This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-01-698

 

 

American Family Insurance Group,

Respondent,

 

vs.

 

Jamal Weli,

Appellant.

 

 

Filed November 27, 2001

Affirmed

Anderson, Judge

 

Hennepin County District Court

File No. MC-00-4334

 

Michael W. Lowden, Stempel & Associates, PLC, 41 12th Avenue North, Hopkins, MN 55343 (for respondent)

 

Douglas E. Nepp, Bernard J. Robichaud, Robichaud & Nepp, PA, 211 Washington Avenue North, Minneapolis, MN 55401 (for appellant)

 

            Considered and decided by Anderson, Presiding Judge, Peterson, Judge and Mulally, Judge.*


U N P U B L I S H E D  O P I N I O N

G. BARRY ANDERSON, Judge

            Respondent insurer brought an action against appellant for fraudulently submitting wage-loss claims.  The district court entered a default judgment against appellant and denied appellant’s subsequent motion to vacate that default judgment.  We affirm.

FACTS

On November 20, 1998, Jamal Weli was injured while driving a friend’s car insured by American Family Insurance Group (American Family).  Weli applied for and received no-fault wage-loss benefits from American Family totaling $4,400.  American Family attempted to verify Weli’s employment with the employer Weli identified in his application for benefits, but could not find any evidence that Weli’s employer existed.  American Family also requested income-tax statements to substantiate Weli’s employment, but Weli never provided that information. 

American Family commenced an action against Weli, based on fraud, to recover insurance benefits paid.  In lieu of filing an answer, Weli moved to dismiss the complaint for failure to obtain proper service, failure to specifically plead a claim for fraud, and failure to state a claim upon which relief can be granted.  The district court denied Weli’s motion after a hearing, but ordered American Family to amend the complaint to state with specificity the actions that constituted fraud. 

American Family served an amended complaint on September 18, 2000.  After receiving no response, American Family filed a motion for default on December 5, 2000.  Neither Weli nor his attorney appeared at the December 8, 2000 hearing or filed a response, and the district court granted a default judgment. 

On December 12, 2000, Weli filed a motion to withdraw the default judgment and reinstate the case.  He also filed his first answer to the original and amended complaints.  Weli argued that he was not in default because he had previously filed a motion for dismissal and that motion constituted the required responsive pleading; that he did not receive the faxed copy of the motion for default, but only the mailed copy on December 6, 2000; and that the attorney handling the file was out of the office and did not see the moving papers until December 8, 2000 – the date of the hearing.  American Family presented evidence that Weli’s attorney’s office had received a faxed copy of the moving papers on December 5, 2000. 

At the motion hearing, Weli also argued that service was improper because Minn. R. Civ. P. 6.04 requires five days’ notice before a motion may be heard; service by facsimile is improper under the rules; and service was improper because the service letter was addressed to the attorney Jeffrey Jones, who had not been associated with Robichaud & Neff since October 12, 2000.  The district court denied the motion to vacate the default judgment, and this appeal followed.

D E C I S I O N

In reviewing the denial of a motion to vacate a default judgment, we must determine whether the district court abused its discretion.  Foerster v. Folland, 498 N.W.2d 459, 460 (Minn. 1993).  We review the record in the light most favorable to the district court’s order.  Imperial Premium Finance, Inc. v. GK Cab Co., 603 N.W.2d 853, 856 (Minn. App. 2000).  To successfully vacate a default judgment, a moving party must demonstrate (1) that a reasonable defense exists on the merits, (2) a reasonable excuse for failure or neglect to act, (3) that the party acted with due diligence after notice of the entry of judgment, and (4) that no substantial prejudice will result to the opposing party if the motion is granted.  Foerster, 498 N.W.2d at 460.  The moving party bears the burden of proving all four elements, but a strong showing on the other factors may offset a relatively weak showing on one factor.  Imperial Premium Finance, 603 N.W.2d at 857. 

