State of Minnesota, Respondent,

This opinion will be unpublished and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
A17-1365

State of Minnesota,
Respondent,

vs.

T. K. S.,
Appellant.

Filed August 20, 2018
Affirmed
Florey, Judge

Anoka County District Court
File No. 02-CR-14-4452

Lori Swanson, Attorney General, St. Paul, Minnesota; and

David J. Brodie, City of Coon Rapids, Coon Rapids, Minnesota (for respondent)

Peter J. Nickitas, Peter J. Nickitas Law Office, L.L.C., Minneapolis, Minnesota (for
appellant)

Considered and decided by Florey, Presiding Judge; Peterson, Judge; and
Rodenberg, Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant challenges the district court’s order granting the state’s rule 60.02 motion
to modify an expungement order to remove language indicating that the state had no
probable cause for appellant’s underlying charges and no predicate facts supporting a no-

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contact order against appellant. Relator asserts (1) that the district court erred in granting
the state’s motion to modify the expungement order under rule 60.02 because it made
improper factual findings, lacked statutory au thority to modify the order, granted the
motion based on the state’s improper motive, and erred in concluding that appellant would
experience no prejudice from the modification and (2) that the district court has no
authority to sanction relator and his counsel for seeking a writ of prohibition from the court
of appeals. Because the district court prop erly applied Minn. R. Civ. P. 60.02 and the
Finden elements, we affirm.
FACTS
Appellant T.K.S. sought to expunge the record of a prosecution against him for
disorderly conduct an d misdemeanor obstruction of legal process, as well as for a no-
contact order relating to the charges.1 The state dismissed the underlying prosecution for
the charges. Appellant initially filed a pro se petition with the district court and provided
a form proposed order. Appellant later hi red counsel. The state did not oppose the
expungement. At the expungement hearing, appellant’s counsel stated that he had a
proposed order that was different from the one filed by appellant, but the district court
indicated that it did not have a copy of the order. The district court permitted the attorneys
time to discuss the proposed or der off the record and then later communicate the agreed-
upon order to the district court.

1 Appellant previously appealed to this court challenging his pretrial release conditions on
these charges on October 20, 2014. We dismis sed the appeal as moot in a special-term
order following the state’s dismissal of the charges against him.

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Later, during a discussion on the record, a ppellant’s counsel i ndicated he wanted
the order to include language concerning how appellant could re spond to questions on
future job applications regarding the expungement. The state objected to this language as
it seemed that the order would be giving improper legal advice (the legal-advice language).
Appellant’s counsel summarized the content of its proposed order on the record, indicating
that it would contain “the original form order prepared by [appellant] plus, after that form,
paragraphs 5 and 6 of the draft.” The district court instructed appellant’s counsel to submit
his proposed order, along with any authority supporting the inclusion of the legal-advice
language. Appellant’s counsel emailed a proposed order to the district court and the state
on the evening of the hearing.
The district court signed the expungemen t order provided by appellant’s counsel on
October 7, 2015. The signed order did not contain the legal-advice language that the parties
had discussed at the expungement hearing, bu t it did contain the district court’s findings
that it would not include the language. The order also contained statements in paragraph
6 of the order that “the pros ecution lacked probable cause ab initio” and that “the state
lacked predicate facts to seek, and the court lacked predicate facts to impose the no-contact
order” (the disputed language).
On February 2, 2016, more than 60 da ys after the district court signed the
expungement order, the state moved to amend the order. In its memorandum in support of
its motion to modify, the state noted that appellant’s counsel agreed to not include the legal-
advice language following its objection. The Coon Rapids City Attorney, representing the
state in the expungement proceeding, indicated that he did not review the order before it

