This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A15-1910

                       Anita Haider, as Personal Representative
                             of the Estate of Evi E. Kari,
                                     Respondent,

                                         vs.

                                    Kenneth Kari,
                                     Appellant.

                                Filed July 11, 2016
                        Affirmed in part and reversed in part
                                   Hooten, Judge

                              Lake County District Court
                               File No. 38-CV-14-363

Martin A. Carlson, Law Offices of Martin A. Carlson, Ltd., Minneapolis, Minnesota; and

Robert V. Espeset, Espe Law, PLLC, White Bear Lake, Minnesota (for respondent)

Kenneth Kari, Two Harbors, Minnesota (pro se appellant)

      Considered and decided by Halbrooks, Presiding Judge; Hooten, Judge; and Smith,

John, Judge.




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                         UNPUBLISHED OPINION

HOOTEN, Judge

       Pro se appellant challenges the district court’s denial of his motion to vacate a

default judgment entered against him in a civil action, arguing that the district court abused

its discretion by denying the motion. Because there is no merit to appellant’s claims that

the default judgment should be vacated on the basis that it was a product of respondent’s

misrepresentations, his excusable neglect, and errors of law, we conclude that the district

court did not abuse its discretion in denying appellant’s motion on these grounds.

However, because there is insufficient evidentiary support for doubling a portion of the

damages under 

 (2014), we conclude that the district court abused its

discretion in not vacating the default judgment in part. Therefore, we affirm in part and

reverse in part.

                                          FACTS

       Evi E. Kari, the decedent, died on May 7, 2012, and was survived by three adult

children, appellant Kenneth Kari, respondent Anita Haider, and Ronald Kari. In her will,

decedent provided that all of her assets not devised by specific bequest were to be divided

equally among her surviving children and nominated appellant as her personal

representative. The current dispute involves the decedent’s assets that were not devised by

specific bequest, primarily consisting of financial accounts and three vehicles. In total,

these disputed assets are valued at $89,456.44. The largest of the disputed assets is a

certificate of deposit (CD) that is valued at $64,822.55.




                                              2
       Respondent filed the decedent’s will with the probate court in December 2012.

Even though appellant had been nominated as the personal representative under the will,

the probate court appointed respondent as personal representative of the decedent’s estate

in June 2013. Appellant was deposed in the probate matter on September 6, 2013. In

January 2014, respondent’s counsel sent a letter to appellant’s then-counsel, demanding

that appellant turn over the disputed assets to the estate.

       On April 17, 2014, respondent filed an inventory with the district court that included

the disputed assets. By two orders filed on July 10, 2014, and August 4, 2014, the district

court approved the inventory and ordered appellant to turn over all of the assets of the estate

identified in the inventory to respondent as the personal representative within ten days of

the orders.

       In order to recover the value of the disputed assets, on August 27, 2014, respondent

commenced a separate civil action in her capacity as personal representative by effecting

personal service of the summons and complaint upon appellant.              In the complaint,

respondent claimed that appellant was indebted to the estate for double damages pursuant

to 

 and requested that appellant be ordered to pay respondent’s

attorney fees pursuant to 

 (2014). On September 3, 2014, seven

days after being served with the complaint, appellant, who was unrepresented at the time

he was served with the summons and complaint, sent a handwritten letter addressed to three

state agencies and the Internal Revenue Service (IRS) and carbon copied respondent’s

attorney on the letter. The subject line of this letter read as follows: “Mother’s Probate—

Theft, Attempted Extortion, Fraud and Slander. By [respondent’s attorney].” The letter


                                               3
also stated, “Besides the items shown in the subject [l]ine above, swindling, abuse and

harassment will be included” and “[t]here are a lot of ‘red flags’ to report.”

       Respondent served appellant notice of her motion for a default judgment or for

summary judgment on September 16, 2014, and with her supporting memorandum of law

on October 30, 2014. Appellant did not respond to the motion and made no appearance

when the district court heard respondent’s motion on December 2, 2014. In an order dated

December 8, 2014, the district court granted respondent’s motion and entered judgment in

favor of respondent in the amount of $181,167.88. This sum consisted of $89,456.44 in

damages for the value of the disputed assets, an equivalent amount as double damages

pursuant to section 525.392, and $2,255 in attorney fees pursuant to section 524.3-720.

