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This opinion will be unpublished and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
A18-0027

Larson Ventures, Inc.,
Appellant,

vs.

Jason P. Hoffman,
Respondent.

Filed July 16, 2018
Affirmed
Johnson, Judge

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

Timothy J. Nolan, Timothy J. Nolan, PLLC, St. Louis Park, Minnesota; and

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

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

Considered and decided by Worke, Presiding Judge; Johnson, Judge; and Klaphake,
Judge.*

*Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant
to Minn. Const. art. VI, § 10.
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U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
The plaintiff in this case sued the defendant for legal malpractice. The defendant
moved to dismiss the complaint on the ground that the plaintiff failed to serve an expert -
disclosure affidavit before the statutory deadline. The plaintiff then moved to enl arge the
statutory period for serving the expert -disclosure affidavit. The district court denied the
plaintiff’s motion to enlarge and granted the defendant’s motion to dismiss. We conclude
that the district court did not abuse its discretion by denying the plaintiff’s motion to
enlarge and, accordingly, did not err by granting the defendant’s motion to dismiss.
Therefore, we affirm.
FACTS
This case is before th e court of appeals for a second time. In the first appeal, the
plaintiff, Larson Ventures, Inc. (LVI), appealed from the district court’s denial of its motion
to enlarge the statutory period for serving an expert -disclosure affidavit and the district
court’s grant of the motion to dismiss filed by the defendant, Jason P. Hoffman. We
reversed and remanded for reconsideration of LVI’s motion, including additional findings
on each of the requirements relevant to a motion to enlarge. We need not repeat here the
procedural history of the case , which is fully described in our prior opinion . See Larson
Ventures, Inc. v. Hoffman, No. A16-1690, 2017 WL 1833318 (Minn. App. May 8, 2017).
On remand, the district court requested supplemental briefing. The district court
then issued a written order that includes additional findings on all four requirements and
that reflects a reconsideration of LVI’s motion to enlarge. The district court again denied
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LVI’s motion to enlarge the statutory period for serving an expert-disclosure affidavit and
again granted Hoffman’s motion to dismiss. LVI has filed a notice of appeal, and Hoffman
has filed a notice of related appeal.
D E C I S I O N
LVI argues that the district court erred by denying its motion to enlarge the deadline
for serving an expert-disclosure affidavit and by granting Hoffman’s motion to dismiss.
To establish a prima facie case of legal malpractice, a plaintiff must allege and prove
(1) the existence of an attorney -client relationship; (2) acts
constituting negligence or breach of contract; (3) that such acts
were the proximate cause of the plaintiff ’s damages; [and]
(4) that but for defendant ’s conduct the plaintiff would have
been successful in the prosecution or defense of the action.

Guzick v. Kimball, 869 N.W.2d 42, 47 (Minn. 2015) (alteration in original) (quoting Blue
Water Corp., Inc. v. O ’Toole, 336 N.W.2d 279, 281 (Minn. 1983) ). If the plaintiff needs
expert testimony to satisfy any element of a legal -malpractice claim, the plaintiff must
serve an expert -disclosure affidavit on the defendant “within 180 days of the
commencement of discovery.” Id. (citing Minn. Stat. § 544.42, subd. 2(2) (2014)). “If a
plaintiff fails to serve an expert disclosure affidavit . . . within 180 days, the defendant may
move for mandatory dismissal ‘of each action with prejudice as to which expert testimony
is necessary to establish a prima facie case.’” Id. (quoting Minn. Stat. § 544.42, subd. 6(c)).
A district court has authority under rule 6.02 of the rules of civil procedure to enlarge
the 180-day period of 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 Anderson v. Rengachary, 608 N.W.2d 843, 849-50 (Minn.
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2000) (considering motion under rule 6.02 to enlarge time for filing ex pert-identification
affidavit pursuant to section 145.682, subdivision 4). The rule provides as follows:
When by statute, by these 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, (1) with or without motion
or notice order the period enlarged if request therefor is made
before the expiration of the period originally prescribed or as
extended by a previous order, or (2) upon motion made after
the expiration of the specified period permit the act to be done
where the failure to act was the result of excusable neglect.

