Larson Ventures, Inc., Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1690

Larson Ventures, Inc.,
Appellant,

vs.

Jason P. Hoffman,
Respondent.

Filed May 8, 2017
Reversed and remanded
Bratvold, Judge

Goodhue County District Court
File No. 25-CV-15-2480

James T. Hanvik, Timothy J. Nolan, Bassford Hanvik, PLLC, St. Louis Park, Minnesota
(for appellant)

William S. Partridge, Joseph A. Gangi, Farrish Johnson Law Office, Mankato, Minnesota
(for respondent)

Considered and decided by Kirk , Presiding Judge; Schellhas, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
Appellant challenges two district court decisions: (a) the dismissal of its legal -
malpractice complaint for failure to serve an expert-disclosure affidavit within 180 days of
the commencement of discovery as required by Minn. St at. § 544.42, subd. 4(a) (2016);
2
and (b) the denial of appellant’s motion to extend the 180-day period for excusable neglect
under Minn. R. Civ. P. 6.02. We conclude that effective appellate review is not possible
because the district court did not make findings on all relevant factors fo r determining
excusable neglect; therefore, we reverse and remand to the district court for additional
findings and reconsideration of its rule 6.02 decision consistent with this opinion.
FACTS
Appellant Larson Ventures, Inc. (Larson) sued respondent-attorney Jason Hoffman,
claiming legal malpractice, breach of fiduciary duty, and breach of contract. The complaint
alleged that Hoffman represented Larso n in connectio n with the lease and sale of
agricultural property and negligently failed to give notices of first refusal “to the
immediately preceding former owner” under Minn. Stat. § 500.245 , subd. 1(a) (2016).1
The complaint alleged that, as a result of Hoffman’s negligence, Larson suffered financial
harm; the property sale was delayed and Larson defended a lawsuit against a previous
landowner that sued Larson for noncompliance with section 500.245.
With the complaint, Larson’s attorney served an expert -review affidavit certifying
that he reviewed the claims in the complaint with a legal expert before filing the lawsuit,
and the expert opined that Hoffman “deviated from the applicable standard of care in
representing” Larson. The expert -review affidavit satisf ied Minn. Stat. § 544.42, subd. 3
(2016). The affidavit also stated that Larson’s attorney would provide an expert-disclosure

1 Minnesota Statutes section 500.245, subdivision 1(a), states that a corporation “may not
lease or sell agricultural land or a farm homestead before offering or making a good faith
effort to offer the land for sale or lease to the immediately preceding fo rmer owner at a
price no higher than the highest price offered by a third party.”
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affidavit “required under Minn. Stat. § 544.42, [s]ubd. 4, within 180 days after
commencement of this case.”2
Before expiration of the 18 0-day period, the district court amended the scheduling
order and extended the deadline for filing expert reports, including the expert -disclosure
affidavit, to May 2, 2016. On April 27, 2016, Larson served Hoffman with a copy of its
expert report and enclosed a cover letter and a notarized affidavit of service signed by
Larson’s attorney.
On May 26, 2016, Hoffman moved to dismiss Larson’s complaint with prejudice
under Minn. Stat. § 544.42, subd. 6(c) (2016), which allows a defendant to seek
“mandatory dismissal” when a plaintiff fails to comply with the expert -disclosure
requirements in section 544.42, subdivision 4. In the motion, Hoffman argued that Larson’s
April 27 submission was procedurally and substantively deficient because it did not contain
an expert-disclosure affidavit signed by Larson’s attorney, and the expert report did not
contain sufficient details establishing a prima facie case of legal malpractice.
After receiving notice of Hoffman’s motion, Larson’s attorney filed an affidavit on
May 31, 2016, identifying Larson’s expert witness, providing a summary of the expert’s
anticipated testimony, and attaching a copy of the same expert report served on April 27.
In the affidavit, Larson’s attorney acknowledged that he “should have provided this

