This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







Robert Abel, et al.,





Lumber One Avon, Inc.,




Filed December 6, 2005


Huspeni, Judge*



Stearns County District Court

File No. C0-02-187



Thomas P. Malone, Barna Guzy & Steffen, Ltd., 200 Coon Rapids Boulevard, 400 Northtown Financial Plaza, Minneapolis, MN 55433 (for appellants)


Gordon H. Hansmeier, Gregory J. Haupert, Rajkowski Hansmeier, Ltd., 11 Seventh Avenue North, P.O. Box 1433, St. Cloud, MN 56302 (for respondent)



            Considered and decided by Willis, Presiding Judge; Randall, Judge; and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellants challenge the judgment in favor of respondent arguing that the district court erred in denying their motion for judgment notwithstanding the verdict or a new trial.  Appellants allege that (1) the jury’s answers to the special interrogatories are inconsistent and irreconcilable, (2) the district court erred in excluding all expert testimony not timely disclosed, and (3) the district court erred in denying appellants’ motion to voluntarily dismiss the case.  Because the jury’s answers to the special interrogatories can be reconciled, and because the district court did not abuse its discretion in excluding expert testimony or in denying appellants’ motion to dismiss, we affirm.  


            In 1995, appellants Robert and Nikki Abel (the Abels) contracted with respondent Lumber One Avon, Inc. (Lumber One) to construct a “patio home” on the Abels’ lot in St. Cloud Township.[1]  Under the contract, the Abels themselves were responsible for certain aspects of the home’s construction including clearing the lot of trees and brush, excavating the building site, contracting for the application of the stucco exterior, and completing the landscaping around the home.  A major component of the home requested by the Abels was an in-floor heating system, which involves circulating hot water through pipes laid in the home’s concrete slab.  The Abels eventually agreed on a dual heating system comprised of in-floor heat and a forced-air furnace.  The parties disagree as to whether the in-floor heat was ever to be the home’s primary heat, or was only intended to warm the tile floors.   

Soon after moving into their home, the Abels noticed their roof was warped, there was excessive ice-damming on their roof during the winter months, the air temperature was inconsistent throughout the home, the in-floor heating system did not work properly, there was excessive moisture in the home, and there were issues with the temperature of the water in both the kitchen and the bathroom.  The Abels believed that many of their problems were the result of improper installation of the in-floor heating system and insufficient insulation in the home.  The parties initially worked together in attempting to resolve many of the issues the Abels had with their home’s construction.  Lumber One was unable, however, to remedy all the defects that the Abels believed existed in the home. 

In 1999, the Abels brought suit, alleging that Lumber One had negligently hired and supervised subcontractors and/or negligently designed and constructed the home.[2]  The Abels eventually amended the complaint alleging Lumber One had also breached the statutory home-building warranties.  As the case progressed, the Abels also discovered that there was no insulation on certain water pipes that they believed should have been insulated, that Lumber One had not installed a “four-mil poly” barrier below the home’s concrete slab as was specified in the building contract, and that there was significant moisture damage to the home.  In response, Lumber One argued that the only problems with the Abels’ home that had not been remedied were caused by negligent supervision of subcontractors under the Abels’ control and not the fault of Lumber One or subcontractors under its control.         

After at least one continuance, the matter was set for trial in May 2003.  The court entered a scheduling order pursuant to the parties’ stipulation setting the deadline for expert-witness disclosures at February 1, 2003.  The Abels did not disclose their likely expert witnesses until February 20, 2003.  In April 2003, the expert-disclosure deadline was extended to May 1, 2003, and the trial was continued.  On May 1, 2003, the Abels informed Lumber One that they had an additional unnamed expert witness from Environmental Troubleshooter that was still conducting mold tests on their home. 

