In re the Appeal from the Order of the Joint Board of Kandiyohi and Meeker Counties Acting as Drainage Authority for Drainage Project: In the Matter of the Petition of Harold Witt, et al., for Establishment of a Lateral to County Ditch No. 52 in Kandiyohi and Meeker Counties.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0511

In re the Appeal from the Order of the
Joint Board of Kandiyohi and Meeker Counties
Acting as Drainage Authority for Drainage Project:
In the Matter of the Petition of Harold Witt, et al.,
for Establishment of a Lateral to County Ditch No. 52
in Kandiyohi and Meeker Counties.

Filed January 22, 2019
Affirmed; motion denied
Rodenberg, Judge

Kandiyohi County District Court
File No. 34-CV-15-187

Paul R. Haik, Krebsbach and Haik, Ltd., Eden Prairie, Minnesota (for appellant D&J
Family Farm, LLC)

Gerald W. Von Korff, Kale R. Van Bruggen, Rinke Noonan, St. Clo ud, Minnesota (for
respondent Joint Board of Kandiyo hi and Meeker Counties for Lat eral to Joint County
Ditch 52)

Jeff C. Braegelmann, Dean M. Zimmerli, Gislason & Hunter LLP, N ew Ulm, Minnesota
(for respondents Harrold Witte, August Faber, Gertrude Faber, Michael Lux, Bridget Lux,
Mardette Trettin, Diane Porath)

Ken Schmeling, Lake Lillian, Minnesota (pro se respondent)

Harold Kiecker Lake Lillian, Minnesota (pro se respondent)

Glenn Novotny, Hector, Minnesota (pro se respondent)

Mark Novotny, Hector, Minnesota (pro se respondent)

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Considered and decided by Roden berg, Presiding Judge; Hooten, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant D&J Family Farm L.L.C. appeals from the district cou rt’s order granting
summary judgment in favor of respondents and dismissing appella nt’s appeal of benefits
and damages. We deny appellant’s motion to strike and affirm the district court.
FACTS
This appeal arises from litigation concerning a lateral to a d rainage system serving
agricultural lands in Kandiyohi and Meeker counties. 1 Appellant2 owns farmland that is
within the drainage system’s watershed. 3 In 2011, respondent landowners (landowners),
represented by an attorney, filed a petition seeking to establi sh a lateral 4 beginning in

1 A drainage system means “a system of ditch or tile, or both, t o drain property, including
laterals, improvements, and impr ovements of outlets, establishe d and constructed by a
drainage authority.” Minn. Stat. § 103E.005, subd. 12 (2018). A drainage system includes
“the improvement of a natural waterway used in the construction of a drainage system and
any part of a flood control plan proposed by the United States or its agencies in the drainage
system.” Id.

2 Duane Anderson is the manager of D&J Family Farm L.L.C., and w e therefore refer to
appellant using male pronouns.

3 A watershed means “a drainage area having boundaries which are substantially
coterminous with those of an aggregation of contiguous minor watershed units possessing
similar drainage patterns and which cross the borders of two or more local government
units.” Minn. Stat. § 103B.205, subd. 11 (2018).

4 A lateral is “any drainage construction by branch or extension , or a system of branches
and extensions, or a drain that connects or provides an outlet to property with an established
drainage system.” Minn. Stat. § 103E.005, subd. 15 (2018).

