Mary Larsen, et al., Appellants,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0991

Mary Larsen, et al.,
Appellants,

vs.

Paul Tessier,
Respondent.

Filed March 5, 2018
Affirmed
Bjorkman, Judge

St. Louis County District Court
File No. 69DU-CV-16-2444

Greg C. Gilbert, Gilbert Law Office, Duluth, Minnesota (for appellants)

Scott A. Witty, Jocelyn E. Bremer, Hanft Fride, A Professional Association, Duluth,
Minnesota (for respondent)

Considered and decided by Rodenberg, Presiding Judge; Bjorkman, Judge; and
Smith, Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
Appellants challenge the denial of their motion to vacate an order dismissing their
breach-of-contract action under Minn. R. Civ. P. 5.04 for failure to file the complaint within
one year of commencement by service. We affirm.

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FACTS
On October 31, 2008, appellants Mary Larsen and Loren Allen Larsen entered into
a two-year agreement with respondent Paul Tessier to lease property located at 5230 Fish
Lake Road in Duluth. The lease agreement included a price-setting provision that would
apply in the event the parties entered into a separate purchase agreement. The Larsens
stayed on the property past the lease termination date and continued to make payments. In
June 2013, they invoked what they describe as the purchase option under the lease. Tessier
refused to sell the property to them.
On July 14, 2015, the Larsens served a summons and complaint on Tessier, seeking
transfer of the property by warranty deed upon payment of the purchase price set forth in
the lease, and an award of costs for expenses they paid for which Tessier was responsible
under the lease. Tessier timely answered the complaint.
On October 5, 2016, the Larsens ’ attorney filed the summons and complaint in
district court. After issuing case-management orders, the district court set the case for trial
on April 11, 2017. But on February 10, Tessier asked the district court to dismiss the action
because the Larsens did not file their complaint within one year after service. The district
court did so in a February 17 order. The Larsens moved to vacate the dismissal order under
Minn. R. Civ. P. 60.02. Tessier obj ected, averring in his affidavit that vacat ur would
prejudice him because he had a prospective buyer who was ready to purchase the property.
The district court denied the motion. The Larsens appeal.

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D E C I S I O N
Minn. R. Civ. P. 5.04(a) provides that “[a]ny action that is not filed with the court
within one year of commencement against any party is deemed dismissed with prejudice
against all parties,” unless the parties stipulate to extend this time. Dismissal under rule
5.04(a) is automatic; no motion or order for dismissal is required. Gams v. Houghton, 884
N.W.2d 611, 617 (Minn. 2016). Dismissal is final one year after a proceeding is
commenced by service. Johnson v. City of Duluth , 903 N.W.2d 1, 4 (Minn. App. 2017),
review denied (Minn. De c. 19, 2017). Accordingly, t he Larsens’ action was deemed
dismissed with prejudice on July 15, 2016—one year after the complaint was served.
Minn. R. Civ. P. 60.02(a) permits a district court to relieve a party from a final order
or judgment because of mistake, inadvertence, surprise, or excusable neglect. A court may
grant relief under this rule if the moving party demonstrates “(1) a . . . debatably
meritorious claim; (2) a reasonable excuse for his or her failure or neglect to act; (3) that
he or she acted with due diligence after learning of the error or omission; and (4) that no
substantial prejudice will result to the other party.” Cole v. Wutzke, 884 N.W.2d 634, 637
(Minn. 2016) (quotations omitted); see Finden v. Klaas, 268 Minn. 268, 271, 128 N.W.2d
748, 750 (1964) (establishing these requirements) . The moving party must establish all
four requirements to obtain relief. Cornell v. Ripka , 897 N.W.2d 801, 807 (Minn. App.
2017). We review a district court’s decision on a rule 60.02 motion for an abuse of
discretion. Johnson, 903 N.W.2d at 3.
The Larsens argue that the district court a bused its discretion by failing to fully
consider the impact that their attorney’s inexcusable failure to timely file the complaint had

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on them. And they assert Tessier was not substantially prejudiced by the failure to timely
file the complaint because trial was scheduled to occur just two months after the district
court dismissed the action.1 We address each argument in turn.
First, the Larsens correctly observe that “our case law generally reflects a strong
policy favoring the granting of relief when judgment is entered through no fault of the
client.” Cole, 884 N .W.2d at 638 (quotation omitted). But the fact that an attorney
committed the mistake leading to the adverse order or judgment is not legally dispositive.
Id. at 639. Rather, a district court is required to make a fact-intensive analysis. The district
court did so, finding that the Larsens and their attorney offered no reason at all for
neglecting to timely file the complaint. The record supports this finding, and it defeats the
Larsens’ contention that the neglect is excusable.
Second, the Larsens contend that the record does not support t he district court ’s
findings that Tessier had another buyer for the property who wanted to proceed at once, he
could lose the sale if he had to go to trial, and he had been looking for a buyer since the
lease expired in 2010. We disagree. The Larsens had the burden of showing that Tessier
would not suffer a real and particular harm if the case was reinstated . Although Tessier
was “reluctant to provide much greater detail from private negotiations,” and declined t o
identify the prospective buyer by name during the motion hearing , he did not have the

1 The district court concluded that the Larsens satisfied the first and third Finden
requirements—a debatably meritorious claim and due diligence after discovery of the error.
Tessier does not challenge these determinations on appeal.

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burden of establishing prejudice .2 And we are persuaded that the record, including
Tessier’s affidavit, provides ample support for the district court’s findings.
In sum, because the Larsens did not establish all four prongs of the Finden analysis,
we discern no abuse of discretion by the district court in denying their motion to vacate.
Affirmed.

2 Both parties filed affidavits concerning prejudice following the motion hearing.
Documents submitted after a district court’s challenged decision are outside the scope of
our appellate review, so we do not consider them. See In re Estate of Riggle, 654 N.W.2d
710, 717 (Minn. App. 2002) (striking documents submitted for the first time on appeal in
support of a district court’s decision as being outside appellate record).