*1 budgets of expectations and Minnesota districts. The school district does school only dispute that it is the school dis-
not 1996; immunity to have since
trict claimed fact, admitted in the school district testi-
mony by a that it school officer had “laid telling other districts about the
low”
immunity provision fear that the legis- Apparently,
lature would abolish it. only
school district is the district any expectation immunity
state had so,
under section 466.12. Even the school
district has been self-insured for tort paid
claims since 1990 and has claims during
deemed meritorious that time. We
hold that 466.12 Minn.Stat. ex-
pired 1974 and was not revived. Because expired,
the statute has need not reach
appellants’ arguments the statute is
unconstitutional, and the school district’s
pending motion to strike dismissed as
moot.
Reversed and remanded. INC.,
BROWN-WILBERT, al., Ap- et
pellants (A05-340), Respondents
(A05-1952), CO., P.L.L.P.,
COPELAND BUHL & al., Respondents (A05-340),
et (A05-1952).
Appellants A05-340,
Nos. A05-1952.
Supreme Court of Minnesota.
May *3 Nelson, Hunt, Lommen, Nord Cole
Kay P.A.; Antrim, III, E. Stageberg, George & PLLC, Antrim, III, E. Minne- George MN, (A05-340), apolis, Re- Appellants (A05-1952). spondents Roller, Shroyer, A. J. Peter Thomas MN, Barnett, P.A., Minneapolis, Moss & (A05-340), Appellants Respondents (A05-1952).
OPINION HANSON, Justice. ac appeals
These arise out of two civil brought by Chris Brown and Brown- tions Wilbert, Brown-Wilbert), Inc. (collectively Copeland Buhl against Company & Accountants). (collectively Lee Harren was in March complaint The first served (1) and contained four counts: breach (2) (3) contract, fiduciary duty, of of breach (4) accounting malpractice, and restitution (BW-I). granted Ac The district court all of countants’ motion to dismiss counts (2006), § under Minn.Stat. 544.42 BW-I failed to grounds Brown-Wilbert timely expert serve an affidavit of review expert an affidavit of disclosure. appeals of of court affirmed dismissal count, malpractice holding accounting timely that Brown-Wilbert failed to serve review, an affidavit of but reversed court’s dismissal of the three the district remaining counts and them for remanded an analysis they subject of whether are requirements affidavit section Brown-Wilbert, Inc., v. Copeland 544.42. A05-340, Co., Buhl & No. 2005 WL n 3-4 (Minn.App. Nov. (Minn. 2006). 2005), granted rev. Feb. accounting We affirm the dismissal of count, but on different malpractice grounds. appeal in BW-I Brown-Wilbert’s
While pending appeals, in the court was complaint a second filed a action against Brown-Wilbert served Chris shareholder’s Jerry, same which resulted in alleging buying Chris all of against (1) Jerry’s shares in adding facts but four new counts: Brown-Wilbert. Brown- then fraud, against Wilbert BW-I misrepresentation, intentional commenced In Accountants. connection with that misrepresentation, aiding ac- negligent (BW-II). tion, required court Brown-Wilbert was abetting The district serve, with the an pleadings, affidavit judicata res grounds. dismissed BW-II on review, reversed, certifying counsel holding that had appeals The court of reviewed the facts of the case with an judgment was not final be- BW-I opinion who reached the that Ac- appellate process been cause had not countants had from the applicable deviated Brown-Wilbert, Cope- exhausted. Inc. v. care, injury causing standard to Brown- Co., land Buhl & 2(1), Wilbert. Minn.Stat. subds. (Minn. (Minn.App.2006), granted Aug. rev. 3(1) (2006). addition, 2006). Brown-Wilbert We affirm the reinstatement of serve, required within days BW-II, but on different after complaint, service affidavit grounds. disclosure, by counsel, of expert signed is Minnesota burial *5 experts the naming expected that counsel com- manufacturing company. vault The to call trial providing and “the sub- 1995, in pany obtained its name when opinions stance of the facts and to which (Chris) Christopher Brown and father his expert expected testify, the to and a Brown, Jerry incorporated Brown (Jerry) summary grounds of the each opinion.” Inc., Inc., purchased Chandler-Wilbert, 544.42, (2006). § 2(2), Minn.Stat. subds. merged companies the two into and The failure to serve an affidavit of ex- Brown-Wilbert, litigation Inc. This arises pert days “within review after demand out of these 1995 transactions. results, upon motion, for the affidavit alleges Brown-Wilbert that Accountants mandatory dismissal of each cause of ac- accountant, Jerry’s personal served as as prejudice which expert tion with as to tes- Brown, Inc., accountants for and later timony is necessary prima to establish Brown-Wilbert, alleg- Inc. Brown-Wilbert 544.42, facie case.” Minn.Stat. subd. (1) es that Accountants: advocated on Jer- 6(a) (2006). And the failure to serve an ry’s behalf and to advise failed Chris of expert affidavit also disclosure conflicts of between and interest Chris results, upon .motion, mandatory dis- (2) Jerry; proposed Chris should own prejudice of each missal action with as Brown, Inc., Jerry equity 80% the but expert testimony is necessary to which shares; voting should have 51% of the and case, prima provided to establish facie Chandler-Wilbert, misrepresented that that an initial dismiss an motion to ac- Inc., had ownership insisted on this and * * * claimed upon tion based deficien- arrangement control as a condition for the the cies of affidavit or answers to inter- Brown, Inc., gave to to finance help loan unless, granted shall rogatories not be purchase. alleges the Brown-Wilbert also court, the nonmoving after notice the (1) attempted to Accountants: given to party days the Inc., Brown-Wilbert, squeeze Chris out of requirements subdivision 4. disclosure by pressuring majority to sell Chris his 6(c). Section Jerry; indepen- interest to were not dent; contrary and acted to Brown-Wilbert did not include an affida- Chris’s expert interests. vit of review it served when its disclosure, the expert As the affidavit of in BW-I. Accountants did not to that Brown-Wilbert’s an affidavit of court concluded demand for separate make “[ajnswers iden- 18, [ijnterrogatories to fail to but, May on or about expert review their tify experts, opinions, expert interroga- the state Accountants served opinions re- basis these as June state the On tories Brown-Wilbert. statute, fail to quired by and therefore answers to filed a re- affidavit.” As resemble the second stating it ex- interrogatories, those sult, witnesses, court held that Brown-Wilbert Rob the to call two pected an disclo- did not serve affidavit Legier. R. In re- Tautges and William asking days sure after commencement interrogatory for the within sponse matter, action. of the facts the subject substance opinions grounds each agreed appeals court of ex- these witnesses were opinion which inter- court’s district conclusion testify, answers stated: pected rogatories by Accountants were served recently have been re- experts Both ex- for an affidavit of sufficient “demand” firm, Tautges’ Tautges Mr. tained. of Octo- pert review affidavit Ltd., as the current Redpath, serves untimely it was ber was because for Brown- Certified Public Accountant days that de- more than 60 after served Wilbert, are experts expected Inc. Both BW-I, 3111959, at *2-3. mand. 2005 WL to the set forth testify as conclusions appeals The court of did address upon facts Complaint, in the based requirements for a valid affidavit of Complaint. Plaintiffs will alleged in disclosure. necessary. supplement this Answer While BW-I pending before *6 Discovery continuing. is on appeals, court Brown-Wilbert served of 21, 2004, September On more than 180 BW-II. the in Ac- Accountants BW-I, days after the of commencement countants moved the district to dis- court moved all four Accountants to dismiss BW-II, arguing judgment that the of miss complaint, of the that arguing counts dismissal BW-I had judicata res effects the interroga- Brown-Wilbert’s answers to the barred second action. The district satisfy did requirements tories not the of court concluded that BW-II was precluded necessary expert either of the affidavits. by the judicata judgment res because filed On October Brown-Wilbert final, BW-I was though appeal the even response an motion included was it was on merits pending, and the purporting affidavit of counsel to contain counts, just it all not because dismissed an expert both affidavit of review and an The accounting malpractice the count. expert affidavit of disclosure. the of appeals court of reversed dismissal BW-II, holding BW- judgment in granted The district court Accountants’ that the I appellate process motion counts not final until the and dismissed all four of the was BW-II, at BW-I with complaint in to was prejudice. As exhausted. review, rejected expert of 488. court appeals affidavit court of also argument concluded that Accountants’ service of Accountants’ alternative constituted a “de- BW-II should be dismissed expert of interrogatories grounds 6(a) holding splitting mand” that claim splitting, under subdivision and that claim independent an defense but is sim- Brown-Wilbert’s October affida- “inextricably ply judicata.” vit of was linked to res counsel served more than 60 Id. days untimely. was after the demand and period
