This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Mate Precision Tooling,
NS/I Mechanical Contracting Company,
Anoka County District Court
File No. C5-04-4876
Paul T. Falk, Carl E. Metz, II, Falk Johnson, 1900 Two First National Plaza, 20 South Clark Street, Chicago, IL 60603; and
Michael R. Peterson, Bruce P. Candlin & Associates, 380 St. Peter Street, Suite 603, St. Paul, MN 55102 (for appellant)
Robert L. McCollum, Cheryl Hood Langel, McCollum, Crowley, Moschet & Miller, 700 Wells Fargo Plaza, 7900 Xerxes Avenue South, Minneapolis, MN 55431 (for respondent)
Considered and decided by Willis, Presiding Judge; Wright, Judge; and Huspeni, Judge.*
Appellant challenges the district court’s order denying appellant leave to amend the complaint and granting summary judgment in favor of respondent on appellant’s breach-of-contract and negligence claims. Appellant also argues that the district court erred by failing to address appellant’s motion to amend the scheduling order. We affirm.
In August 2000, appellant Mate Precision Tooling purchased a rooftop heating, ventilation, and air-conditioning unit (HVAC unit) from respondent NS/I Mechanical Contracting Company, which NS/I installed on Mate’s building. On or about March 10, 2002, a pipe in Mate’s sprinkler system burst. Geoffrey Jillson, a forensic engineer hired by Mate, inspected the premises on March 15 to determine the cause of the pipe burst. Based on this inspection, Jillson prepared a report in which he opined that the sprinkler pipe froze after a malfunction in the HVAC unit caused the temperature in Mate’s computer room to drop below freezing. Jillson concluded that a blockage of the HVAC unit’s exhaust stack with snow and ice during a winter storm caused the HVAC unit to malfunction. He also concluded that the blockage would have been prevented if the HVAC unit had been “equipped with an appropriate exhaust stack suitable for cold regions.”
In October 2003, Mate filed suit
against NS/I, alleging in its complaint that NS/I’s failure to recommend and
install a severe-weather exhaust stack on the HVAC unit was the direct and
proximate cause of Mate’s loss. On
On November 22, 2004, NS/I moved for summary judgment. The district court denied the motion on Mate’s negligence claim, holding that, based on Jillson’s report, there were genuine issues of material fact as to whether NS/I owed a duty to Mate. The district court granted summary judgment on all other claims, including Mate’s breach-of-contract claim.
On May 27, 2005, Mate moved to extend the May 23 discovery deadline. Shortly thereafter, NS/I again moved for summary judgment on Mate’s negligence claim. The district court extended the discovery deadline to July 17 and continued NS/I’s motion for summary judgment until after that date. During this extended discovery period, Mate informed NS/I that Mate had retained a new expert whose theory regarding the cause of the malfunction differed from Jillson’s. Arguing that the new theory was not pleaded in Mate’s complaint, NS/I refused to engage in any discovery premised on that new expert’s theory of liability.
On October 17, 2005, Mate moved to amend the scheduling order to permit the completion of discovery. The district court heard this motion in conjunction with NS/I’s motion for summary judgment. While these motions were under advisement, Mate moved to amend its complaint, arguing that amendment was necessary to address NS/I’s contention that the pleadings did not encompass negligence theories other than the theory proffered by Jillson. Mate proposed to strike portions of the complaint that referred to NS/I’s failure to recommend and install a severe-weather exhaust stack on the HVAC unit.
In an order dated January 11, 2006, the district court denied Mate’s motion to amend the complaint and granted NS/I’s motion for summary judgment on the negligence claim, thereby dismissing all pending claims. This appeal followed.
D E C I S I O N
Mate argues that the proposed amendment merely restates the issues and facts as the parties understood them and the district court abused its discretion when it denied Mate leave to amend the complaint. The district court denied leave to amend based on its determination that NS/I would be prejudiced.
court has broad discretion to grant or deny leave to amend a complaint, and its
ruling will not be reversed absent a clear abuse of discretion. Fabio
v. Bellomo, 504 N.W.2d 758, 761 (
The district court’s finding that NS/I would be prejudiced by Mate’s proposed amendment is supported by the record. The district court held that the proposed amendment would substantially change the complaint. After reviewing the record, we agree. The complaint is limited to one negligence theory, namely, that NS/I’s failure “to recommend and install a severe weather [exhaust stack] on this [HVAC] unit” was the direct and proximate cause of Mate’s damages. By removing any references to NS/I’s alleged failure to recommend and install a severe-weather exhaust stack, the proposed amendment would broaden the complaint to any negligence theory.
