dissenting.
[¶ 11] Because Palmer has made no showing of a meritorious argument on post-conviction relief, I would affirm.
[¶ 12] Palmer moved for post-conviction relief. The State subsequently moved for summary dismissal, putting Palmer to his proof. See Ude v. State, 2009 ND 71, ¶ 8, 764 N.W.2d 419. Palmer filed nothing in response. Nevertheless, the district *810court issued an extensive opinion covering each of Palmer’s claims and then denying his application for post-conviction relief.
[¶ 13] Palmer’s attorney moved for relief under N.D.R.Civ.P. 60(b), explaining she was under significant emotional distress at the time and consequently did not respond to the State’s motion for summary dismissal. Palmer’s attorney, however, failed to submit any evidence that would have precluded summary disposition of the motion for post-conviction relief. See, e.g., Estate of Wieland, 1998 ND 130, ¶ 15, 581 N.W.2d 140:
Our standard of review of a decision on a N.D.R.Civ.P. 60(b) motion to vacate was recently explained:
It is within the trial court’s discretion whether to grant or deny a motion to vacate. Absent an abuse of this discretion, we will not set aside the trial court’s decision on appeal. A trial court abuses its discretion if it acts in an arbitrary, capricious, or unreasonable manner, or if it misinterprets or misapplies the law.
Filler v. Bragg, 1997 ND 24, ¶ 9, 559 N.W.2d 225 (citations omitted). “If the judgment sought to be set aside is entered pursuant to a stipulation of the parties, the party challenging the judgment under Rule 60(b), N.D.R.Civ.P., has the additional burden of showing that under the law of contracts there is justification for setting the contract aside.” Peterson v. Peterson, 555 N.W.2d 359, 361 (N.D.1996) (citing Soli v. Soli 534 N.W.2d 21, 23 (N.D.1996)). We are not convinced the trial court abused its discretion in denying Thomas’ motion to vacate the order distributing the estate. Therefore, we affirm.
(Emphasis added.)
[¶ 14] In King v. Montz, 219 N.W.2d 836, 838 Syllabus ¶6 (N.D.1974), this Court concluded that “the negligence of the insurer in failing to defend is not to be imputed to the defendant so as to bar the opening of a default judgment where, in the exercise of a sound judicial discretion, it appears that defendant after receiving notice acted with diligence, has a defense on the merits, and where, as here, no substantial prejudice will result to the plaintiff.” (Emphasis added.)
[¶ 15] In other words, one of the factors a defendant must show is that he or she has a meritorious argument, and not simply that there was a “mistake, inadvertence, surprise, or excusable neglect” under N.D.R.Civ.P. 60(b)(1).
[¶ 16] Similarly, this Court has consistently held that in seeking to vacate a default judgment for failure to answer, a defendant must show good cause and tender the missing answer. See, e.g., U.S. Bank Nat’l Ass’n v. Arnold, 2001 ND 130, ¶ 24, 631 N.W.2d 150:
In deciding Arnold was not entitled to relief from judgment under N.D.R.Civ.P. 60(b), the district court applied this Court’s three-part test for vacating judgment. See Bender v. Liebelt, 303 N.W.2d 316, 318 (N.D.1981) (judgments may be reopened when a motion is 'promptly made, when the grounds stated satisfy the requirements of Rule 60, and when an answer appearing to state a meritorious defense is presented).
(Emphasis added.) See also Hinz v. Northland Milk & Ice Cream Co., 237 Minn. 28, 53 N.W.2d 454 (1952); Gepner v. Fujicolor Processing, Inc., 2001 ND 207, ¶ 16, 637 N.W.2d 681; King v. Montz, 219 N.W.2d 836, 840 (N.D.1974).
[¶ 17] Here the affidavit of good cause for failure to respond needed to be accompanied by competent admissible evidence showing a genuine issue of material fact preventing summary disposition of Palmer’s petition for post-conviction relief.
[¶ 18] When the State moves to summarily dismiss a petitioner’s application for *811post-conviction relief, the petitioner must provide evidence to support the petition in order for the burden to transfer back to the State. See Ude, 2009 ND 71, ¶ 8, 764 N.W.2d 419 (“A petitioner is not required to provide evidentiary support for his petition until he has been given notice he is being put on his proof. At that point, the petitioner may not merely rely on the pleadings or on unsupported, conclusory allegations, but must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact.”) (citations omitted). In this case, Palmer did not respond to the State’s motion for summary dismissal. As a result, under my reading of the cases, the burden did not shift back to the State, and the court could have properly denied Palmer’s application without a hearing. See id. (“If the petitioner presents competent evidence, he is then entitled to an evidentiary hearing to fully present that evidence.”).
[¶ 19] Here Palmer did not meet the minimum requirements for a motion for N.D.R.Civ.P. 60(b) relief, because he failed to submit with his motion competent, admissible evidence creating a dispute as to a material fact on the merits of his application for post-conviction relief. Neither the district court nor this Court need look any further than Palmer’s filing for relief to see that it was legally deficient on its face. The district court’s summary denial was appropriate. And our summary affir-mance of the district court would likewise be appropriate.
[¶ 20] Dale V. Sandstrom