author: RUSSELL A. ANDERSON, Justice. PAUL H. ANDERSON, J. GILBERT, Justice

text:
    Kathleen M. ANDERSON, Respondent, v. Dr. Setti RENGACHARY, petitioner, Appellant.
    No. C7-98-1987.
    Supreme Court of Minnesota.
    March 16, 2000.
    Rehearing Denied May 3, 2000.

      David Hutchinson, Kyle M. Thomas, Geraghty, O’Loughlin & Kenney, P.A., Saint Paul, for appellant.
    Paul A. Sortland, Sortland Law Office, Minneapolis, for respondent.
   OPINION

RUSSELL A. ANDERSON, Justice.

Appellant Setti Rengachary, M.D., appeals from the Minnesota Court of Appeals’ reversal of the district court’s order denying respondent Kathleen Anderson’s request for reconsideration of the dismissal of her medical malpractice suit against appellant. Ms. Anderson served an affidavit of expert identification as required by Minn.Stat. § 145.682, subd. 4 (1998) and, after the 180-day statutory deadline expired, Dr. Rengachary moved to dismiss the suit. The district court concluded that Ms. Anderson had not submitted a sufficient affidavit of expert identification and pursuant to Minn.Stat. § 145.682, subd. 6 (1998) granted Dr. Rengachary’s motion to dismiss. Ms. Anderson requested reconsideration but the district court declined to reconsider its order or grant her an extension to comply with the statutory requirements. The court of appeals reversed and remanded, directing the district court to allow Ms. Anderson 30 days to submit a supplemental affidavit. See Anderson v. Rengachary, 591 N.W.2d 511, 514 (Minn.App.1999). We reverse the court of appeals and affirm the district court’s order.

Dr. Rengachary performed an anterior cervical diskectomy and fusion on Ms. Anderson on July 5, 1995. On July 3, 1997, Ms. Anderson commenced a lawsuit against Dr. Rengachary alleging that his negligence caused a severed vagus nerve and swelling of her esophagus and thyroid. On October 1, 1997, Ms. Anderson served the affidavit of expert review required by Minn.Stat. § 145.682, subd. 3 (1998) and, on December 12, 1997, the affidavit of expert identification required by Minn. Stat. § 145.682, subd. 4. In the affidavit of expert identification, Ms. Anderson’s anticipated expert witness, Richard S. Goodman, M.D., stated in part:

6. I agree there was a deviation from the standard of care provided to this patient which caused the patient to have postoperative dysphasia [sic] of undetermined etiology. Also, it appears, based upon the medical record, that there was significant trauma to the esophagus. The standard of care is that esophageal trauma should be avoided during surgery of this type.
7. I note in the records of Dr. Thomas C. Bagnoli, dated October 12, 1995, that he suggested that one of the possibilities for the dysphagia suffered by Kathleen Anderson is that, possibly during surgery, or afterwards, during the time she was in the surgical collar, that the plaintiff sustained an injury to the vagus nerve. If this supposition of Dr. Bagnoli was accurate, that the vagus nerve suffered injury during surgery, or in the resulting aftercare, this would also be a deviation from the standard of care as the surgeon should make certain that such trauma to the vagus nerve should not occur, either during or in aftercares [sic] following such surgery.

After the 180-day statutory deadline expired, Dr. Rengachary moved for dismissal with prejudice pursuant to Minn.Stat. § 145.682, subd. 6 (1998), arguing Ms. Anderson failed to provide a sufficient affidavit of expert identification. The district court granted his motion to dismiss with prejudice and explained its reasoning as follows:

Here, Plaintiffs expert states that the standard of care is that “esophageal trauma should be avoided during surgery” and “trauma to the vagus nerve should not occur, either during or in aftercare[s] following such surgery.” He describes the acts or omissions that violate the standard as “esophageal trauma” and, based on the opinion of another doctor, operative or postoperative damage to the vagus nerve. He concludes that these violations “caused the patient to have postoperative dys-phasia of undetermined etiology.” The inclusion of this phrase “of undetermined etiology” is inconsistent with the construction of a chain of causation. It says that the cause of Plaintiffs alleged injuries is unknown. The statute requires a connection between the violation and the injury. The expert has not supplied that connection here.

Ms. Anderson then sent to the court a Rule 115.11 request to bring a motion for reconsideration, arguing that the affidavit was sufficient but also requesting a 30-day extension to supplement the affidavit. See Minn. Gen. R.P. 115.11. The district court denied this request.

Ms. Anderson appealed and the court of appeals reversed and remanded. See Anderson, 591 N.W.2d at 514. The court of appeals concluded that the district court abused its discretion in denying Ms. Anderson’s request for reconsideration because the affidavit represented a “good faith effort to comply with the disclosure requirements.” Id. at 518. In reaching this conclusion, the court considered that Ms. Anderson did not receive notice of the insufficiency of the affidavit prior to the expiration of the statutory 180-day deadline and that we had “directed district courts to consider less drastic alternatives to dismissal when the plaintiff has identified experts and given some meaningful disclosure of their testimony.” Id. at 513-14 (citing Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 193 (Minn.1990)). The court of appeals reversed and remanded, ordering the district court to allow Ms. Anderson 30 days to submit a supplemental affidavit. See id. at 514. Dr. Rengachary filed a petition for further review and we granted review of the court of appeals’ opinion.

We will reverse a district court’s dismissal of a suit pursuant to Minn.Stat. § 145.682 only if the district court abused its discretion. See Sorenson, 457 N.W.2d at 190. Examining the district court’s order denying Ms. Anderson’s request for reconsideration in light of this standard, we address the sufficiency of her affidavit of expert identification. We then consider her request for a 30-day extension to submit a supplemental affidavit.

I.

In a medical malpractice ease where “expert testimony is necessary to establish a prima facie case” the plaintiff must meet two requirements. Minn.Stat. § 145.682, subd. 2 (1998). First, the plaintiff must serve with the complaint an affidavit of the plaintiffs attorney stating that the attorney has reviewed the case with an expert and that in the expert’s opinion the defendant injured the plaintiff due to a deviation from the standard of care. See Minn.Stat. § 145.682, subds. 2, 3. If the statute of limitations prevents expert review prior to serving the complaint, the plaintiff must attach to the complaint an affidavit of his or her attorney explaining these circumstances and serve the affidavit of expert review within 90 days. See Minn.Stat. § 145.682, subd. 3.

Second, the plaintiff must serve an affidavit identifying the experts who will testify at trial, the substance of their testimony, and a summary of the grounds for their opinions within 180 days of the commencement of the suit. See Minn.Stat. § 145.682, subds. 2, 4. Regarding this affidavit of expert identification the statute provides:

The affidavit * * * must be signed by each expert listed in the affidavit and by the plaintiffs attorney and state the identity of each person whom plaintiff expects to call as an expert witness at trial to testify with respect to the issues of 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. Answers to interrogatories that state the information required by this subdivision satisfy the requirements of this subdivision if they are signed by the plaintiffs attorney and by each expert listed in the answers to interrogatories and served upon the defendant within 180 days after commencement of the suit against the defendant.