This substantial change is particularly problematic in light of the district court’s finding that Mate delayed bringing its motion to amend. As the district court found, this delay was unreasonable for three reasons. First, the information Mate relies on to support the negligence theory proffered by its new expert was in Mate’s possession before it filed the complaint. Accordingly, this is not a case in which amendment of the complaint is necessary to incorporate evidence and theories ascertained through discovery. Second, Mate was aware in April 2005 that it intended to pursue an alternate theory of liability, as made evident by the affidavit testimony of Mate’s counsel that he and NS/I’s counsel discussed possible alterations to Mate’s negligence theory in April 2005. Third, when Mate moved for leave to amend the complaint on November 28, 2005, the district court’s July 1, 2005 motions deadline and its July 17, 2005 discovery deadline had long passed. Had it granted Mate leave to amend the complaint, the district court would have had to reopen discovery because, as the district court found, the parties had only pursued the single theory of liability addressed in the complaint.
The evidence supports the district court’s finding that Mate’s proposed amendments would prejudice NS/I because the proposed amendments substantially change the original complaint and are untimely. Accordingly, the district court did not abuse its discretion when it denied Mate’s motion to amend the complaint.
Had the district court granted Mate
leave to amend the complaint, the amendment nevertheless would have been barred
by the statute of limitations because the amendment does not relate back to the
date of the complaint. To relate back to
the original pleading and avoid being barred by the statute of limitations, a claim
asserted in the amended pleading must arise out of the same conduct,
transaction, or occurrence set forth in the original complaint.
Mate also argues that the
district court erred as a matter of law when it granted summary judgment in
favor of NS/I on Mate’s breach of contract and negligence claims. Our review of the district
court’s decision to grant summary judgment requires us to consider 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,
a breach-of-contract claim, a plaintiff must show that a contract was formed by
the acceptance of a specific and definite offer that was supported by
consideration, that the plaintiff performed any conditions precedent, and that the
defendant failed to perform according to the terms of the contract. Commercial Assocs.,
Inc. v. Work Connection, Inc., 712 N.W.2d 772, 782 (
In support of its allegation that a contract was formed and breached, Mate proffered the affidavit testimony of Bryan Bartness, Mate’s vice president of operations. Bartness testified that “Mate Precision Tooling dealt directly with Paul Gregg at NS/I Mechanical Contracting Company with regard to the upgrade in August 2000 in which a second larger HVAC unit . . . was installed. Mate Precision Tooling relied upon NS/I to provide appropriate equipment.” This evidence fails to satisfy Mate’s obligation to extract specific, admissible facts from the record that establish a genuine issue of material fact regarding each element of a breach-of-contract claim, namely, the formation, terms, or breach of the contract. Thus, summary judgment on this ground was properly granted.
To establish negligence, a
plaintiff must demonstrate that a duty of care existed, that the defendant
breached this duty, and that the breach was the proximate cause of an injury to
the plaintiff. State Farm Fire & Cas. v. Aquila, Inc., 718 N.W.2d 879,887 (
Mate argues that summary judgment on Mate’s negligence claim was prematurely granted because discovery was ongoing. This argument fails for two reasons. First, discovery was not ongoing, as the court-ordered discovery deadline had expired on July 17, 2005. Second, a party against whom a claim is asserted “may, at any time, move with or without supporting affidavits for a summary judgment in the party’s favor as to all or any part thereof.” Minn. R. Civ. P. 56.02 (emphasis added). This rule does not mandate completion of discovery before summary judgment may be granted.
