County District Court File Nos. 33-CV-16-92, 33-CV-15-316
Konstandinos Nicklow, Meshbesher & Spence, Ltd.,
Minneapolis, Minnesota (for appellant)
G. Peterson, D. Sherwood McKinnis, McKinnis & Doom, P.A.,
Cambridge, Minnesota (for respondents Peter and Stacy Ripka)
Patrick B. Moore, Joslin & Moore Law Office, P.A.,
Cambridge, Minnesota (for respondent Zachary Ripka)
Considered and decided by Rodenberg, Presiding Judge;
Stauber, Judge; and Klaphake, Judge. [*]
After an action has been deemed dismissed with prejudice
under Minn. R. Civ. P. 5.04, it is no longer subject to
voluntary dismissal without prejudice under Minn. R. Civ. P.
considering a motion to vacate a judgment under Minn. R. Civ.
P. 60.02, substantial prejudice to the opponent must be
measured from the time the judgment was entered.
2008, appellant's mother, acting as parent and natural
guardian of appellant, then a minor, sued respondents Peter
and Stacy Ripka (collectively, "respondent
parents") alleging that they had negligently allowed
respondent Zachary Ripka ("respondent son") to
sexually assault appellant in 2006. Respondent parents did
not answer or otherwise appear in the lawsuit, and it
remained dormant for years. While the lawsuit remained
dormant, Minn. R. Civ. P. 5.04 was amended to provide that
any civil action "not filed with the court within one
year of commencement against any party is deemed dismissed
with prejudice against all parties." The amended rule
became effective for all cases pending or commenced as of
July 1, 2013, provided that "no action shall be
involuntarily dismissed pursuant to [the amendment] until one
year after the effective date." Gams v.
Houghton, 884 N.W.2d 611, 614 (Minn. 2016). Because
neither appellant nor her mother filed the suit papers with
the district court before July 1, 2014, the 2008 lawsuit was
"deemed dismissed with prejudice" by operation of
rule 5.04. Minn. R. Civ. P. 5.04(a). Appellant attempted to
dismiss the lawsuit without prejudice under Minn. R. Civ. P.
41.01(a) in November 2015, but the district court ruled that
the suit had already been deemed dismissed by operation of
law for failure to timely file it. It therefore dismissed the
suit with prejudice.
then commenced a second lawsuit against respondent parents
and respondent son, and moved under Minn. R. Civ. P. 60.02 to
reopen the judgment dismissing the first lawsuit. The
district court denied the motion for rule 60.02 relief; based
on the dismissal of the first lawsuit, and applying res
judicata principles, it dismissed the second lawsuit with
we hold that an action that has been deemed dismissed with
prejudice cannot be revived by voluntary dismissal under rule
41.01(a), we affirm the district court's dismissal of the
initial action. However, because we hold that the district
court erred in its analysis of appellant's motion for
relief under rule 60.02 from that dismissal, we reverse the
district court's denial of appellant's motion to
vacate and remand for further proceedings.
February 2006, respondent son, then 16 years old, was charged
with third-degree criminal sexual conduct for his sexual
conduct with his then-fourteen-year-old girlfriend. He was
adjudicated delinquent on October 18, 2006, and adjudication
was stayed on conditions. Respondent parents were present at
disposition when the district court stated that one condition
of the stay was that respondent son could have "no
unsupervised contact with juvenile females under the age of
13 other than [respondent son's] siblings." Less
than ten days later, on October 27, 2006, appellant, then 12
years old, attended a sleepover party as the guest of the
daughter of respondent parents at their home. The night of
the sleepover, respondent parents went to sleep around 9:00
p.m. Appellant alleges that on three separate occasions that
night, respondent son entered the bedroom where the girls
were sleeping, and he sexually assaulted appellant.
Respondent son was charged with first-degree criminal sexual
conduct by juvenile delinquency petition. He pleaded guilty.
January 2008, appellant's mother, on appellant's
behalf, served a civil summons and complaint on respondent
parents, alleging that they negligently supervised respondent
son the night of the sleepover. Respondent parents neither
served an answer nor made any other pleading or appearance in
that case until 2015.
November 2015, appellant, through new counsel, filed a notice
of voluntary dismissal of the 2008 action under Minn. R. Civ.
P. 41.01(a). The district court, rather than dismissing the
action without prejudice under Minn. R. Civ. P. 41.01(a),
determined that the case had been deemed dismissed with
prejudice under Minn. R. Civ. P. 5.04 because it was not
timely filed with the court. The district court sent notice
of the dismissal with prejudice to appellant's
mother's former attorney, but that attorney did not
inform appellant, her mother, or appellant's new counsel
of the dismissal. Unaware that the initial action had been
dismissed with prejudice, appellant's new counsel served
a second summons and complaint on respondents; this time,
including respondent son as a defendant.
April 20, 2016, respondent parents moved for judgment on the
pleadings in the second case based on res judicata, arguing
that dismissal of the first lawsuit barred the bringing of
the second. On April 22, 2016, appellant moved to vacate the
judgment of dismissal in ...