Minn.Stat. § 145.682, subd. 4(a) (1998). The parties may agree to extend the 180-day time limit or the court may extend it for good cause. See Minn.Stat. § 145.682, subd. 4(b) (1998). Otherwise, “[flailure to comply with [this requirement] results, upon motion, in mandatory dismissal with prejudice of each cause of action as to which expert testimony is necessary to establish a prima facie ease.” Minn.Stat. § 145.682, subd. 6.

In Sorenson we gave notice to future plaintiffs of our interpretation of Minn. Stat. § 145.682, subd. 4. The defendants in Sorenson served with their answer interrogatories seeking an explanation of the basis for plaintiffs medical malpractice claim and the plaintiff subsequently served an affidavit of a physician who would testify as an expert witness at trial. 457 N.W.2d at 190. The defendants then brought a motion to compel plaintiff to answer the interrogatories. See id. The plaintiff provided a supplemental affidavit of this physician that same day and later served answers to the interrogatories upon the defendants. See id. Subsequent to the service of plaintiffs interrogatory answers, the defendants withdrew their pending motion to compel and, after the 180 days expired, brought a motion for summary judgment. See id. Due to these circumstances, we concluded that the defendants were estopped from seeking dismissal pursuant to Minn.Stat. § 145.682. See id. at 193. We explained, however, our expectations regarding affidavits of expert identification and the circumstances under which dismissal pursuant to Minn. Stat. § 145.682 is warranted:

In future cases, plaintiffs will be expected to set forth by affidavit or answers to inteiTogatories, specific details concerning their experts’ expected testimony, including the applicable standard of care, the acts or omissions that plaintiffs allege violated the standard of care and an outline of the chain of causation that allegedly resulted in damage to them.
In deciding whether a procedural dismissal should be granted, the district court should carefully evaluate the degree of prejudice to the defendant caused by the inadequate disclosures. In borderline cases, where counsel for a plaintiff identifies the experts who will testify and give [sic] some'meaningful disclosure of what the testimony -will be, there may be less drastic alternatives to a procedural dismissal.

Id. (citation omitted).

We again addressed Minn.Stat. § 145.682, subd. 4 in Stroud v. Hennepin County Medical Center, 556 N.W.2d 552 (Minn.1996). In that case the plaintiff, as trustee for the heirs of the deceased, provided an affidavit of expert identification which stated in pertinent part, “I, Dr. Tre-dal, will testify that as a result of the breach of the standard of care * * * there was a failure to diagnose and treat a sub-arachnoid hemorrhage which ultimately resulted in a complicated hospital course and death of the [deceased].” Id. at 554. We affirmed the district court’s dismissal of the plaintiffs suit because the affidavit failed to “provide an outline of the chain of causation between the alleged violation of the standard of care and the claimed damages.” Id. at 556.

In Lindberg v. Health Partners, Inc., we also affirmed the dismissal of a suit pursuant to Minn.Stat. § 145.682. 599 N.W.2d 572, 575-79 (Minn.1999). We concluded that the affidavit of expert identification served by the plaintiff contained only “broad and conclusory statements as to causation” and thus did not satisfy the statutory requirements. Id. at 578. We further explained the extent of disclosure required by Minn.Stat. § 145.682, subd. 4:

The statute requires far more information than simply identification of the expert intended to be called at trial or a “general disclosure” as respondent argues, and non-affidavit materials, absence of prejudice to defendant, failure of defendant to prove plaintiffs claim is frivolous or failure of defendant to alert plaintiff to the inadequacy of the affidavit of expert identification will not excuse or justify an affidavit of expert identification falling short of the substantive disclosure requirement. The statute provides for no such exception and it is not for the courts to read into a clear statutory scheme something that plainly is not there.

Id. Significantly, we. filed our Lindberg opinion after the court of appeals and the district court addressed this matter. The Sorenson and Stroud opinions, however, offered clear guidance to lower courts as to the requirements of MinmStat. § 145.682, subd. 4.

The district court correctly concluded Dr. Goodman’s affidavit of expert identification was insufficient because it did not clearly set forth the standard of care, the defendant’s acts or omissions that allegedly violated that standard, and the chain of causation between these violations and the plaintiffs injury. In his affidavit Dr. Goodman addressed alleged injuries to both the esophagus and the vagus nerve. As to the esophagus, Dr. Goodman defined the standard of care by stating “esophageal trauma should be avoided during surgery of this type.” He did not state what particular measures a physician should take to avoid such trauma. He also failed to describe the defendant’s acts or omissions that allegedly violated the standard of care and caused this injury. Regarding causation, Dr. Goodman stated “there was a deviation from the standard of care provided to this patient which caused the patient to have postoperative dysphasia [sic] of undetermined etiology.” The phrase “undetermined etiology” suggests that the cause of Ms. Anderson’s injury is unknown and perhaps unrelated to the surgery performed by Dr. Rengachary. Thus, Dr. Goodman failed to adequately describe the alleged negligence on the part of Dr. Ren-gachary and its relationship to Ms. Anderson’s injury.

Dr. Goodman also discussed a possible injury to the vagus nerve. He explained that the standard of care requires avoiding injury to the vagus nerve but again failed to describe the actions a physician should take to avoid such injury. He also did not identify the acts or omissions of Dr. Ren-gachary that violated the standard of care or even state definitively that the vagus nerve was in fact injured. Dr. Goodman made no attempt to outline a chain of causation resulting in injury to the vagus nerve. Because this affidavit clearly fails to fulfill the statutory requirements, the district court did not abuse its discretion in dismissing Ms. Anderson’s suit and denying her request for reconsideration.

II.

In her Rule 115.11 letter requesting reconsideration, Ms. Anderson argued that Dr. Goodman’s affidavit was sufficient but also requested a 30-day extension to submit a supplemental affidavit. The court of appeals concluded that the district court abused its discretion in denying this request because Ms. Anderson’s affidavit identified the experts who would testify and provided “some meaningful disclosure” of their testimony. Anderson, 591 N.W.2d at 514. The court relied on Sorenson to conclude that a “less drastic” alternative was appropriate. Id. In Sorenson, we stated in dicta that “borderline cases” may require a remedy less drastic than dismissal with prejudice. 457 N.W.2d at 193. We conclude, however, in contrast to the first concurrence/dissent, that this appeal hardly exemplifies a borderline case because the affidavit has serious deficiencies and does not provide any meaningful disclosure regarding how the standard of care was violated or what that standard required.

The court of appeals based its holding in part on the lack of notice to Ms. Anderson prior to the 180-day deadline that the affidavit may not satisfy the statutory requirements. The court distinguished this case from others in which the plaintiff received such notice. See Anderson, 591 N.W.2d at 513 n. 2. The previous decisions of this court, however, provided some degree of notice to Ms. Anderson. As described above, both Sorenson and Stroud state that an affidavit of expert identification must set forth the standard of care, the acts or omissions violating that standard, and the chain of causation.

