Lavern Allen Harris, 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This opinion is nonprecedential except as provided by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
A24-0055

Lavern Allen Harris,
Appellant,

vs.

Reno Lindell,
Respondent.

Filed August 5, 2024
Affirmed
Reyes, Judge

Mille Lacs County District Court
File No. 48-CV-23-1118

Stephanie J. Schommer, Schmidt Salita Law Team, Minnetonka, Minnesota (for appellant)

Paul A. Rajkowski, Melaina N. Mrozek, RGP Law, Ltd., St. Cloud, Minnesota (for
respondent)

Considered and decided by Johnson, Presiding Judge; Ross, Judge; and Reyes ,
Judge.
NONPRECEDENTIAL OPINION
REYES, Judge
Appellant challenges the dismissal of his complaint for failure to comply with the
one-year filing requirement of Minn. R. Civ. P. 5.04(a), arguing that the district court
abused its discretion by determining that he had not met the Finden factors for relief from
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judgment under Minn. R. Civ. P. 60.02. Because appellant has not satisfied the second
factor, and because all four factors must be satisfied to obtain relief, we affirm.
FACTS
In March 2019, appellant Lavern Allen Harris was allegedly injured after slipping
and falling on a snowy ramp at a house owned by respondent Reno Lindell. Harris hired a
first attorney who drafted a complaint against Lindell. The complaint was served on
Lindell on June 9, 2022. Lindell served an answer on Harris that same day.
In early July 2022, Harris and Lindell agreed to a joint discovery plan, which their
attorneys signed. On July 5, Lindell served interrogatories and requests for production of
documents on Harris. Harris did not respond to the discovery requests, and the first
attorney did not respond to letters from Lindell’s counsel sent in August, September, and
November.
In April 2023, Harris contacted a second attorney to potentially handle his claim
because of pending disciplinary proceedings against the first attorney. Harris gave the
second attorney a copy of the file from the first attorney, which did not contain the affidavit
of service for Harris’s complaint but included the complaint with a signature date of May
25, 2022. On April 21, 2023, the second attorney emailed Lindell’s attorney asking if he
would “discuss the status of the case” with her but did not receive a response. On April
25, the Minnesota Supreme Court suspended the first attorney from the practice of law. In
re Disciplinary Action Against Richard W. Curott, 989 N.W.2d 291 (Minn. 2023).
On June 6, the second attorney sent a follow- up email to Lindell’s attorney, again
asking to discuss the status of the case. The second attorney and Lindell’s attorney spoke
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over the phone on June 8, at which time they discussed the one- year deadline to file the
case and that the deadline was either rapidly approaching or had already passed. At some
point, the second attorney requested a copy of the affidavit of service from the Mille Lacs
County Sheriff’s Office.
On June 9, 2023, under Minn. R. Civ. P. 5.04, the one-year deadline to file an action
that had been served on a party passed.
On June 15, Harris formally retained the second attorney as counsel. That same
day, the second attorney filed the action in district court after receiving a copy of the
affidavit of service from the sheriff’s office, which stated that the complaint had been
served on June 9, 2022.
On June 21, Lindell moved to dismiss the case under Minn. R. Civ. P. 5.04. On July
24, Harris moved for relief under Minn. R. Civ. P. 60.02(a) on the basis of “mistake,
inadvertence, surprise, or excusable neglect.”
Following a motion hearing, the district court dismissed the case under rule 5.04
and denied Harris’s motion for relief under rule 60.02, determining that Harris failed to
meet any of the four Finden factors. See Finden v. Klaas, 128 N.W.2d 748 (Minn. 1964).
This appeal follows.
DECISION
Harris argues that the district court abused its discretion by denying his motion for
relief, contending that it erroneously assessed each of the four Finden factors. We disagree.
A civil case commences when a defendant is served with a summons. Minn. R. Civ.
P. 3.01. The action must be filed with the district court within one year of the
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commencement of the action. Minn. R. Civ. P. 5.04(a). If the action is not filed with the
district court by that time, the action is “deemed dismissed with prejudice against all
parties.” Id. The dismissal is automatic, and a defendant need not take action for the
dismissal to occur. Gams v. Houghton, 884 N.W.2d 611, 617 (Minn. 2016).
The Minnesota Rules of Civil Procedure give district courts the authority to grant
relief from a final judgment, order, or proceeding based on a variety of circumstances.
Minn. R. Civ. P. 60.02. One basis is for “[m]istake, inadvertence, surprise, or excusable
neglect.” Id., 60.02(a). District courts may grant relief under rule 60.02 for dismissals
under rule 5.04. Gams, 884 N.W.2d at 616.
For a district court to grant relief under rule 60.02(a), the movant must satisfy four
factors, commonly known as the Finden factors. Cole v. Wutzke, 884 N.W.2d 634, 637
(Minn. 2016) (citing Finden, 128 N.W.2d at 750). The four factors are (1) “a debatably
meritorious claim,” (2) “a reasonable excuse for [their] failure or neglect to act,” (3) “that
[they] acted with due diligence after learning of the error or omission,” and (4) “that no
substantial prejudice will result to the other party.” Cole , 884 N.W.2d at 637 (quotations
omitted). The district court must consider and expressly find that a party satisfied all four
factors to grant relief under rule 60.02. Gams, 884 N.W.2d at 619.
A decision on whether relief is warranted under rule 60.02 lie s within the sound
discretion of the district court and is based on the specific circumstances of each case.
Cole, 884 N.W.2d at 637. Appellate courts review the district court’s decision for an abuse
of discretion. Id.
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The district court did not abuse its discretion by determining that Harris did not
provide a reasonable excuse for failure to act.

