                         This opinion will be unpublished and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
                                    A15-2041

                                  Thomas M. Fafinski,
                                     Respondent,

                                           vs.

                                     Jaren Johnson,
                                       Appellant.

                                Filed August 15, 2016
                                      Affirmed
                               Smith, Tracy M., Judge

                             Dakota County District Court
                             File No. 19HA-CV-14-4686

Nathan W. Nelson, Steven V. Rose, Virtus Law, PLLC, Brooklyn Park, Minnesota (for
respondent)

Jaren L. Johnson, Johnson Law Office, PLLC, Edina, Minnesota (attorney pro se)

      Considered and decided by Reilly, Presiding Judge; Smith, Tracy M., Judge; and

Klaphake, Judge.

                        UNPUBLISHED OPINION

SMITH, TRACY M., Judge

      On appeal from default and attorney-fee judgments against him, appellant Jaren

Johnson argues that the district court erred by (1) entering default judgment against him



 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
when he had “otherwise defended” and (2) granting respondent Thomas M. Fafinski’s

request for attorney fees when the court did not cite to any facts supporting its conclusion

that he “repeatedly asserted positions that were non-meritorious and brought to cause

unnecessary delay.” Because the record supports the findings “that Johnson’s overall

course of conduct suggests intentional delay and a disregard for procedural rules” and that

Johnson “acted in bad faith and engaged in vexatious litigation,” we affirm.

                                           FACTS

         In 2005, Fafinski sold his law firm to Johnson. Fafinski continued to work for the

firm as an employee until January 2010. In 2010, Fafinski sued the firm and Johnson

personally, alleging that the firm had failed and refused to pay him money he had earned

as an employee and as a minority shareholder of the firm. From 2011 through 2013, the

district court entered several judgments in favor of Fafinski and against the firm and

Johnson.1

         According to Fafinski, he “under[took] significant efforts to collect” on these

judgments, including serving requests for production of documents and seeking deposition

testimony from Johnson. In March 2014, after being ordered by the court, the firm and

Johnson provided Fafinski with their 2007 to 2012 tax returns.2 Based on the information

that was provided in these tax returns, Fafinski discovered that the firm and Johnson had



1
 These judgments included sanctions against the firm and Johnson, in the form of attorney
fees to Fafinski, because the firm and Johnson did not comply with Fafinski’s discovery
requests.
2
    Fafinski did not receive complete tax returns for 2007, 2009, and 2012 until April 2015.

                                              2
transferred assets from 2007 to 2010 and that Johnson had directed the firm to make two

transfers, totaling over one-half million dollars, to him in 2011 and 2012.

       In November 2014, Fafinski sued Johnson personally, alleging, among other things,

that the transfers made by the firm to Johnson were fraudulent under Minnesota’s Uniform

Fraudulent Transfer Act. See Minn. Stat. §§ 513.41-.51 (2014).3 In December 2014, in

lieu of an answer, Johnson filed a motion to dismiss Fafinski’s complaint. In March 2015,

shortly after Fafinski filed a motion for summary judgment, Johnson filed an amended

motion to dismiss and scheduled the motion to be heard on April 27. Johnson also sought

sanctions against Fafinski and Fafinski’s attorneys under Minn. R. Civ. P. 11. After a

hearing, the district court denied Johnson’s motion to dismiss, and Johnson filed a motion

for summary judgment that same day. The district court also denied Johnson’s motion for

rule 11 sanctions.

       On June 4, the district court heard the parties’ cross motions for summary judgment.

