.

Now, to the merits.

II.
Award of Attorney Fees to the Bank

[2] The standard of review of decisions on attorney
fees and costs under both Minn.Stat. § 549.21 (1°88) and
Minn.R.Civ.P. 11 is whether the trial court abused its
discretion. Blattner v. Forster, 322 N.W.2d 319, 321
(Minn.1982); Uselman v. Uselman, 464 N.W.2d 130, 145
(Minn.1990).

The trial court awarded attorney fees under both
section 549.21 and rule 11 without specifically differen-
tiating between their respective grounds for sanctions.
Considering the similarity between the statute and rule,
that was not an abuse of discretion.

[3] Section 549.21 requires bad faith, a frivolous
claim which increases the Opponent’s costs, an
unfounded position taken to delay the action or harass
the opponent, or fraud upon the court. A good faith
argument for a change in the law excuses the advance-
ment of a claim unwarranted under existing law.

Under rule 11, before signing a document, the attor-
ney or party has an affirmative duty reasonably to inves-
tigate the factual and legal bases of claims made in the
document to determine that they are well grounded and
not made for an improper purpose, such as to harass, or

a

Resp. App. A.26

increase the costs of, the opponent, or to delay the pro-
ceedings. “[A] good faith argument for the extension,
modification, or reversal of existing law” excuses a claim
not supported by existing law. If there are violations
under rule 11, sanctions are mandatory.

[4] Under both the statute and the rule, conduct is
measured by an objective standard. See Uselman, 464
N.W.2d at 140, 142-43. Sanctions are not appropriate
merely because a party does not prevail on the merits.
Standards and Guidelines for Practice Under Rule 11 of the
Federal Rules of Civil Procedure, 121 F.R.D. 101, 118 (1988).
The filing of excessive pleadings or motions may consti-
tute an improper purpose. Id. at 121. “[T]he extent to
which the offender persisted in advancing a position
while on notice that the position was not well grounded
in fact or * * * law” is an aggravating factor. Id. at 125-26;
see Uselman, 464 N.W.2d at 146 (Simonett, J., concurring
specially).

[5] The conduct of the appellants in this case
deserves sanction under the standard of the Uselman case.
The award of attorneys fees was justified for the purpose
of deterring such conduct. Here, the behavior of the
appellants in asserting multiple baseless causes of action
resulted in increased costs for all parties and distracted
the attention of the court from any theories that might
possibly have had some merit. The conduct of appellants
throughout frustrated the expeditious pursuit of justice.

Uselman instructs us that the purpose of sanctions is
to deter violators, rather than to punish or to compensate,
but to avoid chilling imaginative litigation, “[t]he court
should impose the least severe sanction necessary to

Resp. App. A.27

effectuate the purpose of deterrence.” Id. at 145. In con-
junction with this policy, the court should “consider the
attorney's or party’s ability to pay.” Id.

The sanctions in this case were ordered by the trial
court before Uselman was decided. We note, however,
that, although there was evidence that total fees incurred
by the bank were $172,000, the trial court awarded fees of
only $22,037. The amount reflects both the policy of
deterrence and respect for differing capacities to Pay.

The trial court divided the sanctionable incidents into
eight categories. We find no abuse of discretion in the
trial court’s sanctioning both Radloffs and attorney
Pinotti in connection with any category, but as to cate-
gory E we reduce the amount.

A. Defective Service of Process

Appellants served the bank to obtain jurisdiction
over two entities separate from the bank. They made
incorrect assumptions about the relationship of the bank
to the two entities, and advanced various unsupportable
legal theories to validate the service. Thereafter, appel-
lants improperly listed the two entities as defendants in
the case caption. Later they consented to an order dis-
missing the entities from the lawsuit. The trial court
faulted their investigation into the factual and legal basis
for the service. Additionally, the court found appellants
acted in bad faith and that the method of service was
frivolous. Fees of $2,000 were awarded.

i a a haa ae

Resp. App. A.28

B. RICO Claim

The Radloffs and Pinotti were denied leave of court
to file a fourth amended complaint to add a RICO claim.
The trial court objected because the motion to amend was
brought so late in the proceeding and because there was
no pattern of criminal activity in this case. See H.J. Inc. v.
Northwestern Bell Tel. Co., 492 U.S. 229, 236-39, 109 S.Ct.
2893, 2899-2900, 106 L.Ed.2d 195 (1989). Appellants argue
that they were motivated by a recent change in federal
law that gave state courts concurrent jurisdiction over
RICO claims. Even so, there was no factual basis in this
case to prove any criminal activity by the bank. The trial
court found bad faith, as the claim was “brought for the
purpose of delay” and to increase the bank’s costs. Addi-
tionally, the cause of action could not be “supported
under existing law, or any good faith argument for [its]
extension.” Fees of $1,013 were awarded.

