This opinion will be unpublished and

may not be cited except as provided by

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







Burton D. Anderson,





Paul D. Haggerty,




Filed ­­­August 24, 2004


Forsberg, Judge*


Dakota County District Court

File No. CX-03-8831


Daniel B. O’Leary, Mansur & O’Leary, P.A., 1540 Humboldt Avenue, Suite 100, West St. Paul, MN 55118; and


Kristi J. Paulson, Paulson Law Firm, 150 Oak Shore Drive, Burnsville, MN 55306 (for respondent)


James M. Susag, Anne M. Olson, Larkin, Hoffman, Daly & Lindgren, Ltd., 1500 Wells Fargo Plaza, 7900 Xerxes Avenue South, Bloomington, MN 55431-1194 (for appellant)


            Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Forsberg, 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 denial of his motion to vacate a default judgment, arguing that (1) the district court applied the wrong standard for evaluating whether appellant had a defense on the merits when it ruled that he “may” have a reasonable defense, but failed to show it; (2) appellant’s failure to act was reasonable in light of the confusing way in which the suit was initiated; (3) appellant acted with due diligence; and (4) a balancing of the harms shows no harm to respondent if the judgment is reopened, but substantial hardship to appellant if it is not.  Because the district court did not abuse its discretion, we affirm.


            The parties, appellant Paul D. Haggerty and respondent Burton D. Anderson, are next-door neighbors in Mendota Heights.  Along the rear of both their properties is a bluff overlooking the Mississippi River that is protected by the city as part of the Mississippi River Corridor.  On October 1, 2001, respondent noticed that a large red “x” had been painted on several trees on his property near the property line, indicating that the trees would be removed.  Respondent left a note for appellant at his residence, stating that the marked trees were on respondent’s property and that appellant was not authorized to remove the trees.  Respondent also contacted the local police department.  The next day, respondent noticed that the marked trees had been trimmed.

            In December 2002, appellant removed trees and brush along the bluff line at the rear of his property.  Respondent noticed that appellant also removed about four mature trees from respondent’s property.  On February 1, 2003, appellant hired a tree cutter to remove more trees from the bluff line on his property.  Respondent noticed about four more trees on his property had also been removed.  When he told appellant to stop, a heated discussion ensued, and appellant allegedly pushed respondent to the ground.

Appellant subsequently filed for a harassment restraining order against respondent.  On February 18, 2003, the district court denied the restraining order.  After the hearing, respondent’s counsel attempted to serve appellant with a summons and complaint on this action.  Appellant refused to accept the papers and immediately left the courthouse.

            On July 9, 2003, respondent filed a summons and complaint, alleging assault, battery, trespass, wrongful tree removal, intentional and unreasonable diversion of surface waters, defamation, conversion, intentional infliction of emotional distress, nuisance, and invasion of privacy.  Respondent also filed an affidavit of service of the summons and complaint that described appellant’s refusal to take the papers and a motion for default judgment.  Appellant claims that, after receiving a notice of case filing from the district court, he contacted a court administrator and was told that he had 20 days to answer after he was served with the summons and complaint and that no affidavit of service had been filed.

            On July 31, 2003, a hearing was held on respondent’s motion for default judgment.  Appellant did not appear at the hearing.  On August 5, respondent’s counsel filed an affidavit of continuing default, and the district court granted default judgment and awarded respondent $157,193.57 in damages and $145 in costs.

            On September 23, 2003, appellant filed a motion to vacate the default judgment.  Following a hearing, the district court denied the motion.  Appellant now challenges that denial.


            Upon a motion, a district court may vacate a final judgment for reasons of “[m]istake, inadvertence, surprise, or excusable neglect.”  Minn. R. Civ. P. 60.02(a).  When determining whether to vacate a default judgment, courts should keep in mind the liberal policy of resolving cases at trials on their merits.  Kemmerer v. State Farm Ins. Cos., 513 N.W.2d 838, 841 (Minn. App. 1994), review denied (Minn. June 2, 1994).  But the decision to vacate a judgment is within the district court’s discretion and will not be reversed absent a clear abuse of that discretion.  Foerster v. Folland, 498 N.W.2d 459, 460 (Minn. 1993).  Reviewing courts examine the record in a light most favorable to the district court order.  Imperial Premium Fin., Inc. v. GK Cab Co., 603 N.W.2d 853, 857 (Minn. App. 2000).