Further, we did not suggest in either Sorenson or Stroud that a defendant must notify a plaintiff of the insufficiency of an affidavit. In Stroud we noted that the plaintiffs failure to submit a supplemental affidavit was “especially troubling” because the defendant had put the plaintiff on notice that it considered the affidavit insufficient. 556 N.W.2d at 556. This reasoning, however, would not support the conclusion that dismissal is warranted only where the plaintiff has such notice. In fact, we rejected the argument that the defendant’s failure to bring a motion to compel answers to interrogatories es-topped the defendant from seeking dismissal. See id. at 556-57. In Sorenson, we held that the defendant was estopped from bringing a motion for dismissal because it withdrew its motion to compel answers to interrogatories subsequent to service of plaintiffs supplemental affidavit and interrogatory answers. 457 N.W.2d at 193. The defendant in Sorenson did more than fail to notify the plaintiff of the insufficiency of these disclosures; the defendant acted in a manner suggesting it did not object to them. Additionally, in Lind-berg we noted, “[Fjailure of defendant to alert plaintiff to the inadequacy of the affidavit of expert identification will not excuse or justify an affidavit of expert identification falling short of the substantive disclosure requirement.” 599 N.W.2d at 578.

No language in Minn.Stat. § 145.682 suggests that a plaintiff is entitled to notice of the insufficiency of the affidavit prior to the expiration of the 180 days. In effect, the court of appeals has created a good-faith exception to the statute of uncertain proportions. The reasoning underlying the court of appeals’ opinion would justify an extension of the time limit in any number of cases where the plaintiff serves an insufficient affidavit.

A plaintiff required to file an affidavit of expert identification pursuant to Minn.Stat. § 145.682, subd. 4 does have an opportunity to obtain an extension of the 180-day time limit. The statute provides that a plaintiff may extend the time limit by agreement with the defendant or by order of the court for good cause. See Minn.Stat. § 145.682, subd. 4(b). Further, we have held that “the statute must be read in conjunction with Minn. R. Civ. P. 6.02 * ⅜ ⅜.” Stern v. Dill, 442 N.W.2d 322, 324 (Minn.1989); see also Parker v. O’Phelan, 414 N.W.2d 534, 537 (Minn.App.1987), aff'd without opinion, 428 N.W.2d 361 (Minn.1988). Rule 6.02 states:

When by statute, by these rules, by a notice given thereunder, or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion, (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect

Minn. R. Civ. P. 6.02. Excusable neglect exists where the plaintiff (1) has a reasonable suit on the merits, (2) has a reasonable excuse for failure to comply with time limit set forth by Minn.Stat. § 145.682, subd. 2, (3) acted with due diligence after receiving notice of the time limit, and (4) no substantial prejudice results to the defendant. See Bellecourt v. United States, 784 F.Supp. 623, 639 (D.Minn.1992) (citing Parker, 414 N.W.2d at 537), aff'd in part, dismissed in part, 994 F.2d 427, 429 (8th Cir.1993).

Ms. Anderson did not bring a motion before the district court for an extension of the 180-day time limit pursuant to Rule 6.02 or otherwise raise the issue of excusable neglect. Thus, we may not consider the issue on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988). Regardless, the record does not support a finding of excusable neglect. In her letter requesting reconsideration, Ms. Anderson did not outline any circumstances preventing her from serving a more detailed affidavit within the time limit but rather argued that Dr. Goodman’s affidavit satisfied the statutory requirements. Further, contrary to Ms. Anderson’s argument, the failure of her attorney to submit an adequate affidavit is not the sort of inadvertence for which we would excuse her.

Our application of Minn.Stat. § 145.682 does not represent an unconstitutional redrafting of the statute as Ms. Anderson argues but rather gives effect to its plain meaning. When a statute is unambiguous, we will not examine the legislature’s intent. See Tuma v. Commissioner of Econ. Sec., 386 N.W.2d 702, 706 (Minn.1986).

The language of Minn.Stat. § 145.682 is so plain and clear that it leaves little doubt as to the result here. Thus, we hold that the district court did not abuse its discretion in denying Ms. Anderson’s request for reconsideration of the dismissal of her suit and for an additional 30 days to comply with the statutory requirements.

Reversed.

PAUL H. ANDERSON, J.

(concurring in part, dissenting in part).

I agree with the majority’s conclusion that Dr. Goodman’s affidavit is deficient. See Minn.Stat. § 145.682, subd. 4 (1998). But I disagree with the majority’s decision to reverse the court of appeals by holding that the district court properly denied respondent Kathleen Anderson’s request for a 30-day extension to file a supplemental affidavit.

As I have previously stated, I do not find the application of Minn.Stat. § 145.682 (1998) to be as “uncomplicated and unambiguous” as does the majority. See Lindberg v. Health Partners, Inc., 599 N.W.2d 572, 579 (Minn.1999) (Anderson, Paul H., J., concurring specially). Nor do I conclude, as the majority does, that the statute’s language is “so plain and clear” that it leaves little doubt about the result in this case. Rather, I conclude that dismissal of Anderson’s action at this stage of the proceedings is inconsistent with both the public policy concerns addressed by the legislature in enacting section 145.682 and judicial precedent expressed in case law. The court of appeals got it right when it stated:

directing the district court to allow Anderson to supplement her affidavit would best serve the intent of the legislature, the judicial policy favoring disposal of cases on their merits, and the admonition of the Sorenson court that alternatives less drastic than dismissal be considered when the plaintiff has identified experts and given some meaningful disclosure of their testimony.

Anderson v. Rengachary, 591 N.W.2d 511, 514 (Minn.App.1999).

The majority focuses much of its analysis on the question of Dr. Rengachary’s failure to give any notice of the affidavit’s deficiencies until after expiration of the 180-day statutory period and then concludes that such failure does not warrant an extension of time to file a supplemental affidavit. But the critical question in this case has a much broader focus. This broader focus is required because Dr. Goodman’s affidavit fulfilled most of the primary requirements of section 145.682, subd. 4. The affidavit was filed in a timely manner, it identified the expert likely to testify at trial on malpractice and causation, and it demonstrated a good-faith effort to comply with the disclosure requirements. This good faith effort is demonstrated by the fact that we can conclude from the affidavit that the problems with Anderson’s vagus nerve were caused by the surgery or aftercare and that such problems should not normally result from either surgery or aftercare. More particularly, we can ascertain from the affidavit that: (1) Anderson had postoperative dys-phagia, (2) there was significant trauma to her esophagus, (3) a possible cause for the dysphagia was an injury to the vagus nerve either during surgery or during aftercare when Anderson was in a surgical collar, (4) trauma to the vagus nerve should not have occurred either during surgery or during aftercare, and (5) when such trauma occurs, it is a deviation from the standard of care.

I concede that Dr. Goodman’s affidavit is inartfully drafted and flawed, but it is not so flawed that Anderson’s action must be dismissed at this stage of the proceedings. Such a harsh consequence is not mandated by statute or case law. See Minn.Stat. § 145.682, subd. 4(b) (1998); Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 193 (Minn.1990). Nor is such a consequence consistent with our recognition that “a primary objective of the law is to dispose of cases on the merits.” Sorenson, 457 N.W.2d at 192.

The majority asserts that under the abuse of discretion standard we must affirm the district court’s refusal to grant an extension. Section 145.682 is a relatively recent statute, having been enacted in 1986. See Act of March 25, 1986, ch. 455, § 60, 1986 Minn. Laws 871-72. All of our decisions applying the statute have been rendered in the past decade. See Lindberg, 599 N.W.2d 572; Stroud v. Hennepin County Med. Ctr., 556 N.W.2d 552 (Minn.1996); Sorenson, 457 N.W.2d 188. Our clearest direction to district courts on the exercise of their discretion was in Soren-son where we stated that in borderline cases when prejudice is absent, alternatives less drastic than procedural dismissal should be employed. See Sorenson, 457 N.W.2d at 193. I fear that by affirming this ease on the grounds that there was no abuse of discretion, we will now send a message to district courts that they have no alternative but to dismiss whenever an expert affidavit required by section 145.682 is even marginally deficient. In essence, the majority’s decision transforms this statute from a shield against unwarranted medical malpractice litigation into a sword that will be used to prematurely cut off actions with a “sharp but clean edge” before it can be properly determined whether they should be disposed of on the merits.

