This opinion will be unpublished and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

A15-0933

Susan Dianna Orr,

Appellant,

vs.

Rebecca Kay Britten,

Respondent.

Filed January 30, 2017

Reversed and remanded

Connolly, Judge

Itasca County District Court

File No. 31-CV-14-2401

Kay Nord Hunt, Lommen Abdo, Minneapolis, Minnesota; and

David J. Ewens, David J. Ewens, P.A., Grand Rapids, Minnesota (for appellant)

Paula Duggan Vraa, Paul R. Aamodt, Larson King LLP, St. Paul Minnesota (for 

respondents)

Considered and decided by Johnson, Presiding Judge; Connolly, Judge; and Kirk, 

Judge. 

U N P U B L I S H E D O P I N I O N

CONNOLLY, Judge

Appellant challenges the district court’s dismissal of her complaint for failure to 

comply with the one-year filing requirement of Minn. R. Civ. P. 5.04 and denial of relief 
2

under Minn. R. Civ. P. 60.02, arguing that the district court erred by concluding that 

attorney neglect in failing to comply with Minn. R. Civ. P. 5.04 could not constitute 

excusable neglect and that she did not act with due diligence. We reverse and remand for 

the district court’s reconsideration in light of the supreme court’s recent decisions in Gams 

v. Houghton, 884 N.W.2d 611 (Minn. 2016), and Cole v. Wutzke, 884 N.W.2d 634 (Minn. 

2016). 

FACTS

Appellant Susan Dianna Orr commenced the action underlying this appeal against 

respondent Rebecca Kay Britten in July 2011, alleging negligence claims arising out of 

personal injuries suffered in an October 2009 automobile collision. The parties engaged 

in discovery and attended an unsuccessful mediation on November 2013, after which 

respondent made an offer of judgment. According to the district court, “[t]he parties had 

no substantive contact between November 22, 2013, and July 1, 2014.” 

Under the 2013 amendments to Minn. R. Civ. P. 5.04, appellant was required to file 

her action in district court by July 1, 2014. See Minn. R. Civ. P. 5.04(a); Gams, 884 N.W.2d 

at 614 (citing Order Adopting Amendments to the Rules of Civil Procedure and General 

Rules of Practice Relating to the Civil Justice Reform Task Force, Nos. ADM10-8051, 

ADM09-8009, ADM04-8001 (Minn. filed Feb. 4, 2013)). On August 1, 2014, 

respondent’s attorney sent a letter to appellant’s attorney asserting that the action was 

deemed dismissed with prejudice because it had not been filed by July 1, 2014. 

Appellant’s counsel filed the action on August 25, 2014, and on August 28, 2014, 

filed a motion to vacate any deemed dismissal, asserting that the failure to timely file the 
3

action was the result of counsel’s mistaken belief that the amended rule 5.04 did not apply 

to pending cases.1 Respondent subsequently moved for a judgment of dismissal. The 

district court denied appellant’s motion to vacate and granted respondent’s motion for entry 

of judgment, and judgment was entered. Appellants argue that the action should be 

reinstated to proceed on the merits. 

D E C I S I O N

“The 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. The district court’s decision should not be disturbed “except 

for a clear abuse of discretion.” Id. “A district court’s discretion under Rule 60.02, 

however, is not without limit.” Id. A district court abuses its discretion when it acts under 

a “misapprehension of the law,” if its findings of fact are clearly erroneous, or if the party 

seeking relief has clearly demonstrated all four factors for relief from a judgment. Id. 

The factors for relief under rule 60.02, most commonly referred to as the Finden 

factors, 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.” Id. (quotations omitted); see also Finden v. Klas, 268 Minn. 268, 128 N.W.2d 

748 (1964). A party must satisfy all four factors to be entitled to relief under rule 60.02. 

Gams, 884 N.W.2d at 619. 

 

1 Appellant also filed an appeal from the deemed dismissal on September 2, 2014, which 

this court dismissed as premature on October 7, 2014.
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Gams and Cole both stemmed from rule 60.02 requests for relief from judgments 

entered following an attorney’s failure to realize that rule 5.04(a) applied to require the 

filing of an action by July 1, 2014. Gams, 884 N.W.2d at 615; Cole, 884 N.W.2d at 636. 

In Gams, the supreme court held that rule 60.02 relief may be available following a 

dismissal under rule 5.04(a) and that rule 5.04(a) does not violate due-process rights. 884 

N.W.2d at 617-19. Because the district court in Gams had held that rule 60.02 relief was 

unavailable without analyzing the Finden factors, the supreme court reversed and 

remanded to the district court for additional findings. Id. at 621. 

