This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-830

 

Mary L. Dees, et al.,

Appellants,

 

vs.

 

Laurel Frost, et al.,

Respondents.

 

Filed March 16, 2004

Affirmed

Kalitowski, Judge

 

Ramsey County District Court

File No. C3-02-006413

 

Alan W. Weinblatt, Maura J. Shuttleworth, Weinblatt & Gaylord PLC, 336 North Robert Street, 1616 Pioneer Building, St. Paul, MN 55101 (for appellants)

 

Jeffrey R. Ansel, Justice Ericson Lindell, Winthrop & Weinstine, P.A., 225 South Sixth Street, #3500, Minneapolis, MN 55402

 

            Considered and decided by Kalitowski, Presiding Judge; Shumaker, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            This case involves apportionment of the cost of repairs to the foundation and exterior of two, four-story towers that are part of a building that houses 17 condominium units.  The interior space of the towers is part of 8 of the 17 condominium units.  Appellants, who own units not benefited by the towers, challenge the district court’s grant of summary judgment, contending the district court erred in (1) striking appellants’ expert affidavit from the record; (2) determining that the repair of the exterior of the towers is a common expense to be assessed equally to all condominium unit owners; and (3) determining that appellants are not entitled to attorney fees.  We affirm.

D E C I S I O N

I.

            Appellants argue that the district court improperly excluded the testimony of their expert, a registered structural engineer.  “[E]videntiary rulings, including a decision to exclude expert testimony, lie within the sound discretion of the trial court . . . and its ruling will not be reversed unless it is based on an erroneous view of the law or it constitutes an abuse of discretion.”  Benson v. N. Gopher Enters., Inc., 455 N.W.2d 444, 445-46 (Minn. 1990) (citations omitted).  And this standard applies to sanctions for a party’s failure to disclose information regarding expert witnesses.  Dennie v. Metro. Med. Ctr., 387 N.W.2d 401, 404 (Minn. 1986).

            Appellants cite Dennie for the proposition that their expert testimony should not have been suppressed for failure to make a timely disclosure because the failure to disclose was not intentional and the defense was not prejudiced.  But unlike this case, in Dennie, the suppression of the expert testimony resulted in dismissal of the plaintiff’s action.  Id. at 402. 

            Here, appellants knew the scheduling order required them to disclose experts by February 28, 2003.  That same day, the parties agreed to stay further discovery and file cross-motions for summary judgment.  At the summary-judgment hearing, appellants offered the affidavit of their expert in support of their argument that the towers are not common elements.  By suppressing the affidavit, the district court did not prevent appellants from making this argument.  Moreover, the affidavit did not express an opinion as to whether the towers were a common element, but only discussed the structural soundness of the towers and their relationship to the original building.  And although the affidavit stated that the towers were in need of repair, were not part of the original building, and were built on foundations separate from the foundation of the original building, the record already contained this information.  On this record, we cannot say the district court abused its discretion by the suppressing this evidence.

            Appellants also argue that the district court should have allowed the affidavit because it did not harm respondents and the district court allowed respondents’ expert affidavit.  But respondents’ affiant had personal knowledge of the floor plans, and therefore, he was not an expert.  Further, the affidavit of respondents’ witness did not refute the affidavit of appellants’ expert and did not even discuss the same subject.  Both affidavits were offered to prove the classification of the towers as common or limited common elements.  But respondents’ affidavit dealt with the floor plans and boundaries of the units benefited by the towers, while appellants’ affidavit dealt with the structural aspects of the towers.  Therefore, we cannot conclude that respondents would not have been harmed by the admission of appellants’ expert affidavit.  Due to appellants’ lack of disclosure, respondents were prevented from attempting to secure an expert to refute appellants’ expert.  We conclude that the district court did not abuse its discretion in suppressing appellants’ expert affidavit.

II.

