This opinion will be unpublished and

may not be cited except as provided by

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






Alan T. Rouse,





Perkins Restaurants, Inc.,



Filed June 19, 2001

Reversed and remanded
Klaphake, Judge


Hennepin County District Court

File No. 9817021


Kevin W. Rouse, 1110 Magnolia Lane North, Minneapolis, MN 55441 (for appellant)


Louise A. Behrendt, Suite 120, The Crossings, 250 Second Avenue South, Minneapolis, MN 55401 (for respondent)


            Considered and decided by Willis, Presiding Judge, Klaphake, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N


This appeal is from the district court’s grant of summary judgment to respondent Perkins Restaurants, Inc. (Perkins), dismissing a personal injury action brought against Perkins by appellant Alan Rouse.  The court determined that under Minn. Stat. § 573.01 (2000), Rouse’s action abated upon his death, and that none of the exceptions to the abatement statute applied.

The notice of appeal states it is being filed by “the personal representative of the plaintiff/appellant and the attorney of record for plaintiff/appellant pursuant to Minn. R. Civ. App. P. 143.02.”  Throughout this litigation, Rouse’s son, attorney Kevin Rouse, has represented him.  Because a request was made to appoint a trustee to represent Rouse’s estate and because a trustee should have been appointed as of the date of the district court’s last order, we have jurisdiction over this appeal.[1]

Because Perkins failed to answer Rouse’s original complaint and because Rouse was entitled, as a matter of law, to entry of default judgment on liability and damages as of August 24, 1999, when he was still alive, we reverse and remand for entry of such a judgment nunc pro tunc.


In April 1998, Rouse, who was in his late 70’s, slipped and fell outside a restaurant owned by Perkins.  He sued Perkins in October 1998, seeking damages in excess of $50,000.  Perkins acknowledges that it was properly served at its offices in Memphis, Tennessee, but that the complaint was not timely answered because it was not forwarded internally to the proper department.

In November 1998, Rouse moved for a default judgment, seeking damages of “at least” $300,000 for past and future pain, disability, disfigurement, embarrassment, emotional distress, and medical expenses.  Following a hearing, the referee granted a default judgment in the amount of $3,700 for past medical expenses and costs, and denied additional damages requested by Rouse; the referee’s recommended order was approved by the district court.

Rouse moved for a new trial on several bases under Minn. R. Civ. P. 59.01, including bias on the part of the referee, irregularities in the proceedings, accident or surprise, material evidence newly discovered, insufficient damages given under passion and prejudice, and errors of law.  On February 16, 1999, the district court issued an order granting Rouse’s motion for a new trial and vacating the default judgment.  The court further ordered Rouse to serve his summons and complaint again on Perkins.  The district court judge then recused himself and the referee from all further proceedings relating to Rouse’s action.

Rouse never served Perkins with the second complaint.  Instead, he filed another motion for a default judgment and attempted to have the matter reassigned to another district court judge.

Another district court judge was finally assigned to the case, but a hearing on the default motion could not be scheduled until August 24, 1999.  At the hearing, Rouse testified regarding the circumstances surrounding the April 1998 accident and his injuries.  Instead of entering default judgment, the district court ordered the parties to submit written argument “as to whether [Perkins] is entitled to any relief pursuant to Rule 60.02.”  For the first time, Perkins received actual notice of these proceedings when a copy of this order was sent to Perkins’ legal department by the court.

Rouse died on October 11, 1999.  His death certificate states his cause of death as chronic obstructive pulmonary disease with “other significant conditions contributing to the death,” described as pneumonia, a urinary tract infection, ischemic heart disease, and a history of arterial fibrillation.

On November 5, 1999, a hearing was held before the district court to determine whether Perkins was entitled to relief under rule 60.02.  Attorneys for both parties appeared, and Perkins first learned of Rouse’s death.

On February 1, 2000, the district court issued an order granting Rouse default judgment as to liability, but permitting the parties to “litigate fully the issue of damages.”

In April 2000, Perkins moved for summary judgment, arguing that Rouse’s personal injury action abated upon his death under Minn. Stat. § 573.01 (2000). Perkins further argued that because no trustee had been appointed, the action could not continue as a wrongful death action or as one for the recovery of special damages, as allowed by Minn. Stat. § 573.02, subds. 1, 2 (2000).