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Meeker County, running into Ka ndiyohi County, and outletting in to Kandiyohi County
Ditch 52 (CD 52). In re Order of Joint Bd. of Kandiyohi & Meeker Ctys., No. A16-1412,
2017 WL 875274, at *1 (Minn. App. Mar. 6, 2017), review denied (Minn. May 30, 2017).
The proposed lateral was to benefit land owned by appellant and others and improve the
drainage system. Because the proposed lateral was proposed to be located in both
Kandiyohi and Meeker Counties, r espondent Joint Board of Kandiy ohi and Meeker
Counties (joint drainage authority) was appointed.5 Id. In March 2011, the joint drainage
authority accepted respondent landowners’ petition, and appointed a firm of engineers and
a project engineer, D.H.
Drainage Authority Proceedings
Before the public preliminary he aring, the Kandiyohi County Attorney determined
and reported that the petition and accompanying bonds were adeq uate for consideration,
and D.H. provided the joint drainage authority with a preliminary report and plans for the
proposed lateral. Following notice, the joint drainage authori ty held an open meeting to
consider public comment concerning the lateral.
At a continued hearing in October 2011, it was determined that (1) the proposed
lateral was feasible; (2) there was a necessity for the lateral ; (3) the project would be of
public benefit and promote public health; (4) CD 52 provided an adequate outlet for the

5 W e n o t e t h a t t h e r e a r e t w o s e p a rate and distinct drainage auth orities mentioned
throughout this opinion: the joint drainage authority and the CD 52 drainage authority.
The CD 52 drainage authority is the drainage authority for County Ditch 52 in Kandiyohi
C o u n t y . T h e f i v e - m e m b e r j o i n t drainage authority in this case i s t h e l a t e r a l d r a i n a g e
authority comprised of members from Kandiyohi and Meeker Counties.

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lateral; and (5) if the CD 52 drainage authority approved granting an outlet, an engineer’s
final report and detailed survey concerning the lateral would be prepared. Id.
In September 2012, the CD 52 drainage authority determined that CD 52 provided
an adequate outlet for the lateral and set an outlet fee. Joint Bd. of Kandiyohi & Meeker
Ctys., No. A16-1412, 2017 WL 875274, at *2. D.H. amended the final report of the
detailed survey. Id. The final report concluded that: (1) the outlet for the late ral was
adequate to accommodate water flowing from the lateral into CD 52; (2) CD 52, if properly
maintained, could accommodate the additional water from the lateral; (3) the lateral would
increase the amount of water at the downstream terminus of CD 52 by less than one percent;
(4) the construction cost of the lateral would be $324,135; and (5) the lateral was the most
practical alternative for draining the land. Id.
The joint drainage authority appointed three viewers (and an alternate) to assess the
benefits and damages of the lateral. 6 It also affirmed the outlet fee. The viewers’ report
contained a statement of benefits and damages to land that woul d be affected by the
proposed lateral. The viewers’ report assessed benefits to two 4 0 - a c r e p a r c e l s o f
appellant’s property. Those parcels are in section 13, and inc lude parts of both the NE ¼
of the NE ¼ and the NW ¼ of the NE ¼ of section 13. The land b enefitted by the lateral
in the two affected parcels totals 27 acres. No damages were assessed to appellant’s land,

6 “When the order for a detailed survey is made, the drainage au thority shall, by order,
appoint viewers consisting of thr ee disinterested residents of the state qualified to assess
benefits and damages.” Minn. Stat. § 103E.305, subd. 1 (2018).

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and the viewers assessed net benefits for the NE ¼ of the NE ¼ at $3,570 and for the NW ¼
of the NE ¼ at $235, for a total assessed benefit of $3,805.
The proposed lateral is depicted below. The two parcels of appellant’s land assessed
benefits in section 13 are shaded in blue. Appellant’s remaini ng property located in
sections 11, 13, and 14 is shaded in yellow. Those yellow sect ions were not assessed
benefits or damages by the viewers. The map also indicates the location for the proposed
lateral, and the dashes indicate the boundaries of the CD 52 wa tershed. The outlet for the
proposed lateral is to the left of section 10 on the map.

