This opinion will be unpublished and

may not be cited except as provided by

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






Sharyl Uhde,





Brook West Chiropractic Clinic, et al.,



Filed July 13, 2004

Affirmed in part, reversed in part, and remanded

Gordon W. Shumaker, Judge


Hennepin County District Court

File No. MP 03-014644


Thomas F. Handorff, Fredric A. Bremseth, Bremseth Law Firm, P.C., 810 East Lake Street, Wayzata, MN 55391 (for appellant)


Donald Chance Mark, Jr., Erik F. Hansen, Fafinski, Mark & Johnson, P.A., Flagship Corporate Center, 775 Prairie Center Drive, Suite 400, Eden Prairie, MN 55344 (for respondents)


            Considered and decided by Shumaker, Presiding Judge; Peterson, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal after the district court dismissed this chiropractic malpractice action on grounds that the statute of limitations had expired and had not been tolled during appellant’s period of mental disability, appellant contends that there exist fact issues as to both the commencement date of the statute of limitations and the tolling of the statue.  Because there is no genuine issue of material fact as to the commencement date of the statute, but there is such an issue as to the tolling of the statutory period, we affirm in part, reverse in part, and remand.


            Appellant Sharyl Uhde started a lawsuit against respondents Brook West Chiropractic Clinic and Dr. Patrick A. Gallagher by serving a pro se complaint on them on July 23, 2003.  Uhde alleged that an arterial tear occurred after she received a neck manipulation by Dr. Gallagher, and that tear caused her to have a series of strokes.

            The respondents moved to dismiss the action under Minn. R. Civ. P. 12 and 56 on the grounds that the action was barred by the statute of limitations, that Uhde failed to provide the requisite affidavit of expert review, and that the complaint failed to state a claim on which relief could be granted.

            The respondents supported their motion with Dr. Gallagher’s affidavit stating that the last time he treated Uhde was June 25, 1999.  In opposition to the motion, Uhde submitted her medical records, an affidavit of her mother-in-law attesting to Uhde’s condition and limitations, her own affidavit, and an affidavit of her treating psychologist.

            Among other arguments, Uhde urged that her action was not time-barred because she suffered from a mental disability that tolled the statute of limitations.

            The district court granted respondents’ rule 12 motion on the ground that the statute of limitations had expired before Uhde started her lawsuit.  The court also specifically found that that statute had not been tolled by Uhde’s mental condition because “Uhde was not ‘insane’ under Minn. Stat. § 541.15(a)(2).”  Uhde appealed.


            Although the district court granted respondents’ motion solely on the basis of Minn. R. Civ. P. 12.02(e), that rule provides that if

matters outside the pleading are presented to and not excluded by the court, the [Rule 12] motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.


Minn. R. Civ. P. 12.02(e).

            The district court considered, in addition to Uhde’s complaint, the parties’ respective affidavits and thereby converted the rule 12 motion into a rule 56 motion for summary judgment.  Proper appellate review of a summary judgment motion is confined to determinations of whether there exists any genuine issue of material fact and whether the district court erred in its application of law.  Offerdahl v. Univ. of Minn. Hosps. & Clinics, 426 N.W.2d.2d 425, 427 (Minn. 1988).

            The only issue upon which the district court ruled was that of the statute of limitations.  Thus, we confine our review to that issue and ask whether there exists a genuine fact question for trial.

            To be entitled to summary judgment, the moving party must show the absence of a genuine issue of material fact.  W.J.L. v. Bugge, 573 N.W.2d 677, 680 (Minn. 1998).  The nonmoving party may forestall summary judgment by showing that such a fact issue does exist.  Id.  But that showing may not be hypothetical or speculative, nor may it rest on the possibility of evidence to be developed.  Id. 

            The parties agree that an action against a health-care provider must be commenced within four years after treatment ceases.  Minn. Stat. § 541.076(b) (2002).  The only evidence presented to the district court as to when the respondents ceased treating Uhde was Dr. Gallagher’s affidavit which shows that June 25, 1999, was the last time he provided any treatment to her.  Thus, on that date, the statute of limitations began to run, and it is clear that Uhde did not commence her lawsuit within four years of that date.