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was signed but had asked appellant’s counsel whether the language he objected to had been
removed. He stated that appellant’s counsel confirmed that it had, and the City Attorney
indicated to the judge that he did not object to the expungement order because he was not
aware of the inclusion of the disputed language.
The state further claimed in its memora ndum that, on December 30, 2015, it first
discovered that the order contained the disputed language, to which it would have objected
had it been aware that the lang uage was in the order. The st ate noted that appellant was
using the additional language co ntained in the order against th e state in a federal lawsuit
against the City of Coon Rapids and in seeking a HRO against a Coon Rapids police
officer.2 The state indicated that the language contained in the order “hampered” the state’s
defense in that suit. The state also asked the district court to clarify language in the order
that stated appellant was a “crime victim.”
The district court granted the state’s mo tion to amend the expungement order after
a hearing. It issued a modified expungeme nt order, deleting the language relating to
probable cause and predicate facts, and al so deleted the words “which finds a nexus
between the criminal record and the Petitioner’s status as a crime victim.” Appellant
appealed the amendment of the order. In an unpublished opinion, this court concluded that
the district court’s limited findings did not allow us to determine whether it considered the
necessary elements to grant re lief pursuant to Minn. R. Civ. P. 60.02, and reversed and

2 The parties indicated at oral argument that this lawsuit has been settled.

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remanded the case, instructing the district court to apply the Finden elements. State v.
T.K.S., No. A16-0541, 2016 WL 188701 (Minn. App. Dec. 12 2016) (T.K.S. I).3
Following a hearing on remand, the di strict court concluded that the four Finden
elements were satisfied, finding that the state presented a meritorious claim, that it had a
reasonable excuse for failure to act, that it acted with due d iligence upon learning of the
challenged language, and that no substantial prejudice would result to appellant. It found
credible the City Attorney’s testimony that he did not reca ll the disputed language being
part of the proposed expungement order that he reviewed. It granted the state’s motion to
amend the expungement order. The district court also ordered appellant’s counsel to
appear for a show-cause hearing as to why it should not impose Rule 11 sanctions on him
for failing to make an effort to inform the district court about the disputed language’s
presence in the order, for seek ing to include in the expungement order a finding that the
judge issuing the no-contact order lacked a basis to issue the order, and for filing a writ of
prohibition in what appeared to be an attempt to delay the proceedings.
This appeal followed.

3 Before the district court heard the case on remand, appellant filed a writ of prohibition
with this court seeking to restrain the district court from enforcing its December 27, 2016
order and arguing that the distri ct court did not have jurisdic tion to conduct a hearing on
remand. We declined to issue this writ of prohibition, concluding that we had specifically
recognized the district court’s jurisdiction to consider the case on remand.

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D E C I S I O N
I. Minn. R. Civ. P. 60.02 applies to th e state’s motion to amend the expungement
order.

We first address appellant’s argument th at the district court had no statutory
authority to modify the expungement order because Minn. R. Civ. P. 60.02 does not apply
to expungement proceedings and the expungement statute, Minn. Stat. § 609A.03 (2016),
provides the only remedy for a party opposing an expungement order.
“Statutory interpretation is a question of la w, which this court reviews de novo.”
State v. L.W.J. , 717 N.W.2d 451, 455 (Minn. 2006). Minn. Stat. § 609A.03, subd. 1,
provides that “[a]n individual who is the subject of a crimin al record who is seeking the
expungement of the record shall file a petition under this section and pay a filing fee.” The
statute further provides that “[a]n expungement order shall be stayed automatically for 60
days after the order is filed and, if the or der is appealed, during the appeal period.” Id. at
subd. 9. Minn. R Civ. P. 60 .02 provides that a party may move for relief from a final
judgment, order, or proceeding based on “mis take, inadvertence, su rprise, or excusable
neglect”; “newly discovered evidence”; “fraud”; a “void” judgment; where a judgment has
been “satisfied, released, or discharged”; or for “any other reason justifying relief from the
operation of the judgment.”
Minnesota law provides that certain proc eedings may be classified as special
proceedings. “A proceeding is ‘special, within the ordinary meaning of the term ‘special
proceeding,’ when ‘the law confers a right, and authorizes a special application to a court
to enforce it.’” Fiduciary Foundation, LLC ex rel. Rothfusz v. Brown , 834 N.W.2d 756,

