This opinion will be unpublished and

may not be cited except as provided by

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







William Letourneau,





Schindler Elevator Corporation,




Filed June 22, 2004

Reversed and remanded

Halbrooks, Judge



Dakota County District Court

File No. C1-03-6823



James J. Boyd, 1212 Pioneer Building, 336 Robert Street North, St. Paul, MN 55101 (for respondent)


Thomas J. Radio, Jodi L. Johnson, Hinshaw and Culbertson, 3100 Campbell Mithun Tower, 222 South 9th Street, Minneapolis, MN 55402 (for appellant)



            Considered and decided by Harten, Presiding Judge, Halbrooks, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges the district court’s refusal to vacate a default judgment in favor of respondent.  Because we conclude that the district court abused its discretion by denying appellant’s motion to vacate, we reverse and remand.


On July 25, 2000, respondent William Letourneau was working as a maintenance employee for U.S. Bank at 350 Robert Street North in St. Paul.  On that date, respondent, who was recovering from a foot operation, was using a three-wheeled motorized cart to move about within the building.  Respondent alleges that as he was backing his cart out of elevator 8 in the building, the car suddenly moved up approximately 20 inches, causing him to fall and injure his back and neck.  The same day, respondent orally reported the accident to the U.S. Bank Properties Office and an elevator repairman.  In February 2001, respondent submitted a written incident report to U.S. Bank outlining the nature of the accident and his injuries.  Respondent contends that elevator 8 has “a long history” of misleveling problems and would commonly move without warning while “searching” for another floor.  Respondent attached documentation of this problem along with the incident report.[1]  Nonetheless, appellant Schindler Elevator Corporation, which maintains the elevators at 350 Robert Street pursuant to a Preventative Maintenance Agreement, states that it has no record of any accident during the year 2000, nor any report of a problem with elevator 8 from July 2000.

            In October 2002, respondent initiated a complaint against appellant, alleging that it was negligent in the maintenance, inspection, upkeep, and repair of the elevator.  Respondent alleged that as a proximate cause of appellant’s negligence, he sustained “numerous and severe injuries, both internal and external, some of which . . . are or may be permanent.”  Respondent also alleged that he had “suffered great pain and discomfort” due to these injuries and had “expend[ed] sums of money for . . . general medical care and treatment.”  Respondent requested compensatory damages in excess of $50,000. 

            Respondent contends that he served appellant with a copy of the summons and complaint on October 31, 2002.  This assertion is supported by an affidavit of service completed by Metro Legal Services, which indicates that Rick Romnes, one of appellant’s managing agents, received the documents.  Romnes has no recollection of being served, and appellant has no documentation of the summons or complaint in its files. 

When appellant failed to answer the complaint, respondent brought a motion for default judgment pursuant to Minn. R. Civ. P. 55.01.  In March 2003, following a hearing, the district court granted respondent’s motion and awarded him $50,000 in damages and $178 in costs and disbursements.  Appellant had no notice of the hearing and did not attend.  Upon receiving notice of the default judgment, appellant contacted its legal department in Morristown, New Jersey, and its local office in Eagan, but neither had any record of the litigation.  Appellant asked respondent to consent to vacation of the default judgment, but he declined. 

Appellant subsequently moved to vacate the default judgment.  Following a hearing in October 2003, the district court denied the motion, concluding that appellant’s failure to respond to the summons and complaint did not constitute excusable neglect and that respondent would be substantially prejudiced if the judgment were vacated.  This appeal follows.


            Appellant argues that the district court abused its discretion by denying its motion to vacate the default judgment.  Minn. R. Civ. P. 60.02(a) allows a court to relieve a party of a final judgment on the basis of mistake, inadvertence, surprise, or excusable neglect.  Minn. R. Civ. P. 60.02(f) authorizes the court to relieve a party from a final judgment for “any other reason justifying relief.”  On appeal, this court views the record in the light most favorable to the district court’s decision.  Bentonize, Inc. v. Green, 431 N.W.2d 579, 583 (Minn. App. 1988).  We will uphold the district court’s decision unless there is a clear abuse of discretion.  Lund v. Pan Am. Machines Sales, 405 N.W.2d 550, 552 (Minn. App. 1987). 

1.         Minn. R. Civ. P. 60.02(a)

            A party seeking relief under rule 60.02(a) must demonstrate that relief is appropriate under the so-called Finden factors.  These factors are:

(1) a reasonable case on the merits, (2) a reasonable excuse for the failure to act, (3) that [the moving party] 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.