Mate also contests the district
court’s determination that Mate did not establish a genuine issue of material
fact regarding the issue of causation, arguing that Jillson’s opinion does so. In assessing the merits of this contention,
we observe that the nonmoving party in a summary judgment proceeding may not
rely on inadmissible evidence to establish a material fact issue.
opinion has sufficient foundation if it is based on readily ascertainable
facts. Whitney v. Buttrick, 376
N.W.2d 274, 277 (Minn. App. 1985), review
denied (Minn. Jan. 23, 1986). “[A]n
opinion based on speculation and conjecture has no evidentiary value.” Id. The decision to exclude expert
testimony for lack of foundation rests within the sound discretion of the district
court. Benson v. N. Gopher Enters., Inc., 455 N.W.2d 444, 445 (
Our review of the record establishes that Jillson’s opinion was not based on readily ascertainable facts, but rather on speculation that snow and ice blocked the exhaust stack and caused the HVAC unit to malfunction. Jillson admitted that the exhaust stack was clear when he observed it approximately five days after the pipe burst. And Mate has produced no evidence on which Jillson could rely to establish that the exhaust stack was blocked at the time the pipe burst. Accordingly, the district court did not abuse its discretion in ruling Jillson’s opinion inadmissible for lack of foundation.
Because the record is devoid of admissible evidence sufficient to establish a genuine issue of material fact on the issue of causation, summary judgment was properly granted in favor of NS/I on Mate’s negligence claim.
Mate claims that the district court abused its discretion
when it declined to address Mate’s October 17, 2005, motion to amend the scheduling
order because the district court is without discretion to disregard pending
motions. A district court may amend a
scheduling order on a showing of good cause.
Here, the district court dismissed all remaining claims when it granted summary judgment on Mate’s negligence claim. In doing so, Mate’s motion was rendered moot. See Minn. R. Civ. P. 26.02(a) (stating that discovery may be obtained only on matters “relevant to a claim or defense of any party”); see, e.g., Pederson v. Am. Lutheran Church, 404 N.W.2d 887, 890 (Minn. App. 1987) (holding that dismissal of complaint for failure to state a claim rendered moot consideration of summary judgment motion), review denied (Minn. June 30, 1987). Under these circumstances, declining to address the motion to amend the scheduling order was a sound exercise of the district court’s discretion.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 The HVAC unit was manufactured by Carrier Corporation. Carrier was named as a defendant in this action, but the claims against it were either dismissed on summary judgment or settled.
 Mate’s new theory alleges that the temperature in the computer
room dropped because an NS/I employee turned off the heat on the HVAC unit on
 For example, in response to the interrogatory, “Describe in detail those events leading to or causing the damages claimed by Plaintiff,” Mate stated, “Had the furnace for the computer room been equipped with the [severe-weather exhaust stack], the furnace would have [ignited] and the freezing conditions causing discharge of the fire sprinkler system would not have occurred.” (Emphasis added.) In response to the interrogatory, “Describe in detail the factual basis for your claim that NS/I . . . was negligent as alleged in the Complaint,” Mate simply stated, “NS/I, as the seller and/or installer, had a duty to exercise reasonable care in the specification, sale and installation of the HVAC components for the Mate computer room application. NS/I breached that duty to Plaintiff, with the resulting damages directly and proximately caused by that breach.” (Emphasis added.)
 Mate alleges that the district court gave Mate permission to pursue negligence theories other than the theory identified in Mate’s complaint. But Mate has presented no record evidence to support this claim. Mate, therefore, has not satisfied its burden of providing us an adequate record by which we may review this contention. See Setter v. Mauritz, 351 N.W.2d 396, 398 (Minn. App. 1984) (holding that appellant has burden of providing an adequate record for appeal).
 The remainder of the record is similarly devoid of facts sufficient to raise a genuine issue of material fact regarding the alleged breach of contract. For example, in response to an interrogatory seeking a factual basis for Mate’s claim that NS/I breached a contract as alleged in the complaint, Mate stated: “Discovery is ongoing. Upon information and belief, Plaintiff and NS/I had a contract for the specification, sale and installation of the subject unit, and as set forth herein, the actions and/or omissions of NS/I are a material breach of that contract.”
 Mate argues that NS/I improperly delayed and hindered discovery, thus preventing Mate from complying with the July 17 deadline. We observe that, to remedy this alleged discovery violation, Mate could have brought a rule 37.01 motion to compel discovery. But this approach was not pursued.