            In order for a default judgment to be vacated under Rule 60.02(a), the moving party must establish (1) a reasonable defense on the merits, (2) a reasonable excuse for the failure or neglect to answer, (3) that the party acted with due diligence after receiving notice of the judgment, and (4) that no substantial prejudice will result to the other party if the motion is granted.  Hinz v. Northland Milk & Ice Cream Co., 237 Minn. 28, 30, 53 N.W.2d 454, 455-56 (1952).  The moving party bears the burden of establishing all fourfactors.  Imperial Premium, 603 N.W.2d at 857.  The relative weakness of one factor may be outweighed by a strong showing on the other three factors.  Valley View, Inc. v. Schutte, 399 N.W.2d 182, 185 (Minn. App. 1987), review denied (Minn. Mar. 18, 1987).  But two weak factors may not be overcome by two strong factors.  Wiethoff v. Williams, 413 N.W.2d 533, 536 (Minn. App. 1987).  Appellant argues that the district court abused its discretion by determining that he did not satisfy three of the four factors.

            1.         Reasonable Defense

A reasonable defense is one when the defendant’s proposed answer, if established, provides a defense to the merits of the plaintiff’s claim.  See Finden v. Klaas, 268 Minn. 268, 271, 128 N.W.2d 748, 750 (1964).  The defaulting party must establish specific information that clearly demonstrates the existence of a debatably meritorious defense.  Charson v. Temple Israel, 419 N.W.2d 488, 492 (Minn. 1988).  The necessary showing requires more than conclusory allegations.  Imperial Premium, 603 N.W.2d at 857.  The district court found that “[appellant] may have a reasonable defense, but has not demonstrated one to the Court.”  (Emphasis in original.)

Appellant argues that he established a reasonable defense on the merits because his answer included specific denials of the allegations and asserted multiple defenses, including respondent’s negligence, contributory negligence, knowledge and acquiescence, consent, assumption of the risk, license, and estoppel and waiver.  But respondent’s negligence, contributory negligence, and assumption of the risk are not meritorious defenses because none of respondent’s claims involved negligence on the part of appellant.  See Florenzano v. Olson, 387 N.W.2d 168, 175 (Minn. 1986) (defenses dealing with comparative negligence are not applicable to intentional torts).  The defenses of knowledge and acquiescence, consent, license, and estoppel and waiver also fail because appellant presented no information in the proposed answer or his supporting affidavit that respondent consented or acquiesced to the removal of trees on his property.  In his supporting affidavit, appellant stated that “[respondent] has disputed the location of our shared property line and the removal of trees from my property since shortly after I purchased my current residence in 2001, but to my knowledge has never has [sic] a survey completed to determine the property line.”

Viewing the facts in a light most favorable to the district court’s order, the district court did not abuse its discretion in finding that appellant did not establish a reasonable defense on the merits. 

            2.         Reasonable Excuse

Neglect of a party that leads to the entry of judgment against that party is inexcusable neglect.  Howard v. Frondell, 387 N.W.2d 205, 208 (Minn. App. 1986), review denied (Minn. July 31, 1986).  “It is for the [district] court to determine whether the excuse offered by a defaulting party is reasonable.”  Id. (citation omitted).  Here, like the appellant in Imperial Premium, appellant does not expressly deny that he was served with respondent’s suit.  See Imperial Premium, 603 N.W.2d at 858.  Appellant argues that the confusing circumstances of the service caused his neglect to answer.

