Opinion
A23-0264
12-04-2023
Erik Peterson, Appellant, v. A.L. Brown, Respondent, Capitol City Law Group, LLC, Respondent.
Ramsey County District Court File No. 62-CV-21-1842
Considered and decided by Gaïtas, Presiding Judge; Slieter, Judge; and Halbrooks, Judge.[*]
ORDER OPINION
Theojdora Gaïtas, Judge.
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. In this attorney malpractice case, appellant Erik Peterson challenges the district court's grant of summary judgment in favor of the attorney, respondent A.L. Brown, and Brown's law firm, respondent Capitol City Law Group, LLC (collectively respondents). We conclude that Peterson's expert-witness disclosure was not timely served and affirm the grant of summary judgment on that basis.
2. In 2016, Peterson hired Brown to represent him in a civil-rights action against several St. Paul police officers, which was ultimately docketed in federal court. The police officers moved for summary judgment, arguing that Peterson's guilty plea to disorderly conduct in relation to the underlying incident collaterally estopped him from pursuing his civil-rights claims. Peterson voluntarily dismissed the federal civil-rights case in 2017.
3. In March 2021, Peterson brought a legal-malpractice suit against respondents in Ramsey County District Court. Peterson's complaint alleged that Brown had erroneously informed him that his guilty plea to disorderly conduct precluded the civil-rights action and that he had dismissed the case based on Brown's advice. The complaint asserted that Brown's conduct constituted attorney malpractice.
4. A plaintiff who brings an attorney-malpractice claim "where expert testimony is to be used . . . to establish a prima facie case" must serve an expert-witness disclosure upon the defendant "within 180 days of commencement of discovery under the Rules of Civil Procedure, rule 26.04(a)." Minn. Stat. § 544.42, subd. 2 (2022). The expert-witness disclosure must
state the identity of each person whom the attorney expects to call as an expert witness at trial to testify with respect to the issues of negligence, malpractice, or causation, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion.Id., subd. 4(a) (2022). If a plaintiff fails to comply with the 180-day timing requirement, the district court must grant the defendant's motion to dismiss the action with prejudice. Id., subd. 6(c) (2022); see also Middle River-Snake River Watershed Dist. v. Dennis Drewes, Inc., 692 N.W.2d 87, 90 (Minn.App. 2005) (stating that failure to timely file a disclosure requires dismissal of the action).
5. Respondents moved for summary judgment on two grounds related to the statutory expert-witness-disclosure requirement. First, respondents asserted that Peterson's expert-witness disclosure, which was served on October 5, 2022, was untimely because it was not served within 180 days of the commencement of discovery. Second, respondents alleged that Peterson's expert-witness disclosure was substantively deficient. Peterson opposed respondents' motion, arguing that his expert-witness disclosure was timely and substantively sufficient.
Peterson did not argue below or before this court that expert testimony was not required to prove malpractice under the circumstances of his case.
6. The district court filed an order granting respondents' motion for summary judgment but failed to provide the legal basis for its decision in the order. There is no explanation of the district court's decision in the record.
7. "We review a district court's summary judgment decision de novo. In doing so, we determine whether the district court properly applied the law and whether there are genuine issues of material fact that preclude summary judgment." Riverview Muir Doran, LLC v. JADT Dev. Grp., LLC, 790 N.W.2d 167, 170 (Minn. 2010). "[W]e may affirm a grant of summary judgment if it can be sustained on any grounds." Doe 76C v. Archdiocese of St. Paul, 817 N.W.2d 150, 163 (Minn. 2012).
8. "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." Lake Superior Ctr. Auth. v. Hammel, Green & Abrahamson, Inc., 715 N.W.2d 458, 468 (Minn.App. 2006), rev. denied (Minn. Aug. 23, 2006). But to the extent a dismissal of an action for procedural irregularities involves interpreting the professional malpractice statute, review is de novo. Brown- Wilbert, Inc. v. Copeland Buhl & Co., 732 N.W.2d 209, 215 (Minn. 2007).
9. We are concerned that the district court failed to identify the legal basis for the grant of summary judgment in favor of respondents. The district court should have provided some explanation of its decision-in writing or on the record-for the benefit of the parties and to facilitate appellate review.
10. However, the record makes clear that Peterson's expert-witness disclosure was not served within 180 days of the commencement of discovery. We therefore conclude that the district court's dismissal of the action was not an abuse of discretion. Indeed, as Minnesota Statutes section 544.42, subdivision 6(c), instructs, the district court was required to dismiss Peterson's action under Minnesota law.
11. The record establishes-and Peterson conceded during oral argument before this court-that Peterson served interrogatories on respondents on September 10, 2021. By serving discovery requests on respondents, Peterson commenced discovery. See Minn. R. Civ. P. 26.02(a) (stating that interrogatories may be used to obtain discovery).
12. Peterson served his expert-witness disclosure on respondents on October 5, 2022-390 days after he commenced discovery. Thus, the expert-witness disclosure was untimely, and dismissal of the action was required under section 544.42, subdivision 6(c).
13. Citing our decision in Firkus v. Harms, 914 N.W.2d 414 (Minn.App. 2018), Peterson argues that his expert-witness disclosure was timely filed because respondents did not timely file an answer to the complaint and the parties did not have a discovery conference. According to Peterson, discovery commenced on April 28, 2022-the date when discovery should have commenced under rule 26 of the Minnesota Rules of Civil Procedure.
14. Rule 26.06(a) provides that the parties to a civil action must confer to prepare a discovery plan "within 30 days from the initial due date for an answer." Minn. R. Civ. P. 26.06(a). In Firkus, we considered when discovery commences for the purpose of the medical-malpractice expert-witness-disclosure statute if the parties do not have a discovery conference. 914 N.W.2d at 420. We determined that "commencement of discovery" means "when discovery should commence under Rule 26," which is no later than the date of the discovery conference or 30 days after the defendant's answer is due, whichever is earlier. Id. at 416, 420.
15. Firkus does not support Peterson's argument that his expert-witness disclosure was timely served. Here, unlike the circumstances in Firkus, we need not ascertain when discovery should have commenced because the record makes clear when discovery actually commenced. Peterson commenced discovery on September 10, 2021, when he served his discovery requests on respondents.
16. Because Peterson did not serve his expert-witness disclosure until 390 days after he commenced discovery, it was untimely, and the district court was required to dismiss the action for noncompliance with the timing requirement of Minnesota Statutes section 544.42, subdivision 4(a). We therefore conclude that the district court did not abuse its discretion in dismissing the action.
17. Because the district court was required to dismiss Peterson's action for noncompliance with the timing requirement of Minnesota Statutes section 544.42, subdivision 4(a), we need not address the substance of Peterson's expert-witness disclosure.
IT IS HEREBY ORDERED:
1. The district court's order is affirmed.
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel.
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.