C. Motion to Join First American Farm Credit Co.

The Radloffs and Pinotti attempted to add a financial
institution as another defendant. The timing was in direct
violation of the trial court order which set a deadline for
adding parties. Appellants listed the new entity in the
case caption without leave of court. The trial court found
their position frivolous, wasteful, without legal founda-
tion, and lacking in good faith. No separate fees were
assessed.

Resp. App. A.29

D. Personal Injury Claim

On April 10, 1990, the trial court granted the bank’s
motion for summary judgment on the Radloffs’ claims for
personal injury. The claims were for the negligent causa-
tion of emotional distress and concomitant physical
effects. Appellants, however, never provided evidence
linking the bank’s commercial activities with the medical
problems of the Radloffs, most of which predated the
litigation.

Appellants cite Venes v. Professional Serv. Bureau, Inc.,
353 N.W.2d 671 (Minn.App.1984), to support their conten-
tion that no exacerbation of previous physical symptoms
is required for liability. Venes, however, is an intentional
emotional distress case which does not require physical
manifestations and there were physical symptoms suf-
fered by the emotionally distressed party in Venes.

The trial court awarded $5,000 to the bank, finding
appellants failed to make “any reasonable inquiry into
the underlying facts” to establish a causal link. Addi-
tionally, “[t]he claims were frivolous, unwarranted and
without foundation.”

E. Intentional Inflictions of Emotional Distress

A claim for intentional infliction of emotional distress
separate from the personal injury claim was defended as
barred by the statute of limitations. Nevertheless, appel-
lants persisted with this claim over a two-year period.
The trial court awarded fees of $967, finding the failure to
perform preliminary research on the applicable law and
refusal to dismiss the claim to be in bad faith. Appellants

Resp. App. A.30

dispute the monetary award, contending they were fined
more than once for claims related to emotional distress.
We agree that the additional award of $967 should be
vacated, but we do not disagree with the trial court’s
reprimand of Pinotti.

F. Request for Judicial Notice

Appellants repeatedly argued that the trial court
should take judicial notice of a 22-year-old criminal con-
viction of one of the bank’s witnesses. Most recently they
rehashed the argument during this appeal. Appellants
persisted with a baseless theory. The trial court awarded
fees of $1,099, finding bad faith, frivolity, and the lack of
“any well-reasoned arguments for extension or reversal
of existing law.”

G. Tort Theory of Breach of Duty of Good Faith or
Fair Dealing

[6] Appellants submitted a claim on a tort theory of
breach of duty of good faith or fair dealing, but eventu-
ally withdrew it. There is no tort cause of action in
Minnesota on this theory. Wild v. Rarig, 302 Minn. 419,
442, 234 N.W.2d 775, 790 (1975), cert. denied 424 U.S. 902,
96 S.Ct. 1093, 47 L.Ed.2d 307 (1976), reh’g denied 425 U.S.
945, 96 S.Ct. 1689, 48 L.Ed.2d 190 (1976). Appellants con-
tend they admitted the current state of Minnesota law,
but sought its change. They advanced no credible argu-
ments, however, to support a modification of existing
law. The trial court awarded $640, admonishing Pinotti
that the groundless claim should not have been brought.

Resp. App. A.31

H. Claims Withdrawn by Appellants

[7] Subsequent to the bank’s preparation of its
memorandum for the May 1990 summary judgment
motion, appellants withdrew eight claims: emotional] dis-
tress, conversion, control, breach of contract, breach of
confidential relationship, assault, wrongful dishonor, and
prima facie tort. Appellants could have withdrawn the
claims earlier, as they admitted they knew by April 13,
1990, that they did not intend to pursue these claims.
Appellants defend by arguing that had they been asked
directly about their plans, they would have responded
truthfully. That is not an adequate defense for the failure
to make timely disclosure. The trial court awarded fees of
$11,318, finding a “bad faith omission” which caused a
useless expenditure of time and effort by the bank.

III.
Denial of Attorney Fees to Radloffs

[8] Radloffs’ claim to attorney fees is grounded on
statements by the bank allegedly misrepresenting appel-
lants’ stance regarding the bank’s right to setoff. Appel-
lants argue that, contrary to the bank’s assertions, they
never contested the bank’s right to offset any adverse
jury award with the balance of the bank’s loan discharged
in Radloffs’ bankruptcy proceeding. Appellants continue
to persist in this argument, even though it is irrelevant
because all of their claims were dismissed by the trial
court prior to trial, precluding any jury verdict to set off.
The trial court denied an award of attorney fees to Radl-
offs, and we affirm.

Resp. App. A.32

IV.

