This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






John Tryggeseth,








Filed March 6, 2007


Randall, Judge


Crow Wing County District Court

File No. C0-03-2950



Gary L. Manka, Neil G. Clemmer, Katz, Manka, Teplinsky, Due & Sobol, LTD., 225 South Sixth Street, Suite 4150, Minneapolis, MN  55402 (for appellant)


Robert J. Lightfoot II, Murphy Desmond S.C., 2 East Mifflin Street, Suite 800, P.O. Box 2038, Madison, WI  53701-2038; and


Daniel Jardine, Jardine Law Office LLC, P.O. Box 501, DeForest, WI  53532-0501 (for respondent)

            Considered and decided by Randall, Presiding Judge; Hudson, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal from a directed verdict on appellant’s breach of contract claim against respondent as to the award of damages, appellant argues that the district court abused its discretion by (a) suppressing untimely evidence and expert testimony regarding his damages; and (b) denying his request for a continuance.  We affirm.


            In August 1993, appellant John Tryggeseth and respondent Thermogas entered into a contract under which respondent would provide liquefied propane to appellant’s real property.  In January 1999, appellant discovered that respondent failed to provide propane to his property, causing the water and heating systems to freeze, burst, and cause damage to the house located on his property.  Appellant subsequently brought suit against respondent alleging that respondent was negligent by allowing appellant’s propane tank to run out of fuel. 

            Respondent served upon appellant its first set of interrogatories and requests for the production of documents in December 2002.  Respondent requested identification of the items allegedly damaged as a result of the alleged negligence.  Respondent also requested identification of all damages claimed in the lawsuit.  A few months later, appellant answered respondent’s interrogatories and requests for production of documents,
identifying several items of personal property, photographs, and an invoice from PHB Excavating as initial evidence of his damages.

            In December 2003, respondent served a second set of interrogatories and request for production of documents as well as a first request for admissions.  The discovery requests sought the identity of any expert witnesses to be called at trial and further documentation of the alleged damages.  The district court issued a scheduling order on March 24, 2004, ordering that discovery was to be completed no later than December 13, 2004.  The order also mandated that motions in limine were to be filed “in a time frame which will permit them to be heard not later than March 7, 2005.”  The order further mandated that trial was scheduled to begin on April 12, 2005.  

            During the discovery period, appellant allegedly tried and failed to secure an estimate of damages and expert testimony regarding the destroyed heating and water systems on appellant’s property.  In November 2004, Brian Thompson, the attorney handling appellant’s case, terminated his employment with the law firm of Katz, Manka, Teplinsky, Due & Sobol.  Attorney Gary Manka subsequently took over handling appellant’s lawsuit, and on March 3, 2005, appellant served supplemental answers to defendant’s second set of interrogatories.  Appellant’s answers disclosed the identity of a real estate broker who would testify at trial regarding the loss of use and lost rent damages incurred at appellant’s property as a result of the damage to the property.


            After receiving appellant’s supplemental answers to respondent’s second set of interrogatories, respondent moved in limine to exclude from evidence and prohibit any witnesses or counsel from mentioning to the jury, the alleged “damages for ‘loss of use’ or ‘rental value’ of [appellant’s] property.”  The district court refused to hear respondent’s motion “because it was filed after the deadline for such motions specified in the Scheduling Order.”

            On April 1, 2005, appellant served upon respondent his witness list and exhibit list for trial that included Butch Keppers of PHP Excavating.  Shortly thereafter, appellant served a supplemental response to respondent’s first request for production of documents that had been served more than two years earlier.  The disclosure included a repair estimate from Ballou Plumbing and Heating that estimated appellant’s damages at $16,616. 

            On April 12, 2005, the first day of trial, appellant offered another document on the issue of damages, an estimate for excavating from L & R Excavating.  This company was never previously disclosed to respondent.  According to appellant, he was unable to locate Keppers or any other witness from PHB Excavating to provide testimony regarding the estimate PHB Excavating provided in 2004.  Appellant claimed that he eventually learned that PHB Excavating had ceased doing business some time after it provided the 2004 estimate. 

