                       This opinion will be unpublished and
                       may not be cited except as provided by
                       Minn. Stat. § 480A.08, subd. 3 (2014).

                            STATE OF MINNESOTA
                            IN COURT OF APPEALS
                                  A14-2010

                                A & M Market LLC,
                                   Respondent,

                                         vs.

                          West Side Groceries, Inc., et al.,
                        defendants and third party plaintiffs,
                                    Appellants,

                                         vs.

                            Stryker Market, LLC, et al.,
                               third party defendants,
                                    Respondents.

                             Filed July 20, 2015
   Reversed and remanded; motion to strike granted and motion for fees denied
                              Schellhas, Judge

                           Ramsey County District Court
                           File No. 62-HG-CV-11-1623

John M. Cabak, Cabak Law, LLC, Pine City, Minnesota (for respondent A & M Market)

Kevin S. Sandstrom, Eckberg, Lammers, Briggs, Wolff & Vierling, PLLP, Stillwater,
Minnesota (for appellants)

Chad D. Lemmons, Kelly & Lemmons, P.A., Little Canada, Minnesota (for respondents
Stryker Market, et al.)
       Considered and decided by Schellhas, Presiding Judge; Reyes, Judge; and Minge,

Judge.*

                         UNPUBLISHED OPINION

SCHELLHAS, Judge

       Appellants challenge the district court’s sua sponte dismissal with prejudice of

their claims against respondent. We reverse and remand for further proceedings.

                                          FACTS

       This case originated with respondent A & M Market LLC’s attempt to evict

appellants West Side Groceries Inc. and Hamza Abualzain (individually or collectively,

Abualzain) after A & M’s unsuccessful attempt to purchase the grocery business that

Abualzain operates on the rental premises. Abualzain counterclaimed against A & M in

the eviction action and interpleaded respondents Stryker Market LLC, Khaffak Ansari,

and Tawfiq Ansari (individually or collectively, Ansaris). The facts of the underlying

dispute are discussed in this court’s prior opinion, remanding the case to the district court.

A & M Market LLC v. West Side Groceries, Inc., No. A12-1032, 2013 WL 1942999, at

*1−2 (Minn. App. May 13, 2013).

       On remand, the district court ordered the parties to mediate their claims by

June 19, 2014, and, if unsuccessful, to participate in a pre-trial/settlement conference on

August 25. On June 10, A & M sent the court a letter, stating that “the Parties are

formally notifying this Court that the parties have reached a mediated settlement


*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

                                              2
agreement. The parties will file the required Stipulations of Dismissal as soon as

possible.” The parties neither attended the tentatively scheduled pre-trial/settlement

conference on August 25 nor submitted stipulations of dismissal to the court.

       The district court subsequently ordered the parties to appear for a status

conference on September 19 at which the court asked why the parties had not filed any

stipulations of dismissal. A & M’s counsel said that the parties had “appeared to [reach] a

global settlement where [they] would have no more claims”; that, as part of the

agreement, A & M had agreed to purchase the grocery business but that certain

regulatory violations subsequently rendered the business nonexistent; and that “at this

time, we don’t have a business to purchase.” All counsel argued about the existence,

validity, and enforceability of the mediated settlement agreement and the propriety of

dismissing the case.1 At the conclusion of the hearing, the court stated that it was

dismissing the case with prejudice, issued an order to that effect, and directed entry of

judgment accordingly.

       This appeal follows.

                                     DECISION

Motion to strike

       Abualzain moves this court to strike documents in A & M’s addendum and all

references to those materials because they are not part of the record. The documents

include (1) a copy of the mediated settlement agreement, (2) five news articles regarding


1
  No one provided the settlement agreement to the district court, and it is not included in
the record before us.

                                            3
Abualzain and the grocery business, and (3) an unfiled copy of a complaint to enforce the

settlement agreement in a subsequent case. The documents filed in the district court, the

exhibits, and the transcript of the proceedings, if any, shall constitute the record on

appeal. Minn. R. Civ. App. P. 110.01. The general rule is that an appellate court may not

base its decision on matters outside the record on appeal and may not consider matters

not produced and received in evidence below. Thiele v. Stich, 425 N.W.2d 580, 582–83

(Minn. 1988).

       But exceptions to the rule against consideration of new matters on appeal exist.

First, “when the evidence is documentary evidence of a conclusive nature

(uncontroverted) which supports the result obtained in the lower court, [appellate courts]

may [consider it].” Vill. Apartments v. State (In re Objections to Real Prop. Taxes for

1980 Assessment), 335 N.W.2d 717, 718 n.3 (Minn. 1983). Second, a motion to strike

material from a party’s brief on the ground that the material is outside the scope of the

record on appeal is properly denied when the contested material is a public record to

which an appellate court could refer in the course of its own research. State v. Rewitzer,

617 N.W.2d 407, 411 (Minn. 2000). Third, a party can request that an appellate court

take judicial notice. See Eagan Econ. Dev. Auth. v. U-Haul Co. of Minn., 787 N.W.2d

523, 530 (Minn. 2010) (taking judicial notice of public records). A judicially noticed fact

must be one not subject to reasonable dispute in that it is either (1) generally known

within the territorial jurisdiction of the district court or (2) capable of accurate and ready

determination by resort to sources whose accuracy cannot reasonably be questioned.