In February 2015, the joint drainage authority held a public h earing on the
acceptance of the viewers’ report, including its determination of benefits and damages, as
well as D.H.’s final engineer’s report. The joint drainage authority approved findings that
(1) D.H.’s final report and the viewers’ report were complete a nd correct, (2) benefits
exceeded costs-plus-damages, (3) the lateral would be of public utility and benefit, and

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(4) the project was practicable. Id. T h e j o i n t d r a i n a g e a u thority then issued an order
establishing a lateral. Id.
Appeal of the Drainage Authority’s Order to the District Court
Appellant challenged both the d rainage authority’s establishment of the lateral and
the viewers’ calculation of benefits and damages in district co urt, as allowed by statute. 7
Appellant raised a number of issue s concerning the joint draina ge authority’s decision to
establish the lateral. Appellant a r g u e d t h a t t h e b e n e f i t s d i d not exceed the costs and
damages and that CD 52 was not adequate to serve as an outlet f or the proposed lateral.
Appellant argued that the viewers’ report failed to take account of all his farm property that
would be affected by the lateral, and specifically, that his pr operty located in sections 11
and 14 downstream of his benefitte d parcels would be damaged by the lateral outletting
into CD 52.
Appellant hired a civil engineer, G.G., to support his claims. G.G. analyzed the
proposed lateral’s impact on the CD 52 system and determined th at silt build up over the
original bottom of the ditch would cause overflow, and G.G. est imated that the cost of
moving that silt would be $139,000. G.G.’s report also stated that D.H.’s report was
incorrect and incomplete because D.H. failed to consider downstream damages that would

7 “A party may appeal an order made by the board that dismisses drainage proceedings or
establishes or refuses to establish a drainage project to the district court of the county where
the drainage proceedings are pending.” Minn. Stat. § 103E.095, subd. 1 (2018) (providing
for establishment appeals). A party may appeal to the district court, a drainage authority’s
determination of: “(1) the amount of benefits; (2) the amount of damages; (3) fees or
expenses allowed; or (4) whether the environmental, land use, a nd multipurpose water
management requirements and criteria of section 103E.015, subdivision 1 are met.” Minn.
Stat. § 103E.091, subd. 1 (2018) (providing for benefits-and-damages appeals).

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be caused by the additional water flowing into CD 52. Appellan t also hired an appraiser,
R.P., who estimated that future damages to appellant’s farmland in sections 11 and 14
would be approximately $350,000.
As required by the drainage code, the establishment appeal occ urred first. See Minn.
Stat. § 103E.095, subd. 3 (2018). Respondent landowners moved for partial summary
judgment and for dismissal of the appeal. The district court g ranted partial summary
judgment for respondents. In its order, the district court det ermined that appellant was
collaterally estopped from relitigating the adequacy of the outlet, and that appellant would
not be permitted to argue, in the establishment appeal, that CD 52 was not an adequate
outlet for the lateral. The district court noted that the deci sion of the CD 52 drainage
authority to authorize the outlet was a final decision subject to appeal, but no party had
appealed that decision. The district court concluded that “the issue of whether the Lateral
Project can outlet into Ditch 52 has been determined” and it th erefore granted partial
summary judgment for respondents.
Appellant appealed from the district court’s order granting pa rtial summary
judgment. We affirmed the district court’s decision that appellant was collaterally estopped
from arguing that the lateral would cause his downstream land t o flood because the
drainage authority’s outlet-ad equacy determination was not appe aled. Joint Bd. of
Kandiyohi & Meeker Ctys., No. A16-1412, 2017 WL 875274, at *4. Appellant petitioned
the Minnesota Supreme Court for further review, and that petition was denied.

