This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Eleanor Thelen,





Boyd Thomlinson d/b/a The Antique Mall,



Jane Doe d/b/a The Antique Cellar, et al., etc.,



Filed February 20, 2001

Reversed and Remanded

Kalitowski, Judge


Stearns County District Court

File No. C5994661


Robert W. Murnane, Murnane, Conlin, White & Brandt Professional Association, 1800 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for appellant)


Kirby Dahl, Mark McKeon, Willenbring, Dahl, Wocken & Zimmermann, PLLC, Red River at Main, P.O. Box 417, Cold Spring, MN 56320 (for respondent)



            Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            In response to a summary judgment motion by respondent, appellant Eleanor Thelen’s counsel submitted unsworn statements by witnesses to appellant’s slip and fall.  The district court did not consider the statements because they were unsworn and granted summary judgment for respondent.  Appellant challenges the district court’s grant of summary judgment against her and subsequent denial of her motion to vacate based on attorney neglect.  We reverse and remand.


            When reviewing a denial of a motion under rule 60.02, this court determines whether the district court’s refusal to grant the motion involved an abuse of discretion. Kosloski v. Jones, 295 Minn. 177, 180, 203 N.W.2d 401, 403 (1973).  In relevant part, rule 60.02 provides that a court may relieve a party from a final judgment based on “(a) [m]istake, inadvertence, surprise, or excusable neglect” or “(f) [a]ny other reason justifying relief from the operation of the judgment.”  Minn. R. Civ. P. 60.02(1)(a), (f).

             Appellant contends her motion to vacate should have been granted because her counsel’s neglect should not be attributable to her.  As a general rule, the neglect of a party’s attorney is chargeable to the party.  Finden v. Klass, 268 Minn. 268, 271, 128 N.W.2d 748, 750 (1964).  But, the neglect of a party’s attorney is excusable to the party when the party

(1) possesses a reasonable defense on the merits; (2) has a reasonable excuse for the neglect; (3) acted with due diligence after notice of entry of judgment; and (4) shows that no substantial prejudice will result to the other parties.


Ayers v. Rudolph’s, Inc., 392 N.W.2d 647, 649 (Minn. App. 1986) (citation omitted).  When the party is not personally responsible for the neglect and “the party entrusts the matter to [an] attorney,” courts should employ “a liberal policy conducive to the trial of causes on their merits.”  Lund v. Pan Am. Machs. Sales, 405 N.W.2d 550, 554 (Minn. App. 1987) (quotation omitted).

            Here, appellant’s attorney made the decision to submit unsworn affidavits rather than sworn affidavits in response to a summary judgment motion.  This was a decision appellant entrusted to her attorney, in which appellant did not participate.  In applying the four criteria, we note first that after receiving notice of the summary judgment against her, appellant diligently remedied the problem by obtaining sworn statements and including them with her motion to vacate less than two weeks later.  Second, respondent claims no particular prejudice but will simply have to defend the case on the merits.  Third, this is the type of attorney neglect that is excusable to the party.  See Seiberlich v. Burlington N. R.R. Co., 447 N.W.2d 896, 898-99 (Minn. App. 1989) (failure of attorney to request trial de novo after receipt of arbitrator’s award granting disability benefits to former employee was excusable neglect), review denied (Minn. Jan. 12, 1990); Pearce v. Lindstrom, 443 N.W.2d 857, 860 (Minn. App. 1989) (attorney’s negligence in failing to communicate result of arbitration to clients before end of 20-day period for new trial resulting in untimely filing of request for new trial was excusable neglect);  Charson v. Temple Isr., 419 N.W.2d 488, 491 (Minn. 1988) (party was entitled to relief from judgment due to his counsel’s failure to notice a court file number on opponent’s document).

            Finally, with regard to the merits of appellant’s case we note that the district court acknowledged that the unsworn statements raised “a reasonable fact question on the merits.”  Moreover, while all four factors must be satisfied to justify relief, a strong showing on three factors may offset a relative weakness of the other one factor.  Armstrong v. Heckman, 409 N.W.2d 27, 29 (Minn. App. 1987), review denied (Minn. Sept. 18, 1987).

            We conclude that the neglect of appellant’s counsel should not be attributed to appellant.  We therefore reverse the district court’s denial of appellant’s motion to vacate and remand to the district court to consider the now-sworn witness statements in addressing respondent’s motion for summary judgment.

Because we reverse on the issue of the motion to vacate, we need not address appellant’s argument that even without the unsworn statements, she was entitled to denial of the summary judgment.

Reversed and remanded.