            Uhde argues that discovery might show a different date as to the cessation of treatment.  The allowance of additional time for discovery is preferred when a party requests it.  Cherne Contracting Corp. v. Wausau Ins. Cos., 572 N.W.2d 339, 345 (Minn. App. 1997), review denied (Minn. Feb. 19, 1998).  This is especially true when the opposing party is in exclusive possession of relevant facts.  Id.  Uhde did not move for a continuance so that she could conduct discovery and the critical fact, namely, the last day on which she saw Dr. Gallagher, is clearly not one exclusively within respondents’ possession.  Uhde provided the district court only with speculation that discovery might produce a cessation date different from that established through competent evidence by Dr. Gallagher.  Thus, the district court did not err in concluding that Uhde failed to start her lawsuit within four years after respondents ceased treating her and that ruling is affirmed.

            The running of the statute of limitations is suspended during the period of “the plaintiff’s insanity.”  Minn. Stat. § 541.15(a)(2) (2002).  In Harrington v. County of Ramsey, 279 N.W.2d 791, 795-96 (Minn. 1979), the supreme court defined the term “insanity” as used in the medical malpractice statute:

We hold that under the statute insanity means substantial inability, by reason of mental defect or deficiency, to understand one’s legal rights, manage one’s affairs, and prosecute the claim.  As a corollary to this rule, we conclude that short, temporary occasions of mental illness are sufficient to toll the statute on the basis of “insanity” only if such short occasions substantially impair the general ability of the plaintiff to understand her rights, manage her affairs, and prosecute the claim.  This determination of substantial impairment depends upon the duration of the mental illness or defect as compared to the time within which suit must be brought.


            Because the motion before the district court was one for summary judgment, the court’s sole function was to determine whether there existed a genuine fact issue as to Uhde’s mental impairment.  Nord v. Herreid, 305 N.W.2d 337, 339 (Minn. 1981).  The court may not properly resolve fact questions on summary judgment. Id.  All factual inferences and conclusions must be construed in favor of the nonmoving party.  Grondahl v. Bulluck, 318 N.W.2d 240, 242 (Minn. 1982).

            The only evidence submitted to the district court on the issue of the tolling of the statute of limitations was the affidavit of Laurie A. Grengs, Uhde’s treating psychologist.  Dr. Grengs stated that she initially saw Uhde on July 30, 1999, and then treated her continuously from May 11, 2000, until September 18, 2001.  These dates are entirely within the applicable limitations period.  Dr. Grengs diagnosed Uhde as having major depression, “which inhibited her cognitive abilities to focus and follow through on decision making, prevented her return to work and from managing her personal and private affairs, and prevented her from most if not all cognitive tasks.”

            Respondents argue that “depression” is not the kind of mental disability that qualifies as “insanity” to toll the statute of limitations.  The court agreed, stating that “Uhde’s illness does not rise to the level of substantial inability to understand her legal rights, manage her affairs, and prosecute the claim.”  But the court’s conclusion is not one it is entitled to draw on summary judgment if there is a genuine fact issue that would support a contrary conclusion.  An apparently competent expert who treated Uhde for a substantial portion of the limitations period stated that Uhde was “prevented from most if not all cognitive tasks.”  That evidence raises a fact issue as to whether Uhde had the ability to understand her rights, manage her affairs, and prosecute her claim.  We reverse the district court on the issue of whether the statute was tolled.

            The applicability of a statute of limitations is often a mixed question of fact and law.  Meyering v. Wessels, 383 N.W.2d 670, 672 (Minn. 1986).  We do not decide whether on remand the district court can decide the tolling issue after an evidentiary hearing or whether the issue must be submitted to a jury.  The parties have not briefed this question.  Thus, we leave it for determination by the district court after the parties have had an opportunity to argue it.

Affirmed in part, reversed in part, and remanded.