This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-96-1036

Evelyn Landherr, et al.,

Respondents,

vs.

City of Waseca,

Appellant.

Filed January 28, 1997

Affirmed

Peterson, Judge

Waseca County District Court

File No. C795469

Mary C. Leahy, Hoversten, Johnson, Beckmann, Wellmann, & Hovey, P.L.L.P., 807 West Oakland Avenue, Austin, MN 55912 (for Respondents)

Carla J. Heyl, 145 University Avenue West, St. Paul, MN 55103-2044 (for Appellant)

Considered and decided by Peterson, Presiding Judge, Norton, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

PETERSON, Judge

In this negligence action, the City of Waseca argues that the district court erred in denying its motion for summary judgment because it was entitled to immunity, there was no evidence of its negligence, and the statute of limitations for actions for damages based on construction of improvements to real property barred the action. Because we conclude that the district court properly determined that the summary judgment motion was premature, we affirm.

FACTS

Respondent Evelyn Landherr was injured when she fell on some steps at a stadium owned by appellant City of Waseca. In October 1994, Landherr and her husband sued the city for negligent design, construction, and maintenance; negligent failure to warn; and loss of consortium. The claims were based on an alleged hidden defect in the stairs.

A February 1996 scheduling order established a July 1, 1996, deadline for completing discovery. The order also provided that the "parties shall select an ADR [alternative dispute resolution] neutral and enter into mediation no later than August 1, 1996." (Emphasis in original.) The order stated that if mediation did not resolve the case, the deadline for dispositive motions was October 1, 1996.

In March 1996, the city filed a motion seeking summary judgment on immunity grounds. The city also argued it was not negligent, it was not as negligent as to Landherr, and the action was barred because the statute of limitations for an action for damages based on construction of an improvement to real property had expired.

At the April 1996 hearing on the motion for summary judgment, the district court noted that there was a January 26, 1996, stipulation between the parties in which they had agreed to select an alternative dispute resolution (ADR) neutral before April 15, 1996. In response to the court's question about the status of the ADR process, the city said it had decided to bring a summary judgment motion before the parties underwent ADR and it believed that selecting a neutral before the decision on the summary judgment motion would be counterproductive. The court then asked, "Then since January 26 when you made this agreement, you changed your mind?" The city answered, "Yes."

The Landherrs argued that the summary judgment motion was premature. The Landherrs' attorney said that from the commencement of their case until February 12, 1996, the parties had worked under an understanding that they would enter some type of ADR. Consequently, the Landherrs' attorney had not yet scheduled the most expensive part of discovery, the depositions. The Landherrs' attorney said that when the city suddenly decided in February 1996 to seek summary judgment before completing ADR, she knew she would have to proceed with depositions but believed she would have until July 1, 1996, the discovery deadline in the scheduling order, to complete them. The Landherrs' attorney stated that although she had been able to take one deposition since learning of the city's summary judgment motion, she still needed to depose city leaders and employees familiar with city policies and with the renovation and maintenance of the stadium. The Landherrs contended that this additional discovery would uncover facts that would defeat the city's immunity claims. The Landherrs argued that even if the agreement to seek mediation before bringing dispositive motions were no longer enforceable, they should be given until July 1, 1996, to complete discovery. The Landherrs also argued that disputes of material fact precluded summary judgment on their negligence claims.

Near the end of the hearing, the court reiterated that it was concerned about the city's unilateral withdrawal from the ADR agreement and the timing of the motion given the July 1, 1996, discovery deadline. The court specifically stated that there was an ADR agreement between the parties. The city did not deny that there was an ADR agreement and instead argued that there had been no withdrawal because it still intended to complete ADR if the court denied its motion. The city argued that engaging in ADR when it believed it had a valid ground for summary judgment would not be productive.