GILBERT, Justice

(concurring in part and dissenting in part).

I concur in the majority’s opinion relating to the sufficiency of the expert’s affidavit based on our recent decisions in Sorenson v. St Paul Ramsey Medical Center, 457 N.W.2d 188 (Minn.1990), Stroud v. Hennepin County Medical Center, 556 N.W.2d 552 (Minn.1996), and Lindberg v. Health Partners, Inc., 599 N.W.2d 572 (Minn.1999). However, I respectfully dissent on reversing the court of appeals’ decision to remand. Respondent should be allowed to file a supplemental affidavit.

Prior to the enactment of Minn.Stat. § 145.682 in 1986, we had used restraint in reviewing the adequacy of pleadings and tried to avoid such harsh summary pretrial dispositions of serious cases on procedural grounds. Now, we seem to be reverting back to code pleading in medical malpractice cases, requiring plaintiffs to initially allege all detailed facts sufficient to prove the cause of action. In fact, we became a notice pleading state when this court promulgated the rules of civil procedure, effective January 1, 1952. Notice pleading under Minn. R. Civ. P. 8.01 merely “requires a short and plain statement of the claim * ⅜ *.” We have interpreted this language as only requiring a “broad general statement which may express conclusions,” in contrast to code pleading. Northern States Power Co. v. Franklin, 265 Minn. 391, 394, 122 N.W.2d 26, 29 (1963). Under both our current rule and the code pleading system, we had preferred to dispose of matters on the merits rather than on technical procedural grounds. See, e.g., Minn. R. Civ. P. 61; Rees v. Storms, 101 Minn. 381, 384, 112 N.W. 419, 420 (1907).

We now have used this legislative initiative embodied in Minn.Stat. § 145.682 that dictates the form of pleadings, pre-trial discovery disclosures, court rules and establishes evidentiary requirements to change our long-standing precedent and modify our rules. In doing so, we appear to defer to the legislature on establishing judicial procedures that are inherently in the province of the judiciary. See, e.g., State v. Johnson, 514 N.W.2d 551, 553-54 (1994). Recently, in Holmberg v. Holmberg, 588 N.W.2d 720, 723-26 (Minn.1999) and Irwin v. Surdyk’s Liquor, 599 N.W.2d 132, 137-42 (Minn.1999), we reiterated the importance of maintaining our jurisdiction over court rules and procedures in the context of both separation of powers and our inherent power to establish rules of court and those governing lawyers.

Importantly, Minn.Stat. § 480.051 (1998) specifically grants to the supreme court the power to regulate pleadings, procedures and form in all civñ actions. Accordingly, our court rules already cover these issues. We have rules of evidence relating to testimony by experts, disclosure of facts or data underlying expert opinions and even provide for court appointed experts. See Minn. R. Evid. 702, 70S and 706. We even have rules relating to depositions and discovery of experts, Minn. R. Civ. P. 26.02(d), and provide that such discovery “may be obtained only as follows * ⅜ *.” See also Minn. R. Civ. P. 35.04 (governing medical disclosures and depositions of medical experts). Similarly, we have specific rules regarding summons and complaints in Minn. R. Civ. P. 4.01 and 8.01. In fact, Minn. R. Civ. P. 7.01, which relates to pleadings, defines what is sufficient and provides that “no other pleading shall be allowed, except that a court may order a reply to an answer.”

The more pertinent conceptual question may relate to the constitutional separation of powers doctrine. The respondent in this matter did raise some constitutional issues but did not raise a separation of powers challenge to the statute. Nor was the separation of powers issue raised in Sorenson, Stroud, or Lindberg. Because the issue has neither been briefed nor argued, it should not be considered by the majority. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988). Nonetheless, this question should give this court pause before adopting the legislature’s directives in such a wholesale fashion when this legislation may be at odds with our long established precedent and rules.

Given that we are a notice pleading state and that we have historically preferred to decide cases on their merits, parties should be permitted to reasonably utilize the “good cause shown” exception offered to them by Minn.Stat. § 145.682, subd. 4(b) (1998) to allow more time to correct any perceived errors in their affidavits. The statute was never meant to require plaintiffs in medical malpractice cases to literally try their cases in pre-trial affidavits. I would affirm the court of appeals on the issue of extension of time.

      . Ms. Anderson served with the complaint an affidavit of her attorney explaining he was unable to obtain expert review prior to commencing the case due to the statute of limitations. He stated in the October 1 affidavit that he "reviewed the facts of this case 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.”

      . On May 13, 1999, Ms. Anderson served a supplemental affidavit of Dr. Goodman on Dr. Rengachary.

      . Medical malpractice cases generally require expert testimony and a plaintiff has a significant burden of proof:
      To establish a prima facie case of medical malpractice, a plaintiff must introduce expert testimony on the standard of care required from a physician under the circumstances and on defendant’s departure from that standard. Furthermore, plaintiff must present expert testimony showing that defendant’s action or inaction was a direct cause of the [injury].
      ⅜ * Testimony must show that it was more likely that [injury] occurred from defendant’s negligence than from anything else.

        Walton v. Jones, 286 N.W.2d 710, 714-15 (Minn.1979) (citations omitted); see also Sorenson, 457 N.W.2d at 191.

      . The affidavit set forth the following statements regarding causation:
      Based upon a reasonable degree of medical certainty, it is more probable than not, that if, among other things, Debra Lindberg had been instructed to seek medical treatment at the time of her phone call on the morning of March 28, 1994, Lukas Stewart Lind-berg would not have died.
      Based upon a reasonable degree of medical certainty, Lukas Stewart Lindberg died as a result of the negligent and careless conduct of the Defendants and/or their agents and employees, including midwife Sharon Nichols and Donne Mathiowitz.

        Lindberg, 599 N.W.2d at 575.

      . Ms. Anderson also argued in her brief to this court that Minn.Stat. § 145.682 is unconstitutional because it denies her equal protection and due process. Her attorney conceded at oral argument that as she did not raise this issue at the district court it is not properly before this court. See Thiele, 425 N.W.2d at 582.

      . Minnesota Statutes § 145.682, subd. 4, provides as follows:
      Subd. 4. (a) The affidavit required by subdivision 2, clause (2), must be signed by each expert listed in the affidavit and by the plaintiff's attorney and state the identity of each person whom plaintiff expects to call as an expert witness at trial to testify with respect to the issues of 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. Answers to interrogatories that state the information required by this subdivision satisfy the requirements of this subdivision if they are signed by the plaintiff's attorney and by each expert listed in the answers to interrogatories and served upon the defendant within 180 days after commencement of the suit against the defendant.
      (b) The parties or the court for good cause shown, may by agreement, provide for extensions of the time limits specified in subdivision 2, 3, or this subdivision. Nothing in this subdivision may be construed to prevent either party from calling additional expert witnesses or substituting other expert witnesses.
      (c) In any action alleging medical malpractice, all expert interrogatory answers must be signed by the attorney for the party responding to the interrogatory and by each expert listed in the answers. The court shall include in a scheduling order a deadline prior to the close of discovery for all parties to answer expert interrogatories for all experts to be called at trial. No additional experts may be called by any party without agreement of the parties or by leave of the court for good cause shown.
      Minn.Stat. § 145.682, subd. 4 (1998).