Notice Requirement

[9] Uselman requires notice of the possibility and
reasons for the prospective imposition of sanctions. At
issue in this case is whether Radloffs and Pinotti received
adequate warning to provide them “the opportunity to
correct future conduct.” Uselman, 464 N.W.2d at 143.
Although appellants did not precisely appeal the notice
issue under Uselman, it should be addressed by this court.

On April 10, 1990, three months prior to the final
hearing, the trial court granted the bank’s summary judg-
ment motion by dismissing the Radloffs’ personal injury
claims. Regarding Barbara Radloff’s hypertension, the
trial court stated that according to the medical evidence,
the problem “pre-date[d] by a number of years the Radl-
offs’ business dealings with defendants.” As to Steven
Radloff’s claim, the trial court found it even weake: than
Barbara’s. The court disparaged the medical expert's
opinion as “little more than plaintiffs’ own version of
events.”

The summary judgment orders, along with numerous
other orders denying relief to Radloffs, were ample warn-
ing to alert them that they could be subject to sanctions.
Explicit warning was not required in this case, since
unlike the pre-1986 version of Minn.Stat. § 549.21 relief
upon by the Uselman court, the post-1986 version of the
statute does not contain the provision which specifically
required “timely notice of intent to claim an award.”
Further, the trial court here appropriately terminated all
proceedings at the earliest opportunity, foreclosing most
chances to warn specifically against appellants’ actions.

Resp. App. A.33

DECISION

We find no abuse of discretion by the trial court in
sanctioning Radloffs and their attorney; however, we
vacate $967 of the award and reduce the $22,037 award of

attorney fees to $21,070. We also affirm the denial of fees
to the Radloffs.

Affirmed as modified.

Resp. App. A.34

STATE OF MINNESOTA
IN SUPREME COURT

Steven I. Radloff and
Barbara Radloff, PETITION FOR
REHEARING

APPELLATE COURT
CASE NO.: C5-90-1792

DATE OF FILING OF
THIS COURT’S DENIAL
OF REVIEW:
MARCH 27, 1991

Petitioners,

VS.

First American National
Bank of St. Cloud, N.A.;
and First Farm
Corporation, Inc. of St.
Cloud, a Minnesota
Corporation,

Respondents.

Petitioners Steven and Barbara Radloff (hereinafter
“Farmers”) respectfully request this Court to reconsider
its denial of March 27, 1991, under Rule 140.01 and to
grant review. Farmers specifically incorporate herein all
mattes of record.

Omitted Material Facts

Respondents’ (hereinafter “Bank”) intentional chemi-
cal destruction of 35 acres of perennial asparagus
exceeded their 25 acre lease by 10 acres!:

35 - 25 = 10.

Bank had the pilot chemically destroy 35 acres on
May 27, 1986, the last day of Bank’s expressly limited 25

1 Ten nursery acres expands to 70 production acres. (C1).

Resp. App. A.35

acre lease. (C1, 2 & 15)?. Bank never had any right to
possess the adjoining 10 acres of crops. Any other result
overlooks the undeniable record and violates simple
arithmetic rules: 35 acres minus 25 acres leaves 10 acres.

Another omission was that Bank lost its rights to
become owners of the plants growing in the leased 25
acres on May 15, 1986, through an expressed agreement.
(C4 & 25).

These errors are so fundamental that it should cause
this Court to grant review to reassert cornerstone princi-
ples of due process. Rule 117 subd. 2(a); Roepke v. Western
National Ins. Co., 302 N.W.2d 350, 351 (Minn. 1981)
[rehearing granted when a factual error led to an inaccu-
rate conclusion]. Had these arithmetic and stipulated
facts been acknowledged below, they would have defe-
ated Bank’s motions for summary judgment on all claims
and defenses, except the Bank Holding Company Act
claim.

Controlling Principles

Due process, the right to a jury trial, and viewing the
evidence in a light most favorable to the nonmoving
party on summary judgment are the principles. E.¢.,

2 “C” refers to the appendix attached herein.

° Had due process been equally applied, the BECA claim
would have gone forward. No lower court addressed Bank’s
covert diversion of $10,000.00 of Farmers’ money to Mr.
Ambuehl, or Bank’s $1,200.00 payment to Mr. Ambuehl for his
services that led to and immediately preceded the May 8, 1985,
takeover of Farmers’ operation by Bank. (C5-7 & 40-42).