Minn. R. Evid. 20l(b).


                                              4
       After reviewing the documents contained in A & M’s addendum, we conclude that

none of them is part of the record under rule 110.01 and that the exceptions to the general

rule that extra record materials will not be considered on appeal do not apply. None of the

documents is conclusive in nature, nor is any document a public record or otherwise

susceptible to judicial notice. We therefore grant Abualzain’s motion to strike these

documents from A & M’s addendum and references to these documents from A & M’s

response brief.

Attorney fees

       Abualzain also moves this court under Minn. R. Civ. App. P. 139.06 for an award

of attorney fees incurred in bringing his motion to strike. Generally, attorney fees are not

recoverable absent authorization by contract or statute. Barr/Nelson, Inc. v. Tonto’s, Inc.,

336 N.W.2d 46, 53 (Minn. 1983). Rule 139.06 is procedural only and does not provide a

substantive basis for claiming fees on appeal. Minn. R. Civ. App. P. 139.06 1998

advisory comm. cmt. As substantive support for the request for attorney fees, Abualzain

cites Glass Serv. Co. v. Progressive Specialty Ins. Co., 603 N.W.2d 849 (Minn. App.

2000), and Fabio v. Bellomo, 489 N.W.2d 241 (Minn. App. 1992), aff’d, 504 N.W.2d 758

(Minn. 1993). But neither of these cases provides a substantive basis for attorney fees in

this matter. See Glass Serv. Co., 603 N.W.2d at 853 (denying motion for attorney fees

brought in conjunction with motion to strike documents from appellant’s appendix to

reply brief and references thereto in reply brief because “appellant’s reply brief d[id] not

appear to have been written with the intent to delay proceedings or increase costs”);

Fabio, 489 N.W.2d at 246 (denying motion for attorney fees brought in conjunction with


                                             5
motion to strike document appended to respondent’s brief because attorney fees were not

“warranted”). We therefore deny Abualzain’s motion for attorney fees.

Involuntary dismissal of claims with prejudice

       The district court sua sponte dismissed the parties’ claims with prejudice, stating:

                      Okay. This Court has responsibility to enforce its
              orders. It’s the responsibility of the Court, once the parties
              invoke the jurisdiction of the Court, to make sure its orders
              are followed. The parties had invoked the jurisdiction of the
              Court to not operate outside of the Court’s authority. The
              letter of June 10, 2014 indicated this matter was settled and
              that there would be a Stipulation of Dismissal. The parties
              have not provided the Stipulation of Dismissal. This Court is
              going to enforce its orders, its authority, and dismiss all
              remaining claims in this case. If any party is wishing relief
              from that or enforcement of the settlement agreement, they
              can move with regard to the enforcement of the settlement
              agreement by separate action. If they believe there’s a basis to
              vacate the dismissal in this case, then they’ll have to move for
              an order to vacate the dismissal.

Although the court did not identify the legal authority on which it dismissed the case, the

court’s statements suggest that it dismissed the parties’ claims under Minn. R. Civ. P.

41.02(a), which provides that “[t]he court may upon its own initiative, . . . and upon such

notice as it may prescribe, dismiss an action or claim for failure to prosecute or to comply

with these rules or any order of the court.” We conclude that the court dismissed the

parties’ claims for failure to comply with an order of the court and review the court’s

dismissal order accordingly.




                                             6
          “Rule 41.02[a2] is designed to let the trial court manage its docket and eliminate

delays and obstructionist tactics by use of the sanction of dismissal.” Lampert Lumber

Co. v. Joyce, 405 N.W.2d 423, 425 (Minn. 1987). “If a party does not cooperate with the

litigation process by failing to comply with the rules of procedure or an order of the

court, the judge may dismiss the case with or without prejudice.” Id. “In other words,

Rule 41.02([a]) permits dismissal for trial management reasons, not for lack of

substantive merits of a claim.” Id. “An order of dismissal on procedural grounds runs

counter to the primary objective of the law to dispose of cases on the merits.” Firoved v.

Gen. Motors Corp., 277 Minn. 278, 283, 152 N.W.2d 364, 368 (1967). A dismissal under

rule 41.02(a) “operates as an adjudication on the merits.” Johnson v. Hunter, 447 N.W.2d

871, 873 (Minn. 1989). As such, “it is the most punitive sanction which can be imposed

for noncompliance with the rules or order of the court.” Firoved, 227 Minn. at 283, 152

N.W.2d at 368. “It should therefore be granted only under exceptional circumstances.”