Appellant did not appeal the default judgment.

       Respondent began proceedings to enforce the judgment in the spring of 2015. On

August 4, 2015, appellant, now represented by counsel, filed a motion to vacate the

judgment. By an order filed on September 28, 2015, the district court denied appellant’s

motion to vacate the judgment. This appeal followed.

                                      DECISION

       Appellant argues that the district court abused its discretion by denying his motion

to vacate the default judgment pursuant to Minn. R. Civ. P. 60.02. Rule 60.02 provides

that a district court may vacate a final judgment because of misrepresentation of an adverse

party, excusable neglect, or “[a]ny other reason justifying relief from the operation of the

judgment.” “Because the goal of litigation is to reach a resolution of disputes on the merits,

courts should be liberal in opening default judgments.” Westfield Ins. Co. v. Wensmann,


                                              4
Inc., 

 (Minn. App. 2013) (quotation omitted), review denied (Minn.

Feb. 26, 2014). Whether to open a judgment rests within the district court’s discretion and

is reviewed for an abuse of discretion. Palladium Holdings, LLC v. Zuni Mortg. Loan Trust

2006-OA1, 

 (Minn. App. 2009), review denied (Minn. Jan. 27, 2010).

       A district court’s discretion in vacating a judgment, however, is limited by the

application of the four Hinz factors. Northland Temporaries, Inc. v. Turpin, 

 (Minn. App. 2008), review denied (Minn. Apr. 29, 2008). The Hinz factors

provide that when considering whether to grant a movant relief from a judgment, a court

must consider whether the movant has: “(1) a reasonable defense on the merits; (2) a

reasonable excuse for the failure or neglect to answer; (3) acted diligently after notice of

entry of the judgment; and (4) demonstrated that no prejudice will occur to the judgment

creditor.” 

 (citing Hinz v. Northland Milk & Ice Cream Co., 

, 

 (1952)). We may reverse a district court’s denial of a motion to vacate

if the district court acts under a misapprehension of law or fact.            See Northland

Temporaries, 744 N.W.2d at 402–05 (reversing denial of motion to vacate where district

court misapprehended law and fact when applying two Hinz factors).

Misrepresentation of Adverse Party

       First, appellant argues that the default judgment should be vacated because of

respondent’s misrepresentations. The district court awarded respondent double damages

pursuant to section 525.392. This section provides that “[i]f any person embezzles,

alienates, or converts to personal use any of the personal estate of a decedent or ward before




                                              5
the appointment of a representative, such person shall be liable for double the value of the

property so embezzled, alienated, or converted.” 

 (emphasis added).

       While appellant argues that respondent obtained the default judgment by

misrepresenting to the district court that appellant had converted estate assets before

respondent’s appointment as personal representative, he identifies no specific

misrepresentation that respondent or her counsel perpetrated on the district court. While

appellant identifies alleged errors made by the district court in applying the law, rule 60.02

states that vacation of a default judgment may be granted on the grounds of

“misrepresentation[] or other misconduct of an adverse party.” Minn. R. Civ. P. 60.02(c)

(emphasis added). Because appellant fails to identify any misrepresentation of respondent

with regard to the district court’s finding of double liability, this does not provide a basis

for vacating the default judgment.

       Appellant argues that respondent obtained the default judgment by misrepresenting

to the district court that he had not served an answer to the complaint. This argument is

without merit. Respondent attached appellant’s alleged answer, the September 3, 2014

letter, as an exhibit to an affidavit in support of her motion for default judgment.

Respondent’s attorney also informed the district court of appellant’s letter at the default

judgment hearing. Because respondent presented appellant’s letter to the district court, she

did not misrepresent to the district court that appellant had not answered the complaint, as

the district court was made aware of the letter and had the opportunity to determine

whether, as a legal issue, the letter constituted an answer.