Resp. App. A.36

Offendahl v. University of Minnesota, 426 N.W.2d 425, 427
(Minn. 1988). Farmers’ claims have been unconstitu-
tionally infringed by the lower courts’ view of the facts in
an inverted light. “[JJustice should not be traded for
expediency . . . [we] must preserve fundamental aspects
of justice.” Hon. D. K. Amdahl, C.J. Minn. Sup. Ct., vol.
45, No. 6, Bench & Bar at 17, 18-19, (C34-35). The late
Hubert Humphrey once stated that the measure of
strength for government is how well it treats the under-
privileged. Former Governor Albert Quie has recently
stated that public officials should be held to the highest
degree of accountability. Messrs. Quie’s and Humphrey’s
words were directed at the legislative branch, but are
applicable to the judiciary.

A judicial moral center begins with adherence to the
most basic truths, such as arithmetic rules. The public
needs a court’s decision to be consistent with its moral
center.

The lower courts erred by ignoring the 10 acres Bank
did not lease and never had a right to possess. Rieger v.
Zackoski, 321 N.W.2d 16, 20 (Minn. 1982) [an invitee tres-
passes by exceeding the scope or nature of the consent). If
Rieger is to be overruled, the public needs to know. This
Court’s recent decision in Crowell v. Delafield Farmers
Mutual, 463 N.W.2d 737 (Minn. Dec. 7, 1990), finding an
insurable property interest in a first right of refusal, is
juxtaposed to the decisions below.

If 35 minus 25 equals zero, then this Court should
address it to inform the public. Until this Court publishes
such new precedent, 35 minus 25 still equals 10 and
Farmers’ claims survived summary judgment. This error

Resp. App. A.37

is so elementary it brings into serious doubt the lower
courts’ factual citations. In addition, the lower courts
failed to address at least 20 other materials facts.
(C10-11). Each one of these omitted facts would: have
changed the results below had due process been equally
applied.

The past decisions endorse the exertion of brute force
rather than legal process. When an economically power-
ful competitor drives a one weaker from the marketplace,
there is substantial injury to constitutionally protected
public interests. Minn. Const. art. 13, § 6 (prohibiting
combinations affecting markets).

Farmers need this Court to direct the lower courts to
address the factual record and apply due process equally.

Bank warned Farmers about life’s golden rule: “The
man with the gold, makes the rules.” (C43). The lower
courts’ holding that 35 minus 25 equals zero is an adapta-
tion of Bank’s golden rule. The record also includes
Bank’s ex parte contacts with the trial judge and his law
clerk the day after the July 11, 1990, hearing on summary
judgment. (C38).

Is it going to be equally applied due process or
Bank’s “golden rule” that decides this case and governs
lender-debtor relations in Minnesota? Shall Minnesota
farmers arm themselves to protect against further self-

help destructive tactics by lenders, as endorsed below?
Chief Judge Wozniak has warned, “where law ends, tyr-
anny begins.” (C29).

Resp. App. A.38

Conclusion

Farmers request this Court to reconsider its denial of
March 27, 1991, and grant their petition for review.

/s/

Dated: April 4, 1991
Of Counsel:

John E. Thomas, Esq.
24 East Fourth Street
St. Paul, MN 55101-1099
Registration No. 109083

MICHAEL A. PINOTTI, LTD.

Michael A. Pinotti

Michael A. Pinotti
Attorney for Petitioners
Suite 830, Rosedale Towers
1700 West Highway 36
Roseville, Minnesota 55113
(612) 633-1039

Registration No. 130400

Resp. App. A.39

STATE OF MINNESOTA
IN SUPREME COURT

Steven I. Radloff and ‘
Barbara Radloff, PETITION FOR REVIEW

Petitioners, APPELLATE COURT
CASE NO.: C6-90-2658

DATE OF FILING OF
THE COURT OF
APPEALS’ DECISION:
MAY 14, 1991

VS.

First American National
Bank of St. Cloud, N.A.;
and First Farm
Corporation, Inc. of St.
Cloud, a Minnesota
Corporation,

Respondents.

Steven and Barbara Radloff (hereinafter “Farmers”)
and their attorney Michael A. Pinotti (collectively “Peti-
tioners”) petition this Court for review.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

This is the case where Respondents (hereafter
“Bank”) intentionally destroyed 35 acres of perennial
asparagus crowns to keep Farmers from competing with
Bank in the marketplace. (A120).! Bank’s rights, if any,
were limited by written agreements to the plants on 25 of
the 35 acres. (D15). At a minimum, the courts erred by

‘ “A” refers to the appendix filed with the petition for
review in case number C5-90-1792 (Radloff II). “D” refers to the
appendix attached herein.

Resp. App. A.40

not recognizing that the aerial chemical attack exceeded
by 10 acres (35 - 25) whatever rights Bank may have
coerced. (D18). Petitioners now face sanctions of $21,070.

Petitioners incorporate D28 for the procedural his-
tory. Sanctions were not imposed until after Petitioners
confronted the trial court about its ex parte contacts with
Bank’s lawyers that took place on July 12, 1990, one day
after the summary judgment hearing. (D3-4). To date, no
disclosure has a been made by the trial court concerning
the nature of these contacts. See Trans. of Sept. 17, 1990
hearing and Order dated Oct. 1, 1990.