Harris argues that he provided a reasonable excuse for failing to act, contending that
he should not be punished for the failure of both of his attorneys to file the complaint by
June 9. We are not convinced.
The district court determined that Harris did not have a reasonable excuse for failing
to file the complaint before June 9, 2023, because the second attorney should have been
aware of the impending deadline when Harris first consulted her. The district court further
determined that Harris “contributed to the delay” because he “ha[d] not followed through
in a timely manner as he has proceeded with his claim.”
The Minnesota Supreme Court provided a thorough explanation of the second
Finden factor in Cole: “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 granting of relief when judgment is entered
through no fault of the client.” 884 N.W.2d at 638 (citations and quotations omitted).
“[E]ven in those cases [when] 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.” Id. (quotations omitted).
Conversely, “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 [district] court.” Id.
(citations and quotations omitted). As a result, “it is generally for the district court to
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determine 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.” Id. at 639.
Importantly, “the district court is in the best position to “evaluate the reasonableness of the
excuse.” Gams, 884 N.W.2d at 620 (quotation omitted).
The district court determined that Harris’s substitution of counsel was not a
reasonable excuse because the second attorney was involved in the case prior to the one-
year deadline and “she did not make an inquiry regarding the filing deadline and seek a
stipulation on an extension of the deadline.” This determination is supported by the record
because Harris gave the second attorney a copy of the first attorney’s file in April, which
included the complaint with a signature date of May 25, 2022. Although the second
attorney emailed Lindell’s counsel in April asking about “the status of the case,” she did
not ask specifically about the filing deadline, and she did not speak to Lindell’s counsel
until June.
In addition, the district court’s determination that Harris contributed to the delay is
supported by the record. The record shows that, although Lindell had been served with the
complaint and the parties had agreed to a joint discovery plan, Harris had otherwise not
actively litigated the case during the year. In addition, Harris did not promptly retain new
counsel after the first attorney was disciplined. Nor did Harris actively litigate the case in
a pro se capacity during the time between the first attorney’s suspension and when he
formally retained the second attorney.
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Based on the great discretion the district court has in evaluating the reasonableness
of the excuse, we conclude that the district court did not abuse its discretion by determining
that Harris did not meet the second Finden factor.
A plaintiff is not entitled to relief under rule 60.02 un less they “affirmatively
satisf[y]” all four Finden factors. Cole, 884 N.W.2d at 637. Because Harris failed to meet
the second Finden factor, we therefore conclude that the district court did not abuse its
discretion by denying Harris’s motion for relief under rule 60.02.
Affirmed.