            At trial, appellant testified as to the loss of his personal property located in the basement of his property at the time of the incident.  But, when appellant attempted to testify as to the loss of use and rental income resulting from the damage to his property, respondent objected on the basis that this evidence and testimony was not disclosed during discovery.  The district court sustained the objection, precluding appellant from testifying about anything other than damage to his personal property, excluded all other evidence of his alleged damages, and excluded all expert testimony in support of causation and damages.  

            After the district court ruled on respondent’s evidentiary objections, appellant requested a continuance to afford respondent an opportunity to rebut the claimed damages and expert testimony.  The district court denied the motion.  Because the evidentiary rulings that capped the amount of damages that appellant could prove, respondent conceded liability and requested a directed verdict for damages in the amount of $6,017, the amount of personal property damages that the district court allowed into evidence.  The district court granted respondent’s request.  This appeal followed. 



            Appellant argues that the district court abused its discretion by suppressing evidence and expert testimony on the basis that it had not been timely disclosed to
respondent during pretrial discovery.[1]  Under the rules of civil procedure, whether to admit or exclude evidence rests within the trial court’s broad discretion.  Benson v. N. Gopher Enters., Inc., 455 N.W.2d 444, 445-46 (Minn. 1990).  Ordinarily, this court will not disturb a trial court’s evidentiary ruling unless it is based on an erroneous view of the law or constitutes an abuse of discretion.  Id.

            Whether a court should suppress expert testimony for an attorney’s failure to make a timely disclosure turns on whether that failure is inexcusable and the degree to which the opposing party is prejudiced by the late disclosure.  Dennie v. Metrop. Med. Ctr., 387 N.W.2d 401, 405 (Minn. 1986).  If an attorney’s failure to disclose is “inadvertent but harmful,” the court should impose less drastic remedies, such as granting a continuance and assessing costs against the party who is at fault.  Id. (quotation omitted).  In determining the appropriate sanction, the court should consider:

(1) the extent of preparation required by an opposing party in preparing for cross-examination or rebuttal of expert witnesses;

(2) when the expert agreed to testify;

(3) when the party calling the expert notified the opposing party of the expert’s availability;

(4) when the attorney calling the expert assumed control of the case;

(5) whether a party intentionally and willfully failed to disclose the existence of a trial expert; and

(6) whether the opposing party reasonably sought a continuance or other remedy.


Id. at 406.  Ultimately, the decision rests within the discretion of the trial court, which is in the best position to assess possible prejudice and available remedies.  Id. at 405.

            Appellant argues that the district court’s suppression of the evidence and expert testimony was too harsh a sanction under the circumstances.  Appellant claims that he attempted to secure and disclose the identity of expert witnesses in response to respondent’s discovery requests, but his efforts were unsuccessful until shortly before trial.  According to appellant, these efforts were hindered by the attorney change that occurred shortly before the court-imposed discovery deadline.  Appellant argues that despite the late disclosure of the evidence and expert witnesses, there was no attempt to intentionally withhold discoverable evidence and, therefore, the district court should have imposed a less harsh sanction. 

            We acknowledge that it does not appear that appellant intentionally withheld discoverable evidence.  But the extended time frame lends support for the district court’s use of its discretion to consider sanctions.  The complaint is dated August 26, 2002, and the district court’s scheduling order mandated that discovery be completed no later than December 2004.  This gave appellant well over two years to obtain the necessary evidence and expert testimony for trial.  Although the record reflects that the attorney handling appellant’s case left the law firm of Katz, Manka, Teplinsky, Due & Sobol during the discovery process, the hardship rendered by the attorney change could have been mitigated by a request for a continuance.  Appellant concedes that he failed to request a continuance until after the district court decided to exclude the expert testimony at issue.  Moreover, the record reflects that attorney Manka, who signed the complaint, remained a member of the firm at all times throughout litigation of the case.  The record also reflects that attorney Manka handled the case when attorney Thompson left the firm until the case was assigned to attorney Clemmer.  Again, despite knowledge of the impending discovery deadline, a continuance was not requested.  Consequently, based on the record, appellant’s lack of diligence in securing the necessary evidence and expert witnesses and disclosing them to respondent, we affirm the district court’s discretionary call. 