I. not begin did to run until Account- ants moved dismiss. And because BW-I, only issue before Brown-Wilbert filed an affidavit of expert appropriateness us is the of the dismissal 15, 2004, October review on within days prejudice malprac the accounting of after service of Accountants’ motion to dis- count. did tice not seek re miss, the affidavit of expert review was of appeals’ view of the court reversal of timely.1 judgment to the counts as for breach contract, duty, of of fiduciary breach B. Expert Disclosure Affidavit of restitution. review a We district court’s 2(2), Section requires procedural of an action for irreg dismissal that an affidavit expert of disclosure be ularities under an stan abuse discretion served 180 days within after commence- Minn., dard. See Univ. Teffeteller 15, 2004, ment of action. The October (Minn.2002) (review affidavit filed than days more ing a district court’s dismissal of a claim from and, the commencement action (2006)). pursuant to Minn.Stat. 145.682 therefore, it does not the 180-day But where a of law question present, requirement. But argues Brown-Wilbert construction, statutory such as apply filed interrogatories answers to novo de review. Id. 180-day within period that, al- though those answers contained some defi- A. Expert Review Affidavit of ciencies, they were sufficient to meet the The district court and the court minimum standard for an affidavit of ex- appeals each concluded that Accountants’ pert disclosure.2 Brown-Wilbert further interrogatories constituted demand that argues any deficiencies the answers triggered running 60-day period interrogatories were cured the Octo- providing an affidavit of review. ber 15 affidavit. More specifically, Although interrogatories could as serve argues its answers to they provide adequate such demand if interrogatories were sufficient to meet notice that an affidavit review is the minimum standards for affidavit of required, we conclude that Accountants’ disclosure, specified section *7 interrogatories not did constitute such a 544.42, 4; subdivision that the answers interrogatories demand. Accountants’ did 180-day require- therefore satisfied the 544.42, not refer to section or use the 2(2); ment contained in subdivision and Moreover, “expert words review.” the in that any deficiencies in the answers could terrogatories request did not the specific be after provided by cured notice as subdi- type of that information is to be included To vision 6. address Brown-Wilbert’s ar- in an affidavit expert of review. therefore, gument, we must determine Because Accountants’ interrogatories what minimum the standards are for an demand, not a 60-day did constitute expert the affidavit of to satisfy disclosure the 544.42, 4(a), suggest 1. Accountants also specifically Brown-Wil- 2. Section subdivision expert provides interrogatories plainly bert's answers to affidavit indicates that required state the information for an affidavit expert the review had not occurred until after expert satisfy requirements disclosure the of the action was commenced. Because af- they signed by of an affidavit are such “if the firm accounting malprac- the the dismissal of party’s attorney upon oppo- and served the grounds, tice count on other we need not days nent within after commencement of argument. address that against the action the defendant.” (D.Minn.2000) 1045, 1048, 1053 F.Supp.2d plain- and entitle the 180-day requirement added). is unper But House (emphasis deficiencies and any of tiff to notice plaintiff the House did because requirement. the suasive satisfy disclosure days to days of any not file affidavit within 544.42, 4 de Section Thus, Id. the commencing suit. of requirements for an affidavit the scribes attempt” faith in House “good reference to (1) signed by must be expert disclosure—it the was based on was dicta — the dismissal identity state the counsel and plaintiffs affidavit, not on any failure to file a deter facts of the expert, of each the substance filed mination that an affidavit was but a sum expert, and and each opinions The filed faith. Id. at 1054. good not opinion. for mary grounds the each court said: interroga to answers the Brown-Wilbert’s 6(c) to To subd. construe because, they although tories deficient are plaintiff for the days allow for 60 extra the by counsel3 state signed are the affidavit at all would be provide to they fail to state experts, of the identity the an result. It would allow absurd opinions of the facts the substance disregard requirement, the plaintiff to opin grounds for each expert each or the if failed to move for the defendant the question whether ion. The becomes dismissal, proceed the case would with they do not are so deficient answers having require out the met plaintiff an of ex meet for affidavit the standards did file the mo ment. If the defendant disclosure, minimally sufficient to sat pert tion, provide a court have to would 180-day isfy requirement. hearing finding issue a specific in- to argue Accountants answers plaintiff did not the affidavit. provide 180-day cannot terrogatories Then receive an extra plaintiff would “good requirement they represent unless days to so. This construction of do require- attempt” comply faith with the an the statute could allow for excessive ments an affidavit of disclosure. pass amount time without argue that Brown-Wilbert’s has plaintiff establishing that case represent faith good n * answers did merit *. they did not attempt comply because Id. provide specific information for two of requirements statutory disclosure —the “good faith” adopt We decline opin- relied on and substance facts inject subjec standard because would
ions and a sum- reached each requirements tive into the element mary grounds opinion. for each find affidavit of disclosure. We court, construing suggest that nothing federal district in section 544.42 to *8 544.42, 6, subjective action be section subdivision in an elements should considered. 544.42, Instead, brought diversity juris- read under that court’s section subdivi 4, diction, objective requirements not re- to stated that dismissal was sion describe of quired where an affidavit was “submitted for an affidavit disclosure good faith,” though any affidavit can be on the face of docu even measured ment that claimed be such an affida “sufficiently specific procedural- not to Kelbel, vit, intent. ly perfect.” inquiry v. 105 without into counsel’s House sufficiency signa- signature challenge of We that the of on the do not note counsel interrogatories to the answers is restricted ture. objections,” to words "as but Accountants