      . Lindberg, 599 N.W.2d at 578 (stating "Dismissal is mandated under Minn.Stat. § 145.682, subd. 6, when the disclosure requirements are not met and, while we certainly recognize that the statute may have harsh results in some cases, it cuts with a sharp but clean edge.") (emphasis added).

      . See Act of March 25, 1986, ch. 455, § 60, 1986 Minn. Laws 871-72.

      . See Pirsig on Minnesota Pleading §§ 1, 21-23 (4th ed. 1956).


source: Caselaw Access Project

author: STRINGER, Justice.

license: Public Domain

text:
    In the Matter of Charles Randal ASHMAN.
    No. C8-98-2078.
    Supreme Court of Minnesota.
    March 16, 2000.

      Michael Hatch, Attorney General of Minnesota, St. Paul, Amy Klobuchar, Hen-nepin County Attorney, Gayle C. Hendley, Assistant Hennepin County Attorney, Minneapolis, for respondent.
    William E. McGee, Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, Hennepin County Public Defender’s Office, amicus curiae, Minneapolis.
   OPINION

STRINGER, Justice.

Appellant Charles Randal Ashman has a history of criminal sexual conduct beginning in 1981 and continuing in 1982 and 1985. In 1991 he was again arrested and was charged with criminal sexual conduct in the second-degree in violation of Minn. Stat. § 609.343 (1990) and criminal sexual conduct in the fourth-degree in violation of Minn.Stat. § 609.345 (1990). Because of his three previous convictions he was subject to referral by the court for civil commitment. See Minn.Stat. § 609.1351 (1990). In exchange for the county attorney’s agreement to drop the second-degree criminal sexual conduct charge carrying a mandatory 37 year sentence and the further condition, as expressed by appellant’s attorney, “that the court at the time of sentencing would not refer this matter for the possibility of judicial commitment,” appellant pled guilty to the fourth-degree criminal sexual conduct charge. Seven years later, but before completing his sentence, the Department of Corrections (DOC) petitioned for appellant’s civil commitment pursuant to Minn.Stat. § 253B.185, subd. 1 (1998), as a sexual psychopathic personality and a sexually dangerous person. Appellant challenged the commitment asserting that it violated the terms of his 1991 plea agreement. The district court granted the DOC’s petition for judicial commitment finding that the terms of the plea agreement were satisfied, but upon appellant’s renewed motion the district court reversed itself. The court dismissed the DOC’s petition based on testimony provided by the defense attorney representing appellant in 1991 that at the time of the 1991 plea and sentencing the parties intended that appellant would not be subject to civil commitment at any time unless appellant reoffended. The court of appeals reversed the district court holding that the county attorney had no authority to bind the DOC to such an agreement. See In re Ashman, 1999 WL 262147 (Minn.App. May 4, 1999). We affirm the court of appeals but on different grounds.

Appellant’s history of criminal sexual conduct began in 1981 when he sexually assaulted a 14-year-old girl in Crookston, Minnesota. He pled guilty to third-degree criminal sexual conduct on January 4, 1982 and was sentenced to 21 months incarceration, which was suspended conditioned on eight months treatment at Northwest Regional Correctional Center. The day after entering his plea he attempted to sexually assault a woman at knifepoint in East Grand Forks, Minnesota. For that offense he pled guilty to attempted first-degree criminal sexual conduct and was sentenced to 54 months, later reduced to 36 months. Four months after his discharge on January 5, 1985, in Crookston he again sexually assaulted a woman. He pled guilty to third-degree criminal sexual conduct and was sentenced in an upward durational departure to 82 months but was paroled on January 27, 1990. He committed the offense that is now before this court sixteen months later, on May 19, 1991, when he sexually assaulted a 13-year-old girl while on a fishing trip and was charged with second- and fourth-degree sexual conduct. Because of appellant’s previous convictions for criminal sexual conduct, for his 1991 offense he was subject to both enhanced sentencing as a pattern sex offender and referral by the court for civil commitment as a psychopathic personality. See Minn. Stat. § 609.1351.

During a Rasmussen hearing on November 8, 1991 the parties reached a plea agreement: appellant would plead guilty to criminal sexual conduct in the fourth-degree, accept the maximum ten year sentence and cooperate in another police investigation and, in exchange, the state would dismiss the more serious charge of criminal sexual conduct in the second degree, carrying a maximum 37 year sentence. The agreement also included a provision relating to appellant being subject to a civil commitment referral and it is the terms of this aspect of the plea agreement that is the subject of this appeal.

Because appellant’s attorney was concerned for appellant’s safety as a result of his cooperation in another criminal investigation, she requested that the plea be sealed and that additional conditions of the agreement relating to his cooperation be kept out of the record. During the hearing on the plea agreement the prosecutor referred to the additional conditions: “There are additional conditions of the plea negotiation which counsel has requested not be placed on the record. Those matters will be put into writing and will become part of the plea agreement.” The additional conditions were never put into the record or in writing.

The petition to enter a plea of guilty, which was drafted by appellant’s attorney and signed by appellant, provides a skeletal explanation of the terms of the agreement: “plea to lesser (Ct.II) dismiss Ct. I. 10 year sentence under Minn.Stat. § 609.1352. Court will not refer for judicial commitment.” In presenting the terms of the plea agreement to the court, appellant’s attorney explained “it was my understanding that we all agree that at this time the agreement would be to sentence my client pursuant to 609.1352 and that there would not be under 609.1351, that the Court at the time of sentencing would not refer this matter for the possibility of judicial commitment.” (emphasis added.) The county attorney and the appellant specifically affirmed that those were the terms of the plea agreement. The court then stated that its acceptance of the plea agreement was conditioned upon its review of the terms of the agreement that were not in writing nor discussed in court. The court did not refer appellant for civil commitment at sentencing.

Appellant’s supervised release date from prison was May 30, 1998. Pursuant to Minn.Stat. § 253B.185, subd. 1, on May 18, the DOC civil commitment referral coordinator prepared and the county attorney approved for good cause a petition to commit appellant as a sexual psychopathic personality and a sexually dangerous person. The petition was filed citing appellant’s numerous incidents of criminal sexual conduct prior to his incarceration, the conduct for which he was incarcerated and non-sexual altercations occurring while he was in prison. The petition noted that appellant did not participate in sex offender or chemical dependency treatment programs and concluded that appellant was a threat to others and was likely to reoffend: “[Appellant] appears to be at grave risk for re-offense. He continues to use threats and assaultive behavior. Despite opportunities and exposure to sex offender treatment, he has refused to participate, denies his offense, and lacks any sense of remorse.”

