Black v. Rimmer

• Decision Date: 19 July 2005
• Docket Number: No. A04-2185, No. A04-2316.
• Citation: 700 N.W.2d 521
• Parties: Margaret BLACK and Gary Coopman, as trustee for the next of kin of Angela Marie Black, decedent; and Shia Lynn Black, a minor by and through her grandmother and natural guardian, Margaret Black, Respondents, v. Phillip RIMMER, Appellant. Shelly Otto, as trustee for the next of kin of Zoe Patricia Kloster, decedent, and Jennifer Cemenski, Respondents, v. Phillip Rimmer, Appellant.
• Court: Minnesota Court of Appeals

700 N.W.2d 521

Margaret BLACK and Gary Coopman, as trustee for the next of kin of Angela Marie Black, decedent; and Shia Lynn Black, a minor by and through her grandmother and natural guardian, Margaret Black, Respondents, v. Phillip RIMMER, Appellant.

Shelly Otto, as trustee for the next of kin of Zoe Patricia Kloster, decedent, and Jennifer Cemenski, Respondents, v. Phillip Rimmer, Appellant.

Nos. A04-2185, A04-2316.

Court of Appeals of Minnesota.

July 19, 2005.

Robert D. Boedigheimer, Peter J. Horejsi, Justin Silcox, McCloud & Boedigheimer, P.A., Bloomington, MN, for respondents Margaret Black, et al.

Philip Sieff, Vincent J. Moccio, Patricia Yoedicke, Robins, Kaplan, Miller & Ciresi, L.L.P., Minneapolis, MN, for respondents Shelly Otto, et al.

Sylvia Ivey Zinn, Brendel and Zinn, Ltd., Lake Elmo, MN, for appellant.

Considered and decided by KLAPHAKE, Presiding Judge; HALBROOKS, Judge; and PORITSKY, Judge.

OPINION

PORITSKY, Judge.¹

In this appeal, appellant argues that the district court abused its discretion by (1) entering default judgments against him, and (2) denying his motion to vacate the default judgments. Because appellant did not submit an answer or file any defensive motions, and because he failed to establish the factors necessary to vacate a judgment, we affirm.

FACTS

On December 2, 2001, a car driven by appellant Phillip Rimmer crossed the center line and collided head-on with a car driven by respondent Jennifer Cemenski. Cemenski was seriously injured in the accident, and her four-year-old daughter, Zoe Kloster, was killed. Angela Black, Cemenski's friend, was also killed in the accident, and Black's five-year-old daughter, Shia Black, sustained serious injuries.

On January 14, 2002, respondents Margaret Black and Gary Cooper, as trustee for the next of kin of Angela Black and as guardian of Shia Black (collectively referred to herein as respondents Black), served Rimmer with a summons and complaint, alleging wrongful-death and personal-injury claims resulting from the accident. Rimmer's insurance carrier denied coverage for the accident.

Respondents Black noticed Rimmer's deposition. When Rimmer appeared pro se on December 27, 2002, he was served with a summons and complaint by respondents Cemenski and Shelly Otto as trustee for Kloster (collectively referred to herein as respondents Cemenski). The Cemenski complaint asserted wrongful-death and personal-injury claims resulting from the December 2001 accident. During the course of the deposition, Rimmer was questioned by attorneys representing both sets of respondents. Rimmer did not file an answer to either of the complaints, nor did he bring a rule 12 or other defensive motion.

Over a year later, in January 2004, respondents Cemenski served Rimmer with notice of a motion for default judgment, and on March 3, 2004, respondents Black served Rimmer with notice of their motion for default judgment. The next day, Rimmer's insurance carrier retained counsel for Rimmer. On March 8, 2004, there was a hearing on respondents' motions for default judgment. This hearing was Rimmer's first appearance before the court. The district court concluded that Rimmer had "defaulted ... by failing to answer, plead or otherwise defend" and granted respondents' motions for default judgment. After two hearings to determine damages, the district court issued orders granting respondents Cemenski damages totaling approximately $1.5 million and respondents Black damages totaling $3.6 million. The judgments were entered on July 14, 2004.

Rimmer moved to vacate the default judgments. The district court found that Rimmer did not establish the factors necessary to vacate the judgments, and it denied his motion. Rimmer filed two notices of appeal, challenging both the entry of the default judgments and the denial of his motion to vacate the judgments. This court consolidated Rimmer's appeals.

ISSUES

1. Did the district court abuse its discretion by granting respondents' motions for default judgments?

2. Did the district court abuse its discretion by denying appellant's motion to vacate the default judgments?

ANALYSIS

I.