217 1986, parties originally Both discuss cases decided under As enacted in and as Stroud, statute, considered in Lindberg, Minn.Stat. analogous Sor enson, (2006), § section 145.682 did have involving any the affidavit re- 145.682 25, 1986, cure provision. Act of Mar. ch. quirements malpractice for medical ac- 455, 60, 840, Minn. 1986 Laws 871-72. tions. context said that we have 1997, When section 544.42 was enacted in requires an affidavit of disclosure provisions it included the cure of subdivi far simply more information than identi- 6, ostensibly for sion purpose avoid the expert fication of intended to be ing the harsh results that had been or a “general called at trial disclosure” Lindberg reached in and Stroud. Al * * *, materials, and non-affidavit ab- though section 145.862 was amended in defendant, prejudice sence of to failure provision 2001 to insert a cure for medical prove plaintiffs to claim defendant claims, malpractice making section 145.862 failure of to frivolous or defendant alert 544.42, more similar section Act of May plaintiff inadequacy the affida- 22, 2002, 403, 1,§ ch. 2002 Minn. Laws vit of will expert identification not ex- 1706, 1706-07, the amendment section justify cuse or an of expert affidavit 145.682 was on perception based falling identification short the sub- malpractice meritorious medical claims requirement. stantive disclosure were being dismissed where the only disclosure affidavit was missing some Partners, Inc., Health Lindberg v. 599 technical information that be could correct (Minn.1999) 572, 578 (dismissing N.W.2d ed. Sen. debate S.F. Minn. 82nd action); malpractice medical also see Teffe (audio (statement Leg., May tape) teller, (dismissing medi bill). Neuville, of Sen. author of the cal malpractice stating action and that the 145.682, required affidavit under section arguments correctly Accountants’ give subdivision must more than a emphasize that sections and 544.42 145.682 “sneak of the preview” expert’s testimony); legislative have a purpose pro common Ctr., Hennepin County Stroud Med. early vide for the dismissal of frivolous (Minn.1996) (dismiss N.W.2d 555-56 malpractice claims. ar Brown-Wilbert’s ing malpractice stating medical action and guments correctly emphasize that the cure requires that section 145.682 that the affi 544.42, provisions enacted with section specific davit concerning contain details later added to reflect an section expected the expert’s testimony); Soren legislative purpose other avoid dis —to Ctr., son v. Ramsey St. Paul Med. 457 missal of meritorious minor claims over (Minn.1990) (stating arguments technicalities. These focus the interrogatories the affidavit or answers to undoubtedly issue. It is that an affi true “specific must include concerning details may davit be sufficient to the 180- experts’ expected testimony, their includ- day requirement even though it contains care, ing the applicable standard the minor deficiencies. The existence plaintiffs allege acts or omissions that vio- provisions requires cure lated the of care standard outline of But interpretation. it is also undoubt the chain allegedly of causation that result- edly true that an affidavit is not sufficient *9 plaintiffs). ed in to damage” But there are 180-day to if the requirement the differences between 544.42 and great sections that it no provides deficiencies are so 145.682 that limit the of that significant Any usefulness inter information. other analogy. 180-day pretation would render the re-
218 testimony expert level difficulty is determined what of meaningless.
quirement provide a in order to survive precise plaintiff must to draw the where to determine in an ac a for a directed verdict motion extremes. these two line between case, we done malpractice countant have sug as a whole Reading the statute legal malpractice so in the medical and expert the affidavit of disclosure gests that plaintiff have said that a context.4 We information an than affi requires greater “(1) the demonstrate standard must affidavit of review. The expert davit of community recognized by the medical care supposed to be served expert review * * (2) n , in fact de that the defendant requires and the attor with the standard, that parted from the that attorney has ney certify to that the con from that standard departure defendant’s adequate quali an expert sulted with inju plaintiffs] was a direct cause [the expert that the has reached fications and prima a facie case and ries” to establish opinion that the defendant deviated the mal jury question a in a medical create care in a applicable standard of from the v. practice case. Plutshack Univ. of injuries. plaintiffs way caused the that (Minn. 1, Hosps., 316 5 Minn. N.W.2d 3(a)(1). 544.42, An af Section 1982); Admiral Motor Merchs. cf. disclosure, which is not expert fidavit of Hannan, v. & 494 Freight O’Connor days commence required until 180 after (Minn.1992) (stating 266 that N.W.2d must, action, comparison ment of generally to testimony required by definition, informa provide more to of care applicable establish standard review. tion than an affidavit malpractice, attorney de legal whether 4(a). 544.42, 3(a)(1), subdivisions Section standard, from viated and whether Further, pur if we to the look injury). plaintiffs deviation caused the a provide for to mech pose Thus, section to for order survive motion early anism dismissal of frivolous in an malprac directed verdict accountant actions, case, minimum standards such a plaintiff present expert must tice be it contains testimony an affidavit should the applicable identifies information on each of the is meaningful of care and that the ac opines standard testimony will sues for which be countant from that standard and deviated required plaintiffs at trial to avoid a directed ver caused the departure have Although specifically damages.5 dict. Glickman, Isenberg, are to J. & Co. v.
4. Accountants held the same standard Vernon Rockler Co., (Minn. doctors, & lawyers, Lurie care as ar- reasonable 1978). chitects, professional people and other en- gaged furnishing skilled services for See, Barnett, e.g., v. & Wartnick Moss * * * Thus, compensation. to [a] recover ("In (Minn.1992) profes (the duty plaintiff prove would need action, malpractice plaintiff sional must existence of accountant-client relation- present applicable evidence of standard of (the ship), duty the breach of that failure of care, and care was standard of discharge duty the accountants to their Mead, breached.”) (citations omitted); Riño care), (that reasonable factual causation ("[T]he (Wyo.2002) P.3d standards plaintiff "but would not for” advice professional malpractice that we have transfers), proximate have made causation formerly adopted malpractice, for medical (that plaintiff's liability increased tax legal malpractice, have extended to consequence foreseeable ad- of defendant's equally regard allegations apply should vice), (that actually damages plaintiff malpractice.”); 4A Minn. Dist. of accountant Ass’n, liability Judges Practice—Jury tax tr suffered increased due defen- Minnesota Ins Guides, Civil, advice). Category Profes- uction dant's *10 Thus, any meaningful if the intent of section disclosure regarding how waste of time and 544.42 is to avoid the the standard of care was violated or what money spent defending against frivo that required.”). standard ultimately that will be the lous actions verdict,
subject of a directed
the minimum
that,
argues
for an affidavit of
disclo
standards
incorporating the detailed facts and conclu
sure,
satisfy
180-day
sufficient to
the
re
alleged
sions
complaint,
the
its answers
quirement,
pro
must be that the affidavit
interrogatories
provide enough mean
information, beyond
meaningful
vide some
ingful information to meet the minimum
statements,
conclusory
that
identifies
standards for an affidavit of expert disclo
person
attorney expects
each
the
to call as
satisfy
180-day
sure and thus to
the
re
expert;
expert’s opin
the
describes
quirement. Although
agree
we
that
care,
applicable
ion on the
standard of
Brown-Wilbert’s
contains a de
recognized by
professional community;
the
description
tailed
of the factual allegations
(3) explains
expert’s opinion
that the
conclusions,
legal
and draws certain
standard;
that
departed
defendant
from
conclusory allegation
makes the
that
expert’s opinion
summarizes the
Accountants breached the standard of
departure
that
defendant’s
di
care,
identify
any
does not
or define
injuries.
