This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
as parent and natural guardian of
Randy Wilberg, Jr., a minor,
Gary Bekkerus and Loren Bekkerus,
d/b/a D L Ski Resort, Inc., et al.,
Lookout Rock Properties,
Affirmed in part, reversed in part, and remanded
Dissenting, Forsberg, Judge*
Becker County District Court
File No. C6-02-001912
Kevin Miller, Zenas Baer, Zenas Baer and Associates, 331 Sixth Street, P.O. Box 249, Hawley, MN 56549 (for appellant)
Tammy L. Merkins, Thorwaldsen, Malmstrom, Sorum, Wilson, LaFlair, & Majors, PLLP, 1105 Highway 10 East, P.O. Box 1599, Detroit Lakes, MN 56502-1599 (for respondents Bekkerus, et al.)
Michael J. Dolan, Thornton, Hegg, Reif, Dolan & Bowen, P.A., 1017 Broadway, P.O. Box 819, Alexandria, MN 56308 (for respondent Lookout Rock Properties)
Considered and decided by Willis, Presiding Judge, Minge, Judge, and Forsberg, Judge.
On appeal from an order granting a motion to vacate a default judgment, appellant argues that the district court abused its discretion because respondents willfully defaulted; respondent Gary Bekkerus, a principal of all respondents, attended the default hearing without making an appearance or an objection; and respondents challenged the default judgment only after appellant served a motion seeking a finding of contempt against respondents for failing to respond to post-judgment discovery and seeking to have property sold to satisfy the judgment. We affirm in part, reverse in part, and remand.
On January 11, 2002, Randy Wilberg Jr. sustained injuries while tubing down a hill at Detroit Mountain Ski Resort. Appellant Randy Wilberg Sr., as parent and guardian of Randy Wilberg Jr., a minor, sued respondents Gary Bekkerus and Loren Bekkerus, d/b/a Detroit Mountain Ski Resort by personal service on Gary Bekkerus on September 14, 2002.
On October 14, 2002, one day before the answer to the complaint was due, Gary Bekkerus spoke by phone with one of Wilberg’s attorneys. During the telephone conversation, Gary Bekkerus told Wilberg’s attorney, Zenas Baer, that Bekkerus did not have insurance to cover the accident and requested a meeting with Baer to discuss Wilberg’s intentions. On November 12, 2002, Gary Bekkerus and two of Wilberg’s attorneys, Baer and Kevin Miller, met to discuss the case. Both Baer and Miller advised Gary Bekkerus to consult with an attorney, and Baer also told him that if he did not answer the complaint, Wilberg would seek a default judgment.
Wilberg subsequently amended his complaint to name D L Ski Resort, Inc. and Lookout Rock Properties as additional defendants. Wilberg discovered that Gary Bekkerus and Loren Bekkerus own D L Ski Resort, Inc., which operates Detroit Mountain Ski Resort, and that the property on which D L Ski Resort, Inc. operates is owned by Lookout Rock Properties. Lookout Rock Properties has five general partners, all of whom are siblings, including Gary and Loren Bekkerus, and each owns an undivided one-fifth interest in the property. The amended complaint was served personally on Gary Bekkerus on December 16, 2002, and on Loren Bekkerus on December 18, 2002. Gary Bekkerus and Loren Bekkerus both are officers and directors of D L Ski Resort, Inc., and, as noted above, both are general partners of Lookout Rock Properties.
Wilberg served a motion for default judgment personally on Gary Bekkerus on March 24, 2003, and on Loren Bekkerus on March 31, 2003. No written response was received from any of the named defendants. Gary Bekkerus, however, contacted Baer on May 9, 2003, and asked if there was any way to resolve the matter. Baer told him that the hearing on the motion for a default judgment would go forward unless the complaint was answered.
On May 12, 2003, a default hearing was held. Gary Bekkerus sat in the courtroom during the hearing, but did not make an appearance or an objection. At this hearing, both Randy Wilberg Sr. and his son submitted affidavits describing the nature of the injuries and life-style changes that the son had experienced as a result of the accident. Wilberg asserts that he also submitted medical billing, medical reports, and photographs supporting his claim for damages. The documents themselves are not in the record. The only mention in the record of this information is in the affidavits submitted by Randy Wilberg Sr., his son, and his attorney, as well as the district court’s subsequent findings of fact and conclusions of law, dated June 17, 2003.
On June 17, 2003, the district court issued findings of fact, conclusions of law, and an order for judgment, finding for Wilberg and awarding damages in the amount of $436,199.15. On June 18, 2003, notice of the filing of the order and post-judgment interrogatories were served by mail on Gary Bekkerus and Loren Bekkerus. By a motion dated October 6, 2003, Wilberg then sought an order finding respondents in contempt for failing to respond to the interrogatories and directing that the property owned by respondent Lookout Rock Properties be sold to satisfy the judgment.
On October 31, 2003, respondents served motions to vacate the default judgment, and on November 17, 2003, there was a hearing on the motions. On December 5, 2003, the district court issued an order granting respondents’ motion to vacate, conditioned on respondents’ payment of Wilberg’s attorney fees and costs incurred to that date. The condition had to be satisfied by January 15, 2004. On or about January 12, 2004, respondents paid Wilberg’s attorney fees and costs, and on January 26, 2004, the district court vacated the default judgment. Wilberg appeals from the January 26 order vacating the default judgment.
FORSBERG, Judge (dissenting)
I respectfully dissent. As stated in the majority opinion, a party seeking to set aside a default judgment for mistake, inadvertence, surprise, or excusable neglect must show (1) a reasonable defense on the merits; (2) a reasonable excuse for the failure or neglect to act; (3) action with due diligence after notice of entry of judgment; and (4) that no substantial prejudice will result to the opponent. Hinz v. Northland Milk & Ice Cream Co., 237 Minn. 28, 30, 53 N.W.2d 454, 455-56 (1952). The trial court found that all respondents satisfied each of these factors.
The majority found that respondents did not satisfy number 2, the reasonable excuse for failure or neglect to act, or number 3, action with due diligence after notice of entry of judgment.
Respondents argue that Gary and Loren Bekkerus’s failure to respond was not due to an “ill sounded belief of the likely outcome of litigation,” but due to the fact that they misunderstood the pleadings and did not believe they were being sued in their individual capacity. They believed that because the corporation was being sued, they had no personal liability and that the corporation would shield them and all others from liability. They also did not understand that service on them constituted service on the corporation or the partnership, Lookout Rock Properties. Gary Bekkerus was confused by the proceedings. Ignorance of the law can sometimes be an excuse for failure to act upon being served. WGSH, Inc. v. Bollinger, 384 N.W.2d 592, 594 (Minn. App. 1986).
Insofar as number 3 is concerned, respondent Gary Bekkerus, within a week of learning of the default judgment, moved to vacate the default judgment. In any event, the court, in believing Gary Bekkerus, did not abuse its discretion.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 The district court determined that the interests of justice favored setting aside the default judgment against Lookout Rock Properties because three of the five general partners did not receive actual notice of the litigation until shortly before the motion to vacate. See Minn. R. Civ. P. 60.02(f). But Minn. R. Civ. P. 4.03(b) requires service on only one member of a partnership; here, two general partners were personally served. If in fact the general partners who were served failed to inform the other partners of the litigation, that is an issue among the partners. It does not affect Wilberg’s ability to commence his suit. We conclude that there is no basis in law to require Wilberg to have served all five partners of Lookout Rock Properties to make it a party to this litigation. And we find no policy reason to encourage partners who are served with a complaint not to inform other partners, so that a default judgment can be vacated on the ground of lack of such notice.