The district court denied the motion for summary judgment and stated that the scheduling order continued to be in full force and effect. The court made no findings of fact or conclusions of law and did not explain its decision.[1]

D E C I S I O N

An order denying a motion for summary judgment based on claims of governmental immunity is immediately appealable. McGovern v. City of Minneapolis, 475 N.W.2d 71, 73 (Minn. 1991).

Summary judgment shall be granted

if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.

Minn. R. Civ. P. 56.03. Summary judgment may be proper if a governmental entity is entitled to immunity. McEwen v. Burlington N. R.R., 494 N.W.2d 313, 316 (Minn. App. 1993), review denied (Minn. Feb. 25, 1993). But when fact disputes exist as to whether a governmental action is protected by immunity, summary judgment is inappropriate. Id. If, after adequate time for discovery, the nonmoving party fails to present evidence sufficient to show the existence of a material issue of fact, summary judgment is appropriate. Carlisle v. City of Minneapolis, 437 N.W.2d 712, 715 (Minn. App. 1989).

Should it appear from the affidavits of a party opposing the [summary judgment] motion that the party cannot for reasons stated present, by affidavit, facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

Minn. R. Civ. P. 56.06. A court may grant relief under rule 56.06 absent a formal motion. See Bixler v. J.C. Penney Co., 376 N.W.2d 209, 216-17 (Minn. 1985) (attorney's statement that he had been allowed no discovery and affidavit assertion that he had not had opportunity to test veracity of opponents' affidavits sufficient to raise rule 56.06 issue).

The district court has great discretion in determining the timing of proceedings. Rice v. Perl, 320 N.W.2d 407, 412 (Minn. 1982). Relief under rule 56.06 should be liberally granted when a party claims there was insufficient time for discovery. Id. The party requesting the relief, however, must have been diligent in seeking discovery before the rule 56.06 motion and must demonstrate a good-faith belief that material facts will be uncovered and that she is not engaging in a "fishing expedition." Id.

The transcript of the summary judgment hearing shows that the district court was concerned that the summary judgment motion was premature given the discovery deadline and the parties' agreement to participate in ADR. The city brought its motion more than three months before the discovery deadline, and the record before the district court at the motion hearing showed the parties had agreed to seek ADR before bringing dispositive motions. The Landherrs explained that their failure to complete discovery was due to their reliance on the agreement. The district court properly considered the existence of the ADR agreement to excuse the Landherrs' delay in conducting discovery. Cf. Little v. Miklya, 403 N.W.2d 228, 229-30 (Minn. 1987) (parties' stipulation under Minn. R. Civ. P. 29 to modify discovery rules was functional equivalent of court order for purposes of sanctions under rules).[2]

The record also shows that the Landherrs acted diligently in scheduling and taking depositions once they learned that the city would not abide by the ADR agreement. See Rice, 320 N.W.2d at 412 (party seeking relief under rule 56.06 must have been diligent in seeking discovery before rule 56.06 request). Finally, in their motion papers and at the summary judgment hearing, the Landherrs demonstrated a good faith belief that material facts would be uncovered by additional discovery. See id. (party seeking rule 56.06 relief must demonstrate good-faith belief that material facts will be discovered). Under these circumstances, we conclude that the district court did not abuse its discretion in denying the summary judgment motion as premature.

Affirmed.

[ ]1After the summary judgment hearing, the city sent a letter to the court claiming that there had been no ADR agreement between the parties. The Landherrs objected to the submission of this letter and reiterated that from the beginning of the lawsuit, the parties had an understanding that they would seek ADR before bringing dispositive motions. The district court stated that both submissions were untimely and had not been considered. Because the district court disregarded these submissions, we have not considered them on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (appellate court will not consider matters not presented to and considered by district court in deciding matter).

[ ]2We also note that the district court did not order the parties to abide by their January ADR agreement or to participate in ADR. See Minn. R. Gen. Pract. 114.04 1993 implementation comm. cmt. (judge should order mandatory ADR only after careful consideration of likelihood that mandatory ADR will result in voluntary settlement of case).