This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
Twin City Wire-MFI, Inc.,
Gladstone Construction Company, et al.,
Gladstone Construction, Inc.,
City of St. Paul,
Filed February 20, 2001
Reversed and remanded
Ramsey County District Court
File No. C499379
Vincent J. Courtney, Richard T. Kavaney, Kavaney & Associates, LTD, 700 Saint Paul Building, 6 West Fifth Street, St. Paul, MN 55102 (for respondent)
Clayton M. Robinson, Jr., City Attorney, Gail Lynn Langfield, Assistant City Attorney, 500 City Hall and Courthouse, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for appellant)
Considered and decided by Toussaint, Chief Judge, Willis, Judge, and Foley, Judge.
U N P U B L I S H E D O P I N I O N
DANIEL F. FOLEY, Judge
Appellant seeks review of the trial court’s order and judgment denying its motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. Appellant claims that it is entitled to JNOV because there was insufficient evidence to support the trial court’s conclusion that it failed to compensate respondent fully and fairly for materials and services rendered in connection with construction of a picnic pavilion. In the alternative, appellant claims it is entitled to a new trial because the trial court (1) improperly instructed the jury; (2) allowed illustrative evidence into the jury room; and (3) improperly excluded its expert witness. Because the jury instructions were insufficient and misstated the law applicable to the case, we reverse and remand for a new trial.
In July 1997, appellant City of St. Paul (the city) and the architectural firm of Rafferty, Rafferty and Tollefson (RRT) entered into an agreement for RRT to provide architectural services for the construction of two picnic pavilions at Como Park. Respondent Gladstone Construction Company (Gladstone) was awarded the contract for $925,572. Among other things, the contract between the city and Gladstone provided as follows:
The [city], without invalidating the Contract, may order changes in the Work within the general scope of the Contract consisting of additions, deletions or other revisions, the Contract Sum and the Contract Time being adjusted accordingly. All such changes in the Work shall be authorized by Change Order, and shall be performed under the applicable conditions of the Contract Documents. No claim for any addition to the contract sum shall be valid unless so authorized and performed.
In December 1997, Gladstone began construction and encountered unsuitable soil. Gladstone determined it could not proceed with construction without incurring additional expenses. Gladstone employee Richard Cartier met with Don Ganje, the city’s project manager, and Mike Huber, RRT’s project manager, the following day to discuss the soil issue. Ganje and Huber ordered Gladstone to proceed with the excavation, even though no written authorization was provided, as required by the contract; a written authorization was not issued until March 1998, months after excavation began. In January 1998, Gladstone realized that other, additional changes were necessary and sent the required orders to RRT. Ganje, who testified that he was the only person authorized to approve changes for the city, authorized these changes in February 1998.
During construction of the picnic pavilions, architect Huber also instructed Gladstone to make other changes that resulted in additional costs to Gladstone. When the city refused to pay for these changes, claiming that it had not authorized them in a change order, Gladstone sued.
Before trial, the court excluded Marshall Levin, the city’s expert witness, on the ground that his name had not been disclosed to the court in a timely manner. During trial, the court admitted Exhibit 11, a summary of Gladstone’s expenses, as illustrative evidence only. But Exhibit 11 was included in a three-ring binder, which was sent into the jury room with the other evidence. Finally, at the end of the trial, the court refused to instruct the jury on modification of a contract or the “clear and convincing” burden of proof; rather, the trial court instructed the jury only on contract formation and damages.
After a verdict in favor of Gladstone, the city filed a motion for JNOV or a new trial. The trial court denied the city’s motions and this appeal followed.
The decision to grant a new trial lies within the trial court’s sound discretion and that decision will not be disturbed absent an abuse of discretion. Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).
On appeal from a denial of a motion for a new trial, the verdict must stand unless it is manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict.
ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992) (citation omitted), review denied (Minn. Apr. 29, 1992).
1. Error in Jury Instructions
The city claims that because the trial court refused to instruct the jury on waiver and the “clear and convincing” burden of proof standard, the city is entitled to a new trial. Trial courts are afforded considerable discretion in selecting the language of jury instructions. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986). Denial of a requested instruction is not grounds for a new trial if the instructions given correctly state the applicable law. State Bank v. Stoeckmann, 417 N.W.2d 113, 116 (Minn. App. 1987), review denied (Minn. Feb. 17, 1988).
The city provided the trial court with four proposed jury instructions, all of which were denied. One proposed jury instruction addressed the elements needed to establish “modification of a contract.” Another proposed instruction defined “clear and convincing evidence,” the proof standard applicable to modification claims. The trial court denied these proposed instructions on the ground that they had not been timely filed and, instead, instructed the jury only on contract formation and damages under the greater weight of the evidence standard. This was error.
The contract entered into by the parties clearly provided that changes could not be made to the initial order without written authorization from the city. But Gladstone was allowed to present evidence that, notwithstanding the contract terms, the city permitted the necessary changes prior to providing written authorization. Gladstone was also allowed to present evidence that the architect had ordered other changes and that, because Gladstone had been instructed to proceed with the changes without written authorization in the past, it complied. Despite this evidence and Gladstone’s claim that the city had waived the contractual requirement by allowing prior excavation without a written authorization order, the trial court did not instruct the jury on either waiver or modification of a contract. In light of the evidence presented and issues raised by the parties during trial, the jury should have been instructed on both waiver and modification of a contract. See Hayle Floor Covering, Inc., v. First Minn. Constr. Co., 253 N.W.2d 809, 812 (Minn. 1977) (“the terms of a written agreement can only be altered by parol evidence which is clear and convincing”); Poppenhagen v. Sornsin Constr. Co., 300 Minn. 73, 81, 220 N.W.2d 281, 286 (1974) (“[a] party is entitled to an instruction setting forth his theory of the case if there is evidence to support it and if it is in accordance with applicable law.”).
