William Trueblood, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1132

William Trueblood,
Appellant,

Cassandra Trueblood,
Appellant,

vs.

Paul D. Walters, et al.,
Respondents.

Filed March 5, 2018
Affirmed
Peterson, Judge

Hennepin County District Court
File No. 27-CV-15-21692

William Trueblood, Minneapolis, Minnesota (pro se appellant)

Cassandra Trueblood, Minneapolis, Minnesota (pro se appellant)

Randall E. Gottschalk, Gottschalk Law, PLLC, St. Louis Park, Minnesota; and

Bradley N. Beisel, Minneapolis, Minnesota (for respondents)

Considered and decided by Reyes, Presiding Judge; Peterson, Judge; and Bjorkman,
Judge.

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U N P U B L I S H E D O P I N I O N
PETERSON, Judge
This appeal is from a judgment that awards respondents costs, including witness and
mileage fees, and impos es a discovery sanction under Minn. R. Civ. P. 37.02(b). We
affirm.
FACTS
Appellants William and Cassandra Trueblood purchased a home in Minneapolis in
2008. Respondents Paul Walters and Kiel Alward purcha sed the next -door property. In
2014, respondents told appellants that appellants’ fence was located on respondents’
property. In 2015, respondents removed the fence, damaged appellants’ landscaping, and
installed their own fence on what they claimed was the true property line.
In November 2015, appellants served a complaint on respondents, seeking a
declaratory judgment, an order quieting title, a prescriptive easement, and damages for
trespass and intentional infliction of emotional distress. Because of the emotional-distress
claim, respondents scheduled an independent medical examination (IME) for Mrs.
Trueblood on July 15, 2016. She did not appear for the examination and stated that the
notice for the IME was given too late, she had no transportation , and the location was
inconvenient, but she did not advise respondents until the day before the scheduled IME
that she would not appear. Respondents were charged a cancellation fee of $925. Shortly
after, appellants dismissed their claim for intentional infliction of emotional distress.

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The district court scheduled a jury trial for December 19, 2016. Appellants’ counsel
requested continuances on December 15, 16, and 19, 2016, on grounds that Mr. Trueblood
“was suffering from stress-induced health issues as related to trial.” Counsel clarified that
Mr. Trueblood had a stroke in December 2014 and since then has struggled with his speech.
The district court denied all three requests for a continuance. When Mr. Trueblood failed
to appear for trial on December 19, the district court dismissed the matter without prejudice
and ordered appellants to pay respondents’ out -of-pocket expenses before refiling the
lawsuit. Judgment was entered on December 20, 2016.
Respondents requested $8,438.40 for costs a nd disbursements. Appellants did not
dispute $2,385.28 1 of that amount, includ ing statutory costs, filing fees, medical -records
fees, costs for service of pleadings and subpoenas, and preparation of exhibits. In addition
to these undisputed costs, the di strict court awarded $6 8.18 for witness fees and mileage,
and $925 as a discovery sanction for failing to attend the IME, but declined to award the
additional amount requested by respondents. A judgment awarding respondents costs and
disbursements in the amount of $3,378.46 was entered on May 24, 2017.
Appellants filed a notice of appeal f or both the December 20, 2016 judgment and
the May 24, 2017 judgment. This court determined that the appeal from the December 20,
2016 judgment was untimely and limited the appeal to the district court’s award of costs
and disbursements in excess of the $2,385.28 undisputed amount.

1 The district court misspoke when it said , “[Appellants] agree [ that respondents] are
entitled to taxation of costs and disbursements in the amount of $2,385.28.” What the
district court meant was that this amount includes costs that are plainly allowed and there
is no basis for disputing the costs.

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D E C I S I O N
We review the district court’s award of costs and disbursements for an abuse of
discretion. Dukowitz v. Hannon Sec. Servs., 841 N.W.2d 147, 155 (Minn. 2014). “In every
action in a district court, the prevailing party . . . shall be allowed reasonable disbursements
paid or incurred, including fees and mileage paid for service of process by the sheriff or by
a private person.” Minn. Stat. § 549.04, subd. 1 (2016).
Generally, “[t]he prevailing party is the party in whose favor the decision or verdict
is rendered and judgment entered.” Ernster v. Scheele, 895 N.W.2d 262, 266 (Minn. App.
2017) (quotation omitted). A party who obtains a dismissal based on the other party’s
failure to comply with a procedural rule is not the prevailing party, because the district
court has not evaluated the evidence and addressed the merits of the parties’ positions.
HNA Props. v. Moore , 848 N. W.2d 238, 243 (Minn. App. 2014). Respondents cannot
claim costs and disbursements solely on the grounds that they are the prevailing party.
But when a district court dismisses a lawsuit without prejudice on procedural
grounds, it may require the party aga inst whom dismissal is granted to pay costs and fees
or to perform other reasonable conditions before the lawsuit can be reinstated. See Firoved
v. Gen’l Motors Corp., 277 Minn. 278, 284, 152 N.W.2d 364, 369 (1967) (reversing district
court’s dismissal with prejudice and remanding with order to permit defendants to apply to
the district court for costs and fees). This is what the district court did here: appellants
were required to “pay the costs incurred by [respondents] prior to refiling this case.” Th e

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district court’s award of $68.18 for witness fees and mileage was not an abuse of
discretion.2
The district court may order a party who fails to submit to an IME to pay as a
sanction the reasonable expenses caused by that failure. Minn. R. Civ. P. 37.0 2(b). We
review the district court’s decision to impose a discovery sanction for an abuse of
discretion. Frontier Ins. Co. v. Frontline Processing Corp., 788 N.W.2d 917, 922 (Minn.
App. 2010), review denied (Minn. Dec. 14, 2010). In determining whether a party should
be sanctioned, the district court considers whether the party’s failure to comply with
discovery was “substantially justified or . . . other circumstances make an award of
expenses unjust.” Id. at 926 (quotation omitted). We review a distr ict court’s findings as
to the reasonableness of expenses for clear error. Id.
Mrs. Trueblood asserted that she failed to attend the IME because of short notice,
lack of transportation, and inconvenience of location. According to the record, Mrs.
Trueblood was given notice on May 23, 2016, for an IME scheduled for June 3, 2016, but
the IME was rescheduled to July 15, 2016, because appellants refused to sign medical -
release authorizations. The IME location was in Minneapolis; appellants live in
Minneapolis. Mrs. Trueblood did not notify respondents’ attorney that she would not
attend the IME until the day before the scheduled examination. The district court’s

2 In the analysis section of its order, the district court stated that respondents are entitled to
$65.18 for witness fees and mileage, but in its conclusion, the district court awarded
respondents $68.18 for witness fees and mileage. Respondents requested $65.18, and the
$68.18 award appears to be a typographical error. We will not reverse because of this de
minimis error.

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conclusion that Mrs. Trueblood’s failure to attend the IME was not substantially just ified
is supported by the record, and the court’s decision to impose a sanction was not an abuse
of discretion. The sanction imposed, $925, was the cancellation fee charged by the
examining physician; the district court’s finding that this expense was rea sonable is not
clearly erroneous.
Affirmed.