A23-1820

This opinion is nonprecedential except as provided by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
A23-1453
A23-1820

Todd C. Dooley, et al.,
Appellants,

vs.

Jason R. Ross, et al.,
Respondents.

Filed August 5, 2024
Affirmed
Smith, Tracy M., Judge

Isanti County District Court
File No. 30-CV-21-723

Richard Dahl, Dahl Law Firm PA, Brainerd, Minnesota (for appellants)

Bradley A. Kletscher, Tyler W. Eubank, Barna, Guzy & Steffen, LTD., Minneapolis,
Minnesota (for respondents)

Considered and decided by Smith, Tracy M., Presiding Judge; Bjorkman, Judge;
and Slieter, Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
In these consolidated appeals, appellants challenge the district court’s (1) dismissal
with prejudice of their complaint as a sanction for failing to comply with the court’s order
compelling discovery and (2) award of costs and disbursements to respondents as the
prevailing parties. We affirm.
2
FACTS
These consolidated appeals arise from a dispute between two next-door neighbors
and their respective businesses operating out of their homes. In December 2021, appellants
Todd C. Dooley and Wyatt Excavating LLC sued their neighbors: respondents Jason R.
Ross, JR Enterprise LLC, and Great Lakes Lumber Company Inc. Appellants asserted
seven claims against respondents based on the following alleged facts: appellants arranged
for respondents to sell sand to a third party in exchange for black dirt, and respondents
agreed to, but failed to, compensate appellants for their services by equally splitting the
black dirt with them; respondents failed to pay appellants for performing environmental
remediation related to a pond on Ross’s property; and respondents failed to pay appellants
for laying an asphalt driveway on Ross’s property.
The district court filed a scheduling order, requiring discovery to be completed by
June 15, 2022, and dispositive motions to be heard by July 1, 2022, and setting trial for
August 22, 2022.
On March 1, 2022, each of the respondents served each of the appellants with
interrogatories and requests for production of documents. Under Minnesota Rules of Civil
Procedure 33.01(b) and 34.02(c)(1), appellants’ responses were due 30 days later.
On April 5, respondents’ counsel sent a letter to appellants’ counsel, informing him
that the responses to their interrogatories and requests for production were due on March 31
and that respondents’ counsel had not received any responses. On April 8, respondents
filed a motion to compel appellants to respond to the discovery requests. On April 12,
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appellants’ counsel sent a letter, with the responses enclosed, to respondents’ counsel
stating that the responses had been mailed on March 28.
Appellants’ responses consisted of a single set of answers to interrogatories and a
single set of responses to requests for documents, on behalf of both appellants to all
respondents. The combined answers to interrogatories did not differentiate between the
interrogatories asked by Ross, those asked by JR Enterprise, and those asked by Great
Lakes Lumber. In addition, in almost all of the interrogatory answers, appellants broadly
directed appellants to documents produced, saying, “See also documents sent with
responses to requests for production.” The interrogatory answers were not signed under
penalty of perjury as required by Minnesota Rule of Civil Procedure 33.01(d).
As for the requests for production of documents, appellants also responded together
as to respondents collectively and did not differentiate between Ross, JR Enterprise, and
Great Lakes Lumber. In addition, apart from objections, appellants responded to each
document request by stating:
Subject to and without prejudice to these objections,
[appellants] will produce any documents which are otherwise
responsive to this request, have been identified by [appellants],
are currently in [appellant’s] possession, custody, and/or
control, and have not already been made available to this
propounding party via deposition subpoena, if any. See list of
documents attached to this response. See also documents
included on the Thumb Drive MAILED with this response.