At the hearing, Fafinski’s counsel informed the district court that Johnson had failed to

answer the complaint. After Johnson explained that he had forgotten to submit an answer

following the denial of his motion to dismiss, Fafinski’s counsel asked the district court to

find Johnson in default and enter judgment in favor of Fafinski. The district court denied

this request. Immediately following the hearing, Johnson filed an answer. The answer had


3
 “In 2015, the Minnesota Uniform Fraudulent Transfer Act was amended to the Minnesota
Uniform Voidable Transactions Act.” Landmark Cmty. Bank, N.A. v. Klingelhutz, 874
N.W.2d 446, 448 n.1 (Minn. App. 2016) (citing Minn. Stat. §§ 513-.41-.51 (Supp. 2015)),
review denied (Minn. Apr. 27, 2016). Because the effective date and application of the
amendments do not apply to a transfer made before August 1, 2015, the amended statute
does not apply to this case. Id. (citing 2015 Minn. Laws, ch. 17, § 13).

                                             3
several defects. First, the answer purported to preserve affirmative defenses pending

completion of discovery when discovery had closed in May 2015. Second, it asserted the

affirmative defenses of res judicata and collateral estoppel, which had already been raised

and denied in the motion to dismiss. Finally, the answer made several averments on behalf

of “Plaintiff.”

       On June 12, Fafinski’s counsel wrote a letter to Johnson objecting to the answer as

untimely and procedurally improper under Minn. R. Gen. Pract. 109. The letter directed

Johnson that, under rule 109, he was required to seek leave from the district court to submit

a late answer and must also submit an affidavit of merit. The letter also stated that Fafinski

would move to strike the answer if it was not withdrawn by June 16. On June 16, Johnson

filed an affidavit of merit, together with a motion for leave to file an answer. Johnson did

not include notice of a hearing for the motion, but instead asked the district court to rule

without a hearing. On June 25, Fafinski’s counsel filed a letter with the district court

objecting to Johnson’s motion for leave to file an answer without a hearing because, under

Minn. R. Gen. Pract. 115.04, a hearing is required.

       On July 1, each party’s motion for summary judgment was denied. In its order

denying the motions, the district court instructed Johnson to schedule a hearing for his

motion for leave to file an answer if he wanted the motion to be considered. Three weeks

later, on July 24, Johnson filed an amended motion for leave to file an answer and

scheduled the motion to be heard on August 11.             On August 4, Fafinski filed a

memorandum opposing Johnson’s motion, arguing that Johnson’s motion and answer were

defective.


                                              4
       On August 10, one day before the hearing, Johnson filed an amended affidavit of

merit with an amended answer attached. Johnson also attached bank statements that had

not previously been disclosed. The amended answer remedied the clerical errors in the

original answer regarding averments on behalf of “Plaintiff” and removed all affirmative

defenses and the statement reserving such defenses pending discovery. In his amended

affidavit of merit, Johnson stated that he did “not recall ever having brought a Rule 12

Motion to Dismiss and [he] was unfamiliar with the rules applicable to answering after a

ruling on the motion was made.” He also stated that he failed to answer the complaint

because he was focused on “other motions in process in this case.” Fafinski’s counsel

objected to the amended affidavit of merit, the amended answer, and the bank statements

as being untimely filed.

       After the hearing, the district court denied Johnson’s motion for leave to file an

answer and struck the trial from the court’s calendar. In its order, the district court,

applying the factors for relief from default judgment, see Finden v. Klaas, 268 Minn. 268,

271, 128 N.W.2d 748, 750 (1964), concluded that Johnson had failed to establish excusable

neglect. With respect to two of the factors, the district court concluded that Johnson—a

practicing lawyer—had no reasonable excuse for his failure to timely answer and had not

acted with due diligence, stating “[i]t is the opinion of this [c]ourt that Johnson’s overall

course of conduct suggests intentional delay and a disregard for procedural rules.” The

district court’s order stated that Fafinski may “mak[e] an application for a default hearing.”

       Fafinski moved for default judgment against Johnson, and, following a hearing, the

district court entered default judgment in the amount of $39,083. In its order, the district


                                              5
court stated that its “prior order denying [Johnson’s motion for leave to file an answer]

effectively put [Johnson] in default for ‘failing to plead or otherwise defend’ within the

time allowed” and explained that “[t]his [c]ourt has already established—based upon the

‘Finden’ factors—that [Johnson’s] failure to answer the [c]omplaint was not due to

excusable neglect.” Fafinski also filed a motion for attorney fees, based on Johnson’s

conduct in the current action, and the district court awarded Fafinski $40,000 in fees.