Minn. R. Civ. P. 6.02. If a party moves to enlarge a deadline under rule 6.02, a district
court must apply a four-part test to determine whether the moving party has shown
excusable neglect. Lake Superior Ctr. Auth., 715 N.W.2d at 471; see also Anderson, 608
N.W.2d at 849-50.
Excusable neglect exists where the plaintiff (1) has a
reasonable suit on the merits, (2) has a reasonable excuse for
failure to comply with t he time limit . . . , (3) acted with due
diligence after receiving notice of the time limit, and (4) no
substantial prejudice results to the defendant.

Anderson, 608 N.W.2d at 850.
In our prior opinion in this case, we applied rule 6.02 by looking to supreme court
caselaw applying rule 60.02(a), which authorizes relief from a final judgment or order for,
among other things, excusable neglect. Larson Ventures, Inc. , 2017 WL 1833318, at *4
(citing and discussing Gams v. Houghton , 884 N.W.2d 611 (Minn. 2016) , and Cole v.
Wutzke, 884 N.W.2d 634 (Minn. 2016) ). The supreme court ’s four-part test for rule
60.02(a) is “nearly identical” to the four-part test for rule 6.02. Id.; compare Gams, 884
N.W.2d at 6 19-20; Cole, 884 N.W.2d at 637 , with Anderson, 608 N.W.2d at 850; Lake
5
Superior Ctr. Auth. , 715 N.W.2d at 471. In our prior opinion, we noted that, under the
supreme court’s recent caselaw applying rule 60.02(a), “a district court must consider and
make findings on all four factors to allow effective appellate review.” Larson Ventures,
Inc., 2017 WL 1833318, at *4 (citing Gams, 884 N.W.2d at 619-21; Cole, 884 N.W.2d at
639). We also noted, “A district court’s failure to analyze all four factors is an abuse of
discretion, requiring reversal and remand.” Id. (citing Gams, 884 N.W.2d at 621; Cole,
884 N.W.2d at 639). The underlying rationale for these principles is that “[t]he decision
whether relief is warranted under Rule 60.02 is committed to the sound discretion of the
district court and is based upon all the surrounding circumstances of each case.” Cole, 884
N.W.2d at 637.
The supreme court also stated that the party moving for relief un der rule 60.02(a)
“must establish all four requirements for relief to be warranted.” Id. “If the district court,
in its sound discretion, determines that the movant has satisfied these four requirements,
relief should be granted.” Id. (citing Finden v. Klaas, 268 Minn. 268, 271, 128 N.W.2d
748, 750 (1964)). The Gams and Cole opinions imply that, if a moving party has not
satisfied all four requirements, the moving party is not entitled to relief under rule 60.02(a),
so long as the district court has analyzed all four requirements and considered all relevant
circumstances before reaching a conclusion as to whether the moving party has established
excusable neglect. See, e.g., Cornell v. Ripka, 897 N.W.2d 801, 807 (Minn. App. 2017).
On remand in this case, the district court issued an order that includes an analysis of
each of the four requirements. The district court found that LVI satisfied the first
requirement because LVI’s expert-disclosure affidavits, including a supplemental expert
6
report, identify “the expert witness, relate the substance of the facts and opinions to which
the expert is expected to testify, and provide a summary of the grounds for each opinion ,”
including sufficient opinion s on the applicable standard of care and on causation . The
district court found that LVI did not satisfy the second requirement because “there were no
unusual or unique circumstances here preventing [LVI’s attorney] from timely submitting
his affidavit of expert identification” and “no reasonable excuse was ev er offered.” The
district court found that LVI satisfied the third requirement because “as soon as [LVI’s]
attorney learned of his failure to serve the affidavit of expert identification, . . . he served a
formal affidavit of expert identification along w ith the expert report [that had been]
previously served” within the statutory deadline. The district court found that LVI satisfied
the fourth requirement because “there is no readily identifiable prejudice to” Hoffman. The
district court concluded that LVI’s motion should be denied because LVI “failed to
establish one of the four . . . factors,” namely, the second factor, whether LVI has a
reasonable excuse for its failure to timely serve the expert -disclosure affidavit . As a
consequence of its denial of LVI’s motion to enlarge, the district court granted Hoffman’s
motion to dismiss.
LVI argues that the district court erred for three reasons. First, LVI contends that
this court’s prior opinion required the district court to make a different finding with respect
to the second requirement. To the contrary, this court’s prior opinion did not conclude that
the district court erred in its prior order by finding that LVI had not satisfied the second
requirement. Rather, t his court reversed and remanded bec ause the district court had
7
considered only the second requirement, not all four requirement s. See Larson Ventures,
Inc., 2017 WL 1833318, at *4.
Second, LVI contends that the district court erred by finding that LVI did not satisfy
the second requirement. LVI contends that it provided an explanation for its failure to
timely serve the expert -disclosure affidavit and that the district court’s finding on the
second factor is inconsistent with prior opinions of the supreme court and this court. LVI’s
contention does not fully appreciate the supreme court’s recent opinion in Gams, in which
the court stated, “The decision whether to grant Rule 60.02 relief is based on all the
surrounding facts of each specific case, and is committed to t he sound discretion of the
district court.” 884 N.W.2d at 620. LVI’s contention also is inconsistent with the supreme
court’s recent opinion in Cole, in which the court elaborated on the second factor as
follows:
We have cautioned . . . that not “all mis takes, whether
of fact or of law, and whether committed by a party to an action
or by his attorney, are . . . subject to relief.” Baxter [v. Chute],
50 Minn. [164,] 167, 52 N.W. [379,] 380 [(1892)]. Indeed, the
right to vacatur is “not absolute”; rather, it is a matter “largely
within the discretion of the trial court.” E.g., Kosloski v. Jones, 295 Minn. 177, 180, 203 N.W.2d 401, 403 (1973). As such, it
is generally for the district court to determine whether the
excuse offered by the movant is true and reasonable under the
circumstances. Standard Oil Co. v. King, 238 Minn. 81, 83, 55
N.W.2d 710, 712 (1952); see also In re J.R., Jr. , 655 N.W.2d
1, 4 n.3 (Minn. 2003) (explaining that the district court is in the
best position to “evaluate the reasonableness of the excuse, the
prejudice to the other party, and whether the party has a
reasonable” claim or defense). Accordingly, there are no per
se rules of law requiring either the grant or denial of a Rule
60.02(a) motion under the “reasonable excuse” requ irement.
Instead, the decision is fact intensive. See Gams, 884 N.W.2d
at 620.
8