Imperial Premium Fin., Inc. v. G.K. Cab Co., Inc., 603 N.W.2d 853, 857 (Minn. App. 2000) (citing Finden v. Klaas, 268 Minn. 268, 271, 128 N.W.2d 748, 750 (1964)).  All four of the Finden factors must be satisfied to justify relief under the rule.  Charson v. Temple Israel, 419 N.W.2d 488, 491-92 (Minn. 1988).  But a “strong showing on the other factors may offset relative weakness on one factor.”  Imperial Premium, 603 N.W.2d at 857.  Courts favor a liberal application of these factors to further the policy of resolving cases on their merits.  Kemmerer v. State Farm Ins. Cos., 513 N.W.2d 838, 841 (Minn. App. 1994), review denied (Minn. June 2, 1994).

            A.        Reasonable Defense on the Merits

            A reasonable defense is one where the defendant’s proposed answer, if established, provides a defense to the merits of the plaintiff’s claim.  See Finden, 268 Minn. at 271, 128 N.W.2d at 750.  Here, the district court concluded that the first factor was satisfied because respondent’s “claims are for negligence and compensatory damages, [and appellant’s] denial of negligence and assertion of other defenses is sufficient to constitute a reasonable case on the merits.” 

            As appellant notes, respondent conceded to the district court that

[s]ince [respondent’s] claims against [appellant] are for negligence, in its maintenance, repair, and service of the Building elevator 8, and [respondent’s] compensatory damages he may be entitled to; such factual questions can only be determined by a jury after a trial of the case on its merits.  In this situation, [appellant’s] denial of negligence and other defenses it has asserted is sufficient to constitute a reasonable defense for the purpose of the “Finden” test.


            Although respondent now contends that appellant has failed to demonstrate a reasonable defense, he did not make this argument to the district court.  Consequently, this issue is not properly before us on appeal.  See Edina Dev. Corp. v. Hurrle, 670 N.W.2d 592, 596 n.2 (Minn. App. 2003) (concluding that where appellant conceded there were no genuine issues of material fact in the district court, but argued there may be fact issues on appeal, the issue was not properly before this court), review denied (Minn. Dec. 23, 2003); see also Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that this court will generally not consider matters not argued and considered in the district court). 

            Appellant’s proposed answer, which denies both liability and damages, and the affidavits and documents submitted in support of appellant’s motion to vacate, establish a reasonable defense on the merits of respondent’s claim.  Appellant claims that it had no notice of any misleveling problems with elevator 8 for at least the period of July through December 2000 and no report of any problems with elevator 8 in July 2000.  Appellant further maintains that it is responsible, by terms of a preventative maintenance agreement, to maintain the elevators at 350 Robert Street but that ownership and control of the elevators remain with the building owner.  Therefore, we conclude that the district court did not abuse its discretion in determining that appellant established this factor.

B.        Reasonable Excuse for the Failure to Act

            The district court concluded that appellant failed to make a strong showing of excusable neglect for its failure to act.  The court reasoned that the

Affidavit of Service from Metro Legal Services indicates that the District Manager of the Schindler Elevator Corporation was personally served at its business office.  In his affidavit, the District Manager indicates that he has no recollection of having been served and cannot locate the Complaint at issue.  This is insufficient to constitute the “clear and convincing” evidence necessary to overcome an affidavit of service and the Court finds that such neglect on the part of a party is not excusable.


            Here, as in Imperial Premium, appellant does not expressly deny that it was served with respondent’s suit.  See Imperial Premium, 603 N.W.2d at 858.  Instead, it offers the affidavits of Richard Romnes and his administrative assistant, Pam Dybdahl, who state that appellant has an established procedure for receiving legal service of process, including making a copy of the document, filing the document, and sending the original document to appellant’s legal department.  Romnes never expressly asserts that he was not served; he states that he has “no recollection of being served with the Complaint, nor have I been able to locate the Complaint or any document that references the Complaint.”  Likewise, Dybdahl states only that she has “searched [her] files and [has] no record of any Complaint or other document related to this litigation.”

            “A party challenging an affidavit of service must overcome it by clear and convincing evidence.”  Id.; Peterson v. Eishen, 495 N.W.2d 223, 225-26 (Minn. App. 1993), aff'd, 512 N.W.2d 338 (Minn. 1994).  As in Imperial Premium, Romnes’s “affidavit statements are just as consistent with [appellant] receiving service but losing the papers as they are with [appellant] not receiving the service.  As such, they do not suffice to overcome the affidavit of service by clear and convincing evidence.”  Id.  We conclude that the district court did not abuse its discretion in finding that appellant failed to satisfy its burden on this factor. 

C.        Due Diligence After Notice of the Entry of Judgment

            A motion to vacate based on excusable neglect must be made within a “reasonable time, . . . [but] not more than 1 year after the judgment . . . was entered.”  Minn. R. Civ. P. 60.02.  Here, the parties do not dispute and the district court determined that appellant acted with due diligence by bringing its motion to vacate in an appropriate and timely manner.  Therefore, we conclude that this factor weighs in favor of vacation of the default judgment. 