Appellant moved to dismiss the petition asserting that it violated his plea agreement relating to referral for judicial commitment. In a hearing on May 29, 1998 appellant testified that his understanding of the agreement was “that I could not get more than ten years in prison and * * * [t]hat no civil commitment could be filed against me at any time unless I would commit a similar crime.” Appellant also testified that at the 1991 plea hearing he was concerned about civil commitment but he was also concerned about the possibility of 37 years in prison for a conviction of second-degree criminal sexual conduct, and this factored into his decision “[pjroba-bly the same amount as the commitment.”

On June 17 the district court issued an order denying appellant’s motion to dismiss the commitment petition, ruling that the plea agreement specifically provided that the court would not refer appellant for civil commitment at the time of sentencing and since the court did not do so, the terms of the plea agreement had been satisfied. The court also noted that there was no evidence that the agreement was intended to bar commitment proceedings at the conclusion of appellant’s sentence.

Appellant filed a new motion to dismiss on September 30, 1998, raising additional defenses of lack of subject matter jurisdiction and res judicata. This motion was supported by affidavit testimony of appellant’s attorney in the 1991 plea agreement proceeding, who had been unavailable for the proceeding in May, that her understanding of the plea agreement was that “the State would never move for judicial commitment based on this offense or on [appellant’s] prior convictions.” In the hearing on appellant’s renewed petition appellant’s attorney clarified that she meant by that statement that while appellant was under the control of the Commissioner of Corrections, neither the county attorney nor the judge would seek civil commit-menfi-thus his guilty plea could not be the basis for civil commitment absent future criminal sexual misconduct. She also stated:

[Appellant] would never have taken the agreement if it only meant that the judge would not at time of sentencing move for judicial commitment[.] * * * The reason that he chose to plead guilty was because he was assured that there would be no judicial commitment based on his plea of guilty in that case.

When questioned why the plea transcript referenced only referral by the court at sentencing, appellant’s attorney responded that her handwritten note in the petition was shorthand for the agreement that the prosecutor would not move for judicial commitment and the judge would not judicially commit. She also explained that her understanding of the civil commitment statutes at the time was that either the court would make a determination whether civil commitment was appropriate and forward the determination to the county attorney or the county attorney would act as the petitioning party. Since the court approved the plea agreement and the county attorney agreed not to commit, she thought that “all the bases were covered.”

The court reviewed its earlier dismissal of appellant’s motion, reversed itself and granted the motion ruling that it “now has serious reservations as to whether the prosecution has fulfilled its part of the plea agreement” based on the testimony of appellant’s attorney that in 1991 the parties to the plea agreement intended that “there would never be a civil commitment of [appellant] based on his conduct up to the time of the plea negotiation. It was intended that civil commitment would only be pursued in the event that [appellant] engaged in further sexual misconduct at some later time.” The court noted that while in prison appellant on several occasions told prison officials that his plea agreement barred civil commitment and that “it is not clear what effort was made by prison officials who heard these assertions to explore the accuracy of [appellant’s] statements in a timely manner.” The court concluded that since appellant had not engaged in any sexual misconduct since 1991 and since in close cases plea agreements must be construed in favor of defendants, justice to the appellant required dismissal of the petition.

The court of appeals reversed applying basic contract law. The court reasoned that because the DOC, the petitioner, was not a party to the 1991 plea agreement and the county attorney has no authority to bind the DOC in a civil commitment proceeding, the DOC was not bound by the plea agreement. See In re Ashman, 1999 WL 262147 at 2-4 (Minn.App. May 4, 1999). The court also held that because the county attorney’s decision to accept a plea in a criminal proceeding involves different considerations than a determination that good cause exists to file a civil petition for commitment, the 1991 plea did not preclude a determination of good cause for the civil commitment petition in 1998. See id. at 4. The court of appeals also noted “we are not convinced that the parties intended anything more than that the sentencing court would not forward a recommendation for commitment under Minn. Stat. § 609.1351 (1990), as indicated in the plea petition and in the transcript of the plea proceeding.” Id.

In Minnesota plea agreements have been analogized to contracts and principles of contract law are applied to determine their terms. See State v. Spaeth, 552 N.W.2d 187, 194 (Minn.1996). Whether there is ambiguity in a contract is a legal determination. See Republic Nat’l Life Ins. Co. v. Lorraine Realty Corp., 279 N.W.2d 349, 354 (Minn.1979). Thus, in our determination whether the district court erred in holding that there was an ambiguity in the plea agreement we are not bound by the district court’s conclusion. See Lamb Plumbing & Heating Co. v. Kraus-Anderson of Minneapolis, Inc., 296 N.W.2d 859, 862 (Minn.1980). Where a defendant’s liberty interests are implicated in a criminal proceeding, as here, we generally “temper contract principles with ‘safeguards to insure the defendant [receives] what is reasonably due in the circumstances,’ ” Spaeth, 552 N.W.2d at 194 (quoting Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971)), and in close cases, plea agreements should be construed to favor defendants. See State v. Witte, 308 Minn. 214, 216, 245 N.W.2d 438, 439 (1976). But where the plea agreement is not susceptible to more than one construction, as a matter of law there is no ambiguity. See Republic Nat’l, 279 N.W.2d 349 at 354.

Applying these principles to the issue here, we believe the terms of the plea agreement were clearly and unequivocally expressed when on November 8, 1991 appellant’s attorney presented them to the district court, the county attorney and appellant acknowledged them, and the district court approved them. In the plea hearing transcript appellant’s attorney recited that the plea agreement was that “at the time of sentencing” appellant would not be referred for civil commitment. As the plea agreement was clearly expressed by appellant’s attorney and confirmed by appellant to represent the plea, the fact that appellant, while in prison, claimed the agreement to be something else-that it barred the state from petitioning for the civil commitment absent future sexual misconduct-or the fact that appellant’s attorney later made the same claim does not create an ambiguity. The terms of the plea are not susceptible to more than one meaning. An after-the-fact assertion that the terms were different does not render ambiguous that which was clear and unequivocal when the agreement was made.

While our ruling need not be based on anything more than the record of the plea proceeding, we note that appellant’s attorney testified that the sole purpose of entering the plea agreement was to avoid a future referral of civil commitment by the court, and this argument has been advanced repeatedly throughout this appeal. Appellant apparently had a different point of view however, as he testified on June 15, 1998 that he pled for two reasons-to avoid civil commitment and to avoid the risk of a 37 year prison sentence as opposed to the 10 year sentence he received. Avoiding civil commitment was an important consideration to appellant in 1991, but by his own testimony it was not the only consideration, nor does it defy logic that he would enter into such an agreement even if he could be committed at the end of his sentence.

The plea agreement here unambiguously stated that the court would not refer appellant for civil commitment at the time of sentencing, and because the court upheld its end of the bargain, the plea agreement terms were satisfied.

Affirmed.

      . "When a court sentences a person under [statutes covering criminal sexual conduct] the court shall make a preliminary determination whether in the court's opinion a petition * * ⅜ may be appropriate.” Minn.Stat. § 609.1351 (1990).