            Appellant argues that respondent was not prejudiced by the late disclosure of the evidence and expert testimony and, therefore, the suppression of the evidence and expert testimony was an inappropriate sanction.  See Dennie, 387 N.W.2d at 405 (stating that “[t]he crucial question is whether the defendant has been prejudiced to any appreciable degree by the late disclosure”).  To support his claim, appellant points out that respondent was aware of his claimed damages because at his deposition taken in March 2004, appellant testified that he was seeking damages for (1) excavating costs, (2) plumbing, and (3) lost rent.  Appellant also asserts that shortly after the incident, respondent inspected the property and noted the “extensive” damages to appellant’s property.  Appellant argues that the lack of prejudice to respondent by the late disclosure of the evidence and expert testimony is reflected by respondent’s witness list, which provides that “[e]ither Mr. Tjaden or Mr. Warhol will provide testimony regarding [respondent’s insurer’s] investigation of [appellant’s] claim, and expert testimony regarding the value of [appellant’s] personal and real property, and other damages claimed by [appellant].”    

            In light of the preference for granting a continuance, we agree this is a close case.  But even though respondent may have had a general idea as to appellant’s claim for damages, appellant’s failure to disclose the expert witnesses left respondent at a major disadvantage by having no opportunity to find an appropriate rebuttal expert, or time to prepare to cross-examine appellant’s experts.  See Rediske v. Minn. Valley Breeder’s Ass’n, 374 N.W.2d 745, 751 (Minn. App. 1985) (holding that late disclosure prejudiced respondents by depriving them of time necessary to prepare cross-examination), review granted (Minn. Dec. 11, 1985) and appeal dismissed (Minn. May 15, 1986).  In suppressing the evidence, the district court recognized the prejudice to respondent, stating that:

While I don’t doubt that [respondent] had some idea as to what the nature of [appellant’s] damages were, the extent of the claims, the testimony that would be offered at this trial were not disclosed, and the Court is not going to require [respondent] to have to contend with information that was not provided to them.  They appropriately sought that information; it was not provided.  And the Court is not going to place [respondent] in that position given the fact that they acted in all senses appropriately in this case.


We acknowledge that the sanction appears harsh, and that there are alternatives, but given the discretion of the district court, we affirm.  See Phelps v. Blomberg Roseville Clinic, 253 N.W.2d 390, 394 (Minn. 1977) (stating that the district court has discretion to determine whether an exclusion is justified). 


            Appellant argues that the district court abused its discretion by denying his request for a continuance.  “The decision to grant or deny a continuance is within the district court’s sound discretion and will not be reversed absent an abuse of discretion.”  Cargill Inc. v. Jorgenson Farms, 719 N.W.2d 226, 231 (Minn. App. 2006).

            Here, appellant knew or should have known that the discovery deadline had passed without the disclosure of his expert witnesses.  In light of the attorney changes in the matter, appellant had a legitimate reason to request a continuance before trial.  But appellant failed to request a continuance until after the district court granted respondent’s motion to exclude the evidence and expert testimony.  If appellant had requested a continuance after attorney Thompson left the firm, or when attorney Clemmer took over handling the case, the district court should have granted the request.  In fact, the district court stated when it denied appellant’s request for a continuance that “[i]f a motion were to have been made for a continuance earlier indicating, as this Court just found out this morning, that you were not the attorney who has been responsible for this file prior to about a week ago, such a continuance may have been granted.”  Instead, appellant did nothing until the district court excluded the evidence and expert testimony.  The issue was close, but based on appellant’s lack of diligence in the matter, the district court did not abuse its discretion in denying appellant’s request for a continuance. 


[1] Respondent argues that appellant’s appeal should be dismissed as untimely because appellant’s appeal, filed on January 24, 2006, was filed more than 60 days after the district court issued its memorandum of law.  See Minn. R. Civ. App. P. 104.01, subd. 1 (providing that “[u]nless a different time is provided by statute, an appeal may be taken from a judgment within 60 days after its entry”).  But although the district court issued an order on November 2, 2005, judgment was not entered until December 1, 2005.  Therefore, appellant’s appeal, filed on January 24, 2006, was timely filed.