Lumber One moved the district court to exclude all the testimony of the as-yet undisclosed expert witness for untimely disclosure.  The district court ordered that the Abels could use a designated expert from Environmental Troubleshooters whose name was to be disclosed to Lumber One within five days, but the court prohibited the Abels from identifying any further expert witnesses.  At Lumber One’s request, the trial was again continued.  On June 14, 2004, the Abels submitted a “supplemental” expert witness disclosure providing additional grounds of expert testimony for a previously disclosed witness, the name of the expert witness from Environmental Troubleshooters, and a previously undisclosed expert witness that the Abels intended to have testify regarding moisture damage to the home.  Lumber One moved to exclude the Abels’ additional proposed expert testimony as untimely and the district court granted the motion.[3]    

After additional continuances, the trial was eventually held on June 29 through July 1, 2004, and the case was submitted to the jury through special interrogatories.  The jury found that Lumber One was negligent, but that the negligence was not the direct cause of the Abels’ damages.  The jury also found that Lumber One had not breached the statutory new-home warranties.  Based on the jury’s answers, the district court entered judgment in favor of Lumber One.  The Abels moved for JNOV or a new trial arguing the jury’s answers to the special interrogatories are inconsistent and irreconcilable, the district court erred when it excluded all expert testimony not timely disclosed, and the court erred when it denied their motion to have the case voluntarily dismissed.  The district court denied the Abels’ motion, and this appeal followed. 



“[S]ome, but not all, determinations that jury findings are inconsistent involve errors of law.”  Haugen v. Int’l Transp., Inc., 379 N.W.2d 529, 531 (Minn. 1986).  In general, when the jury finds that the defendant’s negligence was not a direct cause of the plaintiff’s damages, but also seeks to award the plaintiff damages based on the defendant’s conduct, the inconsistency in the special verdict answers can be identified as a matter of law.  Id.

Here, the special interrogatories were submitted to the jury without objection by either party.  The pertinent questions and the jury’s responses were as follows:

1.         Was Lumber One, Inc. or its subcontractors negligent in the construction of the Abel residence?

Answer: Yes.


2.         If your Answer to Question #1 was “Yes,” then answer this question: Was Lumber One Inc.’s or its subcontractors’ negligence the direct cause of the [Abels’] damages?

Answer: No.


3.         Did [Lumber One] or its subcontractors breach statutory warranties in regard to construction of the [Abels’] home?

Answer: No


                        . . . .


Irrespective of how you answered Questions 1 through 4, you must answer the following questions:


5.         What is the reasonable cost of repair to restore the [Abels’] property to substantially the same condition it should have been in if constructed properly by [Lumber One Inc.] or its subcontractors, or in the alternative, the amount by which it has been decreased in value because of the alleged defects cause by [Lumber One Inc.] or its subcontractors?

Answer: $100,000


6.         Will [the Abels] lose the use of their property during the time reasonably and necessarily required to make the needed repairs?

Answer: No.

The Abels argue that the jury’s response to question 2 is inconsistent with its response to question 5 and that the jury responded in question 2 that Lumber One’s negligence was not the direct cause of the Abels’ damages while also finding in the response to question 5 that Lumber One’s conduct caused a reduction in the value of their home or required substantial repairs to the home.  We note initially that the instructions included in the special verdict form required the jury to answer question 5 “irrespective of how” earlier questions had been answered.  Nevertheless, question 5 does contain language referring to “alleged defects caused by [Lumber One].”  Therefore, assuming for the sake of further analysis that these answers are inconsistent, we must determine whether they can be reconciled.

“When answers to special verdict questions are correctly declared inconsistent, they are to be reconciled in any reasonable manner consistent with the evidence and its fair inferences.”  Olson v. Alexandria Indep. Sch. Dist. No. 206, 680 N.W.2d 583, 587 (Minn. App. 2004).  But a jury’s answers that are inconsistent and irreconcilable are to be overturned.  Coughlin v. LaBounty, 354 N.W.2d 48, 50-51 (Minn. App. 1985).  

