Dennis J. Daulton, trustee for the next of kin of Brady Joel Daulton, deceased, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A24-1610

Dennis J. Daulton, trustee for the next of kin of Brady Joel Daulton, deceased,
Appellant,

vs.

TMS Treatment Center, Inc., d/b/a Carlson Drake House,
Respondent.

Filed June 16, 2025
Reversed and remanded
Worke, Judge

Hennepin County District Court
File No. 27-CV-22-12180

Jerome M. Reinan, Law Offices of J.M. Reinan, Denver, Colorado (for appellant)

Christopher L. Goodman, Thompson, Coe, Cousins & Irons, LLP, St. Paul, Minnesota (for
respondent)

Considered and decided by Wheelock, Presiding Judge; Worke, Judge; and
Connolly, Judge.
NONPRECEDENTIAL OPINION
WORKE, Judge
Appellant challenges the dismissal of his wrongful-death action, arguing that the
district court abused its discretion when it determined that appellant failed to timely serve
a required expert-identification affidavit and granted respondent’s motion to dismiss.
Because we conclude that appellant timely served the affidavit, we reverse and remand.
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FACTS
Appellant Dennis J. Daulton, trustee for the next of kin of Brady Joel Daulton,
deceased, commenced a wrongful-death action against respondent TMS Treatment Center,
Inc., d/b/a Carlson Drake House, in August 2022. Appellant’s claim alleged medical
malpractice and was subject to the expert-affidavit requirements of Minn. Stat. § 145.682,
subds. 2-4 (2024). Appellant was required to serve respondent with an affidavit identifying
the expert witnesses he intended to call at trial within 180 days of the commencement of
discovery (affidavit period). Id., subd. 2(2).
The affidavit period commenced in October 2022, and the district court dismissed
the case in February 2023. At the time the case was dismissed, appellant had not served
the expert-identification affidavit, and 62 days of the 180-day affidavit period remained.
Appellant appealed the dismissal and we reversed and remanded to the district court
in Daulton v. TMS Treatment Ctr., Inc., 2 N.W.3d 331 (Minn. App. 2024). Our opinion
was issued on January 16, 2024. Judgment was entered by the clerk of the appellate courts
on February 27, 2024.
As of April 24, 2024, appellant had not served the affidavit, and respondent moved
to dismiss. Respondent argued that appellant missed the deadline to serve the affidavit
because the affidavit period resumed when the Daulton decision was issued in January,
and expired 62 days later on March 18, 2024.
Appellant served the affidavit on April 25, 2024. Appellant argued that the service
was timely because the affidavit period did not resume until the Daulton judgment was
entered in February, and the deadline therefore did not expire until April 29, 2024.
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The district court determined that the affidavit period resumed when the Daulton
decision was issued and granted respondent’s motion to dismiss. This appeal followed.
DECISION
Appellant argues that the district court abused its discretion by concluding that the
affidavit period resumed when the decision remanding his case was issued and by granting
respondent’s motion to dismiss. We review a district court’s dismissal of a claim under
Minn. Stat. § 145.682 (2024) for an abuse of discretion. Maudsley v. Pederson, 676
N.W.2d 8, 11 (Minn. App. 2004). “A district court abuses its discretion by making findings
of fact that are unsupported by the evidence, misapplying the law, or delivering a decision
that is against logic and the facts on record.” Bender v. Bernhard, 971 N.W.2d 257, 262
(Minn. 2022) (quotation omitted). A district court’s interpretation of statutes and
procedural rules raises questions of law subject to de novo review. Heilman v. Courtney,
926 N.W.2d 387, 392 (Minn. 2019).
Under section 145.682, subdivision 2, a plaintiff alleging malpractice must “serve
upon defendant within 180 days after commencement of discovery under the Rules of Civil
Procedure, rule 26.04(a) an affidavit” identifying the expert witnesses that the plaintiff
intends to call at trial. The parties agree that the affidavit period was suspended during
pendency of appellant’s appeal, but dispute whether the period resumed when the Daulton
decision was issued or when the Daulton judgment was entered.
Appellant argues that the 180-day affidavit period is governed by the Minnesota
Rules of Civil Procedure, and that, during the course of his appeal, his case was governed
by the Minnesota Rules of Civil Appellate Procedure. According to appellant, the affidavit
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period did not resume until the judgment was entered and jurisdiction of the case was
transferred back to the district court.
Relying on our decision in Firkus v. Harms, the district court concluded that the
affidavit period is not tied to a district court’s jurisdiction because obtaining the expert
witnesses required under section 145.682 is a “process . . . [that] can be done outside of
discovery.” 914 N.W.2d 414, 420 (Minn. App. 2018). In other words, according to the
district court, the affidavit period resumed when the Daulton decision was issued because,
at that point, appellant had the “ability” to obtain expert witnesses outside of the formal
discovery process even though the district court lacked jurisdiction over the case. We
disagree.
In Firkus, we concluded that Minn. R. Civ. P. 26 governs the date that discovery
commences for purposes of section 145.682. Id. We reached that conclusion because it
“best reflects the legislature’s intent” that malpractice plaintiffs have a full 180 days to
conduct discovery for their expert-identification affidavit, and it provides parties a bright-
line rule to determine when the 180-day affidavit period begins and ends. Id.
Because the intent of the legislature and the parties’ need for a bright-line rule
establishing the affidavit period are just as relevant when a case is remanded as when a
case is commenced, we conclude that rule 26 governs the resumption of the 180-day
affidavit period. And because civil appeals are governed by appellate rules, see Minn. R.
Civ. App. P. 101, and a district court does not reacquire jurisdiction until an appellate
court’s judgment is entered, see Hoyt Inv. Co. v. Bloomington Com. & Trade Ctr. Assocs.,
421 N.W.2d 735, 739 (Minn. App. 1988) (noting that Minn. R. Civ. App. P. 136.02
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“operates to deprive the trial court of jurisdiction”), we conclude that the affidavit period
did not resume until February 27, 2024, when the Daulton judgment was entered and
jurisdiction of appellant’s case was transferred to the district court.
Furthermore, while we acknowledged in Firkus that obtaining an expert witness is
a “process . . . [that] can be done outside of discovery,” we rejected the argument that such
informal discovery functions “as a trigger to the 180-day period,” because “[t]he statute
explicitly references discovery conducted pursuant to the rules of civil procedure, and it
does not contain any references to informal discovery.” Id. at 420, 418 n.3 (emphasis
added). For the same reasons, we decline to hold that informal discovery triggers, upon
filling of an appellate court opinion, the resumption of the 180-day day affidavit period.
Accordingly, we conclude that the 180- day affidavit period resumed on
February 27, 2024, upon entry of the Daulton judgment, that it expired 62 days later on
April 29, 2024, and that appellant’s April 25, 2024 service of the expert-identification
affidavit was timely. We reverse and remand for proceedings consistent with this opinion.
Reversed and remanded.