In addition, while the contract clearly provided that only the city, as owner, could order changes through Don Ganje, its project manager and authorized agent, Gladstone was allowed to present evidence that the architect had ordered changes, for which the city refused to pay. This evidence clearly raised an issue as to whether the architect was the city’s agent and could authorize changes. In fact, this issue was key to determining whether the city was required to compensate Gladstone for the changes, because many of them were ordered by the architect. Nevertheless, the trial court never instructed the jury on the law of agency. It is difficult to conceive how the jury could conclude that Gladstone was entitled to compensation for expenses incurred as a result of changes ordered by the architect, without considering whether the architect was authorized to act as the city’s agent. Although there was no specific requested instruction on the law of agency by either party, Gladstone was allowed to recover damages under that theory. Thus, it was error to not instruct on the law of agency under the facts and circumstances of this case, even in the absence of a specific request.
The instructions which were given, we believe, were unduly prejudicial because the jury found that the city was required to compensate Gladstone for the additional expenses without considering the applicable law, including the appropriate burden of proof, defenses, agency, waiver, and/or modification. The outcome of this case likely was affected by the erroneous jury instructions. See Lewis v. Equitable Life Assurance Soc’y, 389 N.W.2d 876, 885 (Minn. 1986) (erroneous jury instruction prejudicial if outcome would likely have been different with proper instruction). Under these circumstances, a new trial is clearly warranted. See Pine Valley Meats, Inc. v. Canal Capital Corp., 566 N.W.2d 357, 362-63 (Minn. App. 1997) (new trial necessary if error destroyed substantial correctness of charge, resulting in substantial prejudice).
2. Exclusion of Expert Witness
The city claims that it is entitled to a new trial because the trial court erred in deciding, sua sponte, to exclude its expert witness. Under the rules of civil procedure, whether to admit or exclude evidence rests within the trial court’s broad discretion. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). Ordinarily, this court will not disturb a trial court’s evidentiary ruling unless it is based on an erroneous view of the law or constitutes an abuse of discretion. Id.
Whether a court should suppress expert testimony for an attorney’s failure to make a timely disclosure turns on whether that failure is inexcusable and the degree to which the opposing party is prejudiced by the late disclosure. Id. If an attorney’s failure to disclose is "inadvertent but harmful," the court should impose less drastic remedies, such as granting a continuance and assessing costs against the party who is at fault. Dennie v. Metropolitan Med. Ctr., 387 N.W.2d 401, 405 (Minn. 1986) (quotation omitted). The ultimate decision rests within the discretion of the trial court, which is in the best position to assess possible prejudice and available remedies. Id.
Here, the trial court excluded the city’s expert witness because it found that disclosure of the expert’s name was untimely. Specifically, the court found that while it had ordered that such disclosure be made by February 15, 2000, the expert’s name was not filed until February 16. The city maintains that its witness list was sent by fax on February 15 and that the court received it on that date. While the witness list is stamped as being filed on February 16, the activity summary of the court shows that the witness list was received by fax on February 15. Under the rules, the witness list was timely filed. See Minn. R. Civ. P. 5.05 (“[f]iling shall be deemed complete at the time that the [fax] is received by the court”).
In addition, Gladstone was not harmed by the city’s disclosure of this witness on February 15. Trial was held approximately one week later, affording Gladstone ample opportunity to depose the expert without resulting in any prejudice to them. See Uselman, 464 N.W.2d at 136 (prejudice to opposing party should be considered in determining whether to suppress expert’s testimony on ground of untimely disclosure). In light of the minimal prejudice to Gladstone and the evidence establishing that the disclosure was not, in fact, untimely, we conclude that the trial court’s exclusion of the city’s expert witness, coupled with the other trial court errors, was an abuse of its discretion.
Finally, the city argues that it is entitled to a new trial because Exhibit 11, admitted only for illustrative purposes, was allowed into the jury room. The admissibility of illustrative evidence is within the sound discretion of the trial court. State v. Ward, 361 N.W.2d 418, 421 (Minn. App. 1995). But illustrative evidence should not be taken into the jury room. See State v. Newman, 408 N.W 2d 894, 899 (Minn. App. 1987) (because exhibit introduced only for illustrative purposes, properly excluded from jury room), review denied (Minn. Aug. 19, 1987).
Because [illustrative evidence] is not admitted as evidence the foundational requirements are relaxed. Materials offered solely for illustrative purposes and not admitted into evidence should not be treated as evidence and given to the jury during deliberations.
11A Peter N. Thompson & David F. Herr, Minnesota Practice Rule 403, at 42-43 (2000). Because we are reversing and remanding for a new trial, if Exhibit 11 is used on retrial for illustration purposes only, it should not be sent to the jury during deliberations. Trial counsel are cautioned to review all exhibits before they are taken by the bailiff to the jury room.
Having determined that a new trial is necessary, we decline to address the city’s motion for JNOV; the errors that occurred warranting a new trial affected both parties to this action and tainted the award of damages as well.
Reversed and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 No claims of respondent Twin City Wire are before this court on appeal.
 The proof required to establish waiver was included in the city’s requested jury instruction #3 on modification, but was denied by the trial court.