Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lake Superior Center Authority v. Hammel

June 6, 2006


St. Louis County District Court File Nos. C9-02-602206, C2-02-602206.


Upon finding excusable neglect pursuant to Minn. R. Civ. P. 6.02, the district court may grant an extension of time for filing an affidavit certifying expert review after expiration of the 90-day limit imposed by Minn. Stat. § 544.42 (2004).

The opinion of the court was delivered by: Kalitowski, Judge


Considered and decided by Kalitowski, Presiding Judge; Shumaker, Judge; and Minge, Judge.


In this appeal following a trial regarding alleged defects in the design of a large exhibit tank in an aquarium, appellants contend that the district court erred by (1) denying their motion for new trial; (2) denying their motion for judgment notwithstanding the verdict; (3) denying their motion to amend the pleadings; and (4) awarding respondents excessive expert-witness fees. By notice of review, respondent architect argues that the district court erred by (1) failing to dismiss appellants' complaint for failure to timely serve an expert-review affidavit; (2) denying motions for summary judgment and directed verdict; (3) granting a partial stay of enforcement of the judgment of costs and disbursements; and (4) denying its request for daily transcript fees. Respondent tank designer also argues that the district court erred by denying the motion for summary judgment. We affirm the district court in all respects.


Appellant Lake Superior Center Authority (Authority) is a public corporation formed by an act of the legislature in 1990. Appellant Lake Superior Center (Center) is a nonprofit corporation formed to develop and obtain funding for the Great Lakes Aquarium in Duluth, Minnesota. In June 1997, Authority and respondent Hammel, Green and Abrahamson, Inc. (HGA) entered into an architectural contract in which HGA agreed to provide lead architectural, design, and engineering services relating to the construction of the aquarium. HGA contracted with respondent Rutherford and Chekene, Inc. (R&C), a California design firm, to consult on the project and provide design services for the project's exhibit tanks.

Authority also contracted with the following parties: (1) Koosman Project Management Services (Koosman) to serve as the owner's agent; (2) Adolfson & Peterson, Inc./Johnson-Wilson Construction Management, Inc. (A&P/JW) to serve as construction manager on the project; (3) Marcy Construction Company (Marcy) to serve as the project's concrete contractor; and (4) Krech/Ojard and Associates, P.A. (K/O) to provide architectural and engineering inspection services on the project. Marcy contracted with Duluth Ready Mix (DRM) and Concrete Restorers (CR) to provide labor and materials. Center retained American Engineering and Testing, Inc. (AET) to provide two different services on the project, engineering inspection and concrete mix design. And HGA contracted with Melander, Melander and Schilling (MMS) to provide consulting services.

Construction began on the project in December 1998. In October 1999, the project encountered substantial problems with the concrete poured for the walls of the Isle Royal Tank, the largest exhibit tank in the aquarium. Repair of the defective walls required significant additional labor and expenditures, but the aquarium eventually opened on July 29, 2000.

In March 2001, Marcy brought an arbitration claim against Authority to recover expenses it incurred as a result of repair work on the Isle Royal Tank. Authority counterclaimed, alleging that Marcy owed it damages for inadequate and defective work. In January 2002, Marcy and Authority settled their claim by entering into a Pierringer agreement. Under the agreement, Authority tendered payment to Marcy and agreed to settle, release, and discharge its claims against Marcy. Authority also agreed to indemnify and hold Marcy harmless for any claims for contribution or indemnity made by others jointly liable with Marcy for damages.

On May 3, 2002, appellants filed a complaint against HGA asserting, among other things, claims of negligence, vicarious liability, and contribution and indemnity. Appellants argued that HGA was negligent in providing project design and specifications that led to defects in the Isle Royal Tank and was vicariously liable for the actions of its subconsultants. HGA also filed a third-party complaint against other parties involved in construction of the tank, including R&C, MMS, A&P/JW, Koosman, AET, and K/O.

