This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


In Re the Marriage of:
James Joseph Sullivan, petitioner,


Susie Harvey Sullivan,

Filed February 15, 2000
Reversed and remanded; judgment vacated
Toussaint, Chief Judge

Dakota County District Court
File No. F99913884

Ronald L. Whitehead, Whitehead Law Office, 2500 W. County Road 42, Suite 100, Burnsville, MN 55337 (for respondent)

Jonathan Jay Fogel, Messerli & Kramer, P.A., 1800 Fifth Street Towers, 150 South Fifth Street, Minneapolis, MN 55402 (for appellant)


Considered and decided by Toussaint, Chief Judge, Davies, Judge, and Foley, Judge.[*]


U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

After appellant Susie Harvey Sullivan was served with a summons and petition for dissolution of marriage, she hired an attorney to represent her. Respondent James Joseph Sullivan filed for and received a default hearing, of which appellant did not receive notice and which resulted in a default judgment against appellant. Appellant’s attorney admitted he had not performed any services pertaining to the dissolution. Within two weeks of receiving notice of the default judgment appellant hired a new attorney, who promptly filed a motion to vacate the judgment, which was denied by the district court.

Appellant appeals from the district court’s refusal to vacate the default judgment, arguing that the district court erred in denying the motion to vacate the default judgment because (1) appellant’s failure to file an answer was a result of excusable neglect; (2) appellant was not given notice of the default hearing; and (3) the relief granted in the default judgment went beyond the relief requested by respondent in his petition for dissolution of marriage. Because courts are loath to punish an innocent party for his or her counsel’s inexcusable neglect, we reverse, order the default judgment vacated, and remand for a full evidentiary hearing on the issues.


Appellant argues that the district court erred in denying her motion to vacate the default judgment because: (1) her failure to answer was due to excusable neglect; (2) the court should have given her notice of the default hearing; and (3) the relief granted went beyond the relief requested. In reviewing the denial of a motion to vacate a default judgment, we determine whether the district court abused its discretion. Foerster v. Folland, 498 N.W.2d 459, 460 (Minn. 1993).


Excusable Neglect

Appellant argues that she failed to answer the summons only because her attorney had led her to believe that he was working on the matter.

Minn. R. Civ. P. 60.02 provides as follows:

On motion and upon such terms as are just, the court may relieve a party or the party’s legal representatives from a final judgment * * * and may order a new trial or grant such other relief as may be just for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect.

Minn. R. Civ. P. 60.02 (a). A party seeking relief under Rule 60.02(a) must demonstrate: (1) a reasonable case on the merits; (2) a reasonable excuse for her failure to act; (3) that she acted with due diligence after notice of the entry of judgment; and (4) that there would be no substantial prejudice to the opposing party if judgment to vacate is granted. Nguyen v. State Farm Mut. Auto. Ins. Co., 558 N.W.2d 487, 490 (Minn. 1997). The moving party bears the burden of proving all four elements, including lack of prejudice to the other party. Nelson v. Siebert, 428 N.W.2d 394, 395 (Minn. 1988). While all four factors must be satisfied to justify relief, Nguyen, 558 N.W.2d at 490, a strong showing on the other factors may offset a relative weakness on one factor. Armstrong v. Heckman, 409 N.W.2d 27, 29 (Minn. App. 1987), review denied (Minn. Sept. 18, 1987). Default judgments are to be "liberally" reopened to promote resolution of cases on the merits. Galatovich v. Watson, 412 N.W.2d 758, 760 (Minn. App. 1987) (citation omitted).

A. Reasonable case on the merits

A reasonable defense is presented if the moving party "raises a triable issue," Lysholm v. Karlos, 414 N.W.2d 773, 775 (Minn. App. 1987), and presents "more than conclusory allegations in [the] moving papers." Charson v. Temple Israel, 419 N.W.2d 488, 491 (Minn. 1988) (citation omitted). "The existence of a meritorious defense may be established in an affidavit or by other proof." Grunke v. Kloskin, 355 N.W.2d 207, 209 (Minn. App.1984), review denied (Minn. Jan. 2, 1985) (citation omitted).

Appellant’s former attorney did not file an answer nor make any court appearances. Therefore, appellant was deprived of the opportunity to demonstrate that she had a meritorious claim. It was this inexcusable neglect by appellant’s former attorney that prevented appellant from demonstrating the strength of her claim on the merits. Because the "courts are loath to ‘punish’ the innocent client for the counsel’s neglect," appellant’s failure to meet this requirement is not fatal to her claim. Charson, 419 N.W.2d at 491.

B. Reasonable excuse for her failure to act

Appellant had a reasonable excuse for her failure to act. Appellant argues that her attorney’s failure to provide an answer provides a good excuse for her failure to act. "It is for the trial court to determine whether the excuse offered by a defaulting party is reasonable." Howard v. Frondell, 387 N.W.2d 205, 208 (Minn. App. 1986) (citation omitted), review denied (Minn. July 31, 1986). When a default judgment is caused by the neglect of a party, it is inexcusable and is proper ground for refusing to open a judgment. Id. Even when the default was caused by an attorney’s neglect, the trial court may still properly refuse to reopen the judgment if the defaulting party is personally guilty of the neglect. Id.

Appellant hired her former attorney less than three weeks after she received the summons from respondent and relied on his representations that he was working on her case. After a default judgment was entered against appellant, she learned not only that her former attorney never filed an answer or appeared at the default hearing, but also he billed her for work he never performed. Because appellant’s attorney’s inexcusable neglect is a reasonable excuse for appellant’s failure to act, the second factor of the Nguyen test was met.

C. Due Diligence

Charson requires that a party seeking relief act with due diligence after notice of the entry of judgment. Charson, 419 N.W.2d at 491. Here, appellant immediately attempted to contact her attorney when she received the notice of entry of default judgment. On June 24, 1999, only a few days after receiving the notice and learning that her attorney never filed an answer, appellant hired a new attorney, who immediately contacted respondent’s former attorney. On July 12, 1999, less than one month after receiving the notice, appellant filed a motion to vacate the default judgment. Respondent does not question these facts and concedes that appellant acted with due diligence. Therefore, the third factor of the Nguyen test was met.

D. Prejudice on the opposing party

Once appellant received notice of the default judgment entered against her, she immediately tried to contact her former attorney. After leaning that this attorney had failed to file an answer or work on her case, appellant promptly hired a new attorney who filed a motion to vacate the default judgment. Therefore, vacating the default judgment will not substantially prejudice appellant and the fourth factor of the Nguyen test was met.


Because we are reversing the trial court’s decision and vacating the default judgment, this court does not consider whether the trial court erred in: (1) failing to give appellant notice of the default hearing, and (2) granting relief that went beyond the relief requested by respondent.

Reversed and remanded; judgment vacated.

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