            Appellants also argue that the district court erred in granting respondents’ motion for summary judgment.  On appeal from summary judgment, the reviewing court must determine whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  When reviewing a summary judgment motion, we “must view the evidence in the light most favorable to the party against whom judgment was granted.”  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

            The condominium’s declaration (Declaration) provides that each unit owner is responsible for the maintenance and repair to his or her unit.  Expenses related to limited common elements are allocated only to the unit or units benefited by the expenses.  But unit owners are equally responsible for maintenance and repairs to common elements.  Thus, under the Declaration, the classification of the towers determines who is responsible for expenses incurred in their maintenance and repair.

            The Declaration states that “[e]ach unit is bounded by its ceiling, floor, walls and stairway treads and risers.”  The space within the towers is completely enclosed by the towers and has floors, walls, and ceilings.  Therefore, the areas enclosed by the towers are within the boundaries of specific individual units and expenses related to the maintenance and repair of those areas are the owners’ responsibility.  But because the exterior walls and foundations of the towers lie outside of any individual unit, we must determine whether the district court erred in concluding that they are common elements. 

            The Declaration defines porches, balconies, and patios both as common elements and limited common elements.  The Declaration also states that masonry and nonmasonry perimeter walls, as well as foundations are common elements.  Minn. Stat. § 515A.2-102(1) (2002) provides that “[i]f walls, floors, or ceilings are designated as boundaries of a unit, all . . . other materials constituting any part of the finished surfaces thereof are a part of the unit, and all other portions of the walls, floors, or ceilings are a part of the common elements.”  Thus, under this statute, the “finished surfaces” on the inside of the space within the towers are part of the unit, but the exterior walls and foundations are common elements.

            In addition, the Declaration, by incorporating the floor plans, designates the roofs of each of the towers as common elements.  The Declaration also specifically designates the surface area of certain decks and balconies attached to several of the units as limited common elements.  But there is no such designation with respect to either of the towers.  And it seems unlikely that the Declaration would specifically designate the roofs of the towers as common elements, but intend that the exterior walls and foundations of the towers be classified as limited common elements.

            Further, the issue of assessing costs for repairing the towers’ foundations previously arose in 1992.  The minutes of the special association meeting where repairs were discussed states that:  “Following a discussion there was unanimous agreement among those owners present that the foundations under the [towers] constitute an issue to be resolved by all owners, not just those units immediately affected – that this project involves a common element of our building.”  At that meeting, the members, including members who owned units that did not directly benefit from the towers, voted unanimously to assess the cost of repairing the towers’ foundations equally to all unit owners.

            Finally, appellants argue that it would be inequitable to require them to pay for maintenance and repair on the towers because they receive no benefit from the work.  But if it were necessary to repair or preserve the exterior brick wall of the building, it is undisputed that those repairs would be a common expense to be shared by all unit owners and not just the owners of units on the inside of the section of exterior wall that needed repairs.  The repair work would benefit all unit owners.  Further, the repairs and maintenance of the towers benefit all unit owners by improving the overall appearance of the building and assuring that the building complies with city regulations.  Importantly, appellants’ arguments that the towers (1) are not part of the original building; (2) do not provide support to the original building; and (3) were merely an add-on to benefit certain units, are unpersuasive.  It is undisputed that the towers were included in the floor plan when the building was converted into condominiums and were present at the time that all appellants purchased their units.

            In conclusion, the record indicates that (1) the roofs of the towers are designated as common elements in the floor plans; (2) the towers were included in the floor plans when the building was converted into condominiums; (3) the floor plans do not designate the towers as limited common elements; and (4) in the past, the towers have been considered common elements.  We therefore conclude that the district court did not err in determining that the exterior walls and foundations of the towers are common elements and, pursuant to the Declaration, the cost of the repairs is a common expense to be equally assessed among all unit owners.

III.

            Because we conclude that the district court did not err in concluding that the exterior of the towers are common elements, the district court properly denied appellants’ claim for attorney fees.

            Affirmed.