      . Minn.Stat. § 609.1352 was repealed and re-codified as Minn.Stat. § 609.108 (1998). See Act of Apr. 6, 1988, ch. 367, art. 6, §§ 5, 15, 16, 1998 Minn. Laws 727-28, 734-35. Minn. Stat. § 609.108, subd. 1, states in relevant part:
      A court shall commit a person to the commissioner of corrections for a period of time that is not less than double the presumptive sentence under the sentencing guidelines and not more than the statutory maximum * ⅜ * if;
      (1) the court is imposing [an executed sentence] ⅜ * * on a person convicted of committing or attempting to commit [criminal sexual conduct] * ⅜ ⅜ if it reasonably appears to the court that the crime was motivated by the offender's sexual impulses or was part of a predatory pattern of behavior that had criminal sexual conduct as its goal;
      (2) the court finds that the offender is a danger to public safety; and
      (3) the court finds that the offender needs long-term treatment or supervision beyond the presumptive term of imprisonment and supervised release ⅜ ⅜ *.
      Minn.Stat. § 609.108, subd. 1 (1998).

      ."Before commitment proceedings are instituted, the facts shall first be submitted to the county attorney, who, if satisfied that good cause exists, will prepare the petition." Minn.Stat. § 253B.185, subd. 1.

      . Minn.Stat. § 253B.02, subd. 18b (1998), defines a sexual psychopathic personality as the existence of conditions such as:
      emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of personal acts, ⅛ ⅜ * which render the person irresponsible for personal conduct with respect to sexual matters, if the person has evidenced, by a habitual course of misconduct in sexual matters, an utter lack of power to control the person's sexual impulses and, as a result, is dangerous to other persons.
      Minn.Stat. § 253B.02, subd. 18c (1998), defines "sexually dangerous person” as a person who:
      (1)has engaged in a course of harmful sexual conduct ⅜ * *;
      (2) has manifested a sexual, personality, or other mental disorder or dysfunction; and
      (3) as a result, is likely to engage in acts of harmful sexual conduct * * *.

      . "While in prison, [appellant] has been involved in a number of altercations. [Appellant] has been disciplined for fighting, gambling and for possession of drugs. In late 1993, [appellant] had a nail studded board with which he intended to harm another inmate with whom he had had a physical altercation.” DOC Petition for Civil Commitment at 4-5.

      . Taking into account the plea transcript, appellant's attorney’s October 12 testimony and her affidavit there are no less than three versions of the 1991 plea agreement: first, the agreement prohibited a judicial recommendation "at the time of sentencing"; second, the agreement prohibited the state from initiating civil commitment procedures against appellant for that particular crime; and third, the agreement prohibited the state from ever using that crime, or appellant’s previous crimes, in a civil commitment determination. Far from shedding light on the parties’ intent, the attorney’s testimony only casts a cloud of confusion over an otherwise unambiguous agreement.

      . We have strong reservations as to whether either the county attorney or the district court had authority to enter into a plea agreement that would preclude the filing of a petition for civil commitment as appellant claims, but we need not reach that issue. In Call v. Gomez, 535 N.W.2d 312, 320 (Minn.1995), we held that civil commitment is remedial because it is for treatment purposes, not for preventive detention and in In re Linehan, 557 N.W.2d 171, 187-89 (Minn.1996), we held that the purpose of Minn.Stat. § 253B.02 subd. 18c, which established procedures for civilly committing criminally dangerous people, was for treatment, and thus the act was facially civil and not punitive. As the court of appeals observed, we note that a determination of good cause to initiate a petition for civil commitment involves different considerations than a county attorney's decision whether to accept a plea.


author: Alan C. Page Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Ronald O. YLITALO, an Attorney at Law of the State of Minnesota.
    No. C1-85-1550.
    Supreme Court of Minnesota.
    March 29, 2000.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Ronald O. Ylitalo has committed professional misconduct warranting public discipline, namely, respondent failed to file employer withholding tax returns for most of 1992 to 1994 and 1996 to 1997, failed to sign a contingency fee agreement with a client, failed to execute a proposed prehearing statement, and failed to timely respond to the notice of investigation of the complaint, in violation of Rules 8.1(a)(3), 8.4(a) and (d), and 1.5(c), Minnesota Rules of Professional Conduct.

Respondent admits his conduct has violated the Rules of Professional Conduct and has entered into a stipulation with the Director wherein they jointly recommend that the appropriate discipline is a 90-day suspension.

The assigned referee herein has accepted the stipulation and filed it with the court and has made a recommendation that this court approve the discipline set forth in the stipulation, and further recommends that the suspension begin May 1, 2000.

This court has independently reviewed the file and approves the jointly-recommended disposition, and the recommendation of the referee.

IT IS HEREBY ORDERED that respondent Ronald O. Ylitalo is suspended from practice for 90 days, commencing on May 1, 2000, that the reinstatement hearing is not waived, and that respondent pay $900 in costs and disbursements pursuant to Rule 24, Rules on Lawyers Professional Responsibility.

BY THE COURT:

Alan C. Page Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Thornton P. ANDERSON, an Attorney at Law of the State of Minnesota.
    No. C6-92-1241.
    Supreme Court of Minnesota.
    April 3, 2000.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Thornton P. Anderson has committed professional misconduct warranting public discipline, namely, respondent has failed to make reasonable efforts to pay or make payments on a valid law-related judgment in favor of a client, arising out of the same facts as a prior disciplinary matter in violation of Rule 8.4(d), Minnesota Rules of Professional Conduct. See In re Anderson, 494 N.W.2d 260 (Minn.1992).

Respondent admits his conduct has violated the Rules of Professional Conduct, waives his rights pursuant to Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director wherein they jointly recommend that the appropriate discipline is a public reprimand and two years of unsupervised probation subject to the following conditions:

(1) Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate fully with the Director’s investigation of any allegations of unprofessional conduct which may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
(2) Respondent shall abide by the Minnesota Rules of Professional Conduct.
(3) Respondent shall make monthly payments of at least $50 to the client on the judgment she has against respondent. Respondent shall provide proof to the Director’s Office of each monthly payment.
(4) Respondent shall make affirmative efforts to (a) increase the amount of the monthly payments to the client and/or (b) obtain financing to either make a lump sum payment to the client on the judgment or to make a complete settlement offer in satisfaction of the judgment. Respondent shall provide the Director’s Office with proof of his efforts at least every three months during the period of probation. In the event that the parties settle, evidenced by a copy of a satisfaction of judgment supplied to the Director’s Office, respondent’s reporting obligations shall be terminated.
(5) Respondent agrees that if at the end of the two-year period of probation the judgment has not been completely satisfied, the Director, upon motion to the Court and without need for a petition for disciplinary action, may request the Court to e3rtend respondent’s probation for an additional period of two years, again subject to the other conditions set out above.

This court has independently reviewed the file and approves the jointly recommended disposition.

IT IS HEREBY ORDERED that respondent Thornton P. Anderson is publicly reprimanded and placed on two years of unsupervised probation, subject to the agreed-upon conditions set forth above.

BY THE COURT:

Alan C. Page

Alan C. Page Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Robert W. DYGERT, an Attorney at Law of the State of Minnesota.
    No. C4-00-409.
    Supreme Court of Minnesota.
    April 3, 2000.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Robert W. Dygert has committed professional misconduct warranting public discipline, namely, respondent induced clients and others to invest in a family-owned business by failing to provide adequate information regarding the financial status of the business and by promising to personally guarantee the investment, knowing that his guarantee was worthless, in violation of Rules 1.8(a) and 8.4(c), Minnesota Rules of Professional Conduct.

Respondent admits his conduct has violated the Rules of Professional Conduct, waives his rights pursuant to Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director wherein they jointly recommend that the appropriate discipline is disbarment and payment of $900 in costs pursuant to Rule 24, RLPR. This court has independently reviewed the file and approves the jointly recommended disposition.