D.        Substantial Prejudice to the Opposing Party

            It is appellant’s burden to establish that no substantial prejudice will result to respondent.  Respondent contends that he has been prejudiced by appellant’s nonpayment of medical bills that he incurred as a result of accident-related injuries.  The district court concluded that respondent would suffer “substantial prejudice” if appellant’s motion to vacate were granted.  The court reasoned:

As a result of [appellant’s] non-responsiveness to the [respondent’s] Summons and Complaint, [respondent] has incurred substantial, unpaid medical bills that have interfered with [respondent’s] ability to receive ongoing care and treatment for the injuries at issue in this action.  Further delay caused by reopening the matter would certainly prejudice [respondent] in a very real way.


            We disagree.  Nothing in the record supports the district court’s finding of prejudice.  During the default judgment hearing, respondent’s attorney stated to the court that  

the biggest expense[] is Regina Medical and [respondent] had $3,093.00 there.  He went to Allina Medical, has a $125.00 there.  He went to Noran . . . it was $248.00.  He tried some acupuncture; that was $250.00.  We have hard-core health expenses of $3,716.  But beyond that [respondent] has been taking a lot of medications . . .


           . . . .


             . . . and his medical bills for the pharmacy alone is $230.00 [per month]. 


Likewise, respondent’s memorandum in opposition to appellant’s motion to vacate states only that

[a]ll of [respondent’s] outstanding medical bills have been continuously denied by his own medical insurance carrier . . . because of the factual and unusual circumstances involved in [his] accident.  Since these outstanding medical bills have not been paid he cannot receive the service providers. . . . Therefore, to the extent that [respondent] has not been provided with medical benefit payment provisions from [appellant’s] insurer he has been very realistically prejudiced for the insurer’s obligatory payments of such medical expenses.


But an attorney’s statements are not evidence, and respondent has failed to offer any testimony or documentation supporting his claim of unpaid medical expenses or any claim that he has been unable to obtain additional treatment because of unpaid bills.  As appellant argues, if it had interposed a timely answer, it would not have paid respondent’s medical bills without resolution of the liability, causation, and damages issues.  Therefore, we conclude that the district court abused its discretion in finding that respondent would suffer substantial prejudice if the motion to vacate were granted.  This factor weighs in favor of vacation of the default judgment.

Because three of the four Finden factors weigh in favor of vacating the default judgment, and given our preference for resolving cases on their merits, see Kemmerer, 513 N.W.2d at 841, we conclude that the district court abused its discretion by refusing to vacate the judgment based on Minn. R. Civ. P. 60.02(a). 

2.         Minn. R. Civ. P. 60.02(f)

Appellant also cites Minn. R. Civ. P. 60.02(f) as a basis for vacation of the default judgment in this matter.  Rule 60.02(f) provides for relief from a judgment for “any other reason justifying relief from the operation of the judgment.”  We agree that rule 60.02(f) is an additional basis in this matter. 

This court has previously concluded that a district court abused its discretion by finding liability and awarding damages based on a cursory presentation of supporting evidence.  Hill v. Fischer, 385 N.W.2d 329, 332 (Minn. App. 1986); Elk River Enterprises, Inc. v. Bivens Winchester Corp., 357 N.W.2d 139, 140-41 (Minn. App. 1984).

Following respondent’s brief, unspecified explanation of damages at the default-judgment hearing, the district court stated:

[F]rankly, if I was on a jury, I don’t think I would give you anything.  But I’m not the jury.  It is a default and I think 50 is kind of a middle ground between zero and a maximum of maybe 100 that you might be able to get.  Between zero and a 100 total.


The district court then awarded respondent $50,178 in damages.  On this record, without evidence to support the damages award or liability determination, we conclude that the district court abused its discretion in denying appellant’s motion to vacate the default judgment pursuant to rule 60.02(f). 

We reverse the district court and remand the case for a trial on the merits.

            Reversed and remanded.

[1] Respondent attached a “site history report” that references a misleveling problem with elevator 8 at the 350 building on June 7, 2000.  Another notation refers to a misleveling problem with elevator 8 on June 22, 2000, but it seems to indicate that the problem occurred at the 336 building.  Respondent also attached a U.S. Bank log sheet that states there were misleveling problems with elevator 8 on June 7 and 22, and that overtime maintenance was required on July 8, 2000, but the log does not include a building address.  However, the log sheet does reference respondent’s accident on July 25, 2000, stating there is a “compounding issue” with elevator 8 and that a “cart [was] damaged when backing out.”