                                              6
       Furthermore, the district court did not err in determining that appellant’s letter was

not an answer. Minn. R. Civ. P. 8.02 states that “[a] party shall state in short and plain

terms any defenses to each claim asserted and shall admit or deny the averments upon

which the adverse party relies.” “Each averment of a pleading shall be simple, concise,

and direct.” Minn. R. Civ. P. 8.05(a).

       Appellant was served with the summons and complaint on August 27, 2014.

Appellant argues that his September 3, 2014 letter constitutes an answer. Appellant’s

“answer” consisted of a handwritten letter addressed to three state agencies and the IRS.

Respondent’s attorney was carbon copied on the letter. The subject line of the letter read

“Mother’s Probate—Theft, Attempted Extortion, Fraud and Slander. By [respondent’s

attorney.]” The letter then stated, “An accurate account in [l]etter form will be forthcoming

to all government offices as shown above. Besides the items shown in the subject [l]ine

above, swindling, abuse and harassment will be included.” The letter then included a

recitation of appellant’s professional accomplishments before stating that “[t]here are a lot

of ‘red flags’ to report.” The district court concluded that the letter did not constitute an

answer and granted respondent’s motion for default judgment.

       The Minnesota Supreme Court stated in Walsh v. U.S. Bank, N.A. that “Minnesota

is a notice-pleading state and does not require absolute specificity in pleading, but rather

requires only information sufficient to fairly notify the opposing party of the claim against

it.” 

, 604–05 (Minn. 2014) (quotation omitted). We conclude that the

district court did not err in determining that appellant’s letter was not an answer, as the




                                             7
information it contained was not sufficient to notify respondent of appellant’s response to

the claims alleged in the complaint.

       Appellant next argues that respondent’s memorandum of law in support of her

default judgment misstated the law regarding what is required for a document to constitute

an answer. But, as respondent presented the district court with the caselaw that allegedly

supported its interpretation of the law, this cannot be considered a misrepresentation to the

court. Instead, the district court had the opportunity to review the law cited by respondent

to determine whether it supported respondent’s position. We conclude that the district

court did not abuse its discretion by determining that respondent’s alleged

misrepresentations did not provide a basis for vacating the default judgment.

Excusable Neglect

       Appellant argues that the default judgment was obtained as a result of his excusable

neglect and that the district court therefore abused its discretion by denying his motion to

vacate. Specifically, appellant argues that his failure to respond was excusable neglect

because he suffers from macular degeneration and has very poor eyesight, causing him

difficulties in reading documents. In denying appellant’s motion to vacate the default

judgment, the district court considered the Hinz factors and determined that they did not

weigh in favor of vacating the judgment.         Appellant asserts that the district court

erroneously applied the Hinz factors in denying his motion to vacate.

       As to the first factor, which requires that appellant have a reasonable defense on the

merits, the district court stated that appellant “may have had a reasonable defense on the

merits with regard to some of the claims made by the estate, but did not have a reasonable


                                             8
claim on other aspects.” Appellant argues that he has a reasonable defense on the merits

because the evidence shows that the estate was not entitled to all of the amounts claimed

or to a double recovery. There is substantial evidence in the record that appellant converted

the largest of the disputed assets, the CD. Although the names of both the decedent and

appellant were on the account, appellant testified in his deposition in the probate matter

that the money in the account belonged to the decedent and that her intent was that the CD

would be divided equally among her children upon her death. Furthermore, respondent

provided evidence that appellant liquidated the CD on the date of its maturity, despite a

court order requiring that it be turned over to the estate. Appellant offers no meaningful

defense for refusing to turn over the CD to the estate and, instead, liquidating it. Likewise,

appellant offers very little defense regarding respondent’s claim that he converted the

remaining disputed assets. Rather, appellant argues that he has a defense to being subject

to double liability under section 525.392 because he acted in good faith with regard to the

estate’s assets before respondent was appointed personal representative.

       The Minnesota Supreme Court has stated there is a good faith defense to double

liability under section 525.392:

              Where there is an honest belief that the property belongs to the
              one charged with the conversion of it or where he honestly
              believes that he has a right to possession of it, he should not be
              subjected to double liability merely because he is unable
              ultimately to establish such ownership or right of possession.
              Cases do arise in which there is a genuine question of
              ownership. . . . A party who believes that he is the owner of
              property should not be subjected to double liability merely
              because he asserts his right and happens to lose in the end, if
              he acts in good faith.



