In the Matter of the Bette R. Peterson Revocable Trust, Dated August 8, 1996, as Amended, In the Matter of the Hewitt L. Peterson Revocable Trust, Dated August 8, 1996, as Amended.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0430

In the Matter of the Bette R. Peterson Revocable Trust, Dated August 8, 1996, as
Amended, In the Matter of the Hewitt L. Peterson Revocable Trust, Dated August 8,
1996, as Amended.

Filed September 19, 2022
Affirmed; motion denied
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-TR-CV-15-233

Rebecca A. Cymek, Severn, Maryland (pro se appellant)

Taylor D. Sztainer, Megan J. Renslow, Moss & Barnett, P.A., Minneapolis, Minnesota (for
respondent Michael Murry)

Casey Marshall, Alan Silver, Bassford Remele, Minneapolis, Minnesota (for respondents
Hewitt Peterson and Angela Peterson)

Eric J. Magnuson, Denise S. Rahne, Robins Kaplan, Minneapolis, Minnesota (for
respondent David Peterson)

Considered and decided by Smith, Tracy M., Presiding Judge; Johnson, Judge; and
Larson, Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
In this trust dispute, pro se appellant Rebecca Cymek, a beneficiary of two related
trusts, challenges the district court’s dismissal with prejudice of her claims based on her
failure to prosecute when she did not appear for trial. Cymek challenges the dismissal as
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well as other actions of the district court, the respondents, and the attorneys involved in
this lengthy litigation. We conclude that the district court did not abuse its discretion by
dismissing the case for failure to prosecute, and we therefore need not address Cymek’s
other arguments. We affirm.
FACTS
The facts of the underlying controversy in this case are recited in our previous
opinion and orders. See generally In re Bette R. Peterson Revocable Tr., No. A19- 0256,
2019 WL 4010830 (Minn. App. Aug. 26, 2019); In re Bette R. Peterson Revocable Tr., No.
A20-1193 (Minn. App. Oct. 27, 2020) (order) ; In re Cymek, No. A20-1194 (Minn. App.
Oct. 27, 2020) (order); In re Bette R. Peterson Revocable Tr., No. A22-0284 (Minn. App.
Mar. 15, 2022) (order), rev. denied (Minn. May 17, 2022). Because we affirm the district
court’s decision to dismiss the case with prejudice due to failure to prosecute, we include
only those facts that are relevant to that issue.
In preparation for trial, the parties submitted motions in limine. In an order on those
motions, the district court reserved ruling as to whether two of Cymek’s witnesses would
be allowed to testify at trial. The district court noted that Cymek had not previously
identified the two witnesses or the subject of their testimony and that there were less than
two weeks before the start of the trial. The district court gave Cymek three days to submit
an affidavit about the witnesses and the subject of their testimony. It warned that “[f]ailure
to timely file and serve the Affidavit regarding [the witnesses] will result in the exclusion
of these witnesses at this trial for failure to comply with applicable rules and this Court
Order.”
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After Cymek failed to submit an affidavit regarding the two witnesses, the district
court granted respondents’ motion to exclude the witnesses in a February 1, 2022 order.
On Friday, February 4, the last business day before the trial scheduled to start on Monday,
February 7, Cymek emailed the district court and the parties, stating: “As a result of the
Judge’s final order I actually have no case before the jury. Therefore, I will not be attending
trial.” Respondents replied to both the district court and Cymek that they would appear for
trial on February 7 and move for default judgment if Cymek failed to appear. Cymek did
not appear for trial, and respondents argued for dismissal with prejudice for failure to
prosecute. Cymek sought discretionary interlocutory review of the district court’s orders
on the motion in limine; we denied that request. In re Bette R. Peterson Revocable Tr., No.
A22-0284 (Minn. App. Mar. 15, 2022) (order); see Minn. R. Civ. App. P. 105.01-.03
(addressing discretionary review).
In a March 17 order, the district court dismissed the case with prejudice for failure
to prosecute, concluding that respondents were prejudiced by Cymek’s actions and that
Cymek’s refusal to appear for trial was unreasonable and inexcusable.
Cymek appeals.
DECISION
Cymek raises many arguments in her appellate brief related to the underlying trust
controversy. Although we have read her arguments carefully and fully reviewed the record,
the first question we must answer is whether the district court abused its discretion by
dismissing Cymek’s claims for failure to prosecute. B ecause we conclude that it did not
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abuse its discretion, Cymek’s claims were properly dismissed, and, accordingly, we do not
reach Cymek’s remaining arguments regarding the merits of the case.
Under Minn. R. Civ. P. 41.02(a), the district court may “dismiss an action or claim
for failure to prosecute or to comply with these rules or any order of the court.” This
dismissal operates “as an adjudication upon the merits.” Minn. R. Civ. P. 41.02(c ). We
review the district court’s dismissal under rule 41.02 for an abuse of discretion. See
Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 395 (Minn. 2003). A district court may
dismiss an action for failure to prosecute if: (1) the delay prejudiced the defendant and
(2) the delay was unreasonable and inexcusable. Scherer v. Hanson , 270 N.W.2d 23, 24
(Minn. 1978). Failure to appear for trial can justify a dismissal for failure to prosecute. See,
e.g., O’Neil v. Kelly, 239 N.W.2d 231, 232 (Minn. 1976).
In its March 17 order, the district court concluded that respondents were prejudiced
by the delay because the case had been ongoing for nearly seven years, the trial had been
scheduled for nearly a year, and respondents and their counsel had spent “considerable
time” in preparation for trial. The district court also concluded that Cymek’s failure to
appear for trial, which caused the delay, was unreasonable and inexcusable. The district
court noted that it gave Cymek extra time to provide information about her witnesses,
despite her untimeliness, but that she failed to take advantage of that opportunity. It also
noted that Cymek waited until the last business day before trial to inform the district court
that she would not attend trial. The district court’s determinations on both prongs of the
test for dismissal based on failure to prosecute are supported by the record. T herefore, it
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was not an abuse of discretion for the district court to dismiss Cymek’s claims with
prejudice under rule 41.02 for failure to prosecute.1
Affirmed; motion denied.

1 Respondents moved this court to limit Cymek’s briefing on appeal to “the sole issue on
appeal: whether the district court abused its discretion in determining that dismissal was
appropriate for failure to prosecute.” In a May 25, 2022 order, we construed that motion as
a motion to strike after Cymek filed her appellate brief. Because we conclude that the
district court did not err by dismissing Cymek’s claims with prejudice for failure to
prosecute and thus do not reach the portions of Cymek’s brief addressing other issues,
respondents’ motion to strike is moot. We therefore deny respondents’ motion to strike.