Opinion
No. A03-1496.
Filed: May 11, 2004.
Appeal from the District Court, Hennepin County, File No. Ct 00-5780.
Jerald Hammann, (pro se appellant).
Randy A. Sharbono, Schwan's Sales Enterprises, Inc., (for respondent).
Considered and decided by Halbrooks, Presiding Judge, Lansing, Judge and Peterson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant Jerald Alan Hammann challenges the district court's refusal to schedule a hearing on (1) his motion to vacate a summary judgment previously affirmed by this court and (2) his third motion to remove the judge who ordered summary judgment against him. We affirm.
FACTS
In October 2001, this court affirmed summary judgment against appellant in a suit against his former employer. Hammann v. Schwan's Sales Enters., Inc., No. C7-01-950 (Minn. App. Oct. 30, 2001), review denied (Minn. Jan. 29, 2002). In December 2001, while his petition for further review was pending, appellant filed motions in district court (1) to vacate the summary judgment pursuant to Minn. R. Civ. P. 60.02 and (2) to remove the judge who had granted the order. The district court's order denying both motions was affirmed by this court. Hammann v. Schwan's Sales Enters., Inc., No. C5-02-827 (Minn. App. Sept. 10, 2002), review denied (Minn. Nov. 19, 2002).
In approximately March 2002, after the supreme court denied his petition for further review in his first appeal, appellant filed (1) a motion seeking removal of the judge in the original action and (2) a second complaint against his former employer reasserting the claims made in the first complaint. The motion was denied and the complaint dismissed in orders subsequently affirmed by this court. Hammann v. Schwan's Sales Enters., Inc., No. C2-02-1675 (Minn. App. Oct. 29, 2002) (order), review denied (Minn. Dec. 30, 2002).
In March 2003, the district court awarded respondent $12,000 in attorney fees that were incurred responding to appellant's repeated attempts to continue litigating the matter. On appeal, this court remanded to the district court for clarification of its award of attorney fees. Hammann v. Schwan's Sales Enters., Inc., No. A03-446 (Minn. App. Nov. 26, 2003) (order op.).
In April 2003, the district court denied appellant's second motion to remove the judge who had issued the summary-judgment order. This court dismissed the appeal as moot "because no district court proceedings are pending [and there is no] actual controversy." Hammann v. Schwan's Sales Enters., Inc., No. A03-719 (Minn. App. July 22, 2003) (order), review denied (Minn. Sept. 24, 2003).
In August 2003, appellant filed with the district court and mailed to respondent's counsel, "notices of hearing" stating his intent to "seek hearing" on his rule 60.02 motion and his recusal motion at the dates and times specified. In September 2003, the district court sent appellant a letter informing him that "[n]o future motions will be scheduled in this case without the court's permission. The file remains closed based on the court's rulings." The court observed that "[appellant's] case has been concluded for some time now"; that this court's order dismissing appellant's previous appeal had been filed with the district court; and that "[t]here is no further action which can be taken . . . on this file." Appellant now challenges the district court's letter, arguing that the district court violated his due-process rights by unilaterally removing his motions from the calendar.
DECISION
This appeal is without merit. First, the letter with which appellant takes issue is not a final order or judgment of the district court susceptible to appeal pursuant to Minn. R. Civ. App. P. 103.03. Second, we have previously affirmed the district court's order denying appellant's motion to vacate the summary-judgment order pursuant to Minn. R. Civ. P. 60.02, stating that the "order denying appellant's motion to vacate is not appealable because appellant has not established that it raises grounds that were not reviewable by appeal from the original judgment." Hammann v. Schwan's Sales Enters., Inc., No. C2-02-1675 (Minn. App. Oct. 29, 2002) (order), review denied (Minn. Dec. 30, 2002); see also Carlson v. Panuska, 555 N.W.2d 745, 746 (Minn. 1996) (stating that if "the appeal is one from an order denying a motion to vacate an authorized judgment upon grounds reviewable by appeal from the judgment, the order is not appealable").
Third, we have twice previously rejected identical attempts by appellant to remove this judge. We decline to consider the issue anew, particularly because the matter has long since been concluded and the file closed. There is simply no actual controversy warranting judicial attention. See Brezinka v. Bystrom Bros., Inc., 403 N.W.2d 841, 843 (Minn. 1987) (stating that a "legal question [previously] determined by the appellate court will not be re-examined on a second appeal of the same case").