The timing of these ex parte contacts was acute.” After
this Court denied Bank’s petition for review in Radloff I,
455 N.W.2d 490 (Minn. App. 1990) on July 13, 1990,
Farmers had appellate court support for at least seven
claims. Radloff I found that “there is support for the Radloffs’
position that the bank destroyed the crop to put the Rad-
loffs at a competitive disadvantage in holding the prop-
erty.” Id. at 492 (emphasis added). Then on July 19, 1990
the trial court granted Bank’s motions for summary judg-
ment ruling, in part, that Farmers had no protectable
interest in the crops or land, and, that their “representa-
tions . . . were false and they knew it” [without any
citations to the record]. (A215). Radloff I was not cited by

2 Similar conduct by the same bank, represented by the
same lawyers, was briefed to the appeals court in Hommerding v.
First American, 381 N.W.2d 464 (Minn. App. 1986), rev. denied,
April 11, 1986. (D23-24). The Hommerdings cited as error ex
parte contacts between Bank’s counsel and the trial judge and
attached a letter by Attorney Timothy D. Moratzka complaining
about additional wrongful contacts. (D24-25).

Resp. App. A.41

the appeals court in Radloff II (C5-90-1792) addressing the
merits or Radloff III (C6-90-2658) addressing the sanc-
tions.

ISSUES AND THEIR RESOLUTIONS BELOW

1. Whether Petitioners’ rights to free access to the courts
and due process were violated by having the same trial
judge, who after having ex parte contacts with the
Respondents, entered summary judgment on these ardent
facts against Farmers, sit in judgment on the issue of
costs and sanctions?

Result below: This issue was not addressed.

2. Whether the trial court erred by not giving a prior
warning to Petitioners or abused its discretion by sanc-
ticning them?

Results below: The appeals courts held in the nega-
tive.

3. Whether Judge Jack Davies should have been
recused, sua sponte or on the record concerning former
legislator/attorney Jack Davies’ prior consultation with
the Respondents on the statute of limitation issue
addressed in Radloff I?

Result below: Judge Davies authored the opinion.

4. Whether Respondents committed sanctionable con-
duct for making a misrepresentation to the court, that
was relied upon to grant their motion for summary judg-
ment against Farmers?

Results below: The lower courts held in the negative.

Resp. App. A.42

5. Whether the issues of costs and sanctions should have
been postponed because they were waived by Respon-
dents?

Results below: The lower courts held in the negative.

ARGUMENT

Review should be granted to address these important
issues, such as the impropriety of ex parte contacts, fair
and equal access to the courts, due process and misrepre-
sentation by a party to a court. Rule 117, subd. 2(a). The
appeals court’s opinion conflicts with this Court’s hold-
ing in Uselman v. Uselman, 464 N.W.2d 130, 145 (Minn.
1990); the appeals court’s holding in Bergmann v. Lee Data
Corp., 467 N.W.2d 636 (Minn. App. 1991); and, U. S.
Supreme Court decision in Business Guides v. Chromatic
Communication, 59 U.S.L.W. 4144 (1991). A review would
clarify the law. Rule 117, subd. 2(c).

Business Guides ruled that sanctions are not designed
to shift fees. 59 U.S.L.W. at 4150. In Uselman, this Court
held the same and stated it would look to the U. S.
Supreme Court as controlling. 464 N.W.2d at 142, 145.
Had the appeals court applied this authority, the sanc-
tions would have been reversed. The lower courts in
Radloff III imposed sanctions based on Bank’s counsel
billing statements and justified their issuance by the “dif-
fering capacities to pay.” (D12). This is fee shifting and
conflicts with precedent.

Conduct cited as sanctionable below is presented in
the Petitioners’ brief attached beginning at page D34. For
example, Farmers were ordered to reduce their claims

Resp. App. A.43

and they fully complied on April 13, 1990. (D42-44). Only
after confronting the trial court about the ex parte contacts
were they sanctioned for their compliance with a prior
court order.

