A05-340

Brown-Wilbert, Inc., et al.,

Appellants,

vs.

Copeland Buhl & Company, P.L.L.P.,

Respondents.

Filed November 22, 2005

Affirmed in part and remanded; motion granted

Hudson, Judge

Hennepin County District Court

File No. CT 04-8124

Kay Nord Hunt, Lommen, Nelson, Cole & Stageberg, P.A., 2000 IDS Center, 80 South Eighth Street, Minneapolis, Minnesota 55402; and

George E. Antrim, III, George E. Antrim, III, PLLC, 201 Ridgewood Avenue, Minneapolis, Minnesota 55403 (for appellants)

Thomas J. Shroyer, Peter A. Koller, Julia M. Dayton, Moss & Barnett, P.A., 4800 Wells Fargo Center, 90 South Seventh Street, Minneapolis, Minnesota 55402 (for respondents)

Considered and decided by Worke, Presiding Judge; Hudson, Judge; and Wright, Judge.

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

HUDSON, Judge

Appellants Brown-Wilbert, Inc. challenge dismissal of a professional-malpractice action against respondent-accountants for failure to comply with the expert-witness affidavit requirements of Minn. Stat. § 544.42 (2004). Because the district court did not abuse its discretion in finding that appellants’ interrogatory request was a “demand for the affidavit” of expert review under subdivision 6(a), we affirm in part. But because the district court failed to analyze whether appellants’ breach-of-contract and breach-of-fiduciary-duty claims required expert testimony to establish a prima facie case, we remand for that analysis. Further, because the district court did not address the issue of whether previously signed releases from a separate lawsuit between the parties provided an alternative basis for dismissing appellants’ claims, we also remand that issue to the district court for determination. Appellants’ motion to strike portions of respondents’ appendix is granted.

FACTS

Christopher Brown (Christopher) and his father, Jerry Brown (Jerry), were in business together and incorporated what eventually became Brown-Wilbert, Inc. Brown-Wilbert, Inc. retained the accounting firm of Copeland Buhl & Company, P.L.L.P. The relationship between Christopher Brown and his father soured, and in 2002 Christopher brought a shareholder-rights suit against Jerry. In 2003, that lawsuit settled and Christopher became the sole owner of the company. The settlement agreement contained several releases, which, among other things, released Jerry, Christopher, and Brown-Wilbert from liability to each other arising at any time prior to execution of the releases.

On March 10, 2004, appellants Brown-Wilbert, Inc. and Christopher Brown commenced this accounting-malpractice action against respondent-accountants, Copeland Buhl & Company, P.L.L.P. (Copeland Buhl) and Lee Harren, Jerry’s personal accountant. Four counts were asserted: accounting malpractice, breach of contract, breach of fiduciary duty, and restitution. When appellants filed their complaint, they did not serve the affidavit of expert review required by Minn. Stat. § 544.42 (2004).

On approximately May 18, respondents served interrogatories on appellants. On June 18—three months after the service of the suit—appellants answered those interrogatories. In appellants’ answers to the interrogatories, they identified two experts by name, Rob Tautges and William R. Legier, and attached their lengthy curricula vitae.

On September 21, respondents moved the district court to dismiss the action for failing to meet the two expert-witness affidavit requirements of Minn. Stat. § 544.42, or, in the alternative, to grant summary judgment on the grounds that the settlement agreement from the previous lawsuit barred this action against respondents. On October 15, appellants submitted an affidavit of expert review.

The district court granted respondents’ motion to dismiss the entire action. This appeal follows.

D E C I S I O N

When reviewing a district court’s dismissal of an action for “procedural irregularities,” such as failure to comply with statutory requirements, this court will generally apply an abuse-of-discretion standard of review. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990); see Broehm v. Mayo Clinic Rochester, 690 N.W.2d 721, 725 (Minn. 2005) (applying abuse-of-discretion standard to district court’s dismissal of medical malpractice claim for noncompliance with expert disclosure). But when addressing questions of statutory construction, which are questions of law, de novo review is warranted. Sorenson, 457 N.W.2d at 190; Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).

Minnesota statutes require plaintiffs in an action alleging professional negligence or malpractice to serve on defendants two affidavits. Minn. Stat § 544.42, subd. 2 (2004). The first affidavit is the affidavit of expert review, which must generally be served with the pleading. Id., subds. 2, 3 (2004). The affidavit must be drafted by the party’s attorney and state that,

the facts of the case have been reviewed by the party’s attorney with an expert whose qualifications provide a reasonable expectation that the expert’s opinions could be admissible at trial and that, in the opinion of this expert, the defendant deviated from the applicable standard of care and by that action caused injury to the plaintiff . . . .

Id., subd. 3(1).

The second affidavit is the identification of experts to be called. Id., subds. 2, 4 (2004). Failure to comply with the affidavit requirements “results, upon motion, in mandatory dismissal of each cause of action with prejudice as to which expert testimony is necessary to establish a prima facie case.” Minn. Stat. § 544.42, subd. 6 (2004). Minnesota courts have been firm in holding that failure strictly to satisfy expert disclosure requirements will result in dismissal of a claim with prejudice. Broehm, 690 N.W.2d at 726; see Teffeteller v. Univ. of Minn., 645 N.W.2d 420, 428 (Minn. 2002) (dismissal mandated when expert disclosure falls short of the substantive disclosure requirements); Lindberg v. Health Partners, Inc., 599 N.W.2d 572, 578 (Minn. 1999) (dismissal of malpractice action mandated when expert disclosure contains only “broad and conclusory statements”). But the statute includes safe-harbor provisions for a party who does not comply. Minn. Stat. § 544.42, subd. 6(a), (c).