Weli’s arguments do not specifically address the Foerster factors, but the issues he raises primarily focus on one of the factors – the reasonable excuse for the failure or neglect to act.  First, Weli argues that service was not proper because Minn. R. Civ. P. 6.04 requires five day’s written notice to an opposing party before a motion hearing and American Family only provided, at most, three days’ notice.  But while that rule generally provides for five days’ notice, it also provides an exception for a different time period when fixed by a specific rule.  Minn. R. Civ. P. 6.04.  American Family brought its motion pursuant to Minn. R. Civ. P. 55.01(b), which provides that a motion for default shall be served at least three days before the hearing.  Thus, the general rule contained in Minn. R. Civ. P. 6.04 does not apply.  Under Minn. R. Civ. P. 55.01(b), three days’ notice for a hearing on a motion for a default judgment is sufficient. 

Here, American Family’s moving papers indicate that service was made by fax and regular mail on December 5, 2000, to Jeffrey Jones at Robichaud & Neff.  Weli’s counsel acknowledges that the mailed copy was received by his office on December 6, 2000, but disputes that it received a faxed copy on December 5, 2000.  However, the fax cover sheet indicates that the moving papers were faxed to Jones at Robichaud & Neff’s fax number on December 5, 2000.  The district court indicated it received its faxed copy at 10:05 a.m. on December 5, 2000.  The district court’s finding that Weli’s attorney’s office was served on December 5, 2000, and that sufficient notice of the hearing was given under the court rules is not an abuse of discretion.

            Second, Weli argues that service by fax was not proper.  But the rules of civil procedure provide that service may be made upon a party’s attorney by “transmitting a copy by facsimile machine to the attorney['s] * * * office.”  Minn. R. Civ. P. 5.02.  Thus, the district court’s finding that service by fax was proper is not an abuse of discretion.

Third, Weli argues that service was not proper because the moving papers were transmitted to Jones, who was no longer employed at Robichaud & Neff.  But the rules only require that service be made by transmitting a copy of the papers to be served to the office of a party’s attorney by fax machine.  Minn. R. Civ. P. 5.02.  Service is complete upon completion of the fax transmission.  Id.  Weli does not point to any authority that supports the proposition that service addressed to any attorney in the litigant’s attorney’s office is not sufficient service.  Furthermore, Jones was employed by Robichaud & Neff during the litigation and had dealt with American Family’s counsel on the file.  American Family’s counsel had received no communications from the Robichaud & Neff office since the time Jones left their employment.  Clearly, the district court did not abuse its discretion in finding that the moving papers were properly served. 

Fourth, Weli’s attorney argues that his failure to act in a timely manner was justified by the circumstances of the situation.  Specifically, he argues that his office staff may have placed the faxed papers in a pile for Jones to take to his new firm or that the office never received the faxed copies.  Weli’s attorney also asserts that although his office received the mailed copies on December 6, 2000, he was out of the office on December 6 and 7, 2000, at depositions in St. Paul and was attending an arbitration during the morning of December 8, 2000.  Consequently, he did not learn of the hearing until a few hours after it took place.  But the fact remains that the moving papers were properly served.  Therefore, the district court did not abuse its discretion in finding that there was no “reasonable excuse” under Foerster for Weli’s attorney’s failure to respond to the motion.

            The district court also found that a “reasonable defense” on the merits did not exist under Foerster.  While Weli does not argue this issue in his informal brief or in the papers in the appendix, we nevertheless address it.  The district court found that while the amended complaint contained numerous factual allegations, the answer asserted only general denials and was insufficient to demonstrate that a reasonable defense exists on the merits.  We agree. 

            The existence of a reasonable defense on the merits is ordinarily demonstrated by more than conclusory allegations.  Imperial Premium Finance, 603 N.W.2d at 857.  The rules of civil procedure provide that, in an answer, “[d]enials shall fairly meet the substance of the averments denied.”  Minn. R. Civ. P. 8.02.  In its amended complaint, American Family made specific allegations; in response to those specific factual allegations, Weli made only general denials.  Even at this late date, Weli has not alleged any facts, legal theories, or circumstances that would justify, let alone explain, the apparent false employment information provided to American Family.  We cannot say that the district court’s finding was an abuse of discretion. 

Because two of the factors identified in Foerster have not been met, the district court did not err in denying Weli’s motion to vacate the default judgment. 

Affirmed.



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