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Middle River-Snake River Watershed Dist. v. Dennis Drewes2/15/2005
mption from the general rule in this case. Under the plain meaning of the statute, dismissal is mandatory, and the district court did not err in dismissing Drewes' professional-malpractice claim against J.O.R.
II.
The district court relied on two additional reasons that provide a separate and independent basis for granting summary judgment: that as a matter of law, J.O.R. "neither breached any duty toward Drewes or was the proximate cause of any alleged damages." Drewes challenges the district court's determination of no duty but has not challenged, in either its appellate brief or its reply brief, the district court's determination that, as a matter of law, J.O.R. did not proximately cause any of Drewes' alleged damages. Consequently Drewes has waived this issue on appeal. Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982). Even if Drewes could demonstrate a material fact issue on the scope of J.O.R.'s duty, Drewes' negligence claim would still fail for lack of proximate cause. See Funchess v. Cecil Newman Corp.,632 N.W.2d 666, 672 (Minn. 2001) ("A defendant in a negligence suit is entitled to summary judgment when the record reflects a complete lack of proof on any of the four essential elements of the negligence claim.").
In addition to its appeal of the summary-judgment order, Drewes also challenges the district court's decision to cap damages at 10% of the contract price. Because we are satisfied that the district court did not err in granting summary judgment, we do not consider Drewes' challenge to the ordered damages cap.
DECISION
In failing to file the required expert-identification affidavit within 180 days after initiating an action against J.O.R., Drewes deprived itself of the benefit of the statute's cure period. Dismissal of its negligence claim was therefore mandatory. Furthermore, Drewes has not demonstrated any error in the court's determination that, as a matter of law, J.O.R. did not proximately cause Drewes' damages. For these reasons we affirm the district court's grant of summary judgment.
Affirmed.
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