On August 6, 2002, appellants served their affidavit certifying expert review. On August 9, 2002, appellants filed an application to waive and/or extend the time limits for certification of expert review under Minn. Stat. § 544.42. The district court held that the affidavit served on August 6 was timely. HGA moved to dismiss appellants' complaint for failure to abide by the time limits for certification of expert review, but the district court denied the motion. Both this court and the Minnesota Supreme Court denied HGA's subsequent petitions for review of the district court's denial of the motion to dismiss.

In spring of 2003, R&C and HGA moved for summary judgment, asserting that the statute of limitations set out in Minn. Stat. § 541.051 barred appellants' claims. The district court denied the motion for summary judgment.

In October 2003, appellants amended their complaint to add R&C as a defendant, arguing that R&C was also liable due to its inadequate and defective project specifications. R&C denied the claims and brought counterclaims, cross-claims against HGA, and third-party claims against Marcy, DRM, K/O, AET, A&P/JW, and CR.

In April 2004, HGA and R&C entered into a settlement, defense, and indemnity agreement. Under the settlement, HGA agreed to release its claims against R&C and to hold R&C harmless to the extent of HGA's insurance policy. The agreement stated that it was a Pierringer release as approved and interpreted by Pierringer v. Hoger, 124 N.W.2d 106 (Wis. 1963), and Frey v. Snelgrove, 269 N.W.2d 918 (Minn. 1978).

By May 2004, HGA and R&C had both asserted claims against Marcy. Marcy moved for summary judgment based on its settlement with Authority. The district court granted Marcy's motion, dismissing HGA's and R&C's claims against Marcy because appellants had an obligation to indemnify Marcy under their settlement. On May 13, 2004, HGA and R&C jointly made a rule 68 offer of settlement to appellants for $1,000,000, which was rejected by appellants.

During July and August of 2004, HGA entered into settlement agreements with K/O, AET, and A&P/JW and moved to dismiss its claims against the settling parties. The district court dismissed the settling parties with prejudice, stating that the dismissal did not preclude appellants from asserting any claims against the dismissed parties, subject to applicable rules of law and procedure.

The trial began with voir dire on August 31, 2004, and lasted almost two months. At the close of appellants' case, the remaining defendants, HGA, R&C, and third-party defendant MMS, moved for directed verdict. The court granted the motion regarding MMS and denied it regarding HGA and R&C.

The jury returned its special verdict on October 23, 2004. The jury found that (1) respondents HGA and R&C were not negligent; (2) K/O, A&P/JW, AET as concrete-mix designer, and CR were not negligent; (3) Marcy and AET, as special inspector, were negligent, and fault was apportioned 75% and 25%, respectively; (4) appellants and Koosman were negligent but their negligence was not a direct cause of the tank defects; and (5) $270,000 could reasonably repair the defects on the tank. The jury also found that appellants discovered or should have reasonably discovered their injury due to the defective and unsafe condition of the tank on or before May 1, 2000. The district court dismissed HGA and R&C based on the jury's special verdict and found both of them entitled to costs and disbursements. The court also dismissed DRM and CR.

The next day, appellants moved to amend the pleadings in accordance with Minn. R. Civ. P. 14.01, 15.02. The motion sought to add various third-party defendants as direct defendants. Additionally, appellants asked the court to determine that certain parties were liable in indemnity. In December 2004, appellants moved for judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. On February 22, 2005, the district court issued orders denying appellants' motions for amendment and indemnity, JNOV, and a new trial.

In March 2005, HGA and R&C submitted to the court their applications for costs and disbursements. Appellants objected to taxation of costs and disbursements against them generally and raised specific objections to many of respondents' itemized costs. In April 2005, appellants also moved to stay enforcement or execution of any monetary judgment in favor of HGA and R&C during appellate proceedings.

After a hearing, the court issued its order as to costs and disbursements and appellants' motion for a stay on June 7, 2005. The district court reduced or denied parts of HGA's and R&C's costs and concluded that HGA was entitled to $256,612.52 and R&C was entitled to $89,447.04. Regarding appellants' motions to stay entry of judgment, the court denied the motion as to Center and granted the motion in part as to Authority.