2 Subdivision 4 provides that plaintiff’s attorney in a professional-malpractice lawsuit must
sign an expert -disclosure affidavit, which identifies expert witnesses who wil l testify at
trial about “negligence, malpractice, or causation,” and states the facts and opinions to
which the witnesses will testify and the grounds supporting the experts’ opinions. Minn.
Stat. § 544.42, subd. 4(a) . The plaintiff must serve the expert -disclosure affidavit within
180 days of the commencement of discovery. Id., subd. 2(2) (2016).
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affidavit with production of the expert report . . . which was produced on April 27, 2016,”
and requested permission to supplement the April 27 disclosure to the extent it was
deficient.
Larson also opposed Hoffman’s motion to dismiss, arguing that i t had complied
with section 544.42, and, to the extent there were any technical deficiencies, it was entitled
to cure under section 544.42’s safe-harbor provision.3 Alternatively, Larson requested that
the court extend the 180-day deadline for excusable ne glect under Minn. R. Civ. P. 6.02.
To support the extension request , Larson’s attorney submitted an affidavit, which stated
that he “should have attached an affidavit of expert disclosure to [the expert] report when
I served it on April 27, 2016.” Larson’s attorney also stated that “[a]s soon as I learned of
Defendant’s claim of deficiency in the expert disclosure affidavit, on May 31, 2016, I
served and filed electronically a formal affidavit identifying [the expert] as Plaintiff’s
expert and sum marizing h is opinions.” At a hearing on the motions , Larson’s attorney
admitted that he “was focused on the Court’s scheduling order” when he served the April
27 documents, and “it was [his] error to not have that accompanied by an affidavit.”
Larson’s attorney also acknowledged that “a formal affidavit from” him was absent at the
time he served the April 27 expert report.

3 The safe-harbor provision applies when the defendant’s motion to dismiss is “based upon
claimed deficiencies of the ” expert-disclosure affidavit. Minn. Stat. § 544.42, subd. 6(c).
If the safe-harbor provision applies, then, before granting the motion to dismiss, the district
court must provide “ specific findings as to the deficiencies of the affidavit ” and give the
plaintiff 60 days to cure the deficiencies. Id.
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The district court granted Hoffman’s motion, dismissing the complaint with
prejudice under Minn. Stat. § 544.42, subd. 6(c). The district court determined that
Larson’s April 27 submissions did not comply with the requirements in Minn. Stat.
§ 544.42, subd. 4, because they did not include an expert -disclosure affidavit signed by
Larson’s attorney. Because Larson did not serve an expert -disclosure affidavit within the
180-day statutory period, the district court concluded that there was no deficient affidavit
to cure; therefore, the statute’s safe -harbor provision did not apply and dismissal was
mandatory. Additionally, the district court declined t o extend the 180 -day period for
excusable neglect under Minn. R. Civ. P. 6.02 because Larson gave no reasonable excuse
for its noncompliance with section 544.42, subdivision 4. The district court later denied
Larson’s motion for reconsideration. Larson appeals.
D E C I S I O N
As framed by the parties, this appeal presents two issues: whether the district court
abused its discretion in dismissing Larson’s complaint under Minn. Stat. § 544.42, subd.
6(c), for failure to timely serve an expert-disclosure affidavit, and whether the district court
abused its discretion in declining to extend the 180 -day statutory period for excusable
neglect under Minn. R. Civ. P. 6.02. Because we conclude that the district court made
insufficient findings regarding its rule 6. 02 decision, effective appellate review is not
possible. Therefore, we reverse and remand to the district court for additional findings and
reconsideration of its rule 6.02 decision.
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Minnesota Rule of Civil Procedure 6.02(2) provides:
When by statute, by t hese rules, by a notice given thereunder,
or by order of court an act is required or allowed to be done at
or within a specified time, the court for cause shown may, at
any time in its discretion, . . . upon motion made after the
expiration of the specifie d period permit the act to be done
where the failure to act was the result of excusable neglect.