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Benefits-and-Damages Appeal
On remand, the district court proceeded on the benefits-and-da mages portion of
appellant’s appeal under Minn. Stat. § 103E.091. Appellant req uested a jury trial. The
district court limited the appeal to issues relating to appella n t ’ s t w o p a r c e l s o f l a n d i n
section 13. Appellant moved to admit testimony and expert reports showing that the lateral
would cause damage to his land in sections 11 and 14, land that appellant claimed would
be flooded if the lateral was established. The district court denied appellant’s motion, and
limited the evidence at trial to the assessed benefits and dama ges to appellant’s land in
section 13. Eleven days before trial, appellant filed a new affidavit from G.G. (the second
report), detailing what appellant proposed would be G.G.’s expert testimony relating to the
section-13 parcels. The affidavit contained new claims concerning the impact of the lateral
on appellant’s land in section 13.
After a motion hearing, the dis trict court determined that G.G.’s first report and the
report from appraiser R.P. were inadmissible as irrelevant beca use they did not relate to
appellant’s land in section 13. T he district court further con cluded that G.G.’s second
report, which asserted new claims, would be inadmissible at tri al, because it had not been
timely disclosed. Because these rulings left no dispute for trial concerning any benefits or
damages to the section 13 parcels, the district court granted s ummary judgment for
respondents and dismissed appellant’s benefits-and-damages appeal.
Appellant appealed the district court’s summary-judgment dismi ssal of the benefits-
and-damages appeal. While the appeal was pending in this court, appellant moved to strike

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portions of respondent joint drainage authority’s brief. A spe cial term panel of this court
deferred resolution of the motion to this merits panel.
D E C I S I O N
I. Appellant’s motion to strike is denied.
We first address appellant’s motion to strike. Appellant asks us to strike respondent
joint drainage authority’s references to a “collective guide” a nd also asks us to strike a
series of assertions made by respondent joint drainage authorit y in the briefing. The
“collective guide” in question is the Minnesota Public Drainage Manual. Minnesota Public
Drainage Manual (Minnesota Board of Soil & Water Resources, 2017).
The record on appeal consists only of the papers filed below, t he exhibits, and the
transcript of the proceedings. M inn. R. Civ. App. P. 110.01. Appellate courts may take
judicial notice of or refuse to strike public documents that were not made part of the record
below. See State v. Rewitzer , 617 N.W.2d 407, 411 (Minn. 2000) (refusing to strike
documents introduced on appeal rel ating to sentencing statistic s when documents were
matters of public record and court was free to refer to them in t h e c o u r s e o f i t s o w n
research).
Here, the Minnesota Public Drainage Manual contains information compiled by the
Minnesota Board of Water and Soil Resources (BWSR). It is a public record, and we need
not disregard it. The manual is similar to a law review articl e or a treatise. It has been
cited in one Minnesota Supreme Court dissenting opinion. See In re Improvement of
Murray Cty. Ditch No. 34, 615 N.W.2d 40, 52 (Minn. 2000) (Page, J., dissenting) (referring
to an earlier version of the drainage manual, compiled by the M innesota Department of

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Natural Resources). We consider the manual for whatever value we deem it to have. See
Appeal of SH RG for: Northstar Adoption Assistance, 907 N.W.2d 680, 691 n.11 (Minn.
App. 2018) (citing U.S. Dep’t of Health & Human Servs., Child Welfare Policy Manual
Updates Deletions to the Manual).
Appellant next asks us to strike a series of assertions in resp ondent joint drainage
authority’s brief, which appellant claims are “made without citation to the record and which
lack basis in the record.” Appell ant claims that the assertions violate Minn. R. Civ. App.
P. 128.02, subd. 1(c) (“The facts [in a party’s brief] must be stated fairly, with complete
candor, and as concisely as possible. . . . Each statement of a material fact shall be
accompanied by a reference to the record . . . .”). We see no such violation of the rule in
respondent’s brief. It is clear to us, after reading and revie wing each party’s brief, that
each side has its own view of the case. All of the briefs sufficiently comply with rule 128.
We consider the arguments raised in each party’s brief on the merits.
Appellant’s motion to strike is denied.
II. The district court properly granted summary judgment for respondents.
Appellate courts “review a district court’s summary judgment decision de novo. In
doing so, we determine whether the district court properly appl ied the law and whether
there are genuine issues of material fact that preclude summary judgment.” Riverview Muir
Doran, LLC v. JADT Dev. Grp., LLC , 790 N.W.2d 167, 170 (Minn. 2010) (citation
omitted). Summary judgment is appropriate “if the movant shows that there is no genuine
issue as to any material fact and the movant is entitled to jud gment as a matter of law.”