In Cole, the supreme court held that the district court “abused its discretion in 

conducting its analysis under Minn. R. Civ. P. 60.02(a), because it failed to consider all 

four requirements from Finden . . . in light of the surrounding circumstances.” 884 N.W.2d 

at 635. As a threshold matter, the supreme court addressed an argument that rule 60.02 

should apply more narrowly to protect an interest in finality under rule 5.04(a) comparable 

to that afforded by a statute of limitations. Id. at 637-38. The supreme court rejected the 

statute-of-limitations analogy and held that “the analysis of the Finden requirements is the 

same under a Rule 5.04(a) dismissal as it is for other dismissals considered under Rule 

60.02. Id. at 638. 

The supreme court also rejected the district court’s reasoning that an attorney’s 

ignorance of the law could not constitute reasonable neglect under rule 60.02 because such 

an exception would “swallow the rule.” Id. at 637. Instead, the supreme court held 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. Instead the decision is fact intensive.” 
5

Id. at 639. The court further explained that “mistakes of law, as well as mistakes of fact, 

may afford grounds for relief.” Id. at 638 (quotation omitted). And the court noted that 

“our case law generally reflects a strong policy favoring the granting of relief when 

judgment is entered through no fault of the client.” Id. (quotation omitted) Because the 

district court had failed to contextually consider all four Finden factors, the supreme court 

in Cole reversed and remanded to the district court for reconsideration in light of the 

supreme court’s decision. Id. at 639. 

In this case, the district court denied appellant’s motion for relief under rule 60.02 

based on its determinations that she had not established excusable neglect or due diligence. 

With respect to excusable neglect, the district court applied an analysis very similar to that 

employed by the district court in Cole, reasoning that appellant’s counsel had “not 

established a reasonable excuse for failure to act”; that “courts do not recognize ignorance 

of the law as excusable neglect”; and that “[i]f ignorance of the law is excusable neglect, 

then the exception would swallow the rule.” The district court found persuasive 

respondent’s argument that, if courts were to recognize ignorance of the law as excusable 

neglect, “it would lead to absurd results, such as the possibility that every case dismissed 

for failure to comply with a statute of limitations could be reopened.” 

Under Cole, we conclude that the district court erred by applying a per se rule that 

an attorney’s mistake of law cannot constitute excusable neglect. Notably, the district court 

did not separately consider what, if any, involvement appellant had in litigating the action. 

As our supreme court reaffirmed in Cole, there is a “strong policy favoring the granting of 

relief when judgment is entered through no fault of the client.” Id. at 638. Indeed, 
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“Minnesota courts have consistently held that default caused by a party’s attorney rather 

than by the party himself should be excused.” Coller v. Guardian Angels Roman Catholic 

Church of Chaska, 294 N.W.2d 712, 715 (Minn. 1980); see also Conley v. Downing, 321 

N.W.2d 36, 40-41 (Minn. 1982) (reversing district court’s denial of relief from judgment 

entered after attorney failed to respond to a summary-judgment motion); Finden, 268 

Minn. at 271-72, 128 N.W.2d at 750-51 (reversing district court’s denial of relief from 

judgment entered after attorney failed to answer complaint when party had relied on 

assurances that attorney would respond). 

With respect to due diligence, the district court reasoned that appellant’s counsel 

“filed the lawsuit on August 25, 2014, nearly one month after [respondent’s counsel] 

apprised him of his error, and nearly two months after the July 1, 2014 deadline set forth 

in Rule 5.04.” The district court found that counsel failed to act diligently “in filing the 

suit 25 days after he was informed of his error,” relying on this court’s decision in 

Hellerstedt v. MacGibbon, 489 N.W.2d 247 (Minn. App. 1992). 

In Hellserstedt, this court held that a district court did not abuse its discretion by 

denying relief under rule 60.02 when an attorney failed without explanation to file a 

certificate of trial readiness required by local rule until more than one month after an 

extended deadline imposed by the district court. 489 N.W.2d at 251. This court also 

concluded in Hellserstedt that the appellant failed to demonstrate a lack of prejudice, 

particularly noting that the alleged malpractice underlying the claim had taken place 

between six and eleven years ago. Id. 
7

Hellserstedt is distinguishable from this case because the district court here found 

that appellant met the lack-of-prejudice requirement. Moreover, Hellerstedt does not set a 

bright-line rule for the time within which a party must seek relief from judgment to meet 

the due-diligence requirement. And this court has more than once held that a party acts 

with due diligence if relief is sought within three months. See Black v. Rimmer, 700 

N.W.2d 521, 528 (Minn. App. 2005) (quoting Imperial Premium Finance, Inc. v. GK Cab 

Co., 603 N.W.2d 853, 858 (Minn. App. 2000)). 

We conclude that the district court erred by finding that appellant failed to act with 

due diligence. As appellant notes, this case was dismissed under a newly applicable rule 

of procedure, and the motion to vacate required investigation and legal research before 

filing. On these facts, filing the motion with 25 days of being apprised of the error in 

failing to file was diligent. Moreover, the district court’s focus on the minimal effort 

required to file the complaint appears misplaced. The action had been deemed dismissed, 

and filing the complaint would not have been sufficient to obtain relief from the dismissal. 

Because the district court applied an incorrect legal standard on the reasonableexcuse requirement, and because its analysis of the due-diligence requirement was 

unreasonable, we reverse and remand for the district court’s reconsideration in light of this 

decision and the supreme court’s decisions in Gams and Cole. 

Reversed and remanded.