Rouse’s attorney filed a countermotion for “non-abatement” and for the “conditional appointment” of a trustee to “preserve jurisdiction for a damage trial of ‘general’ and ‘special’ damages.”  He also made an “alternative” motion for the “appointment of a trustee in the event that the court disagreed with his interpretation of the abatement statute.”

On August 4, 2000, the district court issued an order granting Perkins’ motion for summary judgment and dismissing the case.  Although the court did not rule specifically on the motion for appointment of a trustee, it noted that “plaintiff’s estate may, if it so chooses, bring a wrongful death claim against Perkins at any time within the three-year statute of limitations.”  A judgment of dismissal was entered.

            This appeal followed.


            Upon application and when the required facts are shown by affidavit, a party is entitled to entry of a default judgment when the defendant fails to answer or otherwise defend.  Minn. R. Civ. P. 55.01(b) (“judgment by default shall be entered” and “the court shall ascertain, by a reference or otherwise, the amount to which the plaintiff is entitled, and order judgment therefor”) (emphasis added).  Notice of the default hearing and proceedings need not be given to a defendant who has not yet appeared.  Id.  Upon entry of default judgment, the defaulting defendant may move to reopen under Minn. R. Civ. P. 60.02.  See Finden v. Klaas, 268 Minn. 268, 270-71, 128 N.W.2d 748, 750 (1964).

            Here, the district court erred in concluding that Rouse was not entitled to a default judgment on damages and that Perkins was entitled to some notice, beyond Rouse’s original service of the complaint.  These errors prevented entry of default judgment prior to Rouse’s death.

            Under Minnesota law, “a claim for personal injuries dies with the plaintiff, subject only to specifically defined exceptions.”  Deal v. Northwood Children’s Home Soc’y, Inc., 608 N.W.2d 922, 924 (Minn. App. 2000), review denied (Minn.  June 13, 2000); see also Minn. Stat. § 573.01 (2000); Ortiz v. Gavenda, 590 N.W.2d 119, 122-23 (Minn. 1999).  Those exceptions allow an appointed trustee to continue or maintain an action for wrongful death if the decedent might have maintained such an action, or an action for special damages if the decedent suffered personal injuries and later died “from a cause unrelated to those injuries.”  Minn. Stat. § 573.02, subds. 1, 2 (2000).

            Abatement can be avoided here by Minn. Stat. § 540.12 (2000), which provides:

No action shall abate by reason of the death or disability of a party, or the transfer of the party’s interest, if the cause of action continues or survives.  After a verdict, decision, or report of a referee, fixing the amount of damages for a wrong, such action shall not abate by the death of any party thereto.

Minn. Stat. § 540.12.  This statute recognizes that when a claim for personal injury damages is ascertained, it becomes property that passes to the representatives of the deceased.  See Kent v. Chapel, 67 Minn. 420, 422, 70 N.W. 2, 3 (1897); Cooper v. St. Paul City Ry. Co., 55 Minn. 134, 138, 56 N.W. 588, 589 (1893).

            At the time of Rouse’s death in October 1999, default judgment had not yet been entered, even though Rouse had met all the legal prerequisites and was entitled to entry of such a judgment as of August 24, 1999, at the latest.  Because the failure to enter default judgment prior to Rouse’s death was caused by errors on the part of the district court, we conclude that such a judgment should be entered nunc pro tunc as of August 24, 1999.

            A nunc pro tunc entry of judgment

will be allowed as of the time when the party would otherwise have been entitled to it, if justice requires, where the delay in entering it is caused by action of the court.  The rule is founded on the [equitable] maxim that an act of the court shall prejudice no one.  The most common case for the application of the rule is that in which a party dies pending the delay.


Hampshire Arms Hotel Co. v. Wells, 210 Minn. 286, 288, 298 N.W. 452, 453 (1941).

            We therefore reverse the district court’s dismissal of this action and remand the matter for entry of default judgment nunc pro tunc as of August 24, 1999, on both liability and damages based on the evidence that the court had before it as of that date.  After default judgment is entered, Perkins may elect to bring a motion to reopen under Minn. R. Civ. P. 60.02.

            Reversed and remanded.

[1]  On remand, we direct the court to appoint a trustee.  See Witthuhn v. Durbahn, 279 Minn. 437, 438-39, 157 N.W.2d 360, 361 (1968) (because Minn. R. Civ. P. 25.01 does not limit time within which a personal representative may bring motion for substitution after death of party, lack of substitution motion alone may not justify order for dismissal and if matter is remanded for other reasons, personal representative is not precluded from seeking substitution).