We independently review the district court record to determine if there is any theory upon which the answers can be reconciled consistent with the evidence.  See Covey v. Detroit Lakes Printing Co., 490 N.W.2d 138, 142 (Minn. App. 1992) (stating “Seventh Amendment to the United States Constitution requires [this court] to view this case in a way that reconciles, if possible, the jury’s answers to special interrogatories”); see also Bogut v. Jannetta, 410 N.W.2d 451, 454 (Minn. App. 1987) (stating that appellate courts may reconcile jury’s special verdict answers based on the district court record).  In determining whether these answers can be reconciled, we are cognizant of how the jury was instructed because the instructions provide context for analyzing the jury’s answers.  See Furlev Sales & Assocs. v. N. Am. Auto. Warehouse, 325 N.W.2d 20, 28 (Minn. 1982) (stating un-objected to instructions are “law of the case”). 

At the Abels’ request, the district court instructed the jury regarding damages, in part, as follows:

In answering questions 5 and 7 on the special verdict form, you are to determine the amount of money that will fairly and adequately compensate Bob and Nikki Abel for damages caused by the breach of contract.


The damages award, if any, should put Bob and Nikki Abel in the position they would have been in, if the contract had not been breached by Lumber One.


[The Abels] are seeking money damages in an amount equal to that which will be reasonably required to repair the alleged defects in the property and restore the property to substantially the same condition it should have been in if constructed properly.  [Lumber One] seeks to limit the damages to the diminution or decrease in the value of the home that is directly related to the construction defects, if any, that you find exist.  If the defects can be remedied without the destruction of a substantial part of the home, the [Abels] are entitled to recover the reasonable costs of repair to restore the property to the condition it would have been in without the defects.  If it is the jury’s determination that the cost of remedying the defects is significantly disproportionate to the benefits to be derived from the repairs, then the [Abels are] entitled to recover the difference between the value of the property if the home had no construction defects minus the fair market value of the property in its present condition.  The difference in these two numbers determines the diminution in value of the house directly related to the construction defects.


Based on this instruction that the jury may consider damages caused by Lumber One’s breach of contract in answering question 5, we conclude that the jury’s response to question 2 can be reconciled with the jury’s response to question 5 in a manner consistent with the evidence.  One of the exhibits produced at trial was the home’s blueprint, which had been incorporated into the parties’ contract by reference.  Included on the blueprint is a requirement that four-mil poly is to be placed between the home’s concrete slab and the ground.  The jury also heard testimony from a person who was St. Cloud Township’s building inspector in 1995 that the 1995 building codes did not require four-mil poly to be installed under the circumstances present in the construction of the Abels’ home.  The jury also heard testimony that there had been other defects in the construction of the home that had since been remedied, such as insufficient insulation and venting in the attic. 

We conclude that the jury had a basis to decide that while Lumber One was negligent in certain aspects of building the home, a reasonably prudent builder would not automatically install the four-mil poly barrier; therefore, while Lumber One’s failure to install the four-mil poly barrier may have been a breach of contract, it was not necessarily the basis of the jury’s decision that Lumber One was negligent.  The jury could have concluded that the direct cause of the Abels’ primary damage, moisture instrusion, was the result of faulty stucco installation.  Stucco installation was performed by a subcontractor hired by the Abels alone. 

Viewing the jury’s response to question 5 as a measure of damages for breach of contract (for which breach there was no special interrogatory question),[4] it is not inconsistent with the jury’s finding that Lumber One’s negligence was not the direct cause of the Abels’ damages. 

The Abels also argue the jury’s answer to question 5 is inconsistent with the jury’s answer in question 6—that the Abels will not “lose the use of their property during the time reasonably and necessarily required to make the needed repairs.”  We again conclude these responses can be reconciled after reviewing the jury instructions on damages. 

The jury was instructed that if the cost of remedying the defects “is significantly disproportionate to the benefits to be derived from the repairs,” then the appropriate measure of damages in question 5 is the difference between the value of the property if the home had no construction defects and the fair market value of the property in its present condition.  The jury heard testimony that the defects with the in-floor heating system could not be fixed but would require removal of the home’s concrete slab foundation, installation of the four-mil poly barrier, and reinstallation of the concrete slab and in-floor heating system.  The jury also heard testimony that the in-floor heating system was designed to be a secondary heat system with the home’s primary heat coming from a forced-air furnace, meaning the benefit to be gained from reinstalling the in-floor heating system is significantly disproportionate to the costs of the needed repairs.  Thus, there was a basis for the jury to conclude that repairs to the in-floor heating system, involving only a secondary heating system (which repairs would have required loss of use) were not necessary.  The answer to question 5 was not only mandated by the instructions contained in the special interrogatory form, but was intended by the jury to reflect the reduced value of the Abels’ home caused by a breach of contract.          