       Johnson appeals.

                                     DECISION

                                             I.

       Johnson argues that the district court abused its discretion by granting default

judgment against him because he had “otherwise defended” within the meaning of Minn.

R. Civ. P. 55.01 by making various filings in the case, including “a Rule 12 Motion to

Dismiss, a Motion for Rule 11 Sanctions, a Motion for Summary Judgment, a Joint

Statement of the Case, and Motions in Limine,” and by participating in discovery.

       The decision whether to grant or deny a motion for a default judgment lies within

the discretion of the district court, and we will not reverse it absent an abuse of that

discretion. Black v. Rimmer, 700 N.W.2d 521, 525 (Minn. App. 2005), review dismissed

(Minn. Sept. 28, 2005). Minn. R. Civ. P. 55.01 states that “[w]hen a party against whom a

judgment for affirmative relief is sought has failed to plead or otherwise defend within the




                                             6
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.”4

       In Black, we interpreted the phrase “otherwise defend” in rule 55.01 by looking to

federal caselaw interpreting Fed. R. Civ. P. 55(a). 700 N.W.2d at 525-26; see DLH, Inc.

v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (using United States Supreme Court’s

interpretation of federal rules of procedure to provide guidance on interpretation of parallel

state rules of procedure). We stated that “[u]nder 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.’” Black, 700

N.W.2d at 526 (quoting Bass v. Hoagland, 172 F.2d 205, 210 (5th Cir. 1949)). We held

that, “[t]o successfully defend against a default judgment, a party who has failed to plead

and contends that he or she has ‘otherwise defended’ within the meaning of Minn. R. Civ.

P. 55.01, must, at a minimum, have made a rule 12 or other defensive motion.” Id. at 524.

       Johnson made defensive motions, thus satisfying the minimum requirement

identified in Black, but the district court nevertheless concluded that he failed to defend.

The parties have not cited, and our research has not found, any Minnesota case addressing



4
  A district court should deny a motion for default judgment when the defendant has
established the following four factors: (1) a reasonable defense on the merits; (2) a
reasonable excuse for the failure to act; (3) action with due diligence after the entry of
judgment; and (4) lack of prejudice to the opposing party. Coller v. Guardian Angels
Roman Catholic Church of Chaska, 294 N.W.2d 712, 715 (Minn. 1980); see also Finden,
268 Minn. at 271, 128 N.W.2d at 750. Johnson does not argue in his brief that the district
court erred in its application of the Finden factors; therefore, this issue need not be
considered. See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (stating that issues
not briefed on appeal need not be considered).

                                              7
whether a party can be found to have failed to defend under rule 55.01 by virtue of the

party’s conduct after pleading or making a defensive motion. Federal courts, however,

have addressed the issue, and we find the Eighth Circuit caselaw persuasive. The Eighth

Circuit has stated that “[d]efault judgment for failure to defend is appropriate when the

party’s conduct includes ‘willful violations of court rules, contumacious conduct, or

intentional delays.’” Ackra Direct Mktg. Corp. v. Fingerhut Corp., 86 F.3d 852, 856 (8th

Cir. 1996) (quoting United States v. Harre, 983 F.2d 128, 130 (8th Cir. 1993); see also City

of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 129-30 (2d Cir. 2011) (affirming

entry of default judgment under rule 55(a) against defendants who answered plaintiff’s

complaint, appeared in litigation for several years, and moved to dismiss multiple times,

but subsequently failed to defend).