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Minn. R. Civ. P. 56.01.8 Appellate courts view the facts in the light most favorable to the
nonmoving party. DLH, Inc. v. Russ, 566 N.W.2d 60, 72 (Minn. 1997). A “metaphysical
doubt” as to a fact issue will not defeat summary judgment. Id. at 71. Summary judgment
should be granted for the defendant “when the record reflects a complete lack of proof on
an essential element of the plaintiff’s claim.” Lubbers v. Anderson, 539 N.W.2d 398, 401
(Minn. 1995); see also DLH , 566 N.W.2d at 69-71 (detailing the summary-judgment
standard).
Appellant argues that the distric t court erred when it preclude d appellant from
asserting damages to parcels other than the benefitted section-13 lands and thereby denied
appellant a jury trial. Appella nt also argues that the distric t court erred by excluding the
proffered late-disclosed expert testimony and granted summary j udgment despite the
existence of genuinely disputed material facts.
A. Our earlier decision in the es tablishment appeal precludes a ppellant
from further challenging the adequacy of the outlet into CD 52.

Respondent joint drainage authority argues, and the district co urt held, that the
adequate-outlet finding bars appellant’s claims for damages he alleges will occur as a result

8 The district court applied the former version of rule 56 which at the time was Minn. R.
Civ. P. 56.03. The rule was recently “revamped” to more “closely follow” the federal rules
and was renumbered to Minn. R. Civ. P. 56.01. Minn. R. Civ. P. 56 2018 advisory comm.
cmt. When promulgating amendments to rule 56, effective on July 1, 2018, and applicable
to pending cases, the supreme co urt specifically indicated that amended language on the
standard for granting summary jud gment reflects Minnesota case law. Order
Promulgating Amendments to Rules of Civil Procedure , No. ADM04-8001 (Minn.
Mar. 13, 2018). Because the legal standard is unchanged, we cite to the current version of
rule 56.01, even though the distr ict court's decision was issue d before the amended rule
took effect.

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of a claimed inadequate outlet, and that appellant cannot conti nue to claim that the lateral
will cause damage by flooding lands served by CD 52. We agree with the district court.
“Drainage proceedings include a number of safeguards to protect interested
landowners.” In re Improvement of Cty. Ditch. No. 86 v. Phillips , 625 N.W.2d 813, 818
(Minn. 2001). “These safeguards include requirements that a drainage project must not be
constructed if: the project is deemed not feasible, the statutory requirements for the petition
are unsatisfied, the costs of the project exceed the benefits, or the adverse environmental
impact of the project outweighs the public benefits.” Id. (citations omitted). Before
establishing a drainage project, the drainage authority must consider:
(1) private and public benefits and costs of the
proposed drainage project;
(2) alternative measures, including measures
identified in applicable state -approved and locally adopted
water management plans, to:
(i) conserve, allocate, and use drainage waters for
agriculture, stream flow augmentation, or other beneficial uses;
(ii) reduce downstream peak flows and flooding;
(iii) provide adequate dra inage system capacity;
(iv) reduce erosion an d sedimentation; and
(v) protect or improve water quality.

