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Jimmy Lee Golden et al., Appellants, vs. Leland Watson, Respondent. C5-96-1840, Court of Appeals Unpublished, June 10, 1997.

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. sec. 480A.08, subd. 3 (1996). STATE OF MINNESOTA IN COURT OF APPEALS C5-96-1840 Jimmy Lee Golden et al., Appellants, vs. Leland Watson, Respondent. Filed June 10, 1997 Affirmed. Randall, Judge Hennepin County District Court File No. MP 95-12621 James S. Ballentine, Schwebel, Goetz, Sieben & Moskal, P.A., 5120 IDS Center, Minneapolis, MN 55402-2246 (for appellants). Leland Watson, 836 Norwest Midland Building, 401 South Second Avenue, Minneapolis, MN 55401 (pro se). Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Holtan, Judge[*]. UNPUBLISHEDOPINION RANDALL, Judge Appellants failed to timely request a trial de novo after the filing of an arbitrator's award, and the district court entered judgment on the award. Appellants moved the district court to vacate the arbitration award and judgment for excusable neglect under Minn. R. Civ. P. 60.02(a). The court denied the motion. Appellants now challenge the judgment and denial of their motion to vacate. We affirm. FACTS On March 7, 1990, appellants Jimmy and Janice Golden were on a cruise ship when one or more employees of the ship caused Jimmy Golden to fall and injure his back. Appellants retained respondent Leland Watson to represent them in a negligence action against the ship. Watson failed to comply with the applicable statute of limitations. Appellants terminated Watson, retained David Moskal, and sued Watson in negligence. The district court ordered the parties to proceed to non-binding arbitration pursuant to Minn. R. Gen. Pract. 114. The
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Jimmy Lee Golden et al., Appellants, vs. Leland Watson, Respondent. C5-96-1840, Court of Appeals Unpublished, June 10, 1997.

arbitration hearing convened on March 15, 1996. Moskal was on vacation at the time of the hearing and had arranged for another attorney from his office, Joseph Crumley, to attend the arbitration with appellants. The arbitrator issued an award of $45,000 plus costs, which was filed and mailed to the parties on March 20, 1996. The award was accompanied by a letter stating: Please be advised that pursuant to Rule 114.09, within twenty (20) days after the arbitration award is filed, you may request a trial de novo by filing with the Court Administrator a request for trial, with proof of service of a copy upon all other parties appearing in the case. The 20-day period within which to request trial may not be extended. Moskal's office received the arbitrator's decision on March 25, 1996. Crumley delivered the award and accompanying letter to a member of the office support staff with instructions to request a trial de novo if the award was deemed insufficient. Neither Crumley nor the staff person contacted appellants or requested a trial. When Moskal returned from vacation on April 18, 1996, nine days after expiration of the period in which to request a trial, he learned that his office had taken no action with respect to the award. Moskal immediately contacted appellants, who asked him to request a trial. Moskal attempted to do so on April 18, 1996, but the court administrator refused to accept the request because the 20-day limitation period had expired. On April 22, 1996, appellants moved the district court to vacate the arbitration award and judgment under rule 60.02(a). The court denied the motion on the ground that appellants failed to show excusable neglect. Appellants appealed the judgment entered on the arbitration award and, after conceding that the judgment is not appealable, requested that this court construe the appeal to be from the denial of the motion to vacate the judgment. We granted appellants' request and have construed the appeal to be from the denial of appellants' motion to vacate the arbitration award. Appellants argue that the district court erred by concluding that appellants had not shown excusable neglect and by denying appellants' motion to vacate. DECISION A reviewing court will not reverse a district court's findings of fact unless clearly erroneous. Minn. R. Civ. P. 52.01. The denial of a motion to vacate will not be disturbed absent an abuse of discretion. Foerster v. Folland, 498 N.W.2d 459, 460 (Minn. 1993). Rule 60.02 provides in relevant part: On motion and upon such terms as are just, the court may relieve a party * * * from a final judgment * * * and may order a new trial or grant such other relief as may be just for the following reasons: (a) Mistake, inadvertence, surprise, or excusable neglect. Minn. R. Civ. P. 60.02(a) (emphasis added). In keeping with the spirit of Rule 60.02, in furtherance of justice, and pursuant to a liberal policy conducive to trial on the merits, the court should relieve a defendant from the consequences of his attorney's neglect in those cases where defendant-- * * * " (a) is possessed of a reasonable defense on the merits, (b) has a reasonable excuse for his failure or neglect to answer, (c) has acted with due diligence after notice of the entry of judgment, and (d) [shows] that no substantial prejudice will result to the other party." Finden v. Klaas, 268 Minn. 268, 271, 128 N.W.2d 748, 750 (1964) (citation omitted). A party must meet all four criteria in order to obtain relief under the rule. Nguyen v. State Farm Auto. Ins. Co., 558 N.W.2d 487, 490 (Minn. 1997). The supreme court formulated the excusable neglect test in the context of a default judgment, and courts most often apply the test on defendants' motions to vacate. See, e.g., Nguyen, 558 N.W.2d at 490-91; Finden, 268 Minn. at 27172, 128 N.W.2d at 750-51; Hinz v. Northland Milk & Ice Cream Co., 237 Minn. 28, 30-31, 53 N.W.2d 454, 456 (1952). As a result, the first element is cast in terms of whether a party has a meritorious defense. However, courts

