This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1681

 

 

Manjit Bajwa, et al.,

Appellants,

 

vs.

 

Thomas A. Foster, et al.,

Respondents.

 

 

Filed August 7, 2007

Affirmed

Toussaint, Chief Judge

 

Hennepin County District Court

File No. 27-CV-05-011404

 

 

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

 

Lisa M. Lamm, Abrams & Smith, P.A., 1250 Pillsbury Center South, 220 South Sixth Street, Minneapolis, MN 55402 (for respondents)

 

            Considered and decided by Toussaint, Chief Judge, Willis, Judge, and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Appellants Manjit Bajwa and Gas Aggregation Services, Inc. d/b/a Gas Services, Inc. challenge the district court’s dismissal of their legal malpractice lawsuit against their former attorney and his law firm, respondents Thomas A. Foster and Thomas A. Foster & Associates, Ltd.  The district court determined that dismissal was mandated because appellants failed to timely serve an expert-identification or expert-disclosure affidavit, as required by Minn. Stat. § 544.42 (2004).  Because the expert-disclosure affidavit was not filed within 180 days after October 26, 2005, which is the date that respondents acknowledged service of the complaint, and because appellants’ answers to interrogatories, which were filed within 180 days, are insufficient to meet the minimum standards recently set out by the supreme court in Brown-Wilbert, Inc. v. Copeland Buhl & Co., P.L.L.P., 732 N.W.2d 209 (Minn. 2007), we affirm.

FACTS

            On August 15, 2005, appellants served a summons and complaint on respondents by personally leaving a copy with “Angela Williams – Authorized Agent.”  The complaint alleged a number of causes of action relating to respondents’ prior legal representation of appellants.  Appellants’ attorney served an affidavit of expert review with the complaint, as required by Minn. Stat. § 544.42, subd. 2 (2004).

            On October 12, 2005, after receiving no answer, appellants moved for default judgment.  On October 17, respondents’ attorney faxed a letter to the district court explaining that the complaint had been served on a receptionist who was not an “authorized agent.”  The district court held a hearing on appellants’ motion for default judgment on October 18.

            On October 26, one of respondents’ attorneys executed an acceptance of service of process, acknowledging that he had received a copy of the complaint and that he accepted service on behalf of respondents.  This acceptance of service was filed with the district court on November 4.

            On November 8, the district court filed an order denying appellants’ motion for default judgment, ruling that the complaint was not duly served on an authorized agent.[1]  The parties continued with discovery, including the taking of depositions and submission of interrogatories.  On February 15, 2006, appellants served answers to respondents’ interrogatories.

            On May 2, 2006, respondents notified appellants that they were moving to dismiss for failure to serve an affidavit of expert disclosure within 180 days, as required by Minn. Stat. § 544.42, subd. 4.  The following day, May 3, appellants served on respondents the affidavit of their expert, John Neve; Neve’s affidavit had been signed and notarized on March 30, 2006.

            On May 10, respondents moved to dismiss appellants’ complaint with prejudice for failure to timely file an affidavit of expert disclosure as required by Minn. Stat. § 544.42 (2004).  Appellants opposed the motion, arguing that Neve’s affidavit was timely filed within 180 days after the district court assumed jurisdiction over the matter and that even if Neve’s affidavit were not timely, their answers to interrogatories were filed within 180 days and provided sufficient, timely notice in compliance with Minn. Stat. § 544.42.

            By order filed July 3, 2006, the district court denied appellants’ motion to dismiss without prejudice and granted respondents’ motion to dismiss with prejudice.

D E C I S I O N

            A district court’s decision to grant or deny a motion to dismiss for failure to comply with statutory requirements regarding the submission of expert affidavits is reviewed under an abuse of discretion standard.  Lake Superior Ctr. Authority v. Hammel, Green & Abrahamson, Inc., 715 N.W.2d 458, 468 (Minn. App. 2006), review denied (Minn. Aug. 23, 2006).  Questions involving the applicability and construction of those statutes, however, are legal questions, which are reviewed de novo.  Id. at 468-69.

            Malpractice actions against professionals, including attorneys, must comply with the requirements of Minn. Stat. § 544.42 (2004).  This statute requires a plaintiff to serve two affidavits on the adverse party.  Id., subd. 2.  Initially, an affidavit of expert review, must establish that an expert reviewed the case, leading to the opinion that the defendant deviated from the applicable standard of care and that the action caused the plaintiff’s injury.  Id., subds. 2(1), 3(a)(1).  In this case, appellants properly served an affidavit of expert review with their complaint.  See id., subd. 2(1).

            The issue here involves the second affidavit, the affidavit of expert disclosure, which must be served within 180 days after service of the pleadings and the first affidavit.  Minn. Stat. § 544.42, subd. 2(2).  This affidavit must be “signed by the party’s attorney” and

state the identity of each person whom the attorney expects to call as an expert witness at trial to testify with respect to the issues of negligence, malpractice, or causation, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion.

 

Id., subd. 4(a).  The statute further provides:  “Answers to interrogatories that state the information required by this subdivision satisfy the requirements of this subdivision if they are signed by the party’s attorney and served upon the opponent within 180 days after commencement of the action against the defendant.”  Id.

