This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







In re Estate of Peter Redmann,

a/k/a Peter Redmann, Sr.,



Filed April 29, 2003


Hudson, Judge


McLeod County District Court

File No. P901386


Robert A. Nicklaus, Eric J. Braaten, Charles W. Hollenhorst, Nicklaus, Braaten & Hollenhorst, PLLC, Historic Chaska Mill, 500 Pine Street North, Suite 200, Chaska, Minnesota 55318 (for appellant)


Kevin A. Spellacy, Kenneth H. Bayliss III, Quinlivan & Hughes, P.A., 400 South First Street, 600 Wells Fargo Center, St. Cloud, Minnesota 56302-1008 (for respondent US Bank)


Peter Kasal, Keefe, Kasal & Newman, Clocktower Plaza, 720 Century Avenue Southwest, Suite 101, Hutchinson, Minnesota 55350 (for respondent Arvid Redmann)


Christopher W. Harmoning, Hall & Byers, P.A., 1010 West St. Germain, Suite 600, St. Cloud, Minnesota 56301 (for respondent Ella Redmann)


            Considered and decided by Kalitowski, Presiding Judge, Halbrooks, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


LaVonne Kuntz, personal representative of her father’s estate, appeals from an order denying her Rule 60.02 motion to vacate an order appointing US Bank as successor personal representative of the estate.  Kuntz argues that the order must be vacated because (1) it mistakenly granted US Bank more authority than Kuntz had requested it be granted in the petition for appointment of a successor personal representative, (2) her attorney and US Bank fraudulently induced her to request the bank’s appointment, (3) the order is the product of fraud perpetrated on the court by Kuntz’s attorney and US Bank, and (4) the order is void.  We affirm.



            The decedent, Peter Redmann, died on March 18, 2001, leaving a wife and ten children.  Pursuant to Redmann’s will, daughter LaVonne Kuntz was nominated as personal representative.  The residue of Redmann’s estate included about 470 acres of farmland which was to be rented to one of his sons, Arvid Redmann, “at the then current average rent.” 

            The district court ordered formal probate of the will and formal appointment of Kuntz as personal representative on May 7, 2001.  Ten days later, Kuntz signed a petition for appointment of successor personal representative/trustee drafted by her attorney.  She requested “that US Bank be appointed as successor personal representative/trustee for determination of ‘current average rent’ on the farmland (the rent to be charged by [sic] brother, Arvid Redmann) and resolution of other matters which place me in a position of conflict; the personal representative/trustee would relinquish the position and nominate me as successor upon my request.”  After ordering the petition approved on May 23, 2001, the court issued letters testamentary naming US Bank as successor personal representative.

On December 10, 2001, the district court held a hearing at which the court approved a settlement agreement between US Bank, as trustee, and Arvid Redmann concerning the annual rent to be paid by Arvid Redmann for the farmland.  Some family members supported the settlement agreement; some did not.  In addition, at the hearing, Kuntz’s attorney requested that the court modify the former order to limit US Bank’s authority as personal representative to the determination of farm rent alone.  He argued that Kuntz had continued to act as de facto personal representative, paying attorney fees, insurance, and accounting expenses, and that she had asked that US Bank relinquish responsibility as personal representative except as it related to the issue of the rent determination.  The court, however, refused to modify the order, noting that in the previous petition, Kuntz stated that she had a conflict of interest, and the court believed that she still had that conflict.  Accordingly, on December 19, 2001, the court filed its order confirming US Bank as successor personal representative in all respects.

Kuntz then filed a request for reconsideration.  In an affidavit, she stated that at the time of the hearing, it was anticipated that a different settlement would be negotiated, but she now wished to be reinstated as personal representative because she believed that the farm would have to be sold to pay estimated inheritance taxes of $125,000.  She maintained that the court had erred in allowing US Bank to take over as personal representative in all respects, rather than simply to determine the issue of the average rent.  The district court denied the request in a letter ruling, stating that Kuntz was personally and financially interested in the estate as an heir, her position was inconsistent with the duties required of a personal representative, and she was not in an emotional position to discharge those duties.  