The thumb drive included documents that were extremely blurry and unreadable as well as
photographs that were extremely blurry.
4
On April 20, appellants served an amended set of answers to the interrogatories that
were signed under oath but were still collective to respondents without differentiating
between Ross, JR Enterprise, and Great Lakes Lumber.
On July 20, the district court issued an order granting respondents’ motion to
compel discovery (the July 20 order). The district court ordered appellants to (1) “produce
legible documents and photographs . . . within seven days of this order”; (2) “verify [the]
original interrogatory answers under penalty of perjury”; (3) amend several answers to
interrogatories to fully respond to the question; and (4) “specifically identify documents
used to answer each interrogatory, including page and paragraph numbers where
applicable.”
On August 3, respondents’ counsel wrote a letter to appellants’ counsel, stating that
he had not, as of that date, received the discovery required by the July 20 order. On
September 9, when appellants still had had not complied, respondents filed a motion under
Minnesota Rule of Civil Procedure 37.02 to sanction appellants by dismissing their
complaint with prejudice. At that time, respondents had also filed a motion for summary
judgment.
On September 22, the district court continued the case based on the request of
appellants’ counsel because of counsel’s illness. The hearing on respondents’ rule 37.02
motion and motion for summary judgment was continued to February 2, 2023. In addition,
the district court amended the scheduling order to require all motions to be heard by
April 7, 2023, and setting the trial date for May 15, 2023.
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On February 3, 2023, appellants filed a response to respondents’ rule 37.02 motion.
Appellants claimed that Dooley takes iPhone pictures of his business records and throws
away paper copies and that no legible copies of invoices or other exhibits existed ;
committed to sending a verification of interrogatory answers; committed that counsel
would do “the best he can” to fully respond to the interrogatories and would “attempt
again” to identify responsive documents as previously ordered by the district court. At a
February 17 hearing on respondents’ rule 37.02 and summary judgment motions,
appellants’ counsel stated, among other things, that the original interrogatory answers
could not be verified because Dooley said that he could not verify the answers.
On April 17, the district court filed an order that denied respondents’ motion for
summary judgment and, as to the rule 37.02 motion, ordered: “[Appellants] shall comply
with [the district court’s] July 20, 2022 Order on [respondent’s] Motion to Compel. [The
district court] will reserve an award of sanctions against [appellants].” On April 24, after
the motions deadline set in the scheduling order had passed, respondents filed a motion for
sanctions, again asking the district court to dismiss the complaint with prejudice because
of the discovery violations.
The trial date was again rescheduled, to July 24, 2023. On July 12, appellants finally
served individualized sets of answers to interrogatories along with verifications of those
answers. Appellants also produced some legible copies of paper invoices and some
readable photographs of business records. On July 12, appellants served supplemental
discovery responses, disclosing documents related to 803 phone calls between Ross and an
inmate at a Minnesota correctional facility, and, on July 19, appellants served recordings
6
of those calls. and indicated that they intended to offer the calls as exhibits during the trial
starting in three days.
On July 24, the trial date, the district court heard arguments on respondents’ motion
for sanctions for violating the July 20 order. Respondents argued that the district court
should dismiss the case because appellants’ actions to comply with the order were
insufficient, were late, and prejudiced respondents in preparing for trial in the case. The
district court took the matter under advisement and cancelled the jury trial pending its
decision. The district court ultimately granted respondents’ motion for sanctions,
dismissing the amended complaint with prejudice. Appellants filed an appeal of the
dismissal.
The district court then determined that respondents were the prevailing party and
granted in part and denied in part respondents’ application for the taxation of costs and
disbursements. Appellants filed an appeal of the taxation of costs and disbursements. We
consolidated the appeals.
DECISION
I. The district court did not abuse its discretion by dismissing the complaint as a
sanction for discovery violations.

Appellants argue that the district court abused its discretion by dismissing their
complaint as a sanction for failing to comply with the July 20 order compelling discovery.
They argue that (A) the July 20 order was an abuse of discretion, (B) dismissal of the
complaint based on failure to comply with the July 20 order was an abuse of discretion,
and (C) the district court lacked authority to dismiss the complaint as a sanction because
7
respondents filed a motion for sanctions after the motions deadline in the district court’s
scheduling order. None of their arguments are persuasive.
A. The July 20 order was not an abuse of discretion.

The district court has wide discretion to issue discovery orders, and, absent a clear
abuse of that discretion, its discovery orders will not be disturbed. In re Comm’r of Pub.
Safety, 735 N.W.2d 706, 711 (Minn. 2007). “We review a district court’s order for an abuse
of discretion by determining whether the district court made findings unsupported by the
evidence or by improperly applying the law.” Id.
Appellants advance three arguments why the district court abused its discretion in
issuing the July 20 order.
First, appellants contend that the district court abused its discretion by ordering that
appellants must identify the source document, page, and paragraph number of the
documents used to answer each interrogatory. Pursuant to court rule, if an answer to an
interrogatory can be derived from business records,
and the burden of deriving or ascertaining the answer is
substantially the same for the party serving the interrogatory as
for the party served, it is a sufficient answer to such
interrogatory to specify the records from which the answer may
be derived or ascertained and to afford to the party serving the
interrogatory reasonable opportunity to examine, audit, or
inspect such records . . . . A specification shall be in sufficient
detail as to permit the interrogating party to locate and to
identify, as readily as can the party served, the records from
which the answer may be ascertained.