Appellants argue that the safe-harbor provisions of the statute protect them from mandatory dismissal. Under Minn. Stat. § 544.42, subd. 6 (a), “[f]ailure to comply with [the affidavit of expert review requirement] within 60 days after demand for the affidavit results, upon motion, in mandatory dismissal of each cause of action with prejudice as to which expert testimony is necessary to establish a prima facie case.” (Emphasis added.) Typically—and preferably—when a defendant discovers that an affidavit of expert review has not been filed, a routine letter is sent to the plaintiff demanding the affidavit. That was not done here. Indeed, respondents never made a demand specifically for the affidavit of expert review. Thus, appellants argue that respondents’ September 21 motion to dismiss was the demand for the affidavit and that by supplying their affidavit of October 15—twenty-four days after respondents’ motion to dismiss—they complied with the safe-harbor requirement.

Respondents, however, argue that they demanded the affidavit of expert review when they served their first set of interrogatories on about May 18 and that appellants’ October 15 affidavit was therefore untimely. Respondents’ interrogatories included questions regarding any expert witnesses and requested the identity of and contact information for anyone having knowledge of the facts substantiating the claims and the substance of their knowledge. The interrogatories did not specifically mention Minn. Stat. § 544.42 or use the word “affidavit.”

The district court determined that respondents’ May 18 request for interrogatories was the demand for the affidavit of expert review, thus putting appellants’ October 15 affidavit well outside the 60-day safe harbor. It is clear from the plain language of the statute that the intent of the affidavit of expert review requirement is to ensure that attorneys consult an expert before bringing a negligence or malpractice suit against a professional. See Minn. Stat. § 544.42, subd. 3(a)(1) (2004); Minn. Stat. § 645.08 (2004). Although respondents’ interrogatories may not have been a clear demand for the affidavit of expert review, appellants’ answers to those interrogatories made it clear that an expert review had not occurred before the action was brought. On June 18, three months after the suit was brought, appellants merely answered that their experts had been “recently retained . . . [and were] expected to testify as to the conclusions set forth in the Complaint, based upon the facts alleged in the Complaint.” The record failed to show that appellants had consulted any other expert.

We discourage future litigants from using interrogatories to make a demand for an affidavit of expert review. But on these peculiar facts, we cannot conclude that the district court abused its discretion in holding that respondents’ request for interrogatories was effectively the demand for the affidavit and that appellants failed to provide the affidavit in a timely fashion. Because failure to satisfy either of the expert disclosure requirements results in dismissal of a claim with prejudice, we do not address appellants’ contention that the district court also erred in holding that appellants did not satisfy the disclosure requirements for the second affidavit relating to the identification of experts.[1] Accordingly, the district court properly dismissed appellants’ professional-malpractice claim with prejudice.

Appellants acknowledge that an accounting-malpractice claim is premised on a breach of the standard of care applicable to accountants, thereby requiring expert testimony to establish a prima facie case. Appellants argue that, even if the accounting malpractice was properly dismissed, the district court erred in dismissing the other three counts—breach of contract; breach of fiduciary duty; and restitution—because these claims do not require expert testimony to establish a prima facie case so that expert affidavits were not required. See Minn. Stat. § 544.42, subd. 6 (stating that failure to comply with the affidavit requirements “results, upon motion, in mandatory dismissal of each action with prejudice as to which expert testimony is necessary to establish a prima facie case” (emphasis added)).

In their motion to dismiss, respondents argued that all of appellants’ claims required expert testimony to establish a prima facie case. The district court, presumably agreeing with respondents’ argument but without providing any analysis, dismissed all of the claims.

Respondents’ claim has merit. But appellants’ position is persuasive as well. For example, appellants claim that their breach-of-contract count is premised on the terms of the annual contracts with engagement letters executed by the accountants at Brown-Wilbert. To the extent that characterization is accurate, it is not immediately clear why expert testimony is necessary to establish a prima facie case for this count. Accordingly, we conclude that the district court abused its discretion by dismissing all of the claims without analyzing whether the three remaining claims required expert testimony to establish a prima facie case. We remand to the district court for such analysis and a determination.

III

Respondents argued as an alternative basis for summary judgment that the releases signed as a part of the 2003 settlement agreement between the parties provided an additional basis for dismissal of the case. Respondents argued that a contract providing the general release of all claims against a tortfeasor (Jerry Brown) from all liability for contribution or indemnity should also absolve joint tortfeasors (Copeland Buhl and Lee Harren) from liability. The district court did not specifically address this issue. Respondents preserved the issue for appeal by serving a timely notice of review and addressing it in their brief.

Because this issue was not addressed by the district court, we remand it to the district court for analysis and a determination as it relates to any claims remaining under consideration.

Appellants move to strike specific portions of respondents’ appendix as including documents outside the case record.

“The papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases.” Minn. R. Civ. App. P. 110.01. This court will not consider matters outside the record on appeal and will strike references to such matters from the parties’ briefs. Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff’d, 504 N.W.2d 758 (Minn. 1993).

Because the items noted by appellants were not a part of the district court record, we grant appellants’ motion to strike these documents from respondents’ appendix, and we have not considered them in reaching our decision.

Affirmed in part and remanded; motion granted.

[1] We note, however, that Minn. Stat. § 544.42, subd. 6(c), requires the district court—irrespective of the nature or severity of the deficiency—to provide parties with an opportunity to cure any alleged deficiencies in the expert-identification affidavit or answers to interrogatories.