On appeal, appellants' arguments focus primarily on the district court's posttrial orders whereas respondents' issues focus on pretrial orders. And both appellants and respondents challenge aspects of the court's order of costs and disbursements. We address the parties' issues in chronological order.


1. Did the district court err by denying respondents' motion to dismiss based on appellants' failure to timely serve an expert-review affidavit under Minn. Stat. § 544.42?

2. Did the district court err by denying respondents' motions for summary judgment and directed verdict?

3. Did the district court abuse its discretion by denying appellants' motion to amend the findings?

4. Did the district court err by denying appellants' motions for judgment notwithstanding the verdict and a new trial?

5. Did the district court abuse its discretion in awarding costs and disbursements or by granting Authority a partial stay of enforcement of the judgment?



HGA argues that the district court erred by denying its motion to dismiss the malpractice claim against it because appellants failed to timely file an affidavit of expert review. A district court's decision regarding whether to dismiss a malpractice claim for noncompliance with statutory requirements regarding submission of expert affidavits will be reversed only upon an abuse of discretion. Broehm v. Mayo Clinic Rochester, 690 N.W.2d 721, 725 (Minn. 2005) (reviewing dismissal of complaint for noncompliance with expert disclosure). Questions of statutory construction are legal questions reviewed de novo. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990).

Negligence actions against professionals, including architects, must comply with expert-disclosure requirements under Minn. Stat. § 544.42, subd. 2 (2004). See Middle River-Snake River Watershed Dist. v. Dennis Drewes, Inc., 692 N.W.2d 87, 90 (Minn. App. 2005) (discussing expert-affidavit requirements in negligence action against engineer). The expert-review provisions of Minn. Stat. § 544.42 (2004) are similar to those contained in Minn. Stat. § 145.682 (2004), the medical-malpractice expert-affidavit statute. See id. at 91 (discussing parallel reasoning used in construing requirements of Minn. Stat. § 145.682 and Minn. Stat. § 544.42); see also House v. Kelbel, 105 F. Supp. 2d 1045, 1051 (D. Minn. 2000) (stating that the Minnesota legislature "used § 145.682 as a blueprint in drafting the language of § 544.42").

The affidavit statute for non-medical professional malpractice actions requires a plaintiff to serve two expert-witness disclosure affidavits on an adverse party. Minn. Stat. § 544.42, subd. 2. The first, an affidavit of expert review, must establish that an expert reviewed the case, leading to the opinion that the defendant deviated from the applicable standard of care and the action caused plaintiff's injury. Id., subds. 2(1), 3(a)(1). The second, the expert-identification affidavit, identifies the expert witnesses and provides the substance of the experts' opinions and a summary of the basis for each opinion. Id., subds. 2(2), 4(a). It is the affidavit of expert review that is at issue here.

The affidavit of expert review must generally be served with the pleadings. Id., subd. 2(1). But the party's attorney may state in an affidavit served with the pleadings that the party could not reasonably obtain expert review before the action was commenced because of the applicable statute of limitations. Id., subd. 3(a)(2). If the party executes an affidavit under subdivision 3(a)(2), the expert-review affidavit must be served within 90 days after service of the complaint. Id., subd. 3(b). Failure to then serve the expert-review affidavit within 90 days after the complaint "results, upon motion, in mandatory dismissal of each cause of action . . . as to which expert testimony is necessary to establish a prima facie case." Id., subd. 6(b). The requirements for this affidavit "may be waived or modified if the court . . . determines, upon an application served with commencement of the action, that good cause exists for not requiring the certification." Id., subd. 3(c).

Here, appellants filed their complaint on May 3, 2002. Accompanying the complaint was an affidavit of appellants' counsel stating that expert review could not reasonably be obtained before commencing the action because of the applicable statute of limitations. On August 6, 2002, HGA informed appellants that it would seek dismissal because they had failed to serve the expert-review affidavit. Appellants served the affidavit that same day. On August 9, 2002, appellants filed an application to waive or extend the time limits for certification of expert review under Minn. Stat. § 544.42.