                                              9
Chard v. Darlington, 

, 498–99, 

 (1955).

       Appellant does not dispute that he failed to turn over all of the disputed assets to

respondent as the personal representative as he had been ordered to do or that he converted

some of the disputed assets. However, because he asserts a defense of good faith to double

liability under section 525.392 on the basis that he was acting on behalf of the estate as the

personal representative named in the decedent’s will, this factor seems to weigh somewhat

in favor of vacating the judgment.

       Regarding the second factor, requiring a reasonable excuse for the failure to answer,

the district court concluded that there was no reasonable excuse. Appellant argued to the

district court that he had a reasonable excuse because he has bad eyesight and the complaint

and the default judgment motion were printed in small font. The district court rejected this

argument, stating that appellant’s excuse was not “a reasonable excuse for not responding

in any substantive way to the complaint.” The district court further observed that appellant

“apparently was able to read [the complaint] well enough to have it serve as a basis for

complaints he made to the Office of Lawyer’s Professional Responsibility . . . , the IRS,

and other government agencies.” We conclude that the record supports the district court’s

determination that appellant’s poor eyesight did not provide a reasonable basis for failing

to respond to the complaint.

       The third factor requires that the movant act diligently after the entry of judgment.

The final judgment against appellant was entered on December 8, 2014, and appellant filed

his motion to vacate on August 4, 2015, almost eight months later. As the district court

observed, appellant filed his motion to vacate only after respondent began efforts to enforce


                                             10
the judgment. Rule 60.02 requires that a motion to vacate on the ground of excusable

neglect be made within a reasonable time, and “not more than one year after the judgment

. . . was entered.” Minn. R. Civ. P. 60.02. Because appellant moved to vacate the default

judgment nearly eight months after the entry of judgment, despite being served with the

summons and complaint, the notice of a hearing for a default or summary judgment motion,

the motion papers, and the notice of entry of judgment, the district court properly

determined that appellant’s showing on this factor does not weigh in favor of vacation. See

Reid v. Strodtman, 

 (Minn. App. 2001) (concluding that movant failed

to act diligently to vacate default judgment when movant was aware of hearing date but

brought motion to vacate seven months later).

       Finally, the fourth factor requires that the moving party demonstrate that no

prejudice will occur to the judgment creditor if the motion to vacate is granted. Ordinarily,

the delay and expense of additional litigation are not sufficient to show prejudice under

rule 60.02. Hovelson v. U.S. Swim & Fitness, Inc., 

 (Minn. App.

1990), review denied (Minn. Mar. 16, 1990). However, this court has created an exception

to this rule:

                If it is perceived by the [district] court that there is intentional
                ignoring of process, the additional expense must be viewed in
                a different light. To force a claimant to go to the expense of a
                hearing in court, to gather evidence and expert testimony and
                the concomitant preparation, all either by inexcusable neglect
                or by intent, colors the prejudice with a deeper hue.

                                                11
       Here, the district court concluded that appellant had not met his burden of showing

that respondent would not suffer prejudice. Specifically, the district court stated that

appellant had been converting estate assets for over three years and that “[i]t will likely be

impossible to untie this Gordian knot, even if one could presume that [appellant] would be

predisposed to cooperate with [respondent].” Here, as the district court noted, appellant

failed to file an answer or participate in the underlying proceedings. Moreover, the district

court stated that, “[i]n [its] view, [appellant’s] motion [to vacate] only came about because

[respondent] was attempting to collect on the judgment in May and June of 2015.” Under

these circumstances, the district court properly determined that appellant did not meet his

burden of establishing lack of prejudice.

       Because appellant has demonstrated, at most, one of the four Hinz factors, we

conclude that the district court did not abuse its discretion by concluding that excusable

neglect did not provide a basis for vacating the default judgment.

Any Other Reason Justifying Relief

       Appellant argues that the default judgment should be vacated under Minn. R. Civ.