Kuntz then moved for relief under Minn. R. Civ. P. 60.02, claiming that the court mistakenly appointed US Bank as personal representative and asking that the court void the order and reappoint her as personal representative with general powers of appointment.  She alleged that her first attorney had prepared the petition for successor personal representative and told her that she needed to sign because “that was the only way it could be done” because, as a heir, she had a personal interest in the amount of rent for the farm.  He told her that US Bank would be appointed only for the limited purpose of determining rent, and that if she did not like US Bank’s proposal she would not have to accept it.  The court denied the motion to vacate, and this appeal followed. 


Minnesota’s Uniform Probate Code provides that the probate court has the power to vacate an order for fraud within two years of the discovery of that fraud, and for excusable neglect, inadvertence, or mistake, within two years of the filing date.  Minn. Stat. § 525.02 (c), (d) (2002).  In considering a motion to vacate for mistake or excusable neglect pursuant to section 525.02, we consider the standards governing motions to vacate a default judgment under Rule 60.02.  In re Estate of Weber, 418 N.W.2d 497, 504-05 (Minn. App. 1988), review denied (Minn. Apr. 4, 1988).  This court reviews a district court’s decision on a motion to vacate under an abuse-of-discretion standard.  Charson v. Temple Israel, 419 N.W.2d 488, 490 (Minn. 1988).  A district court’s factual determinations will not be set aside unless clearly erroneous.  Minn. R. Civ. P. 52.01; In re Conservatorship of T.L.R., 375 N.W.2d 54, 58 (Minn. App. 1985). 

In order to succeed on a motion to vacate under Rule 60.02, a party must demonstrate:  (a) a reasonable defense on the merits; (b) a reasonable excuse for failure or neglect to answer; (c) due diligence after notice of the order; and (d) demonstration of lack of prejudice to the other party if the motion is granted.  Finden v. Klaas, 268 Minn. 268, 271, 128 N.W.2d 748, 750 (1964).  All four factors must be satisfied to justify relief.  Nguyen v. State Farm Mut. Auto Ins. Co., 558 N.W.2d 487, 490 (Minn. 1997).  A “strong showing” on three factors may balance a “relative weakness” on the fourth.  Galatovich v. Watson, 412 N.W.2d 758, 761 (Minn. App. 1987).  But there is little reason to compel vacation if the party fails to show a reasonable defense on the merits.  Gelco Corp. v. Crystal Leasing, Inc., 396 N.W.2d 672, 675 (Minn. App. 1986).  Further, this court has discouraged review of judicial error through a Rule 60 motion; instead, a party appropriately seeks such review through an appeal.  Carter v. Anderson, 554 N.W.2d 110, 113-14 (Minn. App. 1996), review denied (Minn. Dec. 23, 1996). 

Reasonable Defense on Merits

Kuntz first claims that, absent the court’s mistake in its May 23, 2001, order, she would have succeeded in her attempt to remain personal representative of the Peter Redmann estate.  But the record shows little evidence of mistake.  Kuntz signed the petition requesting that US Bank be appointed successor personal representative/trustee for the purpose of determining the “current average rent” on the farmland as well as “resolution of other matters which place me in a position of conflict.”   The court granted the petition on the terms that she requested. 

The record also fails to support her case on other grounds.  First, Kuntz was never nominated under the will as trustee and therefore had no claim against US Bank to act as trustee of the testamentary trust.  Further, her stance regarding the administration of the estate raises definite questions as to her suitability as personal representative.  The Minnesota Supreme Court has stated that the personal representative of an estate should be “entirely free from adverse interests or partiality.”  Corey v. Corey, 120 Minn. 304, 310, 139 N.W. 509, 511 (1913).  In this case, it quickly became evident that the dispute between the heirs over the amount of rent to be charged on the farmland was spilling over into the administration of the estate as a whole, with the family split into two factions; each with a materially different proposal for dealing with the farmland as an estate asset.  In such situations, the estate is entitled to have a disinterested third party acting as personal representative.  The district court, in denying Kuntz’s request for reconsideration, specifically found that her position was inconsistent with the duties required of a personal representative and that she was not in an emotional position to discharge those duties.  This finding is not clearly erroneous.