Minn. Stat. § 103E.015, subd. 1 (2018). Under the statute, the drainage authority must also
consider “current and potential flooding characteristics of property in the drainage project
or system and downstream for 5-, 10-, 25- and 50-year flood eve nts, including adequacy
of the outlet for the drainage project.” Id., subd. 1(4).
In this benefits-and-damages appeal, appellant continues to assert that, because the
proposed outlet is inadequate, his downstream property will be flooded and damaged. This
argument has already been considered and rejected. The CD 52 d rainage authority, the

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joint drainage authority for the lateral, the district court, and this court have all upheld the
drainage authority’s determinati on that CD 52 is an adequate ou tlet for the lateral. See
Titrud v. Achterkirch, 213 N.W.2d 408, 412 (Minn. 1973) (stating that a determination that
a proposed drainage project is practicable “includes a finding of adequacy of the outlet”).
Nevertheless, in this appeal, appellant continues to assert that the lateral will cause
damage to his property in sections 11 and 14. His arguments no w are nearly identical to
those raised in the establishmen t appeal—appellant claims that his downstream property
will be flooded if the proposed lateral empties into CD 52, and he wants to be compensated
for those claimed damages.
Appellant made this argument to the district court during the establishment phase of
the appeal. The district court determined that appellant was e stopped from continuing to
argue that CD 52 was not an adequate outlet because “the decision of the Ditch 52 Drainage
Authority to authorize the outlet was a final decision . . . su bject to appeal.” The district
court concluded that appellant had “the right to have the Court review the decision . . . on
all of the issues except the issue of whether the lateral can outlet into Ditch 52.” The district
court reasoned that “[t]hat decision has already been made by a separate agency.”
Appellant appealed the district court’s decision, and we affirm ed the district court.
We agreed that appellant was co llaterally estopped from asserti ng that the lateral would
cause damage to his property in sections 11 and 14. Joint Bd. of Kandiyohi & Meeker
Ctys., No. A16-1412, 2017 WL 875274, at *4. The supreme court denie d appellant’s
petition for review. That issue has been finally resolved. The law of the case bars appellant
from bringing this argument in the benefits-and-damages appeal. See Kissoondath v. U.S.

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Fire Ins. Co. , 620 N.W.2d 909, 917 (Minn. App. 2001) (stating that “when an appellate
court has ruled on an issue, the issue decided becomes the law of the case and may not be
relitigated . . . or re-examined” (quotation omitted)), review denied (Minn. Apr. 17, 2001).
We decline to revisit this final determination concerning the adequacy of the outlet for the
proposed lateral.
B. The district court did not abuse its discretion by determini ng that
appellant’s proposed expert testimony and reports were inadmissible.

Appellant argues that the district court erred in granting summary judgment because
appellant’s notice of appeal, answers to interrogatories, and response to a request to admit
the damages determined by the viewers constituted sufficient di sclosure under Minn. R.
Civ. P. 26.01 of the matters addressed in G.G.’s second report.
“The district court’s function on a motion for summary judgment is not to decide
issues of fact, but solely to determine whether genuine factual issues exist.” DLH, 566
N.W.2d at 70. In response to a motion for summary judgment onc e the moving party has
made a prima facie case, the nonmoving party may not rely upon mere averments in the
pleadings or unsupported allegations, but must come forward with specific facts to satisfy
its burden. Bebo v. Delander , 632 N.W.2d 732, 737 (Minn. App. 2001), review denied
(Minn. Oct. 16, 2001). We review a district court’s summary-ju dgment decision de novo
and, in doing so, we determine whether the district court prope rly applied the law and
whether there are genuine issues of material fact that preclude summary judgment.
Riverview Muir Doran, LLC , 790 N.W.2d at 170. Here, the district court granted
respondents’ motion in limine precluding admission at trial of the second report of G.G.