plaintiffs
rect cause of the
specific
care,
accounting standard of
state
conclusion,
In reaching
guid
this
we are
how Accountants deviated from that stan
part by
ed in
our consideration of the
care,
dard of
or allege how that deviation
malprac
“borderline cases”
the medical
injury.
caused
In Sorenson we said: “to
tice context under section 145.682. Prior
satisfy
requirements
of the [affidavit of
to the amendment of that section to add a
disclosure],
it is not enough simply
provision,
struggled
cure
we
with the issue
repeat
hospital
the facts in the
or clinic
justified
of whether dismissal was
when an
record. The affidavit should set out how
timely provided
affidavit was
but it failed
will use those facts to arrive at
fully
technically comply
or
with the
See,
opinions
malpractice
and causation.”
statutory requirements.
e.g., Soren
son,
Sorenson,
added).
(emphasis
medical from this standard care; and, third, directly claiming any type professional departure other this malpractice typically plaintiff's damages.”). prove, committed must resulted in the *11 220 long appeal held that an This court has accounting mal- the
court’s dismissal a nature of preclusive not affect the does count. practice See, Wegge, 252 e.g., Wegge v. judgment. (1958) 891, 236, 238, N.W.2d 892 Minn. 89 II. been judgment that “where has (stating the BW-II, whether we consider been taken appeal and the has entered * n n in BW-I dismissing all counts judgment judgment is not va the therefrom splitting claim effects judicata or had res judicata remains res cated or annulled but pre- As alleged BW-II. on the counts reversed”); until, unless, and it is Wilcox court, precise to the district sented 39, Trux, 169 Minn. Rosenberger, Inc. v. judg- finality whether issue was (1926) 308, (stating that 43, 310 209 N.W. during suspended ment in BW-I judgment as a “did not affect the appeal an to us is presented But the issue appeal. bar”); v. St. Paul Title & Schoonmaker judgment different because somewhat 223, Co., 94, 98, 152 Minn. 188 N.W. Trust by the now been modified has BW-I (1922) (“Even appeal has 224 where did not appeals parties and the court of taken, by determined been the matters review of that modification. seek judicata until judgment remain res reversed.”); Spratt, v.
judgment
is
State
(“An
(1921)
7,
31,
5,
Minn.
184 N.W.
32
A. Res Judicata
150
supersedeas
bond does
appeal with
judicata
of res
application
judgment appealed
or annul the
vacate
de
of law that we review
question
is
from,
by
the matters determined
and
Beckingham,
v.
686
novo. Hauschildt
reversed.”).
judicata until it is
remain res
(Minn.2004).
829,
judica-
Res
N.W.2d
840
argues that the court of
raising subse
precludes parties
ta
from
contrary,
that the
appeals holding to
“(1)
quent claims in a second action when:
by an
finality
judgment
suspended
of a
is
set of
the earlier claim involved the same
fully supported
decisions
appeal,
circumstances;
claim
factual
the earlier
v.
court.
It first discusses Holen
this
privities;
their
parties
involved the same
Airports
Minneapolis-St.
Paul Metro.
judgment
a final
on the
there was
Comm’n,
130, 136,
250 Minn.
84 N.W.2d
merits;
a full
estopped party
had
(1957),
that Holen
suggests
the mat
opportunity
litigate
and fair
previously
overruled all cases that had
judicata applies equally
ter.”
Res
Id.
finali-
appeal
that an
did not alter the
held
to claims that
actually litigated
claims
only ad-
ty
judgment.
of a
But Holen
in the earlier
litigated
could have been
means
“pending”
dressed the issue of what
Joseph,
action.
v.
636 N.W.2d
State
application
respect
to the retroactive
(Minn.2001).
in the
to cases that are
changes
law
ap-
that the court of
argue
“pending”
change
when the
occurs. See
peals
holding
judgment
erred in
that the
also cites State v.
id. Brown-Wilbert
(Minn.
Lewis,
not final and therefore did not
BW-I was
656 N.W.2d
537-38
Inc.,
Brothers,
2003);
bar the
in BW-II under
Bystrom
Brezinka v.
that,
They
(Minn.1987);
judicata.
argue
doctrine of res
Brinkman,
major-
precedent
County
Hennepin
under Minnesota
(Minn.1985),
rule,
sup-
ity
final when it
792-93
judgment
becomes
that Holen estab-
regardless
court
for its contention
port
entered
the district
only dis-
a new rule. But Lewis
agree
with the
lished
pending appeal. We
meaning
“pending”
of the term
cussed the
analysis
point.
to this
Accountants’
*12
difficulties result from the
retroactivity, 656 N.W.2d
Substantial
respect
with
a final trial court judgment
rule that
537-38;
the mean-
discussed
at
Brinkman
judicata
operates
appeal
as res
while an
“pending”
respect
ing of the term
pending.
major problem
is
is that a
statute,
repealed
a
378
the effect of
based
judgment
upon
preclu-
second
792-93;
specifi-
and Brezinka
at
N.W.2d
judgment
the first
sive effects of
should
case, res
the law of the
cally said
if
judgment
not stand
the first
is re-
decisis,
sharing
judicata,
stare
while
cases, litigants
versed.
In some
and the
considerations,
dis-
were all
policy
similar
ineptly
courts have collaborated so
applied
the law of the
tinct doctrines
judgment has
the second
become conclu-
judi-
addressing res
case doctrine without
though
solely
sive even
it rested
on a
cata,
at
None of these
403 N.W.2d
judgment that was later reversed. This
finality for the
cases addresses the issue of
avoided,
always
result should
be
wheth-
judicata.6
application
of the
of res
purposes
by delaying further
in
proceedings
er
Lastly,
Joseph,
cites
636
pending
the second action
conclusion of
328,
judg
at
where we said “when
action, by
in the first
appeal
pro-
appeal
and the time for
ment was entered
appeal
tective
in the second action that
expired,
judgment
judgment
from that
pending
held open
is
determination of
judgment on the merits.”
became a final
action,
in
appeal
the first
or
controlling because it
Joseph
But
is not
judg-
direct action to vacate the second
only
of whether
involved the issue
ment.
merits,”
wheth
“judgment was on the
not
Wright,
18A Charles Allan
Arthur R. Mil-
id,.7
er it was “final.” See
Cooper,
H.
ler & Edward
Federal Practice
(2d
§
at 88-89
ed.
and Procedure
Accordingly,
prior
we reaffirm our
2002)
Federal Practice and
[hereinafter
that,
judicata
purposes,
decisions
for res
a pro-
Brown-Wilbert did file
Procedure].
judgment
final when it is entered
becomes
BW-II,
appeal
granted
tective
and we
final,
in
court and it remains
the district
appeal
so that the
further review of
appeal,
until it is re
despite
pending
coordinated.
two cases could be
versed, vacated or otherwise modified.
presents
rule
recognize
We
this
brings
impact
This
us to the
possibility
judg
awkward
that a
judgment
somewhat
of the
of the modification
BW-II
judicata
in a
given
ment that is
res
effect
in
had
after the
BW-II
BW-I
may
on already
second action
later be reversed
dismissed. Because the dis
been
difficulty
judgment
final
appeal. But this
can be avoided trict court faced a
BW-I
arising
au
all counts
out of the
suggested by
dismissing
or minimized. As
one
facts, the district court was
common basic
thority:
pending appeal, well established in the fed-
to Indianhead
6. Brown-Wilbert also cites
Inc.,
Line,
courts,
Transp.
stemming
Deposit
Inc. v.
