Washington Jimenez-Moncayo, Appellant,

This opinion is nonprecedential except as provided by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
A20-1218

Washington Jimenez-Moncayo,
Appellant,

vs.

Ashley Davis, et al.,
Respondents.

Filed May 10, 2021
Affirmed
Johnson, Judge

Hennepin County District Court
File No. 27-CV-20-4009

Scott Wilson, Scott Wilson Law Firm, P.L.L.C., Minneapolis, Minnesota; and

Jordan A. Kolinski, Florin Roebig, P.A., Minneapolis, Minnesota (for appellant)

Robert H. Tennant, Meghan A. Cooper, Stringer & Rohleder, Ltd., St. Paul, Minnesota (for
respondent)

Considered and decided by Hooten, Pres iding Judge; Johnson, Judge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
The plaintiff commenced this neglig ence action by serving the summons and
complaint on two individual de fendants. But the plaintiff’s attorney did not file the
summons and complaint with the district court within one year, as required by rule 5.04(a)

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of the rules of civil procedure. The district court denied the plai ntiff’s motion for relief
under rule 60.02(a). We conclude that the di strict court did not abuse its discretion and,
therefore, affirm.
FACTS
On the evening of Septembe r 23, 2017, a group of young adults planned to go out
to a club in downtown Minneapolis. The gr oup included twin si sters Amber Lind and
Allison Lind. The group traveled in a car owned by Amber Lind or her mother, Christine
Lind, or both of them. Amber Lind’s friend As hley Davis agreed to serve as the sober
driver throughout the evening. Before goi ng downtown, the group stopped at a house to
drop off someone. As Davis began to driv e away, Washington Jimenez-Moncayo, who
was sitting in the right rear pa ssenger seat, opened his door an d began to step out of the
car. The car’s right rear tire ran over Jimenez-Moncayo’s right foot, causing him injuries.
Jimenez-Moncayo sued Davis and Christin e Lind. On February 5, 2019, Jimenez-
Moncayo served the summons and complaint on Christine Lind. On March 12, 2019,
Jimenez-Moncayo served the summons and co mplaint on Davis. Jimenez-Moncayo’s
attorney did not immediately file the summons and complaint with the district court. After
confirming service of process on Davis, Ji menez-Moncayo’s attorney made a note on his
calendar that March 12, 2020, would be the one-year deadline for filing the summons and
complaint pursuant to rule 5.04(a) of the rules of civil procedure.
In the months that followed, the case wa s not actively litigated. In March 2019, the
defendants’ attorney responde d to three requests for admiss ion. In July 2019, the
defendants’ attorney contacte d Jimenez-Moncayo’s attorney about a proposed discovery

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plan. Jimenez-Moncayo’s attorney did not re spond. In November 2019, the defendants’
attorney contacted Jimenez-Moncayo’s attorn ey and asked whether he intended to move
forward with the case and asked him to dismiss the case if he did not so intend. In January
and February of 2020, the parties’ attorneys exchanged correspondence about the proposed
discovery plan.
On March 9, 2020, Jimenez-Moncayo f iled the summons and complaint with the
district court. On March 17, 2020, the defendants gave notice of their intention to move to
dismiss the complaint. On March 27, 2020, the defendants moved to dismiss the case on
the ground that Jimenez-Moncayo did not file the summons and complaint within one year
of the commencement of the case against Christine Lind on February 5, 2019. On April 8,
2020, Jimenez-Moncayo moved for relief pursuan t to rule 60.02(a) of the rules of civil
procedure. He argued, in part, that the applicable caselaw “relieve[s] unwitting clients of
the consequences of their attorney’s unilateral errors.”
In May 2020, the district court conducted a hearing on the motio ns. In July 2020,
the district court filed a short written order granting the defendants’ motion to dismiss the
complaint on the ground that it wa s not filed within one year of the service of process on
Christine Lind. The district court ordered en try of judgment. On August 20, 2020, the
district court filed a written order denyi ng Jimenez-Moncayo’s motion for relief from
judgment. Jimenez-Moncayo appeals.
DECISION
Jimenez-Moncayo argues that the distri ct court erred by denying his motion for
relief from judgment.

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“On motion and upon such terms as are just , the court may relieve a party . . . from
a final judgment . . . and may order a new trial or grant such other relief as may be just” for
any one of six reasons, including “[m]istake, inadvertence, surprise, or excusable neglect.”
Minn. R. Civ. P. 60.02, 60.02(a). The supreme court twice has applied rule 60.02(a) to the
present situation: a plaintiff’s failure to f ile the summons and comp laint within the one-
year period specified in rule 5.04(a). See Gams v. Houghton , 884 N.W.2d 611, 615-18
(Minn. 2016); Cole v. Wutzke, 884 N.W.2d 634, 336-39 (Minn. 2016). The supreme court
stated that a district court must grant such relief if the plaintiff “affirmatively satisfies four
requirements.” Cole, 884 N.W.2d at 637. The four requirements are:
(1) a debatably meritorious claim; (2) a reasonable excuse for
the movant’s failure or neglect to act; (3) the movant acted with
due diligence after learning of the error or omission; and (4) no
substantial prejudice will result to the other party if relief is
granted.