P. 60.02(f), which provides that a district court may vacate a judgment for “[a]ny other

reason justifying relief from the operation of the judgment.” “Relief under this residual

clause is appropriate when the equities weigh heavily in favor of the party seeking relief

and relief is required to avoid an unconscionable result.” Hovelson, 450 N.W.2d at 142–

43. Appellant argues that the default judgment should be vacated because the district court

committed judicial error in ordering that he pay respondent’s attorney fees and because the

district court granted the default judgment for double the value of the disputed assets where


                                             12
there was no evidence that the assets had been converted before the appointment of the

personal representative, as required for double liability under section 525.392.

       With regard to the attorney fees, appellant correctly argues that the district court, in

its order granting the default judgment, erred by ordering that appellant personally pay the

attorney fees of respondent in her capacity as personal representative of the estate in the

amount of $2,255, pursuant to section 524.3-720. Section 524.3-720 provides that a

personal representative who prosecutes a proceeding in good faith is entitled to receive

certain expenses, including attorney fees, from the estate, not from an individual.

Therefore, the district court erred in ordering appellant to pay respondent’s attorney fees.

Upon appellant’s motion to vacate the default judgment, the district court acknowledged

appellant’s argument regarding the attorney fees, but determined that the arguments were

in the nature of a motion for reconsideration.

       Rule 60.02 is not the proper means to raise alleged judicial error. See Reid, 

; Sullivan v. Spot Weld, Inc., 

 (Minn. App. 1997) (“Rule

60.02 is limited to the specific situations provided for in the rule itself and does not allow

for general correction of judicial error.” (quotation omitted)), review denied (Minn. Apr.

27, 1997); Arzt v. Arzt, 

 (Minn. App. 1985) (“Rule 60.02 is intended

to correct mistake or inadvertence of a party, or to allow for newly discovered evidence

not to correct for judicial error.” (emphasis added)). The reasoning behind this rule is that

allowing for the correction of judicial error through rule 60.02 would effectively extend

the time for appeal beyond the deadlines provided for in the court rules. See Carter v.

Anderson, 

 (Minn. App. 1996). Because rule 60.02 cannot be used


                                              13
to correct judicial error, we conclude that the district court did not abuse its discretion by

refusing to vacate the default judgment because of the error regarding the award of attorney

fees.

        Although this court has stated that rule 60.02 cannot be used for the correction of

judicial error, we have granted relief under rule 60.02(f) where the default judgment was

entered despite a party’s failure to prove an element of their claim. See Wiethoff v.

Williams, 

 (Minn. App. 1987) (vacating default judgment of $20,000

where district court heard no evidence regarding plaintiff’s damages other than plaintiff’s

claims and where district court’s findings were primarily taken directly from complaint);

Hill v. Tischer, 

 (Minn. App. 1986) (concluding default judgment

should be vacated where plaintiff failed to show liability or explain how she arrived at

damages amount).

        A party seeking default judgment has the burden of proving every essential element

of his or her case. Hill, 

 (quotation omitted). In moving for a default

judgment, respondent presented evidence showing that appellant had failed to turn over the

disputed assets despite a request from respondent’s attorney and two court orders.

Respondent provided no evidence, however, regarding appellant’s conversion of a number

of the disputed assets before respondent was appointed personal representative of the

estate, as required for the imposition of double liability pursuant to section 525.392. As

respondent presented no evidence regarding the conversion of some of the disputed assets

before the appointment of the personal representative, we conclude that the district court

abused its discretion by failing to vacate the default judgment in part.


                                             14
       However, based on the record, we conclude that respondent presented sufficient

evidence to the district court in connection with its motion for default judgment for the

imposition of double liability with regard to three of the disputed assets. The record

contains some evidence that appellant converted these three assets before respondent was

appointed personal representative. Conversion is “an act of willful interference with

personal property, done without lawful justification by which any person entitled thereto

is deprived of use and possession.” DLH, Inc. v. Russ, 

 (Minn. 1997)

(quotation omitted).