Truck
Hvidsten
from
Bank v.
eral
176, 183-84,
Minn.
510-11,
340-41
Frankfort,
U.S.
24 S.Ct.
(1964),
interpre-
but that case focuses on the
(1903).
listing
For a
of federal
protective Procedure, supra, Practice and Federal ap- that modification this the effect 180, 184; also Restatement see peal. (1982). (Second) 20(2) Judgments § *13 of that the the district court agree with We that Accordingly, we hold BW-II is not in was final when entered judgment BW-I by judicata and we affirm the barred res court, that, as then in the district of the district appeals’ court of reversal constituted, judgment barred the court’s dismissal. that in But we conclude claims BW-II. in as to judgment reversal of that BW-I Splitting B. Claim expressly that based the counts were judi- means that the accounting malpractice As an alternative to their res longer defense, in is no “on the judgment argue BW-I cata that the alleged the counts are merits” of court’s dismissal of was district BW-II only of the portion BW-I against BW-II. of the proper prohibition because is both final and on the judgment a cause of action. The court of splitting accounting merits is the dismissal appeals held that the defense of claim malpractice count. splitting separate was not from the de BW-II, judicata. fense res N.W.2d alleged other counts
Although the at 489. We conclude that the issue focuses have been remanded to the district BW-I precisely more on the nature of the relief they court to consider whether should like- a sought. prejudice Where dismissal with under section wise be dismissed sought, splitting supports claim yet no such dismissal has remedy only judicata if the elements of res entered. And the dismissal of the been context, present. are In that also accounting malpractice count was based on But splitting claim defense is redundant. satisfy procedural a condition the failure prejudice where a dismissal without or that, far, only apply thus has been held to may stay sought, splitting claim be con Thus, authority count. to that as one defense even sidered as an abatement states: judicata though the elements of res are not ordinary In circumstances a second present. preclud action on the same claim is not of a ed dismissal first action for split- Our case law has discussed claim * * * satisfy precondition failure to ting only request in the context of a for a * * * No more need be done than suit. prejudice dismissal with of the second ac- theory switch to a different substantive tion, an generally and then has done so as depend pre that does not on the same application judicata. of the doctrine of res condition. Packman, Thus, in Mattsen v. we ad- party
dressed the issue of whether a could satisfy pro- split Dismissal for failure to an automobile accident claim so that precondition cedural should be treated the first claim could be heard in concilia- claim, way per- the same as dismissal for failure tion court and the second preconditions. injury property damage, substantive sonal dis- (Minn. 48, 49 adjudication The dismissal is not an on trict court. 358 N.W.2d 1984). essence, asking guished rights includes all plaintiff plaintiff to the res exception against carve out an to remedies the defendant with us to conciliation court judicata any doctrine for all respect part of the transac- “split single, tion, him to judgments transactions, to allow or series of connected claim or cause of action into two indivisible out of which the action arose.” Restate- (Second) 24(1) (1982) and distinct claims.” Id. separate Judgments § ment exception, added). We declined to make such (emphasis more than 100 acknowledging “[f]or any We have not found Minnesota cases consistently years applied Minnesota has approved preju- have a dismissal with Id.) judicata.” res principle dice of an action based on a defense of application of this court’s examples other splitting judicata claim where res would Hauschildt, judicata, see res apply. not also There is some indirect (analyzing at 840-41 the defense of support argument for Accountants’ judicata splitting claim under the res doc- *14 splitting separate claim is a defense. trine, action concluding that the second Bio-Medicus, Inc., v. Kulinski Medtronic not proceed could because the claims were 499, (Minn.1998), 577 N.W.2d 503-04 we Loo, 740, identical); 744 Loo v. 520 N.W.2d interpret were asked to Minnesota’s sav- (Minn.1994) (“Res judicata, claim n. 1 or ings respect statute a with contract parties splitting from preclusion, prevents claim. said that: We claims into more than one lawsuit and Bio-Medicus a warns such broad precludes litigation further same reading savings of Minnesota’s statute claim.”); Mealey, v. 263 N.W.2d Hauser rampant claim-splitting. will lead to (Minn.1978) 803, (analyzing the de- 807-08 claim-splitting greatly While disfa- splitting fense of claim under the doctrine vored, see, Hauser, at e.g., 263 N.W.2d judicata declining apply res of res but 807, unlikely think it that a quite have judicata to claims that could not been plaintiff foolhardy gam- will be so as to brought in the first action because of the judgment and hav- upon recovering ble courts); jurisdiction county limited ing it “arrested or reversed on error or Prout, Youngstown Corp. Mines v. 266 appeal,” by asserting only some of his or 450, 466, 328, 124 Minn. N.W.2d 340 Moreover, potential her claims. as we a (stating that second action was barred above, judicata noted the doctrine of res entered in the first judgment after was operates as an additional constraint action). upon application [Minn.Stat. The Restatement also confirms § J541.18. is, against splitting rule a claim at least at statement that the doc- part, an of the doctrine of res Id. 504. The application judicata as an addi- judicata: judg- operates a and final trine of res “When valid constraint, sug- extinguishes tional could be read as ment rendered in an action separate claim is a pursuant gesting splitting claim to the rules plaintiffs * * Further, *, judicata.8 from merger bar the claim extin- defense res action, Co., complete and have several Duluth R.R. cause of 8. See also Dean v. St. Paul & 504, 507, 628, any damages” mention 628-29 recoveries of without 53 Minn. 55 N.W. Pierro, judicata). But in (stating single demand cannot of res second judica the first action had split up, any mention of res action dismissed be without after Co., ta); Ry. gone judgment, of res so elements Pierro v. St. Paul & N. Pac. 39 Minn, Pierro, judicata present. 39 at Minn. were 40 N.W. 521 entire, 452, 40 (stating may split N.W. at 521. not "[o]ne 224 Hauser, (quoting at 806-07 263 N.W.2d Family Insur- American v.