Gams, 884 N.W.2d at 620; see also Cole, 884 N.W.2d at 637. This court applies an abuse-
of-discretion standard of review to a district court’s denial of a motion for relief under rule
60.02(a). Gams, 884 N.W.2d at 620; Cole, 884 N.W.2d at 637.
In this case, the district court determined that Jimenez-Moncayo satisfied the fourth
requirement of Gams and Cole but did not satisfy the first, second, or third requirements.
On appeal, Jimenez-Moncayo contends that he satisfied all four requirements.
Respondents argue that Jimenez-Moncayo satisfied none of the four requirements. We will
consider each of the four requirements in turn.

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1.
Jimenez-Moncayo first contends that he ha s a “debatably meritorious” claim against
respondents. A debatably meritorious claim “is one that, if established at trial, presents a
cognizable claim for relief.” Cole, 884 N.W.2d at 638. To satisfy this requirement, “the
movant generally must provide ‘specific in formation’ that clearly demonstrates the
existence of the debatably meritorious claim.” Id. (quoting Charson v. Temple Israel, 419
N.W.2d 488, 492 (Minn. 1988)). “Conclusory allegations in moving papers are ordinarily
insufficient.” Id.
The district court determined that Ji menez-Moncayo did not satisfy the first
requirement because he relied on “conclusory allegations that the record in this matter does
not support” and because he “offered no eviden ce or argued that Da vis was a permissive
operator of Lind’s vehicle.” Jimenez-Moncay o contends that the district court erred
because Christine Lind gave Davis either express or implied consent to drive the Lind car
and because Amber Lind’s consent is sufficient to impose vicarious liability on her mother.
Neither party has cited any caselaw concer ning whether Jimenez-Moncayo must have a
debatably meritorious claim against only one defendant or against both defendants. We
note that the supreme court’s caselaw uses the singular form of the noun phrase “debatably
meritorious claim,” which i ndicates that Jimenez-Monca yo must establish only one
debatably meritorious claim. See Cole, 884 N.W.2d at 637-38.
In any event, Jimenez-Moncayo submitte d evidence supporting his claims against
both defendants. He stated in an affidavit th at, before he got out of the car, he expressed
his intention to do so but that Davis drove forward nonethele ss. That evidence tends to

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support his negligence claim against Davis. Jimenez-Moncayo further stated in the
affidavit that Amber Lind previously had told him the car at issue is co-owned by her and
her mother, that the car is customarily used by Amber Lind and Ashley Lind, that the Lind
sisters are good friends with Davis, that he heard Amber Li nd ask Davis to be the sober
driver that evening, that Davis has driv en the car on many other occasions, and that
Christine Lind is aware that Davis often has driven the car. Jimenez-Moncayo also points
to Davis’s handwritten, pro se answer, in which she states under oath that she drove the car
on the evening in question with Amber Lind’s permission. Jimenez-Moncayo argued to
the district court that Christine Lind should be held vicariously liable pursuant to a statute
that deems the driver of a vehicle to be an agent of the vehicle’s owner if the driver drove
with the express or implied consent of the owner. See Minn. Stat. § 169.09, subd. 5a
(2020).
Jimenez-Moncayo’s evidence is reasonabl y specific and not conclusory. The
evidence indicates that he has debatably meritorious claims against both respondents. The
district court abused its discretion by determining otherwise without expressly discrediting
Jimenez-Moncayo’s evidence or explaining why it is insufficient. Thus, Jimenez-Moncayo
has satisfied the first requirement of Gams and Cole.
2.
Jimenez-Moncayo next contends that hi s attorney’s mistak e in not filing the
summons and complaint before the one-year deadline is a “reasonable excuse” because the
mistake is entirely attributable to his attorney.

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In Cole, the supreme court provided lower courts with a thorough explanation of the
second requirement:
As to “reasonable excuse,” we have long said that
mistakes of law, as well as mistakes of fact, may afford
grounds for relief. Additionally, our case law generally reflects
a strong policy favoring the gr anting of relief when judgment
is entered through no fault of the client. More specifically, we
have held that even in those cases where a court has held the
neglect of a client’s attorney to be inexcusable, if such neglect
has been purely that of counsel, ordinarily courts are loath to
punish the innocent client for the counsel's neglect.

