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Brown-Wilbert11/22/2005
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.
DECISION
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.,
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