On September 23, 2002, the district court found that good cause existed to extend the time limits of section 544.42 and that the August 6 affidavit would be considered timely. The court made specific findings that good cause had been shown and that appellants made good-faith efforts to locate an expert. The court further found that the good-cause provision of Minn. Stat. § 544.42, subd. 3(c), did not apply and that the matter was more appropriately addressed under Minn. R. Civ. P. 6.02. The court reasoned that the statutory conditions were procedural, and therefore subject to extension under rule 6.02 because appellants sufficiently demonstrated excusable neglect. HGA moved to dismiss appellants' complaint for failure to abide by the time limits for certification of expert review, but the district court denied the motion, standing by the reasoning it set out when it granted appellants' request to extend the time limits.

HGA argues that the district court erred by failing to dismiss appellants' complaint because appellants did not file their affidavit within the 90 days allowed under Minn. Stat. § 544.42, subd. 3(b). We disagree.

Minnesota courts have held that failure to strictly satisfy the expert disclosure requirements will result in dismissal of the claim with prejudice. Broehm, 690 N.W.2d at 726; see also Teffeteller v. Univ. of Minn., 645 N.W.2d 420, 430-31 (Minn. 2002) (dismissal of malpractice action mandated where expert disclosure contains only broad and conclusory statements); Lindberg v. Health Partners, Inc., 599 N.W.2d 572, 578 (Minn. 1999) (dismissal mandated where expert disclosure falls short of the substantive disclosure requirements). And this court has upheld the district court's dismissal of a complaint for failure to serve an expert-identification affidavit within 180 days after initiating its claim. Middle River, 692 N.W.2d at 90-91. Further, we have recently held that the "safe-harbor" provision of Minn. Stat. § 544.42, subd. 6(a), allows a plaintiff to submit a second affidavit of expert review where the district court ruled the initial affidavit inadequate. Noske v. Friedberg, ___ N.W.2d ___, ___, 2006 WL 1073063, at * 5 (Minn. App. Apr. 25, 2006).

But Minnesota courts have not addressed whether Minn. Stat. § 544.42 may be read in conjunction with Minn. R. Civ. P. 6.02, which allows the district court to expand statutory time periods, even after expiration of the time period, upon a showing of excusable neglect. In the medical malpractice context, Minnesota courts may allow an extension of the time period for serving expert affidavits. Stern v. Dill, 442 N.W.2d 322, 324-25 (Minn. 1989); Parker v. O'Phelan, 414 N.W.2d 534, 538 (Minn. App. 1987), aff'd by an equally divided court, 428 N.W.2d 361 (Minn. 1988). In Stern, the plaintiff failed to timely file the second affidavit, identifying expert witnesses within 180 days, under Minn. Stat. § 145.682, subds. 2(2), 4 (1988). 442 N.W.2d at 323. The defendant moved to dismiss, relying on the statutory language requiring "mandatory dismissal with prejudice." Id. Notwithstanding the penalty clause language requiring mandatory dismissal, the supreme court concluded that the statute should be read in conjunction with Minn. R. Civ. P. 6.02 because the statutory time limits were procedural and could therefore be extended, even after the time limits expired, upon a showing of excusable neglect. Id. at 324.

Here, the 90 days allotted to appellants under Minn. Stat. § 544.42, subd. 3(b), ran on August 1, 2002. And appellants did not file their expert-review affidavit by that date. Accordingly, Minn. Stat. § 544.42, subd. 6(b), required dismissal of appellants' claims. Thus, we must determine whether the district court erred by applying Minn. R. Civ. P. 6.02 to extend the time in which appellants could serve their affidavit.

Rule 6.02 permits trial courts to extend time limits imposed by statute "provided the motion for extension is made before the time expires." Parker, 414 N.W.2d at 536. If the motion is made after time expires, as in this case, the court may enlarge the time limit "where the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.