Id. “A dismissal under this rule is an exercise of discretionary authority which will be

sustained on appeal absent a showing of clear abuse viewing the record in the light most

favorable to the trial court’s order.” Zuleski v. Pipella, 309 Minn. 585, 586, 245 N.W.2d

586, 587 (1976); see also Johnson, 447 N.W.2d at 873 (“Ordering an involuntary

dismissal pursuant to Minn. R. Civ. P. 41.02([a]) . . . rests within a trial court’s

discretion.”).

         To determine whether the district court abused its discretion by dismissing the

parties’ claims with prejudice, we must know the order that the court deemed the parties

2
    Prior to 1989, rule 41.02(a) was numbered as Minn. R. Civ. P. 41.02(1).

                                              7
to have violated. The court did not identify the violated order, and we cannot do so based

on the record before us. On remand and before the dismissal of the parties’ claims, the

court issued two scheduling orders and an order to appear for a status conference on

September 19, 2014. The parties identify the second scheduling order, issued in May

2014, as possibly the order that the court deemed violated. The only provision in the May

2014 scheduling order that the parties arguably violated is the provision ordering the

parties to participate in a pre-trial/settlement conference, as follows:

                      A pre-trial/settlement conference is hereby set for
              August 25, 2014 at 9:30 am in Room 1270. The attorney who
              will try the case, the parties involved in the litigation (except
              insureds with no settlement authority), and claims adjusters
              must attend. At least one person who has final authority to
              settle this case, must personally attend. Leave may be granted
              by the undersigned to allow out-of-state parties or claims
              adjusters to appear by telephone. There will be consequences
              for non-appearance by attorneys or those with settlement
              authority. Consequences include sanctions, possible dismissal
              or default judgment.

Perhaps the court viewed the parties’ nonparticipation in the August 25 pre-

trial/settlement conference as a violation of its order. But at the September 19 status

hearing, the court noted that following its receipt of the parties’ settlement notification,

the court took the case “off [its] pretrial and trial schedule.” We therefore conclude that

the parties did not violate the May 2014 scheduling order by not participating in a pre-

trial/settlement conference that the court had stricken from its schedule.

       But even if we were to conclude that the district court dismissed the parties’

claims for violating the May 2014 scheduling order, we would not agree that dismissal

with prejudice was within the court’s discretion. “The decision to dismiss necessarily


                                              8
depends upon the circumstances peculiar to each case, justice and equity to each party,

and considered with reference to just, speedy, and inexpensive disposition of the case and

the policy underlying the dismissal rules of preventing harassment and unreasonable

delays in litigation.” Zuleski, 309 Minn. at 586–87, 245 N.W.2d at 587 (quotations

omitted). “The primary factor to be considered in determining whether to grant a

dismissal with or without prejudice is the prejudicial effect of the order upon the parties

to the action.” Firoved, 277 Minn. at 283, 152 N.W.2d at 368. “In addition to the

prejudicial effect of a dismissal upon the parties, the factors of the amount of delay and

the reasons therefor must be considered.” Id. at 284, 152 N.W.2d at 369.

       Here, the district court’s dismissal order is prejudicial to Abualzain, who is left to

attempt to enforce a settlement agreement that A & M claims to be unenforceable. If

A & M is successful in resisting enforcement of the settlement agreement, Abualzain’s

only recourse is to move the court to vacate the judgment entered upon the court’s

dismissal with prejudice. On the other hand, the record contains no evidence of prejudice

that A & M or Ansaris have suffered or will suffer as a result of the delay in this

litigation, other than the delay itself. A defendant must experience a “particular prejudice

of such a character that some substantial right or advantage will be lost or endangered”

before a dismissal with prejudice is warranted. See id. at 283–84, 152 N.W.2d at 368

(“[T]he ordinary expense and inconvenience of preparation and readiness for trial . . . are

not prejudice of the character which would justify . . . a dismissal with prejudice.”). In

consideration of the four years of litigation in this case and assuming that the parties’ lack

of participation in the pre-trial/settlement conference caused some delay, all parties


                                              9
contributed to that delay. “While a defendant is under no obligation to move the

plaintiff’s case forward even if delay would ultimately prejudice the defendant, the court

should not ignore what role, if any, the defendant played in causing the delay.” Modrow

v. JP Foodservice, Inc., 656 N.W.2d 389, 396 (Minn. 2003).

       Although the district court has broad discretion to dismiss claims under rule 41.02,

“such discretion should be tempered by the well-settled tenet that a Rule 41.02 dismissal

is a severe remedy because it operates as an adjudication on the merits.” Id. at 397

(quotations omitted). Given the facts of this case, we conclude that the court abused its

discretion by dismissing the parties’ claims with prejudice. We reverse and remand to the

district court for further proceedings consistent with this opinion.

       Reversed and remanded; motion to strike granted and motion for fees denied.




                                             10