       The record indicates that before June 2013, when respondent was appointed

personal representative, appellant traded in the decedent’s Ford Fusion and one of his own

vehicles in order to acquire a different vehicle for his personal use. There is evidence in

the record that appellant sold decedent’s Ford F-150 to himself before June 2013, turned

over one-third of the proceeds to his brother and set aside a share of the proceeds for his

sister but did not turn it over to her. The record also reflects that, shortly after the

decedent’s death in May 2012, appellant depleted one of her checking accounts by using

the funds to pay for his brother’s living expenses.         Because this evidence supports

respondent’s contention that appellant converted these assets before June 2013, we

conclude that the district court properly ordered judgment against appellant for double the

value of these assets. Even if the district court erred by concluding that appellant’s conduct

with regard to these assets constituted conversion, we would uphold the district court’s

imposition of double liability with regard to these assets because “[r]ule 60.02 . . . does not

allow for correction of judicial error.” Reid, 

.


                                              15
       However, the record contains no evidence that appellant converted the CD before

June 2013. Respondent argues that a voicemail that appellant left on her telephone on

January 20, 2013, demonstrates that appellant converted the CD. Appellant stated in the

voicemail that he was not going to give respondent one-third of the CD proceeds.

Respondent did not present this evidence to the district court, however, until her

memorandum in opposition to appellant’s motion to vacate the default judgment. At the

time of the default judgment, respondent had the burden of proving all of the elements of

her case, including damages. Hill, 

. “Rule 60.02 does not provide for

the introduction of evidence that was known to exist before judgment was entered.”

Sullivan v. Spot Weld, Inc., 

 (Minn. App. 1997), review denied (Minn.

Apr. 27, 1997). Because the voicemail was not part of the district court’s record at the time

the district court considered respondent’s default judgment motion, respondent may not

now rely on the voicemail in support of the district court’s imposition of double liability

for the value of the CD.

       But, even if we considered the voicemail, we would conclude that the district court

abused its discretion by not reducing the damages award by $64,822.55, the value of the

CD, because the voicemail does not constitute evidence that appellant converted the CD

before June 2013. It is undisputed that appellant was a joint owner with decedent on the

CD, although the money in the CD was decedent’s and decedent’s intention was that the

CD would be split equally between appellant and his two siblings. Although appellant

expressed his intention in the voicemail not to turn over one-third of the CD proceeds to

respondent, it is undisputed that appellant did not liquidate the CD until its maturation in


                                             16
July 2014, over a year after respondent was appointed as personal representative.

Therefore, appellant took no action before the appointment of the personal representative

that constituted interference with the CD such that the estate was deprived of possession of

the CD. If appellant had liquidated the CD and absconded with the proceeds before the

appointment, such action would constitute conversion. But, because appellant in no way

interfered with the CD before the appointment of the personal representative, the district

court abused its discretion by failing to vacate its imposition of double liability for the

conversion of the CD. Therefore, we reduce the default judgment by $64,822.55.

       There is also insufficient evidence in the record to support the imposition of double

liability for the remaining disputed assets of the estate, consisting of a second checking

account, a mutual fund, a credit union account, funeral memorials, a loan to Ronald Kari,

and a Ford Tempo. Because there is no evidence indicating that any of these assets were

converted by appellant before respondent was appointed personal representative, we

conclude that the district court erred by failing to vacate its imposition of double liability

for the conversion of these assets. Therefore, we reduce the default judgment by an

additional $10,182.89, the value of these assets, for a total deduction of $75,005.44.

       In summary, the district court did not abuse its discretion by denying appellant’s

motion to vacate the default judgment on the grounds of misrepresentation or excusable

neglect. Likewise, the district court did not abuse its discretion in concluding that the

erroneous award of attorney fees did not constitute a basis for vacating the default

judgment. Under these unique circumstances, however, where respondent presented no

evidence indicating appellant’s liability under section 525.392 for a number of the disputed


                                             17
assets, we conclude that the district court abused its discretion by refusing to vacate the

judgment in part under rule 60.02(f). While there was sufficient evidence in the record to

support the imposition of damages for appellant’s conversion of the assets, there was

insufficient evidence to support the imposition of double liability pursuant to section

525.392 for some of the assets.        Accordingly, we reduce the default judgment by

$75,005.44 relative to those assets.

       Affirmed in part and reversed in part.




                                            18