This opinion will be unpublished and

may not be cited except as provided by

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






Daniel Swenson and Laura Swenson, minors,

by their parents Kendall Swenson and Mary Swenson,

and Kendall Swenson and Mary S. Swenson, individually,





Wendy Stewart, et al.,



Rick’s Plumbing, Inc.,



Filed June 20, 2006


Huspeni, Judge*



Anoka County District Court

File No. C1-04-2073


Richard I. Diamond, Jesse H. Kibort, Richard I. Diamond, P.A., 601 Carlson Parkway, Suite 1050, Minnetonka, MN 55305 (for appellants)


Juan M. Avila, McCollum, Crowley, Moschet & Miller, Ltd., 7900 Xerxes Avenue South, 700 Wells Fargo Plaza, Minneapolis, MN 55431 (for respondents)



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

U N P U B L I S H E D   O P I N I O N


            In challenging the award of summary judgment to respondents, appellants argue that (a) summary judgment on their personal injury claim was inappropriate because material fact issues are present; (b) the district court erred in refusing to consider affidavits submitted after the summary judgment motion hearing; and (c) their negligent construction claim remains viable.  Because the district court did not abuse its discretion in refusing to consider the affidavits submitted after the hearing on the motion for summary judgment on appellant’s personal injury claim, and without those affidavits there is no material fact issue regarding causation, we affirm.  Because disposition of the negligent construction claim is not clearly set forth in the record, that claim is preserved for consideration along with pending claims of breach of warranty.    


            This action arises from alleged defects in a home constructed pursuant to a written contract between appellants Mary and Wendell Swenson and general contractors, Wendy Stewart, Jerry Thompson, Thompson Contracting & W. Stewart Homes, Inc., W. Stewart, and Thompson Homes, Inc. (respondents).  Shortly after moving into the home, appellants noticed problems associated with mold.  According to appellants, the sub-flooring under the carpeted area of the home contained mold, which caused Mary Swenson to suffer from “eye difficulty, burning eyes . . . [and] flu-like symptoms.”  Although appellants attributed the mold growth to excess moisture that was allowed to infiltrate the home as a result of the late completion of the roof and inadequate installation of the windows, appellants concede that no area of the house, other than the sub-flooring, contained any significant mold.     

            In January 2001, appellants hired McGregor Pearce, MPH to conduct mold sampling and indoor air quality diagnostic services at the home.  Pearce took swab samples throughout the house, conducted an air quality test, and took an aggressive carpet sample.  Pearce’s report stated that the

results do not indicate a serious mold problem in your home.  Both surface and air samples were within acceptable or “normal” range.  Having said that, I note a fair number of Aspergillus flavus species recovered.  This mold is considered to be a toxic mold, and is often associated with problem indoor environments.


The report further noted that “[i]t is certainly possible that the molds in your home are bothering you, even though the levels are not high.” 

            In December 2001, Action Concepts, Inc. conducted a visual mold inspection for remediation purposes.  Similar to Pearce’s report, Action Concepts, Inc. found no evidence of visible mold in appellants’ home.  The report did note, however, that water damage marks were visible on the “ceiling of all 3 floors.” 

            Appellants claim that despite the lack of definitive evidence demonstrating a serious mold problem, their health continued to suffer as a result of the alleged mold infestation.  According to Mary Swenson, she had severe reactions every time she vacuumed, indicating that mold must have developed in the sub-flooring of the home.  Consequently, in the spring of 2002, appellants undertook the task of remediating the mold in their house by ripping out and disposing of two floors of carpeting.  They failed, however, to have the carpet tested or preserved in a manner that would allow future testing.

            On December 9, 2002, Legend Technical Services, Inc. performed an extensive mold sampling test on appellants’ home.  Like the two previously conducted mold inspections, Legend Technical Services, Inc. did not observe any high concentrations of mold and fungal organisms within the home.  Nevertheless, Mary Swenson allegedly continued to experience difficulty breathing, lung constriction, and burning eyes due to her claimed exposure to mold underneath the carpets.  She visited several physicians who gave her varying diagnoses.  Although some of the physicians indicated that mold may be the cause of her health problems, she admitted in her deposition that she has not seen a document from any qualified physician or other expert offering an opinion that to a reasonable degree of medical certainty any of her physical symptoms were directly related to the alleged mold problem.

