Butkovich v. O'Leary

• Decision Date: 31 January 1975
• Docket Number: No. 44627,44627
• Citation: 303 Minn. 535,225 N.W.2d 847
• Parties: Elias W. BUTKOVICH, d.b.a. Artcraft Printers and Lithographers, Appellant, v. Paul Q. O'LEARY, Attorney, Virginia, Minnesota, et al., Respondents.
• Court: Minnesota Supreme Court

Page 847

225 N.W.2d 847

303 Minn. 535

Elias W. BUTKOVICH, d.b.a. Artcraft Printers and Lithographers, Appellant, v. Paul Q. O'LEARY, Attorney, Virginia, Minnesota, et al Respondents.

No. 44627.

Supreme Court of Minnesota.

Jan. 31, 1975.

Elias W. Butkovich, pro se.

Hanft, Fride, O'Brien & Harries and William P. O'Brien, Duluth, for respondents.

Heard before ROGOSHESKE, KELLY, and YETKA, JJ., and considered and decided by the court en banc.

PER CURIAM.

The sole question presented on this appeal is whether the trial judge abused his discretionary authority in denying plaintiff's motion to set aside his voluntary pretrial dismissal of this action instituted by plaintiff against defendants. The action, commenced by plaintiff in 1970, sought money damages from defendants upon allegations that they had fraudulently and negligently misadvised him to settle a prior legal malpractice claim he had asserted against two other Minnesota attorneys. ¹ Plaintiff, representing himself, settled the prior malpractice claim for $13,000. Later, being dissatisfied with the settlement, he sought to have it set aside. When this proved unsuccessful, he commenced this action against defendants.

Continuing to act pro se, plaintiff conducted depositions, served interrogatories, and otherwise managed preparation for trial. On May 29, 1973, the case was called for trial. Prompted by plaintiff's pro se appearance at trial, and the trial judge's concern that plaintiff understand trial procedures, the parties, including defendants' counsel, agreed to an off-the-record discussion to seek possible stipulation of facts and to simplify issues. After an all-morning meeting and intervening lunch, plaintiff, without disclosing his reasons therefor, informed defendants' counsel of his desire to dismiss the suit with prejudice and on the merits. Dismissal was thereafter entered upon the minutes in open court. The record makes clear that plaintiff at the time of his dismissal acted voluntarily and understood its effect. The next day plaintiff wrote the trial judge, explaining his wife's anxiety and illness were the reasons for his dismissal and inquiring whether it was too late to have 'some compensation paid' for the dismissal. The motion to set aside the dismissal followed. On appeal from the refusal to reopen, plaintiff contends that his dismissal was improvident, prompted by the illness of his wife, and the lack of aid and advice of counsel. ²

It is fundamental that a dismissal 'with prejudice and on the merits' is, by its explicit terms, a final determination and is equivalent to an adjudication on the merits. Nevertheless, a dismissal may be set aside for fraud, collusion, mistake of fact or law, or, as pertinent to this case, where in the discretion of the trial court it is established that the dismissal was improvidently made and in equity and good conscience should not be allowed to stand. See, Keller v Wolf, 239 Minn. 397, 58 N.W.2d 891 (1953). Factors to be considered by the trial judge in the exercise of his discretion are whether a proper legal cause is shown, whether the action is established as meritorious, and whether significant prejudice to the adverse party will result. Rodgers v. United States & Dominion Life Ins. Co.,...