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Jimmy Lee Golden et al., Appellants, vs. Leland Watson, Respondent. C5-96-1840, Court of Appeals Unpublished, June 10, 1997.

have also applied the test where plaintiffs seek relief under rule 60.02(a). See, e.g., Nelson v. Siebert, 428 N.W.2d 394, 395 (Minn. 1988) (holding that district court abused its discretion by denying motion to vacate under rule 60.02(a) where moving party demonstrated all four excusable neglect criteria); Pearce v. Lindstrom, 443 N.W.2d 857, 860 (Minn. App. 1989) (vacating judgment on ground of excusable neglect). Before a court will vacate a judgment under rule 60.02(a), the moving party must establish that it has a meritorious claim. Charson v. Temple Israel, 419 N.W.2d 488, 491 (Minn. 1988). In Charson, the court addressed the question of whether the moving party would have a reasonable claim for damages if the court vacated the dismissal of the moving party's action. In Finden, the court asked whether the moving party would have a reasonable defense if the court vacated the default judgment. In Charson, the finding that the moving party had a reasonable claim on the merits amounted to a finding that the moving party had a reasonable claim to more than the zero damages awarded in the dismissal with prejudice. Similarly, in Finden, the finding that the moving party had a reasonable defense on the merits amounted to a finding that it had a reasonable claim for a downward change in the default judgment against it. Thus the real issue with respect to the first excusable neglect criterion is whether the moving party has a reasonable claim for a change in the arbitrator's award. Here, the question is whether appellants have a reasonable claim for more than the $45,000 awarded. Appellants contend that the arbitration award is insufficient compensation for Jimmy Golden's allegedly serious and permanent injuries and Janice Golden's "loss of services, society and companionship." Appellants did incur $16,000 in medical expenses and did introduce a letter detailing the nature and extent of Jimmy Golden's injuries, but they presented no evidence suggesting with any particularity that the damage award was not full compensation given the wide discretion accorded fact-finders on evaluating the subjective aspects of a plaintiff's claim. Based on the evidence, the district court apparently found that the damage award was fair compensation. On this record, we cannot say that the district court's finding on this issue was erroneous. The excusable neglect test requires the moving party to demonstrate all four criteria in order to obtain relief from the court. Because appellants did not prove they had a reasonable claim for a change in their damage award, the district court did not abuse its discretion by denying appellants' motion to vacate. Affirmed. [ ] * Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI,

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