            Reasonable Excuse for Failure to Act and Due Diligence After Notice

In terms of excusable neglect, Kuntz maintains that the neglect of her then-attorney was responsible for her failure to file a more limited petition with respect to US Bank’s appointment and her duties as personal representative.  See, e.g., Conley v. Downing, 321 N.W.2d 36, 40-41 (Minn. 1982) (holding that contract vendor was entitled to vacation of summary judgment for previous attorney’s failure to file responsive pleadings because vendor had reasonable defense to action, and no prejudice would result to vendee).  It appears that Kuntz’s attorney was vague about the exact consequences of the court’s initial order appointing US Bank as successor personal representative, and she did act as de facto personal representative for some estate administration tasks during the summer of 2001.  But as the district court pointed out, she did not appeal the December 19, 2001, order until March 2002 and waited until September 2002 to file this appeal.  Therefore, the district court appropriately concluded that Kuntz’s delay in seeking relief was not a strong factor in her favor.

Substantial Prejudice to Opposing Party

            As the district court noted, if Kuntz were reinstated as personal representative, the estate would suffer prejudice by a delay in final closing.  From the record, it appears that estate taxes are becoming due and payable, and the question of the farmland rental needs final resolution.  In addition, the testamentary trust could suffer prejudice if the order were vacated and the continuous and stable administration of the trust were interrupted.  Therefore, we conclude that, in light of the required factors, the district court did not abuse its discretion in refusing to set aside the judgment for mistake or inexcusable neglect.

Kuntz also seeks to set aside the judgment under Rule 60.02 for fraud, contending that she had reason to rely on the representation of her then-attorney that she would remain personal representative of the estate.  But Rule 60.02 provides only for relief on the grounds of fraud of an “adverse party.”  Minn. R. Civ. P. 60.02(c); Bd. of Regents of Univ. of Minn. v. Medical, Inc., 405 N.W.2d 474, 480 (Minn. App. 1987), review denied (Minn. July 15, 1987).  Kuntz’s attorney was not an adverse party with respect to Kuntz.  Kuntz’s argument that US Bank, as an adverse party, participated in fraud is not well taken; no evidence shows that US Bank intentionally misled her as to her status with respect to the estate. 

Likewise, Kuntz has shown no reasonable chance to succeed in her argument that US Bank’s appointment constituted fraud on the court.  “Fraud upon the court” occurs when the court is misled regarding material circumstances, resulting in a judgment that would not have otherwise been rendered if the conduct of the proceedings had been fair.  In re C.M.A., 557 N.W.2d 353, 358 (Minn. App. 1996), review denied (Minn. Apr. 15, 1997).  The misrepresentations must be “material and intentional.”  Id.  In this case, the record lacks evidence that any of the parties or their representatives intentionally misled the court as to the consequences of the order appointing US Bank as successor personal representative.  In fact, the petition signed by Kuntz expressly mentioned “other matters” in which she might have a conflict, which would require the actions of a successor personal representative.

Kuntz finally alleges that the appointment of US Bank as successor personal representative is void because it was made in a manner violative of due process, thus depriving the court of jurisdiction.  We find this contention to be without merit.  The district court entered its initial order at Kuntz’s request.  She had ample opportunity to call and examine witnesses at the December 2001 hearing.  Finally, she made a request for reconsideration, which the district court, by letter ruling, considered and denied. 

Because Kuntz has failed to furnish evidence sufficient to satisfy the elements required for setting aside the judgment under Rule 60.02, we decline to disturb the district court’s order denying the motion to vacate.