            Appellants brought an action against respondents and defendant Rick’s Plumbing, asserting a personal injury claim under a negligence theory and seeking to recover for alleged code and cosmetic construction defects in their home under separate theories of breach of statutory warranty and negligent construction.  Motions for summary judgment brought by respondents and Rick’s Plumbing were heard on November l9, 2004.[1]  On February 14, 2005, the district court granted respondents’ motion with respect to appellants’ personal injury claim, finding a failure to present any expert medical evidence to support that claim.  The district court denied respondents’ motion for summary judgment on appellants’ statutory warranty claim.

            On February 25, 2005, appellants’ motion for reconsideration under Minn. R. Civ. P. 115.01 was denied by the district court, which reasoned that appellants’ new medical evidence was both untimely and did not come close to offering an opinion about causation to a reasonable degree of medical certainty.[2]  Appellants’ attempt to seek review of that decision in this court resulted in dismissal as an appeal taken from a non-appealable judgment.  The matter was remanded in an order that did not preclude the district court  from directing entry of a final partial judgment.   

            On June 14, 2005, appellants moved to clarify the record and grant further relief.  This motion was supported by May 2005 affidavits from two of Mary Swenson’s treating physicians, both attesting that the affiants were able to determine to a reasonable degree of medical certainty that claimed injuries were caused by exposure to mold.  At the motion hearing, the district court stated that it would consider allowing appellants’ personal injury claim to go forward, contingent on payment by appellants of respondents’ attorney fees for work done in connection with respondents’ motion for summary judgment and the initial appeal.  Based on the district court’s order, counsel for respondents submitted an affidavit with respect to attorney fees.  Appellants subsequently submitted a letter to the district court alleging, among other issues, that they were deprived of their right to a trial by the district court’s grant of a “blank check” to respondents for attorney fees.  

            The district court granted appellants’ motion to clarify, but refused to consider the two new affidavits from appellants’ treating physicians because the time for presenting evidence of causation had “long since passed.”  The district court entered partial final judgment, and this appeal followed.          


            Summary judgment motions are granted when the pleadings, depositions, answers to interrogatories, and admissions, together with any affidavits, show that there is no genuine issue of material fact and a party is entitled to judgment as a matter of law.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  On a motion for summary judgment, “a court may not weigh the evidence or make factual determinations.”  State ex rel. Hatch v. Allina Health Sys., 679 N.W.2d 400, 406 (Minn. App. 2004) (quoting Fairview Hosp. & Health Care Servs. v. St. Paul Fire & Marine Ins. Co., 535 N.W.2d 337, 341 (Minn. 1995)).  “[T]he reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.”  Fabio, 504 N.W.2d at 761.  A reviewing court need not defer to a trial court’s decision on a pure question of law.  Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984).  “[S]ummary judgment cannot be defeated with unverified and conclusory allegations or by postulating evidence that might be developed at trial.”  N. States Power Co. v. Minn. Metro. Council, 684 N.W.2d 485, 491 (Minn. 2004) (quotation omitted).


            In a claim for negligence, a plaintiff must prove:  (1) the defendant has a legal duty to the plaintiff to take some action; (2) there was a breach of that duty; (3) the breach of the duty was the proximate cause of the harm to the plaintiff; and (4) damage.”  Gilbertson v. Leininger, 599 N.W.2d 127, 130 (Minn. 1999)If the record lacks proof on any of the requirements of a negligence claim, a defendant is entitled to summary judgment.  Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 672 (Minn. 2001).

            In its February 14, 2005 order, the district court concluded that appellants “have failed to present the Court or opposing parties with an expert opinion linking their alleged injuries to the alleged construction defects in the home.”  To support their claim that the record is “replete” with evidence of causation, appellants refer to the two May 2005 affidavits submitted by Mary Swenson’s treating physicians establishing to a reasonable degree of medical certainty that her injuries were caused by mold exposure.  Appellants concede that these two affidavits were submitted long after the summary judgment hearing, but argue, nonetheless, that the district court abused its discretion by refusing to consider the affidavits. 