Charboneau 267, 270, Sederstrom, Minn. against Shimp v. Co., the rule we discussed ance (1975)). And Kulin- any mention of res 233 N.W.2d without splitting, claim of the second involved the dismissal whether ski determining judicata, gone action had action after the first insurance her no-fault split could claimant Kulinski, at 500- 577 N.W.2d judgment. limits: jurisdictional meet claim to and Charboneau Finally, Kulinski gen followed the long court has This large degree by influenced to were litigation to court party that a eral rule respective intent behind the legislative Hauser a cause of action. may split enforcing. they were statutes (Minn. Kulinski 803, 807 Mealey, 263 N.W.2d v. Charboneau, 502-03; N.W.2d 1978). applies equally to This rule example, For in Char- at 22-23. N.W.2d slightly dif bringing two lawsuits * * “splitting no- boneau we concluded recovery *. ferent theories of legislature’s de- depreciates fault claim splitting a cause of against The rule jurisdictional limit.” 481 cision to set a multiplicity intended to avoid a action is at 21. litigation. The lawsuits and wasteful judge-made rule. rule is Accountants cite to Boland Morrill, 496, 502, 275 Minn. 148 N.W.2d (internal (Minn.1992) 19, 21 (1967), grounds, other rev’d on omitted). But citations Kulinski Construction, Inc., 262 *15 Busch Busch v. support do not the conclusion Charboneau (Minn.1977), 377, sup 401-02 N.W.2d separate ground is a on splitting that claim is argument splitting their that claim port prejudice. to base a dismissal with which judicata. Although that separate from res cite to Both Kulinski and Charboneau judicata, the au case did not discuss res splitting, on claim and Hauser for the rule support was based on thority it cites that a dismissal with suggests Hauser Minn, Boland, 503, at judicata. 275 res prejudice only appropriate would be Park, (citing Myhra v. 148 at 148 judicata, stating: grounds of res 290, 295, 258 N.W. 193 Minn. judicata judg of res on a The effect judicata in (acknowledging that res two ment or final order has least claim prohibiting volves the basic rule aspects: important distinct and our re Accordingly, based on splitting)). bar; estop- merger or collateral law, of Minnesota case we conclude view and bar pel. principles merger splitting claim prohibition against that the subsequent a action or operate where prejudice with support would a dismissal on the same cause of predicated suit is only claim the ele of the second where which has been determined a action judicata present. are also ments of res judgment, no matter what issues were in litigated original raised or cause “join Accountants ask this court * * * of action. recognizing in Supreme Court California splitting claim prohibition against that the It well established in Minnesota is a of abatement as well as not twice vexed functions as rule party that a “should be cause, judicata.” a of res In Hamilton and that it is for the rule for the same 95 Cal. Corp., Asbestos Cal.4th public good there be an end to (2000), end, P.2d plaintiff may Rptr.2d a litigation.” To that said, against rule court bring “[t]he of action and California split his cause * * * part in a cause of action is involving splitting the same set successive suits in a rule of part a rule of abatement factual circumstances. judicata.” res BW-II as brought The court on to ex- and it separate went action applica- that the rule of abatement is because BW-I plain only had been dismissed when pending “if the first suit is still ble prejudice, with was on appeal, and was not filed,” whereas the rule the second suit is jurisdiction. then within the district court’s “if judicata applicable res the first expressing any opinion Without on the judgment in a on the suit has terminated merits of the various motions that could be Id. Ac- plaintiff.” to the merits adverse remand, made to the district court on argue countants that the rule of abatement do not intend to foreclose possibility sup- that it applicable here and should may move to amend dismissal BW-II district court’s port the BW-I incorporate the counts now con- prejudice. with BW-II tained or to consolidate the two cases, may oppose and that Accountants But, decision, under the California motions, those move to dismiss all counts judicata sepa abatement and res lead to of BW-I BW-II being subject Id. Generally, if party rate remedies. section or move to abatement, proper remedy seeks is not abate BW-II. stay prejudice, a dismissal with but
proceedings preju or a dismissal without Affirmed. dice.
The fundamental distinction between de- Concurring part, dissenting part, fenses in abatement and those on ANDERSON, H., PAGE, PAUL JJ. generally merits is that a decision abat- ing pending action does not bar a (con- ANDERSON, H., PAUL Justice cause, future action on the same while a curring part, dissenting in part). judgment on the merits concludes the * * * action. A defense in abatement is I respectfully part dissent as to dilatory in nature and is intended to majority opinion. agree I While most *16 particular defeat the action because holds, I majority disagree of what the with improperly brought action has been in appel- its conclusion that the answers of respect some that does not go to the Brown-Wilbert, Inc., lants and Christo- merits cause of action. Allowance (Brown-Wilbert) pher Brown to Chandler of this defense amounts to dismissal interrogatories respondents Cope- the of prejudice without of the abated action. Company land Buhl & and Lee Harren Abatement, Survival, and Re- 1 Am.Jur.2d (Accountants) meet were not sufficient to (2005) (internal vival § 2 footnotes omit- 544.42, requirements the of Minn.Stat. ted). (2006). 2, 4 in specific subds. The details the Ac- complaint citing Brown-Wilbert’s
Because the dismissal of BW-II actions, allegedly improper countants’ to- prejudice be an inappropriate with would gether with the information in Brown-Wil- remedy claim splitting, we affirm the timely answers to the Accountants’ bert’s appeals’ court of reversal of the dismissal interrogatories, explicitly answers which BW-II prejudice. of with decision Our complaint, provide cross-referenced the preclude does not Accountants from mov conclude that Brown- sufficient basis to BW-II ing stay to or for dismissal without Wilbert is entitled to have 60 additional prejudice, splitting grounds. on claim in connection, days any to cure deficiencies its efforts this acknowl Brown-Wilbert requirements to meet the of section edged argument at oral it did not Therefore, actions, I would reverse separate intend to maintain two person following forth the for each of Brown- Set dismissal court’s the district you expect expert to call as an count. whom accounting malpractice Wilbert’s (a) expert’s at trial: State the witness my to reasons for context provide To name, address professional or business review of the salient a short dissenting, (b) name; the employer’s and the State liti- history of the procedural the parts of basis expert’s expertise area of and the This action stems from in order. is gation (c) of expertise; Provide a list appellant between dispute an earlier expert’s publications, papers fa- Brown and his Christopher Chandler treatises, and semi- speeches, lectures Brown, ownership ther, over Jerry (d) nars; subject matter on State Brown-Wilbert, Brown Christopher Inc. testify; expert expected is which the his father in that eventually with settled (e) of the facts and State the substance the sole owner and became dispute expected opinions expert to which the Brown-Wilbert, Inc. On March (f) summary of the testify; Give a Inc., Brown-Wilbert, Christopher grounds opinion; individual for each ac- against this action initiated Brown author, publisher, title (g) Set forth the Copeland Compa- Buhl & counting firm of publication of each learned and date Harren, the firm’s Lee one of ny and rely upon expert which the will treatise underlying in ac- At partners. issue testimony. Accountants, who were tion whether Brown-Wilbert, Inc., improp- employed de- interrogatory specifically did not Jerry Brown in the latter’s erly sided expert affidavit of review mand a counsel’s Brown “squeeze” Christopher attempt requirements and did not reference any ownership interest Brown- out of in section 544.42. contained Wilbert, Inc. interroga- answered the days tories within 31 June 18—and complaint against