The impropriety of the ex parte contacts is illustrated,
in part, by the trial court’s contravention of Radloff I. Both
lower courts’ silence on the issue of ex parte contacts, is
itself evidence of abuse and enigmatic. In U. S. v. Kelly,
888 F.2d 732, 745 (11th Cir. 1989), the circuit court held
that a trial court’s ex parte contact with a witness is
sufficient to force the judge’s removal.3

Justice without fair work is dead. For a party to be
justified facts must be fairly addressed, not disparaged as
occurred in Radloff II and Radloff III. (E.g. D13, A215). The
existence of ex parte contacts, without judicial disclosure,
shows that justice and fairness were absent below. “Few
places are a more real expression of the constitutional
authority of the government than a courtroom, where the
law itself unfolds. Within the courtroom, the government
invokes its laws to determine the rights of those who
stand before it. In full view of the public, litigants press
their claims, witnesses give testimony, juries render ver-
dicts, and judges act with the utmost care to ensure
justice is done.” Edmonson v. Leesville Concrete, 1991 W.L.
89721 (S.Ct. 1991) [holding preemptory strikes of jurors
on racial grounds unlawful]. Ex parte contacts, like racial

* Also, Judge Davies should not have participated in or
authored the appellate opinion-due to his personal knowledge.
(D5-6). See, Lilieberg v. Health Services Acquisition Corp., 108 S. Ct.
2194, 2204-04 (1988); where a federal judge was recused where
he may have not been aware of the conflict.

Resp. App. A.44

bias in the selection of jurors, “casts doubt on the integ-
rity of the judicial process and places the fairness of
the . . . proceeding in doubt.” Id. The lower courts (in
Radloff II & III) failed to meet the utmost case standard
and denied due process to the Petitioners.

VI. CONCLUSON

This petition should be granted to address the impor-
tance of due process and fair access to the courts and to
avoid conflict between Uselman, among others, and Rad-

loff III.

MICHAEL A. PINOTTI, LTD.

/s/ Michael A. Pinotti
Michael A. Pinotti
Attorney for Petitioners
Suite 830, Rosedale Towers
1700 West Highway 36
Roseville, Minnesota 55113
(612) 633-1039
Registration No. 130400

Dated: June 12, 1991
Of Counsel:

John E. Thomas, Esq.
24 East Fourth Street
St. Paul, MN 55101-1099
Registration No. 109083

Resp. App. A.45

STATE OF MINNESOTA
IN SUPREME COURT
CASE NO. C6-90-2658

Steven I. Radloff and
Barbara Radloff,

Petitioners, DETITIONERS’ MOTION

VS.

First American National
Bank of St. Cloud, N.A.;
and First Farm
Corporation, Inc. of St.
Cloud, a Minnesota
Corporation,

Respondents.

Steven and Barbara Radloff (hereinafter “Farmers” )
and their attorney Michael A. Pinotti (collectively “Peti-
tioners”) move this Court to replace a document in the
appendix and for leave to file a responsive memorandum
to Respondents’ affidavits, or, in the alternative, to strike
the two affidavits submitted by Respondents to this
Court and their Response to Petition for Review.

This motion is made under MRCAP Rules Ras, 117,
and 102.

1. Motion to Replace Appendix Document

On page 2, footnote 2, of their petition for review,
Petitioners refer to page D24 in their appendix. Peti-
tioners inserted the wrong page in their appendix and
move this Court to allow the attached exhibit D24(a) to be

Resp. App. A.46

inserted instead. This inserted page cites the ex parte
contacts between bank’s counsel and that trial judge [dur-
ing trial] upon which the Hommerdins appealed.

Under Rules 127 and 117, we ask this court to grant
this motion to replace the stated document in their
appendix.

2. Motion for Leave to Permit a Responsive Memorandum or,
for the Alternative Relief of, Striking the Response to the
Petition for Review

Respondents’ noncompliant filings require a response
which Petitioners will, if leave is granted, limit its mem-
orandum to two (2) pages on the following issues:

A. The ex parte contacts admittedly dealt with
at least one substantive issue.

B. The substantive issue discussed was the
interim bankruptcy trustee’s abandonment
(meaning transfer) under 11 U.S.C.S. § 554
to the Farmers of the right to sue First
American National Bank of St. Cloud, N.A.

C. It is upon this issue that the trial court
concluded on summary judgment that
Farmers’ “representations . . . to the trustee
about the value of the claims that they
sought to have abandoned were false, and
they knew it.” (A215).! No citations were
made to the record for it is without such
proof.

D. The prejudice to Farmers and their attorney
for having to justifiably argue that the
lower courts failed to comply with the

1 Appendix filed with Radloff II (C5-90-1792).

Resp. App. A.47

utmost care standard of justice. (Petition p.
5).

Now more than ever, dc these ex parte contacts show
their prejudicial effect. Petitioners move this Court for
leave to file a responsive memorandum.

If this Court does not allow Petitioners leave to file a
responsive memorandum, Petitioners move this Court to
strike Respondents’ affidavits and their Response to Peti-
tion for Review as noncompliant under Rule 117. The
affidavits are not of record, but were cited in the
Response to Petition for Review. Respondents are without
authority and have not moved this Court to permit these
noncompliant filings.

Under Rule 127 and 117, Petitioners move this Court
to strike Respondents’ noncompliant filings.