Minn. R. Civ. P. 33.03 (emphasis added). Although the rule does not provide explicitly that
page and paragraph numbers must be specified, it contemplates a more specific response
8
than respondents’ response of “See also documents sent with responses to requests for
production.” The district court acted within its wide discretion by requiring appellants to
provide page and paragraph numbers in appellants’ responses to the interrogatories.
Second, appellants argue that the district court should not have issued the July 20
order because respondents failed to satisfy their obligation under the rules of practice to
meet and confer about the discovery dispute and to certify their compliance to the district
court. See Minn. R. Gen. Prac. 115.10. The district court rejected the argument, concluding,
“There is ample evidence to suggest [respondents] attempted to Meet and Confer in good
faith,” noting multiple letters exchanged between the parties before the motion hearing ,
and that respondents sufficiently certified their efforts. The record supports both
determinations. Moreover, appellants cite no authority, nor are we aware of any, for the
proposition that the failure to meet and confer precludes a district court from ordering a
party to comply with discovery.
Finally, appellants argue that their verified amended answers to the interrogatories
almost a year later rendered the lack of verification of their original interrogatories moot.
Appellants cite no law that an amended answer to an interrogatory renders moot problems
with the original answers to the interrogatory. And rule 33.01(d) provides no exceptions
for the requirement that answers to interrogatories be signed under oath, even when
amended answers to interrogatories are served.
In its 22-page order, the district court carefully evaluated appellants’ discovery
responses, specifically explained the deficiencies in those responses, and gave explicit
9
directions to appellants as to how to correct those deficiencies. The district court acted well
within its broad discretion in issuing the July 20 order.
B. Dismissal of the complaint was not an abuse of discretion.

Appellants argue that the district court abused its discretion by dismissing their
complaint with prejudice before trial as a sanction for failing to comply with the July 20
order.
Minnesota Rule of Civil Procedure 37.02(b)(3) permits a district court to impose
sanctions—including dismissal of an action— against a party that fails to comply with a
discovery order. A district court’s discovery-related orders are reviewed for an abuse of
discretion. Shetka v. Kueppers, Kueppers, Von Feldt & Salmen, 454 N.W.2d 916, 921
(Minn. 1990).
Appellate courts have examined the following factors in
determining whether a district court has abused its discretion
in imposing discovery sanctions: (1) if the [district] court set a
date certain by which compliance was required, (2) if the
[district] court gave a warning of potential sanctions for non-
compliance, (3) if the failure to cooperate with discovery was
an isolated event or part of a pattern, (4) if the failure to comply
was willful or without justification, and (5) if the moving party
has demonstrated prejudice.

Frontier Ins. Co. v. Frontline Processing Corp., 788 N.W.2d 917, 923 (Minn. App. 2010),
rev. denied (Minn. Dec. 14, 2010). The arguments that appellants advance correspond to
the fourth and fifth factors.
Regarding the fourth factor, appellants advance three arguments why they did not
willfully fail to comply with the July 20 order.
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First, appellants contend that they could not “produce legible documents and
photographs” as required by the July 20 order because, for his business records, Dooley
took photos of bills and invoices on his cell phone and threw the paper originals away. The
existence of original documents, however, is immaterial to the district court’s order to
“produce legible documents and photographs.” (Emphasis added). The district court did
not order appellants to produce original documents, but instead ordered them to produce
readable documents. Nor does appellants’ argument explain why they waited until July
2023 to produce the legible documents and photographs.
Second, appellants argue that they did not willfully violate the requirement to verify
their interrogatory answers because Dooley did not believe the answers accurately reflected
what happened. It is problematic that appellants apparently provided inaccurate responses
to interrogatories during discovery. Appellants also contend that, under the rules of civil
procedure, they were not required to verify their answers because they filed objections to
the interrogatories. The argument is without merit. Minnesota Rule of Civil
Procedure 33.01 requires that a party “serve separate written answers or objections to each
interrogatory” and directs that the answers “shall be signed under oath or penalty of
perjury.” Minn. R. Civ. P. 33.01(b), (d). Appellants made objections to the interrogatories
but also gave answers. Verification of the answers was plainly required under rule 33.01.
Moreover, as explained above, the July 20 order was within the district court’s discretion,
and appellants did not provide a verified copy of the original answers to the interrogatories
as required by that order.
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Third, appellants again argue that they did not willfully violate the district court’s
order because the Minnesota Rules of Civil Procedure do not require a party to identify the
source document, page, and paragraph number of the documents used to answer each
interrogatory. We rejected this argument above when we concluded that the district court
acted within its discretion by requiring appellants to provide that information in their
answers to interrogatories. It is also not clear that appellants provided respondents a
“reasonable opportunity to examine . . . or inspect” the records when many of the
photographs of documents were too blurry to decipher. Minn. R. Civ. P. 33.03. Because
this factor measures the willfulness of noncompliance with the order, appellants’ failure to
comply with the requirement to provide the location of the documents was not inadvertent
or justified.
Regarding the fifth factor, appellants argue that respondents suffered no prejudice
based on appellant’s discovery violations. “[T]he inability of [a responding party] to mount
an effective defense due to [the appellant’s] failure to comply with discovery and court
orders is sufficient prejudice to warrant sanctions.” Frontier Ins. Co. , 788 N.W.2d at 925.
In seeking dismissal, respondents asserted that they were prejudiced in several ways. They
could not identify which respondent or respondents were allegedly involved in which of
appellants’ claims because appellants failed to provide adequate answers to each
respondent’s interrogatories. They could not identify the documents to which appellants
generally referred to in the answers to interrogatories, nor were they able to read the blurry
photos of the documents if they had been able to identify the documents. They were
disadvantaged by appellants’ disclosure of some legible records and photographs just
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weeks before trial and almost 12 months after the July 20 order. The district court
determined that respondents were prejudiced, and that determination is supported by the
record.
Appellants contend, though, that dismissal of the complaint was too severe a
sanction and that the district court should have granted a continuance. The district court
concluded:
This Court is sympathetic to [appellants’] Counsel’s
health issues over the last few years. However, the Court’s
July 20, 2022 Order addressing discovery issues has not been
followed, even though the Court’s memorandum specifically
laid out what needed to be done. [Appellants have] not been
compliant in answering interrogatories as required and
providing the requested information, such as invoices, and
verifying his answers. This matter was scheduled for trial on a
date certain. Both parties should have been prepared and ready
to proceed. [Appellants’] failure to provide discovery, after
two motions to compel and a motion for sanctions, deprived
[respondents] of the ability to be fully prepared for trial, to their
prejudice. The c ourt appreciates that dismissal is a serious
sanction, but it is justified by [appellants’] failures.