Brown-Wilbert’s —on expert identified two witnesses separate included four its answers (2) contract, it had retained. The answers stated that breach breach claims— expected testify “as to fiduciary duty, accounting malprac- each tice, Complaint, the conclusions set forth paid. restitution of fees No in the upon alleged based the facts Com- affidavit of review accom- counsel’s curriculum vitae for plaint,” and attached panied complaint, nor did Brown-Wil- vitae showed it had expert. it could not obtain review each One bert claim *17 counsel limi- been e-mailed to Brown-Wilbert’s expiration before the of the statute of Nevertheless, February two weeks the on 2004—about tations. Accountants complaint service of the did not assert the lack of this first affidavit before —and printed out on defense in their answer. other had been June as an affirmative Accountants, however, did that assert agree- Christopher Brown’s release of object The Accountants did not to indemnify Jerry father Brown ment to his interrogatory answers as Brown-Wilbert’s against any by the Account- claims made being they deficient nor did move to com- by Christopher any ants barred suit an- supplement to its pel Brown-Wilbert against Brown them. rather, swers; un- the Accountants waited 21, 2004, days 18, 2004, September til 195 after May On the Accountants complaint, of the and then moved interrogato- served with service Brown-Wilbert ries, complaint grounds to dismiss the including interrogatory asking comply with Brown-Wilbert had failed to to: Brown-Wilbert
227 than because the October 15 affidavit was Because more 180 544.42. section days after served more than 180 the com- since the service of days elapsed had plaint was served. The court did not de- argued complaint, the cide the effect of the release between failure to serve the 180- Brown-Wilbert’s (sec- Christopher Brown and his father. The identification day affidavit of affidavit) Appeals Minnesota Court of affirmed in by section required ond but it part part, reversed did affirm 2(2), 544.42, could not be subdivision accounting the dismissal of the malpractice asserted cured. The Accountants also claim. they May interrogatories that in their 18 a demand on Brown-Wilbert
had made Our court has now held that the district affidavit for the first affidavit —counsel’s court erred when concluded that by required section May Accountants’ interrogatories review— con- 2(1), and that Brown- a demand for the first stituted affidavit respond to this de- Wilbert had failed and we have concluded that no such de- 15, 2004, a date mand. On October with- mand was made until the Accountants’ days of the Accountants’ motion to 21, 2004, September motion to dismiss. dismiss, supplied an affi- Brown-Wilbert Accordingly, we have concluded that counsel, attesting that the al- davit of its 15, 2004, Brown-Wilbert’s October affida- had been re- legations complaint of the timely vit of review was purporting experts viewed the two provide Brown-Wilbert’s failure to this opinions to which the ex- to set out first affidavit cannot constitute the basis expected testify. perts were agree for a dismissal. I with this result. Ac- The district court found disagree I the result of But May interrogatory countants’ constitut- majority’s analysis. step next More for counsel’s affidavit of ex- ed demand I ma- particularly, disagree with how the pert review—the first affidavit. The court jority question answers the of what are the provide affidavit, i.e., did not found standards for the second affidavit until October required first minimally what information is sufficient to 15, 2004, 60-day which was outside the 180-day requirement the statute’s in the statute. period provided cure plaintiff and thus entitle a to a notice of court, apparent- finding, Based on this any days deficiencies and an additional 60 of Brown- ly believing Here, that each count statutory requirement. meet the complaint required expert testi- rejects good Wilbert’s majority meaningful standard, in its mony, dismissed the en- attempt faith which standard tirety. by the federal district was articulated Kelbel, in dicta—in House v. court—albeit upon In addition its dismissal based (D.Minn.2000). F.Supp.2d affidavit, the first the district court went Instead, very majority adopts narrow June 18 on to state Brown-Wilbert’s designed only to avoid standard *18 interrogatories could not con- answers “the dismissal of meritorious claims over required stitute the second affidavit be- added.) (Emphasis minor technicalities.” they identify experts, cause “fail to great potential of I conclude that there is opinions, state their and state the basis unduly by unfairness and harsh results opinions required these as statute.” for implementation will follow the of The court also concluded that the October Here, I can 15, 2004, majority’s narrow standard. affidavit of counsel could not Lindberg v. requirement only repeat what I said satisfy the second affidavit 228 Inc., a Partners, tory provision supplemental curative N.W.2d
Health
“minor
only
not
to address
mal-
affidavit exists
(Minn.1999),
involving medical
a case
technicalities,”
leg-
but rather to effectuate
require-
affidavit
and the
practice actions
(1998).
judicial
dispose
policy
islative intent and
§ 145.682
ments of Minn.Stat.
I believe the
of cases on their merits.
Lindberg, I noted
acknowledgment
is an
legislative action
acknowledge
our
majority fails
admonition in Sor-
acceptance
of our
for courts to use
in Sorenson
direction
and uti-
enson that courts are to consider
procedural
less drastic than
measures
than
lize less drastic alternatives
dismissal
cases
in those borderline
dismissal
experts and
plaintiff
when a
has identified
meaningful
there has been some
where
of
meaningful disclosure
given some
and there is an absence
disclosure
Accordingly, by ap-
expert’s testimony.
v.
Paul
prejudice. See Sorenson
St.
standard,
good faith
I
plying meaningful
Ctr., 457
Ramsey Med.
is en-
would conclude
(Minn.1990).
that we
important
It
supplemental
titled to submit a
affidavit
there are bor-
acknowledge
continue to
544.42,
6; that it
under section
subdivision
application
cases where the
derline
15, 2004,
done so with its October
has
uncomplicated
the statute will not be
affidavit; and that
this case should be
the border
unambiguous
and where
remanded to the district court for a deci-
sharp
rather than
will be indeterminate
its
sion on merits.
cases,
must
and clean.
In those
degree
preju-
continue to evaluate the
not,
The result that I would reach does
by inadequate
caused
disclosures
dice
however,
allay my concerns
completely
cases where
those borderline
majority’s holding.
apply-
with the
Even
absent,
prejudice
apply less drastic
standard,
that,
I
ing its narrow
conclude
procedural
alternatives than
dismissal.
here,
applied
majority’s
to the
facts
primary
“the
approach preserves
This
that,
holding is too harsh.
I conclude
even
objective
dispose
of the law
[]
by the
using
when
the standard articulated
at 192.
cases on the merits.” Id.
majority, Brown-Wilbert is entitled to re-
Moreover,
lief.
result reached
(Anderson,
Lindberg,
at 579
majority
today
provides
of our court
J.,H.,
concurring).