MICHAEL A. PINOTTI, LTD.

/s/ Michael A. Pinotti
Michael A. Pinotti
Attorney for Petitioners
Suite 830, Rosedale Towers
1700 West Highway 36
Roseville, Minnesota 55113
(612) 633-1039
Registration No. 130400

Dated: June 25, 1991

Resp. App. A.48

STATE OF MINNESOTA
IN SUPREME COURT

Steven I. Radloff and

Barbara Radloff, PETITION FOR
Petitioners, REHEARING

VS. APPELLATE COURT

First American National CASE NO.:
Bank of St. Cloud, N.A.; C6-90-2658

and First Farm DATE OF FILING OF

Corporation, Inc. of St. THIS COURT’S

Cloud, a Minnesota DECISIONS:

Corporation, July 24, 1991
Respondents.

Steven and Barbara Radloff (hereinafter “Farmers”)
and their attorney Michael A. Pinotti (collectively “Peti-
tioners”) petition this Court to reconsider its denial of
their petition for review. This petition is based on new
matter issued by this Court and submitted too late for full
consideration by the Justices.

ISSUE FOR REHEARING

Whether Petitioners’ rights to free access to the
courts and due process were violated by having the same
trial judge, who after having ex parte contacts [on issues
of law or fact] with Respondents, entered summary judg-
ment on these ardent facts against Farmers, adjudicate
the issues of sanctions and costs?

Resp. App. A.49

NEW PRECEDENT

The proscription against ex parte contacts [on issues
of law or fact] contained in footnote 6 in Graham v. Special
School Dist. No. 1, No. C8-90-1009, filed July 12,/ 1991,
cannot be distinguished from this case unless this Court
holds administrative law judges to a higher standard of
care than district court judges. The federal courts would
have addressed the issue and reversed any decision that
occurred after ex parte contacts. E.g., U.S. v. Kelly, 888 F.2d
732, 745 (11th Cir. 1989). Yet here, Petitioners are being
punished for the message they bear. The lower courts
refused to address the ex parte contacts and, by their
silence, acquiesced in such unethical, unlawful, and
unconstitutional conduct.

Yoked with the duty to prosecute this wrong with the
appropriate authority, Farmers’ counsel reminds this
Court that he is being sanctioned for performing obliga-
tory tasks on behalf of his clients. Chief Justice Keith
encouraged lawyers to enforce the rights of individuals
during a speech to the recent state bar convention. The
lower courts acquiesced in the ex parte behavior and then
issued sanctions. The record fully supports Farmers and
their counsel.

Double standards ought not be present in a court-
room.

Few places are a more real expression of the
constitutional authority of the government than
a courtroom, where the law itself unfolds.
Within the courtroom, the government invokes
its laws to determine the rights of those who

Resp. App. A.50

stand before it. In full view of the public, liti-
gants press their cases, witnesses give testi-
mony, juries render verdicts, and judges act with
the utmost care to ensure justice is done.
Edmundson v. Leesville Concrete Co., 59 U.S.L.W.
4574, 4578 (S. Ct. 1991) (emphasis added).

If a party has proof that the other party or the court
intentionally violated the law, then a fair court should
address the violation. Where does the balance arm stand
on this Court’s scales of justice? A double standard exists
if judicial misconduct is acquiesced by silence. Petitioners
are economic victims of misconduct and its subsequent
retaliation. Justice is humankind’s attempt to set prece-
dents of decency and to fairly adjudicate conflicts. Ex
parte contacts, like racial bias in the selection of jurors,
“casts doubt on the integrity of the judicial process and
places the fairness of the . . . proceeding in doubt.” Id.
Sowing discord among citizens will lead to discontent,
distrust, a lack of public confidence and, eventually,
rebellion. Chief Justice Keith, supra, expressed concerns
about the public’s negative perception of the judicial
system. Farmers had their crops and land injured by
Bank’s aerial chemical bombing. The courts in this state
have yet to allow them a redress.! They sought counsel to
enforce their rights in a court of law; not on the battle-
field of self-help. The results in this case, especially for

1 Petitioners have filed a motion with the trial court under
Rules 60.02(c) and 63.02, among others, and a Petition for a Writ
of Certiorari to the Minnesota Court of Appeals (Case No.
C5-90-1792) with the United States Supreme Court (Case No.
91-44). Further, under Rule 13.4 of the United States Supreme
Court rules, Petitioners are required to exhaust their state court
remedies on these issues of costs and sanctions.

Resp. App. A.51

Farmers and all debtor-lender disputes in Minnesota, dic-
tate to shoot first and go to court later, maybe.