Rule 6.02 grants a district court authority to extend the 180 -day period for serving an
expert-disclosure affidavit under section 544.42, subdivision 4. Lake Superior Ctr. Auth.
v. Hammel, Green & Abrahamson, Inc. , 715 N.W.2d 458, 470 –71 (Minn. App. 2006),
review denied (Minn. Aug. 23, 2006); see also Minn. Stat. § 544.42, subd. 4(b) (permitting
extension of the 180-day period upon the parties’ agreement or by court order for good
cause shown).
Hammel holds that a court should evaluate four factors to determine whether
excusable neglect supports granting a rule 6.02 extension , including : (1) whether the
moving party has a r easonable case on the merits; (2) whether the moving party has a
reasonable excuse for the failure to act; (3) whether the moving party acted with due
diligence after noticing the error; and (4) whether the opposing party will suffer any
substantial prejudice from granting an extension. 715 N.W.2d at 471. We review a district
court’s denial of a rule 6.02 motion for an abuse of discretion. Id. A district court abuses
its discretion when it misapplies the law or bases its decision on facts not contained within
the record. Foster v. Foster, 802 N.W.2d 755, 757 (Minn. App. 2011).
The district court denied Larson an extension because there was no reasonable
excuse for its noncompliance with section 544.42, subdivision 4. Specifically, the district
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court determined that “there doesn’t appear to be any unusual or unique circumstances in
this case which prevented Plaintiff’s counsel from a timely submission of the expert
disclosure affidavit.” Larson argues that the district court abused its discretion because
excusable neglect existed, and the dis trict court did not consider all four Hammel factors.
Hoffman responds that the district court did not abuse its discretion because Larson
requested the extension in its memorandum and did not file a separate written motion.
We first address whether Larso n followed the proper procedure for seeking a rule
6.02 extension. Initially, we note that we need not address this issue because Hoffman did
not raise it in the district court. Thiele v. Stich , 425 N.W.2d 580 , 582 (Minn. 1988)
(declining to address new issues raised for the first time on appeal). Even so, we conclude
Hoffman’s argument lacks merit. Minnesota Rule of Civil Procedure 7.02(a) provides that
all motions must be made in writing, “unless made during a hearing or trial.” Here, Larson
made a written request in its memorandum opposing Hoffman’s motion to dismiss and also
orally requested an extension at the motion-to-dismiss hearing.
In Stern v. Dill, the Minnesota Supreme Court considered whether an oral rule 6.02
extension motion complied with rule 7.02(a) motion procedure in the context of a medical-
malpractice lawsuit under similar facts. 442 N.W.2d 322 (Minn. 1989); see Fontaine v.
Steen, 759 N.W .2d 672, 676 (Minn. App. 2009) (borrowing from medical -malpractice
precedent in legal-malpractice case). The supreme court held that the plaintiff’s oral motion
was proper under rule 7.02 because it was made during a pretrial hearing, with the
proceedings recorded, and the motion was “related to the matter then under consideration
by the court.” Stern, 442 N.W.2d at 325. Similarly, Larson’s oral rule 6.02 motion was
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made at the motion -to-dismiss hearing, which was recorded, and it related to the issues
discussed at the hearing. Thus, Larson complied with rule 7.02, and we will address the
merits.
While the district court recited all Hammel factors, it discussed only one
factor—reasonable excuse—and found it dispositive. Keeping in mind that a district court
has discretion to resolve a rule 6.02 motion, the issue for this court is whether a district
court abuses its discretion when it denies the motion without considering all four Hammel
factors. We rely on two supreme court cases addressing a similar issue in the context of
granting relief from judgment under Minn. R. Civ. P. 60.02(a). We note that the district
court did not have the benefit of these opinions because the supreme court released them
after the district court’s decision.
In Gams v. Houghton and Cole v. Wutzke, the supreme court considered two district
courts’ decisions to deny relief from judgment s entered against plaintiffs who failed to
timely file their complaints under Minn. R. Civ. P. 5.04. Gams, 884 N.W.2d 611, 614
(Minn. 2016); Cole, 884 N.W.2d 634, 636 (Minn. 2016); see Minn. R. Civ. P. 5.04(a)
(“Any action that is not filed with the court within one year of commencement against any
party is deemed dismissed with prejudice.”). In both cases, the plaintiffs moved for relief
under rule 60.0 2(a) based on excusable neglect. Gams, 884 N.W.2d at 619; Cole, 884
N.W.2d at 637; see Minn. R. Civ. P. 60.02(a) (providing that a party may move for relief
from judgment for, among other things, excusable neglect ). The rule 60.02 test for
excusable neglect is nearly identical to the Hammel test because it considers four factors,
including a reasonable case on the merits, reasonable excuse, due diligence in remedying
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the error, and any substantial prejudice to the opposing party. Gams, 884 N.W.2d at 620
(citing Finden v. Klaas, 268 Minn. 268, 271, 128 N.W.2d 748, 750 (1964)).
Gams and Cole held that a district court must consider and make findings on all four
factors to allow effective appellate review . Gams, 884 N.W.2d at 619 –21; Cole, 884
N.W.2d at 639. A district court’s failure to analyze all four factors is an abuse of discretion,
requiring reversal and remand to the district court for additional findings. Gams, 884
N.W.2d at 621; Cole, 884 N.W.2d at 639.
Cole is particularly apposite because, like the district court in this case, the district
court in Cole applied only the reasonable -excuse factor in denying rule 60.02 relief. 884
N.W.2d at 639. Noting the “fact intensive” nature of a rule 60.02 motion, the supreme court
held that the district court abused its discretion by relying on just one factor. Id. Cole also
noted “a strong policy favoring the granting of relief when judgment is entered through no
fault of the client,” and “courts are loath to ‘punish’” an innocent client fo r errors that are
the responsibility of counsel. Id. at 638 (quotation omitted).
Similarly, here, the district court’s reliance on one Hammel factor does not provide
sufficient factual findings for effective appellate review. Following the reasoning from
Gams and Cole, we conclude that the district court was required to make findings on each
Hammel factor in light of all the circumstances to provide an adequate record for appellate
review. Accordingly, we reverse and remand to the district court for additi onal findings
and reconsideration of Larson’s rule 6.02 motion consistent with this opinion.
Reversed and remanded.