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Cornell v. Ripka

Court of Appeals of Minnesota

May 15, 2017

Jael Cornell, Appellant,
Peter Ripka, et al., Respondents, Zachary Ripka, Respondent.

         Kanabec County District Court File Nos. 33-CV-16-92, 33-CV-15-316

          Konstandinos Nicklow, Meshbesher & Spence, Ltd., Minneapolis, Minnesota (for appellant)

          Jacob 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. [*]


         1. 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. 41.01(a).

         2. When 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.


          RODENBERG, Judge.

         In 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.

         Appellant 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 prejudice.

         Because 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.


         In 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.

         In 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.

         In 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.

         On 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 ...

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