We have cautioned, however, that not all mistakes,
whether of fact or of law, and whether committed by a party to
an action or by his attorney, are subject to relief. Indeed, the
right to vacatur is not absolute ; rather, it is a matter largely
within the discretion of the trial court. As such, it is generally
for the district court to determ ine whether the excuse offered
by the movant is true and reasonable under the circumstances.
Accordingly, there are no per se rules of law requiring either
the grant or denial of a Rule 60.02(a) motion under the
“reasonable excuse” requirement. Instead, the decision is fact
intensive.

Cole, 884 N.W.2d at 638-39 (quotations, citations, and alterations omitted).
The district court determined that Ji menez-Moncayo did not satisfy the second
requirement because Jimenez-Moncayo’s a ttorney’s mistake “ does not constitute a
reasonable excuse.” On appeal, Jimenez-Moncayo reiterates his argument that his attorney
made an inadvertent mistake for which he should not be held responsible.
In prior opinions, the supreme court a nd this court have expressed a general policy
favoring relief for a client who has suffered an adverse judgment because of a mistake by
his or her attorney. See, e.g., Nguyen v. State Farm Mut. Auto. Ins. Co., 558 N.W.2d 487,
491 (Minn. 1997); Safeco Ins. Co. v. Holmgren Bldg. Repair, Inc. , 946 N.W.2d 638, 646

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(Minn. App. 2020), review denied (Minn. Sept. 15, 2020). But the supreme court also has
made clear that “there are no per se rules of law requiring either the grant or denial of a
Rule 60.02(a) motion under the ‘reasonable excuse’ requirement” and that “the decision is
fact intensive.” Cole, 884 N.W.2d at 639. In addition, the supreme court has emphasized
that “[t]he decision whether to grant Rule 60.02 relief is based on all the surrounding facts
of each specific case, and is committed to the sound discretion of the district court.” Gams,
884 N.W.2d at 620. Furthermore, the supreme court has stated that “the district court is in
the best position to evaluate the reasonableness of the excuse.” Id. (quotation omitted).
Consequently, despite the general princi ple favoring rule 60 relief for an adverse
judgment caused by an attorney ’s mistake, we must give deference to a district court’s
consideration of the reasonableness of th e excuse in the cont ext of the specific
circumstances of a particular case. The record indicates that Jimenez-Moncayo’s attorney
generally was aware of the one-year deadline but nonetheless missed the deadline because
he was not aware that the one-year period begins when the first defendant (not the second
defendant) is served. In addition, Jimenez-Moncayo’s attorney did not actively litigate the
case during the one-year period. Given the facts and circumstances of this case, the district
court did not abuse its discre tion by determining that Ji menez-Moncayo’s attorney’s
mistake does not constitute a reasonable excuse.1 Thus, Jimenez-Moncayo has not satisfied
the second requirement of Gams and Cole.

1Since the supreme court’s opinions in Gams and Cole, this court consistently has
affirmed the denial of rule 60 .02(a) relief in cases in which a plaintiff’s attorney failed to
file the summons and complaint before the one-year deadline. See Fischer v. Fischer-
Kinnunen P’ship, LLP, No. A20-0510, 2020 WL 6846380, at *1-2 (Minn. App. Nov. 23,

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3.
Jimenez-Moncayo contends that he acte d with due diligence by moving for relief
under rule 60 only 22 days after he receiv ed notice from respondents that the one-year
period had lapsed before the filing of the summons and complaint.
The district court determined that Ji menez-Moncayo did not satisfy the third
requirement because he filed his rule 60 motion “almost one m onth after filing the
complaint, and almost two weeks after defe ndants filed their motion to dismiss.” The
district court improperly referred to Jimen ez-Moncayo’s filing of the complaint because
due diligence must be measured fr om “the time that the movant learn[ed] of his . . . error
or omission.” See Cole , 884 N.W.2d at 639. For the same reason, the district court
improperly referred to respondents’ filing of their motion to dismi ss, which occurred ten
days after respondents gave notice to Jimenez-Moncayo of the untimely filing.
Jimenez-Moncayo moved for relief 22 days after receiving notice from respondents
that the summons and complaint were filed too late. Jimenez-Moncayo acted more quickly

2020); Curtin v. RS Eden, No. A19-1205, 2020 WL 2116570, at *1-4 (Minn. App. May 4,
2020), review denied (Minn. July 23, 2020); Luskey v. Eggum, No. A18-0623, 2019 WL
178521, at *1-2 (Minn. App. Jan. 14, 2019), review denied (Minn. Apr. 16, 2019); Siegle
v. Karst, No. A17-1360, 2018 WL 3014668, at *1-4 (Minn. App. Jun. 18, 2018). In the
few cases in which we have reversed the denial of such relief, the district courts committed
errors that are not pr esent in this case. See Olson v. Todd Jackson Trucking, LLC ,
No. A16-1238, 2017 WL 1048138, at *1-3 (M inn. App. Mar. 20, 2017) (reversing and
remanding because district court failed to consider all four requirements); Orr v. Britten,
No. A15-0933, 2017 WL 393779 , at *1-3 (Minn. App. Jan. 30, 2017) (reversing and
remanding because district court applied per se rule that attorney’s mistake does not
constitute reasonable excuse). We acknowledge that these opinions are unpublished and,
thus, not binding precedent. Nonetheless, th e opinions demonstrate that this court has
consistently followed the supreme court’s caselaw concerning the second requirement.