       The record shows that Johnson engaged in “willful violations of court rules,

contumacious conduct, or intentional delays.” See Ackra, 86 F.3d at 856 (quotation

omitted). Johnson, a veteran attorney, failed to file an answer within ten days after his

motion to dismiss was denied. See Minn. R. Civ. P. 12.01 (stating that “[i]f the court denies

[a motion to dismiss] . . . the responsive pleading shall be served within 10 days after

service of notice of the court’s action”). He only submitted an answer after Fafinski

informed him that he had failed to do so. When he did file his answer, it contained clerical

errors, purported to assert affirmative defenses that had already been denied in the court’s

denial of his motion to dismiss, and reserved the right to assert affirmative defenses

pending discovery when the time for discovery had already passed. Prior to submitting his

answer, Johnson failed to move for leave to file an untimely answer as required by Minn.


                                             8
R. Gen. Pract. 109, and only did so after being warned by Fafinski’s counsel that Fafinski

would move to strike if Johnson did not file a motion and include the required affidavit of

merit. Johnson then moved for leave to file an answer, but did not request a hearing as

contemplated by Minn. R. Gen. Pract. 115.04. Johnson only scheduled a hearing three

weeks after the district court directed him to do so. After briefing on the motion was

complete, and just one day before the scheduled hearing, Johnson made untimely filings of

an amended answer, an amended affidavit, and previously undisclosed bank statements.

This record supports the district court’s conclusion “that Johnson’s overall course of

conduct suggests intentional delay and a disregard for procedural rules” and demonstrates

a failure to defend. The district court did not abuse its discretion by entering default

judgment against Johnson.

                                            II.

      Johnson argues that the district court abused its discretion by granting Fafinski’s

request for attorney fees, because “[t]here was no citation to any facts supporting the

holding that [Johnson] repeatedly asserted positions that were non-meritorious or brought

to cause unnecessary delay.” We will not reverse a district court’s award of attorney fees

unless the district court abused its discretion by making the award. Becker v. Alloy

Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (Minn. 1987).

      The district court has the authority to impose sanctions, including attorney fees,

under statute and as part of its inherent power. Peterson v. 2004 Ford Crown Victoria, 792

N.W.2d 454, 462 (Minn. App. 2010). “Attorney fees may be an appropriate sanction when

a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Id.


                                            9
(quotation omitted). To award attorney fees under its inherent power, the district court

must find that the party against whom fees were awarded acted in bad faith. Id.

       In granting Fafinski’s motion for attorney fees, the district court found that Johnson

had “acted in bad faith and engaged in vexatious litigation.” It further found that Johnson

“repeatedly asserted positions that were non-meritorious and brought to cause unnecessary

delay even after [j]udgment had been entered.” The district court explained that “[t]he

inherent authority of the court allows the award of attorney fees as a sanction.”

       The record supports the district court’s finding that Johnson “acted in bad faith and

engaged in vexatious litigation.” As stated above, Johnson, a veteran attorney, failed to

submit a timely answer after his motion to dismiss was denied. He filed an answer only

when Fafinski’s counsel brought the failure to his attention. The answer he filed contained

numerous errors. Johnson filed the untimely answer without seeking leave to do so, as

required by the rules. He only brought the motion for leave to file when warned by

Fafinski’s counsel that it was required, and even then he did not appropriately request a

hearing. Johnson finally scheduled a hearing when directed to do so by the district court,

and then, one day before the hearing and one month before trial was scheduled to begin,

untimely submitted an amended answer, amended affidavit of merit, and previously

undisclosed bank statements. Further, the record supports the district court’s finding that

“[Johnson] repeatedly asserted positions that were non-meritorious and brought to cause

unnecessary delay even after [j]udgment had been entered.” Although the district court

had already rejected Johnson’s argument that Fafinski’s claims were barred by the

doctrines of res judicata and collateral estoppel in its order denying Johnson’s motion to


                                             10
dismiss, in his memorandum of law in opposition to Fafinski’s motion for attorney fees

Johnson again suggested that Fafinski’s claims were barred by the doctrines of res judicata

and collateral estoppel. The district court did not abuse its discretion by awarding attorney

fees to Fafinski.

       Affirmed.




                                             11