Petitioners should not be punished. Had Farmers’
case been adjudicated by a court that applied the law
equally, neither Radloff II nor Radloff III would have been
necessary. The ex parte contacts expressly and admittedly
dealt with the very issue upon which the trial court made
the conclusion that Farmers “representation . . . were
false and they knew it.” (E2 & 7). Judge Balland did not
support his conclusive allegation with any evidence in
the record. Actual prejudice is present on the record.

THIS COURT HAS A DUTY TO
ADDRESS EX PARTE CONTACTS

Granting a petition for rehearing is discretionary,
except in this case where the ex parte contacts dealt with
issues of law and fact. [E-7, E-10]. Having such knowl-
edge, this Court has an obligation to address the problem.
If a lower court grants private and special privileges to
one party causing injury or loss of property to another,
then that tribunal has denied due process and acted
outside the scope of its jurisdictional authority. See, Hoppe
v. Klapperich, 28 N.W.2d 780, 789 (Minn. 1947).

Resp. App. A.52

Do what is decent and grant this petition for rehear-
ing.
MICHAEL A. PINOTTI,
LTD.

Dated: August 2, 1991 /s/ Michael A. Pinotti
Michael A. Pinotti

Attorney for

Petitioners

Suite 830, Rosedale Towers
1700 West Highway 36
Roseville, Minnesota 55113
(612) 633-1039

Registration No. 130400

Of Counsel:

John E. Thomas, Esq.

24 East Fourth Street

St. Paul, Minnesota 55101-1099
Registration No. 109083

Resp. App. A.53

STATE OF MINNESOTA
IN SUPREME COURT
C6-90-2658
Steven I. Radloff, et al.,
| Appellants,
VS.

First American National Bank
of St. Cloud, N.A., et al.,

Respondents.
ORDER
(Filed Jul. 24, 1991)

Based upon all the files, records and proceedings
herein,

IT IS HEREBY ORDERED that the petition of Steven
and Barbara Radloff for further review be, and the same
is, denied.

IT IS FURTHER ORDERED that their motion to per-
mit an additional reply or, alternatively, to strike docu-

ments appended to the response be, and the same is,
denied.

Dated: July 24, 1991

BY THE COURT:

/s/ A.M. Keith
Chief Justice

Resp. App. A.54

STATE OF MINNESOTA
IN SUPREME COURT
C6-90-2658
Steven I. Radloff, et al.,
Appellants,
VS.

First American National Bank of
St. Cloud, N.A., et al.,

Respondents.
ORDER
(Filed Aug. 15, 1991)

Based upon all the files, records, and proceedings
herein.

IT IS HEREBY ORDERED that Steven I. Radloff, et
al.’s petition for rehearing of denial of a petition for

further review, be, and the same is, denied.
Dated: 8-15-91
BY THE COURT:

/s/ A.M. Keith
Chief Justice

Resp. App. A.55

STATE OF MINNESOTA
IN COURT OF APPEAL

Steven J. [sic] Radloff, et al.,

ORDER
Appellants, #C1-92-59
- (Filed
First American National Bank of Feb. 5, 1992)

St. Cloud, N.A., et al.,

Respondents.

Considered and decided by Wozniak, Chief J., Peter-
son, J.. and Amundson, J.

BASED UPON THE FILE, RECORD AND PROCEED-
INGS HEREIN, AND BECAUSE:

Appellants seek review of a December 9, 1991 order
denying their motion to vacate judgments in an action
that has been the subject of three prior appeals. An order
refusing to vacate an appealable judgment is not appeal-
able. State of Georgia ex rel. Brooks v. Braswell, 474 N.W.2d
346, 349 n.3 (Minn. 1991) Appellants’ counsel became
aware of the ex parte contact that is the basis for the
present motion during the pendency of the second
appeal. Appellants’ failure to preserve the issue for this
court’s determination in the second or third appeal pre-

cludes further review, See Mattson v. Underwriters at
Lloyd’s of London, 414 N.W.2d 717, 721 (Minn. 1987).

Resp. App. A.56

IT IS HEREBY ORDERED this appeal is dismissed.

Dated: February 4, 1992

BY THE COURT

/s/ D.D. Wozniak
Chief Judge

AW:mbs

Resp. App. A.57

STATE OF MINNESOTA
IN SUPREME COURT
C1-92-59
Steven I. and Barbara Radloff,
Appellants,
vs.

First American National Bank of
St. Cloud, N.A., et es.

Respondents.
ORDER
(Filed Apr. 1, 1992)

Based upon all the files, records and proceedings
herein.

IT IS HEREBY ORDERED that the petition of Steven
and Barbara Radloff for further review be, and the same
is, denied.

Dated: April 1st, 1992

BY THE COURT:

/s/ A.M. Keith
Chief Justice

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1163%3A2. Public record. Not legal advice.