            A party’s failure to provide this second affidavit “results, upon motion, in mandatory dismissal of each action with prejudice as to which expert testimony is necessary to establish a prima facie case.”  Id., subd. 6(a).  This mandatory-dismissal provision is softened somewhat by the following grace period or safe harbor:  An “initial motion to dismiss an action . . . based upon claimed deficiencies of the affidavit or answers to interrogatories shall not be granted unless, after notice by the court, the nonmoving party is given 60 days to satisfy the disclosure requirements in subdivision 4.”  Id., subd. 6(c)  When providing this notice, “the court shall issue specific findings as to the deficiencies of the affidavit or answers to interrogatories.”  Id. This 60-day safe harbor provision is available only if the second affidavit is served before the 180-day period expires.

            1.         Appellants first argue that Neve’s affidavit was timely because it was served 176 days after November 8, 2005, the date of filing of the district court’s order denying appellants’ motion for default judgment.  But a civil action is commenced on the date of acknowledgement of service if service is by mail.  Minn. R. Civ. P. 3.01(b).  Ineffective service of process is not fatal to the court’s jurisdiction and can be waived by a party who accepts service and submits to the jurisdiction of the court.  See Larson v. New Richland Care Ctr., 520 N.W.2d 480, 482 (Minn. App. 1994).  We therefore conclude that this action was commenced on October 26, 2005, when respondents’ attorney signed an Acceptance of Service of Process and that Neve’s affidavit was untimely because it was served 189 days after October 26, 2005.

            2.         Appellants next argue that respondents should be estopped from seeking dismissal given the district court’s confusing statement in its November 8, 2005 order regarding its lack of jurisdiction.  But the doctrine of estoppel does not fit the facts of this case:  the district court’s statement only reflected its opinion regarding personal, not subject matter jurisdiction, and respondents made no representations on which appellants reasonably relied.  See Mut. Serv. Life Ins. Co. v. Galaxy Builders, Inc., 435 N.W.2d 136, 140 (Minn. App. 1989), review denied (Minn. Apr. 19, 1989).

            3.         In a somewhat related argument, appellants insist that because the district court had no jurisdiction, given the faulty service on respondents, it should have dismissed this case without prejudice in order to allow them to bring a new action.  While the district court initially may have lacked personal jurisdiction over respondents, jurisdiction was conferred once respondents acknowledged service.  In addition, both parties continued to proceed with discovery, and jurisdiction was not challenged by either party until respondents moved for mandatory dismissal under Minn. Stat. § 544.42 (2004).  Under these circumstances, the district court was not required to dismiss the matter without prejudice.

            4.         Appellants argue that even if Neve’s affidavit were untimely, their answers to interrogatories, which were served on respondents on February 15, 2006, provided sufficient and timely disclosures under Minn. Stat. § 544.42, subd. 4(a).  Appellants insist that their answers identified Neve as their expert legal witness and incorporated paragraphs from their verified complaint, which contains allegations of the specific breaches to which Neve was expected to testify.

            But the supreme court recently rejected such an argument under similar facts and held that answers to interrogatories “that merely repeat or incorporate the attorney’s conclusory allegations [as set out in a verified complaint] about accounting [or legal] malpractice are not sufficient to meet the minimum standards for an affidavit of expert disclosure.”  Brown-Wilbert, Inc. v. Copeland Buhl & Co., P.L.L.P., 732 N.W.2d 209, 219 (Minn. 2007).  Rather, the affidavit or interrogatory answers must set out how the expert will use the facts in the verified complaint to arrive at his or her opinions of malpractice and causation.  Id.  While appellants’ answers to interrogatories identified Neve as one of their experts, those answers failed to provide sufficient detail to satisfy the minimum standards discussed in Brown-Wilbert.  We therefore conclude that the district court did not err in determining that appellants’ answers to interrogatories fail to meet the minimum standards necessary to meet the requirements for an expert-disclosure affidavit or to justify the application of the safe-harbor or grace period, which allows notice of deficiencies and an additional 60-day period within which to correct those deficiencies.[2]

            5.         Appellants finally argue that even if their claims alleging legal malpractice are subject to dismissal under the statute, their complaint includes other causes of action that should continue because expert testimony is not necessary to establish a prima facie case.  See Minn. Stat. § 544.42, subd. 6(c).  The district court examined each of the causes of action, which included breach of contract, professional negligence, breach of fiduciary duty, misrepresentation and fraud, negligent supervision/respondeat superior, attorney deceit and collusion, and attorney misconduct.  The court determined that in order to prevail on any of their claims, appellants “would need to provide expert testimony to establish a prima facie case” and that the claims “do not fall within the limited category of legal malpractice cases that can be proved without expert testimony,” citing Meyer v. Dygert, 156 F. Supp. 2d 1081, 1091 (D. Minn. 2001), Hill v. Okay Constr. Co., 312 Minn. 324, 337, 252 Minn. 107, 116 (1977), and Olfe v. Gordon, 286 N.W.2d 573, 577 (Wis. 1980).  We agree with the district court’s reasoning and affirm its dismissal of appellants’ complaint under Minn. Stat. § 544.42.

            Affirmed.