dissenting.
[¶ 22] I respectfully dissent.
[¶ 23] Riak Riak pled guilty to gross sexual imposition for the rape of an intoxicated, unconscious woman. Riak acknowledges it was an open plea with no plea bargain. The offense was confirmed by an eyewitness account and DNA evidence. He was sentenced to twenty years’ imprisonment, first to serve seventeen years, with ten years’ supervised probation to follow. He does not believe the rape of an unconscious woman merits such a serious sentence. He has filed multiple post-conviction relief petitions.
[¶ 24] In his most recent filing, although he makes generalized allegations of ineffective assistance of counsel without any showing that what he alleges would have made any difference, his primary complaint is that his sentence is “unreasonably harsh.”
[¶25] After the application had been filed, the parties agreed to a delay in the State’s response because “[d]efense counsel has asked the State for additional time to visit with his client about the merits of his post-conviction relief claim.”
[¶ 26] After nothing had been filed for seven months, the court gave the parties 14-days’ notice of its intent to dismiss. When nothing more had been filed, 19 days later the court dismissed.
*901[¶ 27] After the notice from the court of intent to dismiss, the failure to respond made the court’s action reasonable and appropriate. In addition, the changes in the law that became effective on August 1, 2013, gave the court clear additional procedural authority: “The court, on its own motion, may enter a judgment denying a meritless application on any and all issues raised in the application before any response by the state.” N.D.C.C. § 29-32.1-09(1). See, e.g., In re Foster’s Estate, 89 N.W.2d 112, 116 (N.D.1958) (“When an amendment to a procedural law becomes effective during the pendency of a suit the validity of proceedings had is determined under the old provisions but future procedure is governed by the amendment unless a contrary legislative intent appears”).
[¶ 28] Riak has never shown any merit to his application.
[¶ 29] If Riak wished to seek relief under N.D.R.Civ.P. 60(b), he needed to show not only an error by the court but also that he had a meritorious claim. Riak was put to his proof in seeking to reopen the application, e.g., Palmer v. State, 2012 ND 237, 824 N.W.2d 406. He failed to meet that burden.
[¶ 30] Riak moved to “reopen,” and the majority treats it as a request for relief under N.D.R.Civ.P. 60(b). Riak, 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.1995)). 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.)
[¶ 31] In King v. Montz, 219 N.W.2d 836 (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.” Id. at 838 Syllabus ¶ 6 (emphasis added).
[¶ 32] In other words, one of the factors a defendant must show is that he or she has a meritorious argument on the merits, and not simply that there was a “mistake, inadvertence, surprise, or excusable neglect” or error of the court under N.D.R.Civ.P. 60(b).
[¶ 33] 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. *902Bank Nat’l Ass’n v. Arnold, 2001 ND 130, 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).
Id. at ¶ 24 (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).
[¶ 34] Here, in seeking relief, Riak has failed to show by competent admissible evidence a genuine issue of material fact as to any merit in his petition for post-conviction relief.
[¶ 35] Seeking Rule 60(b) relief put Riak to his proof, and he failed to meet that burden. This district court did not abuse its discretion in not giving relief under Rule 60(b). I would affirm.
[¶ 36] DALE V. SANDSTROM