“A party challenging an affidavit of service must overcome it by clear and convincing evidence.”  Id.  Appellant claims that he was unaware that respondent’s counsel was attempting to give him the summons and complaint outside of the courtroom on February 18, 2003.  But appellant was present in the courtroom when counsel announced that he intended to serve appellant with a summons and complaint on the record and when counsel was instructed by the court to serve appellant outside the courtroom.  Appellant also argues that his neglect to answer was excusable because the court administrator told him that respondent’s attorney of record in this action was someone other than the attorney who represented respondent at the hearing on February 18 and that no affidavit of service was in the file.  But an affidavit of service by respondent’s counsel, stating the circumstances of service at the February 18 hearing, was filed the same day that the summons and complaint were filed.  Appellant argues that he did not receive notice of the motion for default judgment.  But this argument ignores the fact that, at the time of the default judgment, appellant already had notice of the action.

Therefore, appellant did not establish clear and convincing evidence to overcome the affidavit of service, and we conclude that the district court did not abuse its discretion in finding that appellant did not have a reasonable excuse for neglecting to answer.

            3.         Due Diligence

            A motion to vacate must be made within a reasonable time, but no more than one year after the judgment was entered.  Minn. R. Civ. P. 60.02.  What constitutes a reasonable time varies with the circumstances of each case and is determined by the district court in the exercise of its discretionary power.  Hovelson v. U.S. Swim & Fitness, Inc., 450 N.W.2d 137, 142 (Minn. App. 1990), review denied (Minn. Mar. 16, 1990).  Here, the parties do not dispute, and the district court determined, that appellant acted with due diligence by bringing his motion to vacate in an appropriate and timely manner.  Therefore, this factor weighs in favor of vacation of the default judgment.

            4.         Substantial Prejudice

Appellant argues that respondent failed to establish substantial prejudice because all the relevant witnesses are available to testify and no evidence has been lost or destroyed.  But this argument ignores that it is appellant’s burden to establish that no substantial prejudice would result if the motion to vacate were granted.  See Bentonize, Inc. v. Green, 431 N.W.2d 579, 584 (Minn. App. 1988) (the moving party bears the burden of establishing all factors, including that no substantial prejudice will result to the other party if the default judgment is vacated).  In addition, the availability of witnesses is only one of the relevant factors in determining prejudice.  See Imperial Premium, 603 N.W.2d at 859 (prejudice also results when the nonmoving party gives up a legal right in reliance on the default judgment).

            If the facts suggest an “intentional ignoring of process, the additional expense must be viewed in a different light.”  Hovelson,450 N.W.2d at 142.  Prejudice becomes more likely when a defendant forces a claimant to incur the expense of a court hearing and other court-related expenses through inexcusable neglect, intent, or lack of good faith.  Id.  Here, appellant acknowledges that he received the notice of action prior to the default proceeding, but did not respond or contact counsel because he did not believe that he had been served with the summons and complaint.  But the record reveals that appellant knew that respondent’s counsel was attempting to serve a summons and complaint on him outside the courtroom after the February 18 hearing.

The district court found that vacating the judgment would delay the reparation to respondent’s property, stating:

[Respondent] has been awarded a judgment that will help to partially replace some of the damage caused by [appellant]’s actions.  The longer the property is left in the condition caused by [appellant], the more problems with erosion and water damage will occur, which would lead to further financial problems for [respondent].  [Respondent] has had to incur more legal fees due to [appellant’s] failure to properly respond to this lawsuit.

Appellant argues that any further damage and financial problems are the result of the delay caused by the default proceedings, which is not substantial prejudice.  See Finden, 268 Minn. at 272, 128 N.W.2d at 751 (because prejudice is always inherent when trial is delayed, delay and added expense incurred by reason of default proceedings are insufficient to establish substantial prejudice); Kemmerer, 513 N.W.2d at 841 (party moving for vacation of default judgment may be taxed for costs and disbursements for delay and expenses incurred in default proceedings).  But any further erosion and water damage are not expenses incurred in the default proceedings; they are damages caused by the present state of respondent’s property and may be repaired by the judgment.  Moreover, any further erosion or water damage would substantially affect the evidence.  See Riemer v. Zahn, 420 N.W.2d 659, 662 (Minn. App. 1988) (no prejudice where record reveals that no evidence has been substantially affected).  Therefore, appellant failed to establish that no substantial prejudice to respondent will result if the default judgment is vacated.

Because appellant established only one of the four requisite factors for vacating a default judgment, we conclude that the district court did not abuse its discretion in denying the motion.


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