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761 (Minn. App. 2013) (quoting Schuster v. Schuster, 84 Minn. 403, 407, 87 N.W. 1014,
1015 (1901)). In other words, a special proc eeding “is not part of the underlying action
and that is brought by motion or petition, upon notice, for action by the court independent
of the merits of the underlying action.” In re Estate of Janecek , 610 N.W.2d 638, 642
(Minn. 2000). Remedies provided by speci al proceedings are civil in nature. Fiduciary
Foundation, LLC ex rel. Rothfusz , 834 N.W.2d at 761. A special proceeding may arise
from, and be independent of, an underlying criminal matter. Id. “[T]he fact that a
proceeding is a ‘special proceeding’ does no t preclude treating it as a civil action.” State
by Humphrey v. Baillion Co., 502 N.W.2d 799, 803 (Minn. App. 1993). In fact, an appeal
may be taken from a final order in a special proceeding under civil appellate rules. Minn.
R. Civ. App. P. 103.03(g).
Appellant argues that expungement procee dings are criminal proceedings to which
Minn. R. Civ. P. 60.02 cannot apply. We conc lude that expungeme nt proceedings are
special proceedings to which Mi nn. R. Civ. P. 60.02 does apply. Mi nn. Stat. § 609A.03
provides for the expung ement of criminal reco rds upon petition to th e district court.
Because the statute provides for a right which may be enforced following application to a
district court, an expungement proceeding is properly classifi ed as a special proceeding.
See Fiduciary Foundation, LLC ex rel. Rothfusz v. Brown, 834 N.W.2d at 761 (stating that
a proceeding may be classified as a special proceeding when the law provides for a right
which may be conferred upon application to a district court). Accordingly, we are not
precluded from treating an expungement proceeding as a civil action, State by Humphrey,

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502 N.W.2d at 803, to which Minn. R. Civ. P. 60.02 applie s. Appellant provides us with
no binding authority to the contrary.
Moreover, the doctrine of law-of-the-cas e supports this result. “Law-of-the-case
doctrine commonly applies to issues decided in earlier stages of the same case. [It]
provides that when a court decides upon a rule of law, that decision should continue to
govern the same issues in subsequent stages in the same case.” State v. Miller, 849 N.W.2d
94, 98 (Minn. 2014). In T.K.S. I, we determined that the district court made limited findings
which did not permit us to re view whether it properly consid ered the necessary elements
to grant relief pursuant to rule 60.02. T.K.S. I., 2016 WL 7188701 at *2. We reversed and
remanded the order, instructing the district court to apply the Finden elements in analyzing
the state’s rule 60.02 motion. Id. Our decision in T.K.S. I provides that rule 60.02 applies
to the state’s motion to amend the district court’s expungement order, and the law-of-the-
case doctrine strongly supports our conclusion in this appeal that rule 60.02 applies to this
expungement proceeding.
II. The district court did not abuse it s discretion in its application of the Finden
elements on remand.

We next consider whether the di strict court properly applied the Finden elements
on remand. Appellant makes no argument that th e trial court abused its discretion in its
application of these elements, though he does raise the argument that there was no
excusable neglect on the part of the state in failing to timely object to the language
contained in the district court’s expungement order.

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“Absent an abuse of discretion, a review ing court will uphold a district court’s
decision to vacate a judgment under Minn. R. Civ. P. 60.02.” Galbreath v. Coleman, 596
N.W.2d 689 (Minn. App. 1999 ). To grant relief under rule 60.02, a district court must
consider and “expressly find” that a party satis fied all four of the elements set forth in
Finden v. Klass . Gams v. Houghton , 884 N.W.2d 611, 619 (M inn. 2016). The four
elements are: “(1) a debatably meritorious claim; (2) a reasonable excuse for the movant’s
failure or neglect to act; (3) the movant acted with due diligence after learning of the error
or omission; and (4) no substa ntial prejudice will result to the other party if relief is
granted.” Id. at 620 (quotation and citations omitted). “The decision whether to grant rule
60.02 relief is based on all the surrounding facts of each specific case, and is committed to
the sound discretion of the district court.” Id.
The district court concluded that the stat e presented a debatably meritorious claim.
A meritorious claim is one that provides a defense to the plaintiff’s claim. Finden v. Klass,
128 N.W.2d 748, 750 (Minn. 1964). The district court found that the state demonstrated it
had a defense to the imposition of the original expungement order because it found the City
Attorney’s testimony that the state was not aw are of the disputed language and did not
agree to it credible. The district court c oncluded that, because there was no agreement
between the state and appellant on the disput ed language, it would ha ve needed to make
determinations regarding probable cause or pr edicate facts to address those issues in an
expungement order. It further concluded that there was no evidence submitted that would
permit it to make a determination on those issues. It ultimately concluded that the disputed
language was not properly included in the original expungement order.

