Tracy Nuthak, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1452

Tracy Nuthak,
Respondent,

vs.

Scott Nuthak,
Appellant.

Filed August 15, 2022
Affirmed
Hooten, Judge*

Koochiching County District Court
File No. 36-CV-20-466

Tracy Lynn Nuthak, International Falls, Minnesota (pro se respondent)

Scott E. Nuthak, Ray, Minnesota (pro se appellant)

Considered and decided by Slieter, Presiding Judge; Johnson, Judge; and Hooten,
Judge.
NONPRECEDENTIAL OPINION
HOOTEN, Judge
Appellant Scott Nuthak appeals the district court’s denial of his request for a hearing
on the ex parte harassment restraining order (HRO) issued to protect respondent Tracy

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

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Nuthak. Because appellant failed to act with due diligence after learning of an alleged
mistake by the court clerk, we affirm.
FACTS
These facts are undisputed. In July 2020, respondent petitioned for an HRO against
appellant, her estranged husband. The district court granted an ex parte HRO later that
month. The HRO expired in July 2022 and prevented appellant from being within one
block of respondent’s home, job, or the home of respondent’s father.
Appellant alleges that he requested a hearing within the statutory 20-day timeframe.
See Minn. Stat. § 609.748, subd. 4(f) (2020). He states that he went to the court clerk to
file his request but, because of a problem with a copier or scanner, the court clerk did not
properly file his request.
Appellant failed to follow up with the court clerk and believed that the COVID-19
pandemic caused the clerk’s delay in scheduling his hearing. Appellant later filed a second
request for a hearing in April 2021—just over nine months after the district court issued
the HRO. Appellant admitted that he filed nothing in between his two requests for a
hearing. In the meantime, the state charged appellant with two violations of the HRO.
The district court denied appellant’s request for a hearing. The district court found
that appellant’s arguments were “less than compelling” and that appellant “either did not
file his request for a hearing according to the statute or, even if the court accepts his
assertion that he tried to, he waived his right to a hearing by waiting nearly nine months to
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file the current request.” Appellant then moved to vacate the district court’s order under
Minn. R. Civ. P. 60.02. The district court denied appellant’s motion. Appellant appeals.1
DECISION
The only issue appellant raises on appeal is whether the district court abused its
discretion by denying his request for reconsideration after the district court denied his
request for a hearing. Appellant argues that the only reason he filed his request for a
hearing outside the 20-day statutory deadline was a mistake by the court clerk. He therefore
argues that the district court, relying on Minn. R. Civ. P. 60.02, should have excused the
mistake and granted him a hearing.
After a district court issues an ex parte HRO, the party against whom the HRO is
granted has 20 days to file a request for a hearing. Minn. Stat. § 609.748, subd. 4(f). If the
party fails to do so, the HRO remains in effect for the period set forth in the HRO. See
Fiduciary Found., LLC ex rel. Rothfusz v. Brown, 834 N.W.2d 756, 760 (Minn. App. 2013),
rev. denied (Minn. Sept. 17, 2013). But the non-protected party may still seek relief from
the final HRO through Minn. R. Civ. P. 60.02. See Northland Temps., Inc. v. Turpin, 744
N.W.2d 398, 402 (Minn. App. 2008) (stating that rule 60.02 allows relief from orders and
judgments), rev. denied (Minn. Apr. 29, 2008).2

1 Respondent did not file a brief in this case, and this court ordered the appeal to proceed
per Minn. R. Civ. App. P. 142.03.

2 While, generally, an order denying a motion to vacate an otherwise unappealable ex parte
order is not appealable, an order denying a motion to vacate an ex parte HRO can be
appealable if it finally determinates a party’s right to a hearing. Brown, 834 N.W.2d at
760-61.
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Under rule 60.02, a district court may relieve a party from a final judgment for
“[m]istake, inadvertence, surprise or excusable neglect” as well as “any other reason
justifying relief from the operation of the judgment.” Minn. R. Civ. P. 60.02. However,
the right to be relieved of a judgment is not absolute, and we review a district court’s rule
60.02 decisions for an abuse of discretion. Howard v. Frondell, 387 N.W.2d 205, 207-208
(Minn. App. 1986), rev. denied (Minn. July 31, 1986).
When determining whether to reopen a judgment based on mistake, inadvertence,
surprise, or excusable neglect, the district court determines whether the party satisfies each
of the four requirements set forth in Finden v. Klaas, 128 N.W.2d 748 (Minn. 1964). Cole
v. Wutzke, 884 N.W.2d 634, 636 (Minn. 2 016). These requirements are whether: (1) the
party has a reasonable defense on the merits, (2) the party has a reasonable excuse for the
party’s failure to act, (3) the party acted with due diligence after learning of the error or
omission, and (4) the other party will not be substantially prejudiced. Id. at 637 (listing the
four Finden requirements). For the district court to grant relief, the moving party must
satisfy all four requirements. Id.; see also Gams v. Houghton, 884 N.W.2d 611, 619-20
(Minn. 2016).
Our review of the district court’s analysis of whether appellant satisfied the Finden
requirements begins, and ends, with the third requirement, whether appellant acted with
due diligence after learning of the error or omission. We conclude that the record supports
the district court’s determination that appellant did not act with due diligence after he
discovered the error. As the district court noted, appellant waited over nine months to file
his second request for a hearing. Appellant says he told the court clerk’s office about the
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mistake “a[t] some point,” but there is nothing in the record showing that appellant filed
anything requesting a hearing before his April 2021 hearing request. And the state charged
appellant with two criminal violations of the HRO for which he is now requesting a hearing.
Thus, the district court did not abuse its discretion by determining that appellant failed to
act with reasonable due diligence after learning of the error.
Appellant’s arguments against this conclusion are unpersuasive. Appellant claims
that he repeatedly brought up his request for a hearing to the district court. Assuming this
is true, it appears that he made his complaints to the district court judge sitting in his
criminal cases. For example, appellant told the district court of his alleged attempt to file
the request for a hearing during the December 2020 arraignment for his violations of the
HRO. Appellant later claimed that the district court in his criminal cases “just wouldn’t
hear the argument.” In response, the district court in this case told appellant that those
requests were made in a different proceeding and had no bearing on his HRO case. And
save appellant’s assertion that he contacted the court clerk “a[t] some point,” appellant
failed to follow up in the nine months between requests. While we afford some leeway to
a self-represented party, we hold appellant to the same standards as we would attorneys.
Gruenhagen v. Larson , 246 N.W.2d 565, 569 (Minn. 1976) (stating that court will not
modify ordinary rules and procedures because a self-represented party lacks the skills and
knowledge of an attorney); State v. Fellegy, 819 N.W.2d 700, 704 (Minn. App. 2012), rev.
denied (Minn. Oct. 16, 2012). The record supports the district court’s determination that
appellant did not act with due diligence to correct the mistake. Because appellant fails to
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meet this Finden requirement, we need not analyze the other three requirements. See
Gams, 884 N.W.2d at 619-20.
Thus, the district court did not abuse its discretion by denying appellant’s motion to
vacate its order denying his request for a hearing on the ex parte HRO.
Affirmed.