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because it was disclosed only 11 days before trial, and the sum mary-judgment dismissal
rested on the record as constitute d without that second report. We therefore consider
whether the district court erred in disregarding that second report when it granted summary
judgment.
The district court’s order concerning G.G.’s second report amounted to a preclusion
order for failure to disclose evidence. When a party fails to properly notify an opponent of
an expert who will testify at trial, a district court has the d iscretion to determine what
sanctions will be imposed. Kraushaar v. Austin Medical Clinic, P.A. , 393 N.W.2d 217,
221 (Minn. App. 1986), review denied (Minn. Nov. 19, 1986). Sanctions may include
dismissal of all or part of a claim if a party willfully and pe rsistently fails to comply with
a discovery order without justifi cation or excuse, and when a p arty has failed to comply,
that party has forfeited the right to a trial on the merits. Frontier Ins. Co. v. Frontline
Processing Corp., 788 N.W.2d 917, 922 (Minn. App. 2010), review denied (Minn. Dec. 14,
2010). A court may dismiss a plaintiff’s claims against all de fendants if the plaintiff’s
disobedience unfairly prejudiced all defendants, regardless of whether each defendant
moved for a discovery sanction. Id. at 919. We review discovery-related orders for abuse
of discretion. Id. at 922.
Appellant’s earlier engineering and appraisal reports concerned appellant’s land in
sections 11 and 14, which was not assessed benefits and damages by the viewers. The only
land relevant to appellant’s benefits-and-damages appeal was the land the viewers assessed
as benefitted by the proposed lateral—the land in appellant’s section-13 parcels. See Agra
Res. Coop v. Freeborn Cty. Bd. of Comm’rs , 682 N.W.2d 681, 685 (Minn. App. 2004)

16
(stating that once a final hearing notice is given, a drainage authority has jurisdiction over
the “property and persons detaile d and described in the survey and viewers’ reports”).
Appellant’s first set of expert reports did not relate to the s ection-13 parcels, and were
therefore irrelevant to the current benefits-and-damages appeal.
Concerning G.G.’s second report, which was late-disclosed, the district court had
discretion to determine the appr opriate sanction for a violatio n of the discovery and
disclosure rules. “The general rule in Minnesota is expert testimony should be suppressed
for failure to make a timely disclosure of the expert’s identit y only where counsel’s
dereliction is inexcusable and r esults in disadvantage to his o pponent.” Norwest Bank
Midland v. Shinnick, 402 N.W.2d 818, 823 (Minn. App. 1987) (quotation omitted). Minn.
R. Civ. P. 26.01 requires parties to disclose the identity of any witness it may use at trial to
present evidence under Minn. R. Evid. 702, 703, or 705. Minn. R. Civ. P. 26.01(b)(1).
“[T]his disclosure must be acco mpanied by a written report—prep ared and signed by the
witness—if the witness is one retained or specially employed to provide expert testimony
in the case . . . .” Id. (b)(2). Absent a stipulation or a court order, the disclosures must be
made at least 90 days before the date set for trial or for the case to be ready for trial. Id.
(b)(4)(A).
Eleven days before trial, appellant submitted an affidavit from engineer G.G. The
affidavit, which was not included with appellant’s earlier disc losures, explained that
appellant now proposed to have G.G. testify about appellant’s damages in section 13. The
affidavit contained new assertions concerning the land in section 13, contrary to appellant’s
position during the years-long litigation, and just eleven days before trial. The district court

17
determined that the information contained in the new affidavit would not be admitted
because appellant’s disclosure was untimely. The district court concluded that “the second
[G.G.] report is merely a response to the irrelevancy of the or iginal [G.G] report and an
untimely, last ditch attempt to create an issue for these two parcels.”
The record supports the district court’s determination that this second report of G.G.
was new, not previously disclosed, and likely to prejudice resp ondents were it received.
The district court considered that it was untimely disclosed, c onsidered the resulting
prejudice to respondents, and made a reasoned preclusion decision. The district court acted
within its discretion in excluding the late-filed second report of G.G.
In the absence of any admissible evidence of damage to appellant’s section 13 land,
there remain no genuine issues of material fact for trial. That being so, the district court’s
grant of summary judgment was proper.
In sum, because appellant is precluded from claiming that the lateral is inadequate,
and because the district court properly excluded appellant’s ir relevant and untimely
proposed expert testimony, there remained no genuine dispute of material fact for trial.
The district court properly gran ted summary judgment for respon dents, dismissing
appellant’s appeal.
Affirmed; motion denied.