884 N.W.2d at 638-39. In short, the resolution of the second requirement depends on the
particular circumstances of the case, and a district court has broad discretion in its
determination whether the requirement has been satisfied. In this case, the district court
considered the circumstances and exercised its discretion by concluding that LVI had not
established a reasonable excuse for its failure to timely serve the expert -disclosure
affidavit.
Third, LVI contends that the district court erred by not consideri ng and
implementing the general policy that relief should be granted if judgment was entered
because of an attorney’s mistake while the client was not at fault. The supreme court’s
caselaw “generally ‘reflects a strong policy favoring the granting of relief when judgment
is entered through no fault of the client.’” Id. at 638 (quoting Nguyen v. State Farm Mut.
Auto. Ins. Co. , 558 N.W.2d 487, 491 (Minn. 1997)) ; see also Charson v. Temple Israel ,
419 N.W.2d 488, 491 (Minn. 1988). We alluded to this general policy in our prior opinion
in this case. Larson Ventures, Inc., 2017 WL 1833318, at *4 (citing Cole, 884 N.W.2d at
638). But the general policy is simply that: a general policy. A district court must consider
the general policy in the course of its discretionary decisionmaking, but it is not a fixed
rule of law that necessarily determines the resolution of the second requirement in every
case. This is eviden t from the Cole opinion, in which the supreme court referred to the
general policy reflected in Nguyen and Charson but immediately thereafter (as quoted
above) reiterated that the resolution of the second requirement depends on the particular
circumstances of the case and that a district court has broad discretion in determining
9
whether the second requirement has been satisfied. See Cole, 884 N.W.2d at 638-39. The
supreme court also made clear in Cole that a district court should not rely on per se rules
in such a determination. Id. at 639. In this case, the district court appropriately recognized
that the general polic y reflected in Nguyen and Charson “is not a trump card or a per se
rule” but, rather, “must be analyzed in context.”
In sum, the district court properly followed this court’s remand instructions by
considering all four requirements of relief under rule 6.02. The district court did not abuse
its discretion in its resolution of any of the four requirements or in its ultimate
determination that LVI did not establish excusable neglect. Because LVI has not
challenged the district court’s dismissal of the complaint on any other ground, we conclude
that the district court did not err by granting Hoffman’s motion to dismiss. In light of these
conclusions, we need not consider or resolve Hoffman’s alternative argument for
affirmance, which is the purpose of his notice of related appeal.
Affirmed.