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than the plaintiff in Thomas v. Ross, 412 N.W.2d 358 (Minn. App. 1987), who moved for
rule 60 relief 35 days after receiving notice of the dismissal of his action but was deemed
to have acted with due diligence. Id. at 360; see also Black v. Rimmer, 700 N.W.2d 521,
528 (Minn. App. 2005) (concluding that defendant acted with due diligence by moving to
vacate default judgment five weeks after entry); Orr, 2017 WL 393779, at *3 (concluding
that plaintiff acted with due diligence by moving for relief 25 days after discovery of
mistake). We are not aware of any preceden tial Minnesota opinion in which a party was
deemed to have not acted with due diligence after moving for rule 60 relief within 22 days
of becoming aware of its mistake.
Given the district court’s errors of law in measuring the time period in which
Jimenez-Moncayo took action, as well as the absence of any precedential opinion
demonstrating that a time period as short as 22 days is inconsistent with due diligence, the
district court abused its discretion by determining that Jimenez-Moncayo did not act with
due diligence. Thus, Jimenez-Moncayo has satisfied the third requirement of Gams and
Cole.
4.
The district court determined that respon dents would not be substantially prejudiced
if Jimenez-Moncayo’s rule 60.02(a) motion were granted because the parties had engaged
in some discovery. On appeal, Jimenez-Moncayo contends that the district court properly
determined that he satisfied the fourth requirement. In their responsive brief, respondents
contend that they would be prejudiced if Jimenez-Moncayo’s motion were granted and that
the district court erred by making a determin ation to the contrary. In his reply brief,

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Jimenez-Moncayo contends that respondent s may not argue that the district court
misanalyzed the fourth requirement without filing a notice of related appeal.
A respondent “‘may, without taking a cross- appeal, urge in support of a decree any
matter appearing in the record, even though the argument may involve an attack upon the
reasoning of the lower court.’” Matter of RS Eden/Eden House , 928 N.W.2d 326, 333
(Minn. 2019) (quoting Hunt by Hunt v. Sherman, 345 N.W.2d 750, 753 n.3 (Minn. 1984)).
Because respondents’ argument concerning the fourth requirement is asserted for the
purpose of affirming the district court’s ul timate ruling, a notice of related appeal is
unnecessary. Thus, respondents are not fore closed from arguing on appeal that Jimenez-
Moncayo did not satisfy the fourth requirement.
A party seeking relief from the dismissal of a complaint under rule 60.02(a) must
show that “no substantial prejudice will result to the other party.” Cole, 884 N.W.2d at
637 (quotations omitted). Substantial prejudice “should not be presumed [or] inferred from
the mere fact of delay”; rather, there must be “some particular prejudice of such a character
that some substantial right or advantage will be lost or endangered if relief is granted.” Id.
at 639 (quotations omitted). “In general, when the only prejudicial effect of vacating a
judgment is additional expense and delay, substantial prejudi ce of the kind necessary to
keep a judgment from being reopened does not exist.” Black, 700 N.W.2d at 528 (quotation
omitted).
Jimenez-Moncayo submitted evidence that re spondents and their attorney were well
aware of the pending lawsuit and that respondents’ attorney engaged in some discovery by
responding to requests for admission an d communicating with Jimenez-Moncayo’s

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attorney about a discovery pl an. Respondents contend that they would be prejudiced by
rule 60 relief due to confusion in 2019 with respect to whether Davis was represented by
counsel. But the events of 2019 are unrelated and irrelevant to Jimenez-Moncayo’s failure
to timely file the summons and complaint in 2020. Respondents ha ve not identified any
particular reason why substantial prejudice would have arisen if the district court had
reinstated Jimenez-Moncayo’s action. Becau se the district court’s determination is
supported by the record, the dist rict court did not abuse its di scretion by determining that
Jimenez-Moncayo satisfied the fourth requirement of Gams and Cole.
In sum, Jimenez-Moncayo has satisfied the first, third, and fourth requirements of
Gams and Cole. But he has not satisfied the second requirement. The supreme court has
made clear that a plaintiff is not entitled to re lief in this situation unless he “affirmatively
satisfies” all four requirements. Cole, 884 N.W.2d at 637. Thus the district court did not
abuse its discretion by denying Jimenez-Mon cayo’s motion for relief under rule 60.02(a)
of the rules of civil procedure.
Affirmed.