The district court has broad discretion to determine the appropriate remedy for a party’s failure to timely disclose proposed expert testimony.  Benson v. N. Gopher Enters., 455 N.W.2d 444, 446 (Minn. 1990).  One such remedy that is within a court’s discretion is “limiting the subject matter of the testimony to matters already disclosed.”  Dennie v. Metro. Med. Ctr., 387 N.W.2d 401, 405 (Minn. 1986) (quoting Cornfeldt v. Tongen, 262 N.W.2d 684, 697 (Minn. 1977)). 

Here, the Abels have continually failed to comply with the district court’s disclosure deadlines.  They did not timely disclose their initial proposed expert witnesses until almost three weeks after the court’s initial deadline.  After the district court extended the disclosure deadline to May 1, the Abels again sought to disclose additional expert testimony after the deadline had passed, including disclosing for the first time, an expert witness that had completed his investigations months before the court’s deadline.  We recognize, as have courts in earlier cases, the harshness of prohibiting expert testimony, and the availability of lesser sanctions or a continuance.  See id.  But there have been several continuances in this case already.  Further, the Abels have offered no legitimate reason for their repeated failure to comply with the district court’s disclosure deadlines.  We conclude that the district court did not abuse its discretion in limiting the Abels to the expert testimony that was timely disclosed.      


A reviewing court will not reverse a district court’s decision on a motion to dismiss without prejudice unless the district court abuses its discretion.  Altimus v. Hyundai Motor Co., 578 N.W.2d 409, 411 (Minn. App. 1998).  A request to voluntarily dismiss a case without prejudice is governed by Minn. R. Civ. P. 41.01(b), which provides, “[A]n action shall not be dismissed at the plaintiff’s instance except upon order of the court and upon such terms and conditions as the court deems proper.”  As we stated in Altimus,rule 41.01 was amended in 1993 to reflect a shift in policy from one that allowed dismissal after extensive discovery, other pretrial proceedings, or even after the district court issued preliminary orders to a policy that “the right to dismiss without prejudice ought to be limited to a fairly short period after commencement of the action when prejudice to opponents is likely to be minimal.”  Id. at 410-11 (quotation omitted) (emphasis added).

Here, the Abels requested the court to dismiss their case without prejudice on June 25, 2004, more than four years after the action was commenced.  See Minn. R. Civ. P. 3.01(a) (stating action is commenced “when the summons is served upon [the] defendant”).  The Abels moved the court for dismissal far beyond what can be considered a “fairly short period after commencement.”  Under these circumstances, it was not an abuse of discretion for the district court to deny the Abels’ request for dismissal. 


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. 

[1] The Abels had become familiar with the patio home design after spending time in Florida.  The patio home design is a single story home built on a concrete slab and much of the home’s flooring is ceramic tile. 

[2] For reasons that are unclear from the record, the complaint was not filed with the district court until January 2002.

[3] During trial, the district court also prohibited the Abels from offering testimony during rebuttal from one of their witnesses because they had not disclosed the witness as having any expertise in the matter for which they sought to offer his testimony. 

[4]  Despite requesting that the trial court instruct the jury on damages for breach of contract, the Abels did not request the inclusion of a special interrogatory question asking whether Lumber One breached the contract, nor have the Abels ever requested that their complaint be amended to include a breach of contract count.  On appeal, the Abels have not argued that they are entitled to recover from Lumber One on a breach of contract theory.  Issues not briefed are waived.  Melina v. Chaplin, 327 N.W. 2d 19, 20 (Minn. 1982).