Paul
majority’s
good example why
stan-
In Lindberg,
plaintiffs
we dismissed the
applied
dard as
will result
in the harsh
action;
malpractice
medical
but I find
results I alluded to earlier.
interesting and instructive that after we
and,
later,
majority’s
I
Lindberg
agree
position
decided
seven months
with the
fully complied
not
reached
similar result
Anderson
Brown-Wilbert has
(Minn.2000),
544.42,
Rengachary,
section
but I do not
edly Christopher did “threatened” Brown consequences with adverse financial if he properly. accept Jerry buyout did not Brown’s particularly, Brown-Wilbert’s More offer; that the Accountants: complaint alleges (12) corporate withheld information that (1) bring critical issues to did Christopher was essential for Brown to Brown; Christopher attention decision; any buyout make (2) and acted independently did not act (13) although by prohibited several cor- contrary to the interests of Brown-Wil- documents, arranged Jerry with porate majority stockholder —Christo- bert’s replace Brown to one bank with another Brown; pher Brown-Wilbert, Inc.’s, prime bank as (3) improperly singled Christopher out lender; refinancing then used the ar- in investigation order to Brown in an effort to rangement force Christo- [Brown-Wilbert]”; out of “squeeze Chris early pher repayment Brown to make loan; an “off balance sheet” and then (4) favored the interests of improperly bank, promised the new without Christo- Brown; Jerry consent, pher knowledge Brown’s (5) Jerry in complicit with Brown were Christopher Brown’s interest in Jerry improperly Brown to permitting Brown-Wilbert, Inc., bought would be use; corporate convert assets for his own or, alternative, out in the Christopher (6) improper assisted the activities in pledge Brown would his shares Brown, Jerry key overlooked facts when Brown-Wilbert, Inc., bank; to the new audits, conducting annual and did not (14) provided Christopher Brown with key Christopher facts to disclose those information, misleading inaccurate and Brown; by overstated the amounts owed Chris- (7) conspired Jerry Brown to force with topher Brown to Brown-Wilbert al- Christopher insolvency into so Brown $60,000, manipulated most documen- Christopher Brown would be forced to relating Christopher tation Brown’s Brown-Wilbert, Inc.; sell his interest debt; corporate (8) Christopher Brown with in- provided (15) part acted as if it was of Brown- misleading accurate and financial data Jerry team management Wilbert’s with get and other information in an effort to despite Brown the “duties the Account- Christopher Jerry Brown to sell [Brown-Wilbert’s] ants owed to Chris as price; Brown at a low shareholder”; majority (9) joined Jerry denying Brown way mismanaging “led the Christopher corporate Brown access and did so in the form [Brown-Wilbert]” changing documents and the locks to the expenses, leverage, increased of “excess building so that Christo- value” in an amount profits, lost and lost pher Brown was “locked out of his com- trial; proven be pany”; (17) improperly accepted personal pay- Brown; Jerry from ments essence, improperly advised in court that Christopher Brown that he had “re- made false statements adversely Christopher Brown’s signed position his as President of affected interests; trigger which would [Brown-Wilbert]” *20 alleged the facts plaint, upon and uti- based forged documents accepted Complaint. in the Plaintiffs will detriment of Christo- them to the
lized as neces- Brown; supplement this Answer and pher sary. Discovery continuing. is duty had a to Brown-Wilbert Christopher (e) majority shareholder its the facts State the substance of duty, which breached that Brown and to which the is opinions a breach of the stan- testify; constituted expected breach to expected of accountants dard of care recently have been re- experts Both areas. similarly-situated metropolitan firm, Tautges’ Tautges Mr. tained. Ltd., Redpath, as the current serves then the Ac- answered Public Accountant for Certified May interrogatories as fol- countants’ Brown-Wilbert, experts Inc. Both lows: expected testify are as to the person each following forth the for Set forth in the Com- conclusions set you expect to call as whom upon alleged based the facts plaint, witness at trial: Complaint. in the Plaintiffs will (a) name, expert’s profes- State supplement this Answer as neces- and the sional or business address sary. Discovery continuing. is name; employer’s (f) summary Give a of the individual Redpath, Tautges, Tautges Rob * * * grounds opinion; for each Ltd., Legier, R. Le- William * * * experts recently Both have been re- gier & Materne firm, Tautges’ Tautges tained. Mr. (b) expert’s exper- area of State Ltd., Redpath, serves as the current expertise; tise and the basis for that Certified Public Accountant experts Both are Public Certified Brown-Wilbert, Inc. experts Both Accountants, among things. other expected testify are as to the Legier is also a Fraud Mr. Certified conclusions set forth in the Com- Examiner. See the curriculum vi- alleged plaint, upon based the facts tae and related materials for each Complaint. Plaintiffs will attached hereto. supplement this as neces- Answer (c) expert’s publi- Provide list of the sary. Discovery continuing. is treatises, cations, papers author, publisher, forth (g) Set seminars; speeches, lectures and title and date of of each publication list, partial For a see the attached learned upon treatise which ex- supple- documents. Plaintiffs will pert rely testimony. will necessary. ment this Answer as list, partial For a see attached Discovery continuing. is Discovery continuing. materials. (d) subject on which State matter (Italics added.) expected testify; experts recently interrogato- re- Both have been Brown-Wilbert’s answers firm, Tautges timely Mr. ries were submitted in a manner Tautges’ tained. Ltd., Redpath, days current after its action was commenced serves as the days Certified Public Accountant and within 31 after the Accountants’ Brown-Wilbert, served; supple- experts interrogatories Inc. Both were its testify are to the mental affidavit was within 60 expected to submitted days forth in the of the Accountants’ motion to dismiss. conclusions set Com- *21 Further, two the answers identified
witnesses, that was cited to TIMMER, (A07-361), Linda Relator detailed, al- identified numerous factually Respondent (A07-367), by acts the Accountants legedly improper damage, and that caused Brown-Wilbert v. conclusions on causation. made several INDEPENDENT SCHOOL DISTRICT experts also stated that the The answers #482, Self-Insured/Berkley Risk the conclu- “expected testify
were as to (A07- Administrators, Respondents Thus, I Complaint.” in the sions set forth (A07-367). 361), Relators majority focuses on conclude that when the dealing standard with minor narrow A07-361, Nos. A07-367. technicalities dismiss Brown-Wilbert’s Supreme Court Minnesota. action, focus sight proper it has lost of section 544.42. June bywas no means While Brown-Wilbert Schultz, II, Honorable Harold W. Work- compliance require- with the perfect Compensation. ers’ 544.42, I of section conclude ments sufficiently has met Brown-Wilbert Altman, Brinkman, T. Leslie M. Joshua affi- MN, standards for its second affidavit —the Mendelson, Minneapolis, Littler for minimally davit of disclosure—to be Relator. 180-day require- sufficient to Seifert, Steffes, Quin- Luke M. Laura A. Therefore, narrow ment. even under the P.A., Center, Hughes, Fargo livan & Wells majority, I standard articulated Cloud, MN, Respondent. St.
would conclude supplemental entitled to submit a affidavit 6, that it
under section so, and is entitled to a remand
has done a trial on the merits. ORDER files, all the records and upon Based PAGE, (eoncurring/dissenting). Justice herein, proceedings join I in the of Jus- concurrence/dissent IT IS HEREBY ORDERED tice Paul H. Anderson. Compensation decision of the Workers’ 28, 2007, January filed Appeals
Court of be, is, opin- same affirmed without Kempton, ion. See Hoff (Minn.1982) that, (explaining prece- no [sjummary affirmances have they not commit dential value because do view, any particular point the court to doing establishing no more than the law case). $1,200 in Timmer awarded at- Linda torney fees.