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The district court also concluded that the state had a reasonable excuse for its failure
to act, in satisfaction of the second Finden element. Gams, 884 N.W.2d at 619. It credited
the City Attorney’s testimony that he was unaw are of the disputed language and thus had
no reason to review the language of the u nopposed expungement order after raising his
objections to the legal-advice language.
The district court conclude d that the state acted with due diligence upon learning
the expungement order contained the di sputed language, satisfying the third Finden
element. District courts may determine whether parties act within a reasonable amount of
time on a case-by-case basis. Sommers v. Thomas, 88 N.W.2d 191, 195-95 (Minn. 1958).
Here, the state brought its mo tion to amend under rule 60.02 on January 27, 2016, after
learning about the presence of the disputed la nguage in the order on December 30, 2015.
Minn. R. Civ. P. 60.02 requires that a mo tion for relief must be brought “within a
reasonable time” and for motions under 60.02(a)-(c) within a ye ar. The state took action
within a month of learning of the disputed language and with in a year of the initial entry
of the expungement order.
The district court also concluded that the fourth Finden element, that “no substantial
prejudice” would result to appellant, was satis fied. It concluded th at no prejudice would
result because the expu ngement itself would remain and on ly the language of the order
would change. It also noted that appellant’s concern that the file expunged was “open”
while this matter is pending is moot because appellant was the one who referred to the
expungement order in the federal proceeding.

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We see no abuse of discreti on in the district court’s th orough, detailed application
of the Finden elements on remand. The record is unclear as to when the disputed language
was identified and presented to the state and to the district court. The district court
determined that the City Atto rney credibly testified that he had no knowledge that the
disputed language was contained in the order until after the 60-day appeal period provided
by Minn. Stat. § 609A.03. We give defe rence to the district court’s credibility
determinations. Bobo v. State, 860 N.W.2d 681, 684 (Minn. 2015). The district court did
not abuse its discretion in applying the Finden elements.
III. Appellant’s arguments concerning ru le 11 sanctions a re not properly before
this court.

We next address appellant’s arguments that the district court erred in ordering
appellant’s counsel to show ca use as to why the district c ourt should not impose rule 11
sanctions under the Minnesota Rules of Civil Pr ocedure. Minn. R. Ci v. App. P. 103.03
provides that an appeal may be taken from a final judgment or from a partial judgment
pursuant to Minn. R. Civ. P. 54.02. Here , there has been no final judgment against
appellant’s counsel on the issue of rule 11 sanctions. This i ssue is not properly before us
until final judgment has been ente red on the issue of sanctions. See T.A. Schifsky Sons,
Inc. v. Bahr Const., LLC, 773 N.W.2d 783, 789-90 (Minn. 2009) (concluding that there is
no appeal from an order awardi ng attorney fees, rather, the “proper appeal lies from the
judgment or amended judgment entered on th e order”). We further note that, because
appellant is not the party aggrieved by the district court’s order, he does not have standing
to appeal an attorney-fee award against his counsel. See Twin Cities Metro. Pub. Transit

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Area v. Holter, 311 Minn. 423, 425, 249 N.W.2d 458, 460 (Minn. 1977) (“A party who is
not aggrieved by a judgment may not appeal from it.”).
Affirmed.