On this record, and given the procedural history of the case, including that trial was set to
begin, we see no abuse of discretion in the district court’s choice of sanction. See Comm’r
of Pub. Safety, 735 N.W.2d at 711 (noting that the district court has wide discretion to issue
discovery orders).
C. The district court did not lack authority to impose sanctions on the
ground that respondents’ motion was untimely.

Appellants argue that the district court lacked authority to dismiss the complaint
because respondents filed a motion for sanctions after the motions deadline set in the
scheduling order.
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Respondents filed a sanctions motion on April 24, 2023, which was after the
scheduling order’s April 7, 2023 deadline for motions to be heard. But respondents first
filed a motion for sanctions in September 2022, and the district court filed an order on that
motion on April 17, 2023, again ordering appellants to comply with the July 20 order and
reserving an award of sanctions. When appellants still did not comply, respondents
renewed their motion, and the district court reasonably considered it. And, even if
respondents’ April 24 motion was untimely under the district court’s scheduling order,
appellants cite no authority for the proposition that the district court lacked authority to
consider it.
1
II. The district court did not abuse its discretion by awarding costs and
disbursements to respondents.

Appellants argue that the district court abused its discretion by awarding costs and
disbursements to respondents, contending that, because the case was dismissed, there was
no prevailing party. We do not agree.
The prevailing party in a district court action “shall be allowed reasonable
disbursements paid or incurred.” Minn. Stat. § 549.04, subd. 1 (2022); see also Minn. R.
Civ. P. 54.04(a) (“Costs and disbursements shall be allowed as provided by law.”).
Generally, an award of costs and disbursements is a matter within the district court’s sound
discretion and will not be disturbed absent an abuse of that discretion. Lake Superior Ctr.

1 Appellants also argue that the district court impermissibly relied on the disclosed jail
phone calls to dismiss the case. Although the district court did mention in its order
dismissing the case that appellants amended their exhibit list the day before trial, the district
court relied exclusively on appellants’ discovery violations as the basis for dismissing the
complaint. We therefore do not address this argument.
14
Auth. v. Hammel, Green & Abrahamson, Inc., 715 N.W.2d 458, 482 (Minn. App. 2006),
rev. denied (Minn. Aug. 23, 2006). “[T]he district court retains discretion to determine
which party, if any, qualifies as a prevailing party” when considering a request for costs
incurred. Benigni v. County of St. Louis, 585 N.W.2d 51, 54-55 (Minn. 1998).
“The prevailing party in any action is one in whose favor the decision or verdict is
rendered and judgment entered.” Borchert v. Maloney, 581 N.W.2d 838, 840 (Minn. 1998).
A dismissal with prejudice “operates as an adjudication on the merits.” Firoved v. Gen.
Motors Corp., 152 N.W.2d 364, 368 (Minn. 1967). And generally, any dismissal “other
than a dismissal for lack of jurisdiction, for forum non conveniens, or for failure to join a
party indispensable pursuant to Rule 19, operates as an adjudication upon the merits.”
Minn. R. Civ. P. 41.02(c).
Because appellants’ complaint was dismissed with prejudice, the dismissal operated
as an adjudication on the merits. The district court acted within its discretion by
determining that respondents were the prevailing party. In addition, the district court
carefully evaluated the costs and disbursements claimed by respondents and disallowed
some of the expert witness fees that respondents were seeking to recoup. On this record,
the district court did not abuse its discretion by awarding costs and disbursements to
respondents.
Affirmed.