            The critical issue that this court must address is the extent of discretion vested in the district court regarding the issues presented here.  It is well established that the record on summary judgment does not remain open following a hearing even if judgment is not entered.  See, e.g., Dalco Corp. v. Dixon, 338 N.W.2d 437, 440 (Minn. 1983); see also Am. Warehousing & Distrib., Inc. v. Michael Ede Mgmt., Inc., 414 N.W.2d 554, 557 (Minn. App. 1987) (upholding a district court’s refusal to consider an affidavit submitted four days after a summary judgment hearing).

If the record were to remain open after summary judgment, a ruling on a pretrial summary judgment motion would be subject to continued changes throughout the course of litigation as new evidence was discovered and submitted.  To allow trial testimony to form the basis of a claim after the court has already ruled that the claim may not go forward would undermine the purpose of summary judgment . . . .


Wall v. Fairview Hosp. & Healthcare Servs., 584 N.W.2d 395, 404 (Minn. 1998).  The decision whether to receive an untimely affidavit is within the district court’s discretion.  Am. Warehousing & Distrib., Inc., 414 N.W.2d at 557.

            Our review of the record substantiates that it was not until the June 14, 2005 motion hearing, at which the May 2005 physician affidavits were presented, that a causal connection was arguably established between the alleged mold problem and Mary Swenson’s alleged injuries.  But this evidence was submitted more than six months after the summary judgment motion hearing in November, and four months after issuance of the summary judgment order in February 2005.  The standard of review on the issue before us is narrow, and we cannot conclude that the district court abused its discretion in deciding as it did.  See Dalco, 338 N.W.2d at 440.

            In determining that the district court did not abuse its discretion in refusing to consider appellants’ untimely affidavits regarding causation, we are not unaware that a harsh remedy results.  The district court did, however, attempt to avoid harshness by proposing that it would consider permitting appellants’ personal injury claim to go forward if prejudice to respondents was ameliorated by payment of appropriate attorney fees.  Appellants construe the district court’s action as “blackmail,” or essentially granting respondents a “blank check” for attorney fees.  But we cannot judge the proposal of the district court so harshly.  It appears from the record that appellants’ objection to the proposal was not to the amount of fees sought by respondents (the reasonableness of which we assume could have been challenged by appellants), but to rejection of the very concept of payment of any fees at all.  Arguably, though, appellants’ failure to submit affidavits on causation in a timely manner did result in expenditure of additional attorney fees by respondents.  To the extent that such expenditure could have been mitigated by payment of fees to respondents, a just resolution could have been achieved.  Again, our careful review of the record fails to indicate any abuse of discretion in granting summary judgment to respondents on appellants’ personal injury claim.  There was no timely evidence presented to raise a material fact question regarding causation.[3]


            Appellants next argue that the district court did not clearly dismiss their claim of negligent construction.  We agree.  In granting respondents’ motion for summary judgment in part, the court stated that “[Respondents’] motion for summary judgment on [appellants’] negligence claim is GRANTED.  [Respondents’] motion for summary judgment on [appellants’] statutory warranty claim is denied.”  The order further provides that “[a]ll other motions not specifically addressed herein are DENIED.”  The attached memorandum of law focuses on the personal injury claim and the statutory warranty claim, but there is essentially no mention of the negligent construction claim.  Because appellants’ statutory claim remains before the district court, we direct that court, as part of the continuing action before it, to revisit the claim of negligent construction and permit the parties to present arguments regarding how that claim is to be resolved.


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

[1] Appellants claimed that Rick’s Plumbing left the vent cap off the septic system relief pipe, causing methane gas to invade the home for 18 months before it was discovered.  Rick’s Plumbing claimed it was not the subcontractor responsible for the final inspection.  The district court granted Rick’s Plumbing’s motion for summary judgment and appellants have not challenged that determination on appeal.  Thus, Rick’s Plumbing is no longer a party to this action. 

[2] The district court noted that a letter from one of Mary Swenson’s physicians dated February 8, 2005 “frankly acknowledges that ‘this issue continues to be an enigma.  We are unable to identify a direct cause/relationship’  Thus, even if the court could reconsider the case in light of this new evidence, it would still conclude that [appellants] have fallen short of creating a fact issue regarding causation in this case.”

[3]  Respondents initially attempted to dispose of the personal injury claim by arguing that they owed no duty to appellants.  Because we affirm on the basis that appellants failed to establish causation, we do not reach the question of duty.  Moreover, the district court did not address this issue, and respondents did not file a notice of review.