
    David N. BERKS, et al., Appellants, v. Gerald M. FINE, Respondent.
    No. C9-87-375.
    Court of Appeals of Minnesota.
    July 21, 1987.
    David N. Berks, pro se.
    R. Stephen Tillitt, Minneapolis, for respondent.
    Considered and decided by NIERENGARTEN, P.J., and FOLEY and RANDALL, JJ., with oral argument waived.
   OPINION

NIERENGARTEN, Judge.

David Berks appeals the dismissal of his action with prejudice, and the denial of his motion to vacate the dismissal. We reverse.

FACTS

David Berks sued Gerald Fine for alleged legal malpractice occurring in 1976. The pleadings were filed in September of 1982. Interrogatories were later served by Fine. In March 1985, Berks’ attorney withdrew and Berks continued pro se.

Berks’ deposition was taken by Fine in May of 1986 and in October of 1986, Fine moved for summary judgment. In April 1986 the court continued the summary judgment motion to June 28,1986, at which time Berks was required to produce an expert witness or show cause why one was unavailable at that time. The court determined that in the absence of expert testimony, summary judgment would be appropriate. In May 1986 Berks received a notice from the court administrator that unless a note of issue/certificate of readiness was filed, or the case continued pursuant to motion and order by the assigned judge before July 1, 1986, the case would be subject to dismissal on July 1, 1986. The basis for this notice was Rule 4.08 of the Amended Rules of the Fourth Judicial District and Minn.R.Civ.P. 41.02. The June 28, 1986, hearing was continued sua sponte to July 14, 1986, because of a court scheduling problem.

On June 24, 1986, Berks moved for a continuance in order to respond at the summary judgment hearing scheduled for July 14, 1986. On June 26, 1986, the court issued an order which stated:

1. This case is continued beyond July 1, 1986.
2. This case is continued to allow Plaintiffs to respond to the Motion hearing on July 14, 1986 and to conduct discovery which will allow Plaintiffs to move forward with their action against Defendant.

On July 9, 1986, Berks filed a motion to proceed in forma pauperis and to substitute himself as the plaintiff instead of EJB Industries, Inc. At the July 14, 1986, summary judgment hearing, Berks introduced the affidavit of an expert witness as ordered to do so by the court. On August 4, 1986, the trial court granted Berks’ motion for substitution of parties and his motion to proceed in forma pauperis. The defendant’s motion for summary judgment was denied.

On September 30, 1986, with no notice, the court dismissed Berks’ case, without prejudice, pursuant to Rule 4.03 of the Amended Rules of the Fourth Judicial District, which states:

All cases will be automatically dismissed under Rule 41.02 without prejudice after 12 months from initial filing, unless a Note of Issue/Certificate of Readiness has been filed or the case has been continued.

On October 10, 1986, Berks moved to vacate the dismissal order but the motion was denied and judgment with prejudice was entered December 4, 1986. Berks appeals from this judgment.

ISSUE

Did the trial court abuse its discretion in refusing to vacate the dismissal of appellant’s case?

ANALYSIS

Dismissal under Rule 41.02 is an exercise of the court’s discretionary authority. The record is viewed in the light most favorable to the trial court’s order and the dismissal will be sustained on appeal absent a clear showing of abuse of discretion. Zuleski v. Pipella, 309 Minn. 585, 586, 245 N.W.2d 586, 587 (1976).

This appeal arises from a dismissal under Rule 4.03 of the Rules of the Fourth Judicial District and Minn.R.Civ.P. 41.02. Special rule of practice 4.03 was amended in 1985 to implement a block assignment system in Hennepin County District Court. Chief Judge Fitzgerald issued an order dated April 10, 1985, which provided in part:

Cases filed with the Court prior to July 1, 1985, but not certified ready for trial, will be activated effective July 1, 1985, for the purposes of the initial filing date. All cases activated on this date will be dismissed on July 1, 1986, unless a Note of Issue/Certificate of Readiness has been filed or the case has been continued prior to the expiration of 12 months, under Rule 41.02, Rules of Civil Procedure.

See 1987 Minn.Rules of Court, at 500 (West 1987).

(1) The court may on its own motion, or upon motion of a party, 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.
(3) Unless the court in its order for dismissal otherwise specifies, a dismissal under this rule and any dismissal not provided for in this rule or in Rule 41.01, * * * operates as an adjudication upon the merits.

Minn.R.Civ.P. 41.02.

District courts may adopt and implement local rules of practice.

Any court, other than the supreme court, may adopt rules of court governing its practice; * * * judges of district court, * * * may adopt rules not in conflict with the rules promulgated by the supreme court.

Minn.Stat. § 480.055, subd. 1 (1984). Special Rule 4.03 provides that a case will be dismissed unless a note of issue/certificate of readiness is filed or the case has been continued.

Berks received notice from the court that his case was subject to dismissal. When he realized the case would go beyond the July 1,1986, deadline established by the rule, he moved for a continuance which was granted with no limitation on time or requirements, other than to continue discovery.

Berks continued with his discovery and the trial court heard and ruled on the motions before it in August 1986. Then, in September, Berks’ case was suddenly dismissed pursuant to Minn.R.Civ.P. 41.02 with no other explanation. Unable to get an explanation for the dismissal, Burke moved to vacate. The motion was denied, again without explanation.

The trial court clearly abused its discretion. Although Berks filed his action just months before the statute of limitation ran and did very little after filing, he resumed activity on the case when Fine filed a motion for summary judgment in the fall of 1985. It took nine to ten months for the summary judgment motion to be heard. Berks responded to Fine’s motion and procured the necessary expert witness. Berks complied with the requirements of Rule 4.03. The court continued to act on motions and the case appeared to be making progress.

While the delay prior to 1985 may have caused prejudice to Fine, he failed to show that any additional prejudice will result if the case is reinstated.

DECISION

We find the trial court clearly abused its discretion first in dismissing appellant’s case and then in denying his motion to vacate. We reverse on this basis and do not reach the constitutional issues raised by appellant.

Reversed.

ERICKSTAD, C.J., and LEVINE, VANDE WALLE and GIERKE, JJ.  