This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-00-944

 

Mary C. Best,

Respondent,

 

vs.

 

Tim Johnson,

Appellant.

 

Filed November 28, 2000

Reversed; motion granted

Randall, Judge

 

Le Sueur County District Court

File No. C7-99-726

 

Kenneth R. White, Farrish Johnson Law Office, 201 North Broad, Suite 107, P.O. Box 550, Mankato, MN 56002-0550 (for appellant)

 

Mary C. Best, 25 College Court, Mankato, MN 56001 (pro se respondent)

 

 

Considered and decided by Anderson, Presiding Judge, Randall, Judge, and Harten, Judge.

U N P U B L I S H E D O P I N I O N

RANDALL, Judge

Appellant challenges the district court's denial of his motion to vacate a default judgment. On appeal, appellant argues the district court abused its discretion in denying his motion to vacate because: (1) he has a reasonable defense on the merits; (2) his failure to appear was due to excusable neglect; (3) he made his motion promptly; and (4) there is no prejudice to respondent. Appellant also filed a motion to strike portions of respondent's brief. Because we find appellant has satisfied his burden, we reverse and grant appellant's motion to strike.

FACTS

Respondent and appellant are the owners of adjacent rental properties. Appellant's sewer line does not independently join a main trunk sewer line. Rather, it runs along respondent's house, and joins respondent's sewer line on her property, which then joins a main trunk line under the street. After experiencing problems with her sewer line, respondent retained a contractor to investigate the problem. Roots from a tree on respondent's property were growing through the portion of the shared sewer line, causing sewage to back up. Respondent repaired and replaced the shared sewer line and sent a letter to appellant requesting reimbursement for his half of the cost of the repairs pursuant to an easement agreement recorded in Blue Earth county on November 21, 1975. The easement agreement states that the parties "mutually agree that they shall be jointly responsible for any expenditures incurred in the care, maintenance, repair, and replacement of the sewer line." Appellant refused to pay.

On October 4, 1999, respondent initiated an action in conciliation court. Finding an implied notification requirement within the easement agreement and no notification given to appellant by respondent, the court dismissed respondent's case with prejudice. The order noted the deadline for removal was October 14, 1999, at 4:30 p.m.

Respondent filed a timely notice of removal to the district court. The hearing was initially scheduled for November 4, 1999, at 9:00 a.m. It was later rescheduled for November 4, 1999, at 1:30 p.m. Appellant states, and respondent does not challenge, that he arrived at the courthouse at 4:10 p.m. on November 4, 1999, for a hearing at 4:30 p.m. Appellant states that the confusion was due to differing times and dates on different documents he received from the district court.

The district court filed a default judgment against appellant on November 5, 1999. On December 6, 1999, appellant filed an ex parte motion to vacate the default judgment. On December 22, 1999, the district court denied the motion. There were no findings issued with the order.

D E C I S I O N

I. Excusable Neglect

Appellant argues that he failed to appear at court at the scheduled time because he inadvertently recorded the incorrect time in his datebook, and the confusion was due to receiving different documents with different noted times.

Minn. R. Civ. P. 60.02 provides:

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 party seeking relief under Rule 60.02(a) must demonstrate: (1) a reasonable case on the merits; (2) a reasonable excuse for his failure to act; (3) that he 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 the motion 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. 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 of the other factors may offset a relative weakness of 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) (citation omitted), review denied (Minn. Jan. 2, 1985).

Appellant prevailed over respondent in the conciliation court action. That court determined there was an implied notification requirement in the easement agreement that required respondent to notify appellant before fixing the shared sewer line and expecting reimbursement. Additionally, the court noted that respondent did not offer any proof demonstrating benefit conferred on appellant. In this situation, the conciliation court's findings for appellant are sufficient to constitute a reasonable defense.

B. Reasonable excuse for failure to act

"It is for the [district] 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 a proper ground for refusing to open a judgment. Id. In Charson, however, the court stated, "[c]learly, had the appellant himself been personally negligent in failing to note the file numbers, the courts of this state would not have denied him relief, when to have done so would have denied him his day in court." Charson, 419 N.W.2d at 491.

Appellant's assertion that he went to court on the correct day, prepared to defend his case, only to discover that he was three hours late due to his inadvertent recording of an incorrect time is uncontroverted. He received three different documents with differing times and dates. The evidence is undisputed that he intended to contest respondent's allegations. This is not a party who simply chose not to respond and now seeks relief. Therefore, to deny this appellant relief from the default judgment is to deny him his day in court.

C. Due Diligence

A party seeking relief must act with due diligence after notice of the entry of judgment. Charson, 419 N.W.2d at 491. This court has held that acting within three months is due diligence. Kemmerer v. State Farm Ins. Cos., 513 N.W.2d 838, 841 (Minn. App. 1994), review denied (Minn. June 2, 1994); see Lund v. Pan American Machs. Sales, 405 N.W.2d 550, 554 (Minn. App. 1987) (observing due diligence element satisfied when motion to vacate dismissal was brought within weeks after dismissal discovered).

Appellant brought his motion to vacate the default judgment on December 3, 1999. The hearing was on November 4, 1999. Appellant easily satisfied his burden on this factor.

D. Prejudice to the opposing party

A party seeking relief under Minn. R. Civ. P. 60.02(a) "must show * * * that no substantial prejudice will result to the opponent." Sand v. School Serv. Employees Union, Local 284, 402 N.W.2d 183, 186 (Minn. App. 1987) (citation omitted), review denied (Minn. Apr. 29, 1987); see Imperial Premium Fin., Inc. v. GK Cab Co., 603 N.W.2d 853, 858 (Minn. App. 2000) (stating "delay and expense of additional litigation, without more, do not create sufficient prejudice to defeat a motion to vacate") (citation omitted).

There is no prejudice to respondent. Respondent will only have to prove her case on the merits rather than winning by default. Therefore, the fourth factor of the Nguyen test is met, and we find the default judgment should be vacated.

II. Motion to Strike

Appellant filed a motion to strike the discussion in respondent's brief entitled "a. Johnson does not have a reasonable defense on the merits" as well as four consecutive paragraphs beginning with the first full paragraph on page two and ending with and including the first full paragraph on page three. Appellant also moves to strike certain documents in respondent's appendix including a picture of the sewer line after it was fixed, a letter from a plumbing inspector to respondent, a photograph of a list of persons and telephone numbers in appellant's building lobby, respondent's telephone account summary, conciliation court subpoenas for witnesses, and a photocopy of checks written by respondent for witness fees.

Appellate courts may not consider "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); seeMinn. R. Civ. App. P. 110.01 (defining record on appeal as "papers filed in district courts, exhibits and transcript of proceedings, if any").

None of the documents and portions of the respondent's brief mentioned above were introduced in the district court. We strike those documents and portions of respondent's brief.

Reversed; motion granted.