Rimmer first challenges the district court's decision to grant respondents' motions for default judgments. The decision to grant or deny a motion for a default judgment lies within the discretion of the district court, and this court will not reverse absent an abuse of that discretion. Coller v. Guardian Angels Roman Catholic Church, 294 N.W.2d 712, 715 (Minn. 1980).

Respondents filed motions for default judgments pursuant to Minn. R. Civ. P. 55.01. "When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend within the time allowed therefor by these rules or by statute, and that fact is made to appear by affidavit, judgment by default shall be entered against that party ...." Minn. R. Civ. P. 55.01.

Rimmer concedes that he "failed to plead in the form of formal written answers," but he argues that his cooperation with respondents "rise[s] to the level of `or otherwise defend' as proscribed [sic] in rule 55.01." He argues that he met the requirements of rule 55.01 when he "appeared for his deposition" and "answered all of the questions put to him," and when he "personally appeared at each and every matter scheduled before the trial court and had several telephone discussions with [respondents'] attorneys." He goes on to explain that "he was not aware that formal written answers were required."

There is no Minnesota caselaw interpreting "otherwise defend" in rule 55.01, but that portion of the rule is substantially similar to rule 55(a) in the Federal Rules of Civil Procedure. See Fed. R.Civ.P. 55(a) (providing for entry of default judgment "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules" (emphasis added)). Federal courts' interpretations of federal rules of procedure may provide guidance on interpretation of parallel state rules of procedure. DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997). Under the federal rules, "otherwise defend" has long referred to "attacks on the service, or motions to dismiss, or for better particulars, and the like, which may prevent default without presently pleading to the merits." Bass v. Hoagland, 172 F.2d 205, 210 (5th Cir.1949). Rimmer made no such attacks or defensive motions. In our opinion, his "cooperation" does not satisfy the requirement of "otherwise defend" as contemplated by Minn. R. Civ. P. 55.01.

But a district court should deny a motion for default judgment "when four requirements are met: defendant has a reasonable defense on the merits; defendant has a reasonable excuse for his failure to answer; defendant acted with due diligence after notice of the entry of judgment; and no substantial prejudice will result to other parties." Coller, 294 N.W.2d at 715. As we will note infra, these are the same factors a district court should consider when deciding whether to vacate a judgment under Minn. R. Civ. P. 60.02. Guillaume & Assocs. v. Don-John Co., 371 N.W.2d 15, 18 (Minn.App.1985). Thus, our analysis of the four factors that we make in reviewing the district court's granting of the default judgments will be the same analysis that we will make in reviewing the court's denial of Rimmer's motion to vacate those judgments.

To obtain relief under rule 60.02, all four of the factors must be present. Charson v. Temple Israel, 419 N.W.2d 488, 491 (Minn.1988). But a "strong showing on the other factors may offset relative weakness on one factor." Imperial Premium Fin., Inc. v. GK Cab Co., 603 N.W.2d 853, 857 (Minn.App.2000).

Reasonable defense on the merits

Rimmer does not argue that he has a defense on the issue of liability. Instead, he argues that he "was not afforded the opportunity to defend against the [r]espondents' damages claims." He claims, "It is believed that if [Rimmer] had the opportunity to defend against damages, the trial court or a jury would have reached a more realistic and reasonable value of these claims."

After the district court entered default judgments, it held hearings on two separate dates to establish damages, at which respondents offered both testimony and extensive documentary evidence to establish their claims. The district court found that as a result of the accident, a woman and a four-year-old child were killed, and a woman and a five-year-old child were seriously and permanently injured. In light of these findings alone, it is not surprising that the respondents suffered extensive damages. The court also made numerous and specific findings concerning respondents' damages.

Rimmer does not attack the past medical expenses of Jennifer Cemenski or Shia Black, both of whom survived. Such damages lend themselves to precise documentary proof. Instead, Rimmer focuses on such elements as loss of companionship suffered by the families of the two individuals who were killed and the pain and suffering of the two who survived. Such damages do not lend themselves to precise proof and are thus always subject to the attack that, had the defendant been in court, the damage award would have been smaller. But as respondents Cemenski point out, to conclude that a defendant makes a strong showing of a reasonable defense by claiming he would have argued for a lower award would mean that no default personal-injury judgment would ever be safe from vacation "since all such judgments inevitably require the finder of fact to exercise discretion."

In our opinion, the district court's rulings on the issue of damages suffered by respondents are supported by the record. We conclude that, at best, Rimmer has made only a weak showing that he has a reasonable defense on the merits.

Reasonable excuse for the failure to act

"Neglect of the party itself which leads to entry of a default judgment is inexcusable, and such neglect is a proper ground...