IT IS HEREBY ORDERED that respondent Robert W. Dygert is disbarred and that he pay $900 in costs and disbursements pursuant to Rule 24, RLPR.

BY THE COURT:

Alan C. Page

Alan C. Page Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST William D. PAUL, an Attorney at Law of the State of Minnesota.
    No. C9-00-311.
    Supreme Court of Minnesota.
    April 4, 2000.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent William D. Paul has committed professional misconduct warranting public discipline, namely, respondent neglected client matters, failed to keep the clients informed and made misrepresentations to one client, failed to promptly return the file to the client, engaged in a pattern of depositing fee and cost advances in his business account and failed to safeguard client funds, and failed to cooperate with the Director’s investigation in violation of Rules 1.3, 1.4(a), 1.15(a) and (b), 1.16(d), 4.1, 8.1(a)(3), 8.4(c) and (d), Minnesota Rules of Professional Conduct (MPRC), and Rule 25, Rules on Lawyers Professional Responsibility (RLPR).

Respondent admits his conduct has violated the Rules of Professional Conduct, waives his rights pursuant to Rule 14, RLPR, and has entered into a stipulation with the Director wherein they jointly recommend that the appropriate discipline is a public reprimand and two years supervised probation subject to the following conditions:

(1)Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct which may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
(2) Respondent shall abide by the Rules of Professional Conduct.
(3) Respondent shall be supervised by a licensed Minnesota attorney, appointed by the Director to monitor compliance with the terms of this probation. Respondent shall provide to the Director the names of four attorneys who have agreed to be nominated as respondent’s supervisor within two weeks from the date this order is filed. If, after diligent effort, respondent is unable to locate a supervisor acceptable to the Director, the Director will seek to appoint a supervisor. Until a supervisor has signed a consent to supervise, the respondent shall on the first day of each month provide the Director with an inventory of active client files described in paragraph (4) below. Respondent shall make active client files available to the Director upon request.
(4) Respondent shall cooperate fully with the supervisor in his/her efforts to monitor compliance with this probation. Respondent shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Respondent shall submit to the supervisor an inventory of all active client files by the first day of each month during probation. With respect to each active file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Respondent’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
(5) Respondent shall initiate and maintain office procedures which ensure that there are prompt responses to correspondence, telephone calls, and other important communications from clients, courts and other persons interested in matters which respondent is handling, and which will ensure that respondent regularly reviews each and every file and completes legal matters on a timely basis.
(6) Within 30 days from the filing of this order, respondent shall provide to the Director and to the probation supervisor, if any, a written plan outlining office procedures designed to ensure that respondent is in compliance with probation requirements. Respondent shall provide progress reports as requested.
(7) Respondent shall maintain law office and trust account books and records in compliance with Ride 1.15, MRPC, and LPRB Opinion No. 9. These books and records include the following: client subsidiary ledger, checkbook register, monthly trial balances, monthly trust account reconciliation, bank statements, canceled checks, duplicate deposit slips and bank reports of interest, service charges and interest payments to the Lawyer Trust Account Board. Such books and records shall be made available to the Director within 30 days of the filing of this order and thereafter shall be made available to the Director at such intervals as he deems necessary to determine compliance.

This court has independently reviewed the file and approves the jointly recommended disposition.

IT IS HEREBY ORDERED that respondent William D. Paul is publicly reprimanded and placed on two years supervised probation under the conditions agreed to and stated above. Respondent shall pay $900 in costs and disbursements pursuant to Rule 24, RLPR.

BY THE COURT:

Alan C. Page

Alan C. Page Associate Justice


author: RUSSELL A. ANDERSON, Justice.

text:
    Arthur PATTERSON, petitioner, Appellant, v. WU FAMILY CORPORATION, d/b/a Nankin Café, Respondent, John Doe, Respondent.
    No. CO-98-1961.
    Supreme Court of Minnesota.
    April 13, 2000.

      Stephen C. Fiebiger & Assoc., Stephen C. Fiebiger, Minneapolis, for appellant.
    Katherine L. Mackinnon, St. Louis Park, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Sally J. Ferguson, Minneapolis, co-counsel for respondents Wu Family, et al. and John Doe (n/k/a/ Henry Price III.
    Steven L. Gawron, Bloomington, for respondent John Doe (n/k/a Henry Price III.
   OPINION

RUSSELL A. ANDERSON, Justice.

The question before us is whether the defense of insufficient service of process, asserted by answer, is waived when defendant moves for partial summary judgment without having sought dismissal of the complaint for insufficient service of process. We hold that a defendant waives the defense of insufficient service of process, even though asserted by answer, by affirmatively invoking the jurisdiction of the district court to obtain partial summary judgment without earlier or simultaneously moving to dismiss the complaint for insufficient service of process.

The question arises from the order of the district court granting respondent Henry Price’s motion to dismiss appellant Arthur Patterson’s complaint because of insufficient service of process. In his answer, Price asserted the defense of insufficient service of process but did not move to dismiss the complaint on that ground until after he obtained partial summary judgment and after the statute of limitations barred Patterson from further pursuit of his complaint by proper service of process. The district court found that Price was never properly served with process, that Price had properly raised the defense, that his conduct during the litigation had not resulted in waiver of the defense, and that the statute of limitations barred Patterson from further pursuit of his complaint by proper service of process. The court of appeals affirmed the district court, holding that so long as the defense of insufficient service of process has been raised by answer and asserted during the litigation, the defense is not waived by participating in the litigation. See Patterson v. Wu Family Corp., 594 N.W.2d 540, 548-49 (Minn.App.1999). We reverse and remand.

I

On March 6, 1996, Patterson, an African-American, was a patron at the Nankin Café, a bar and restaurant in downtown Minneapolis. Patterson alleged that he was injured, physically and emotionally, by being removed forcibly from the Nankin by a bouncer named “Pepper.” Patterson alleged that he was removed because of his race and that the Nankin discriminated against its African-American customers.

On February 21, 1997, Patterson served the Nankin with a summons and complaint which also named as a defendant, “John Doe, individually and as an employee of Nankin Café.” The complaint identified “John Doe” as the bouncer, “Pepper.” In his complaint, Patterson alleged that (1) the Nankin violated the Minnesota Human Rights Act, (2) Doe aided and abetted the violation, (3) he was assaulted by the Nan-kin and its employee Doe, (4) he was battered by the Nankin and its employee, Doe, (5) the Nankin and Doe intentionally inflicted emotional distress on him, (6) the Nankin and Doe negligently inflicted emotional distress on him, and (7) the Nankin negligently supervised Doe.

On March 10, 1997, Patterson served interrogatories on the Nankin, the response to which identified the bouncer “Pepper” as Henry Price and gave an address for him. Patterson, who was previously unable to obtain Price’s identity and address, attempted to serve Price on August 21, 1997, at the address provided in the Nankin’s answers, which was actually his parents’ home.

On October 2, 1997, Price served an amended answer that asserted insufficiency of service of process. On January 15, 1998, the Nankin and Price moved for partial summary judgment on counts two, five and six of the complaint. Price argued that the statute of limitations had run on count two, which alleged that he aided and abetted the Nankin’s violation of the Minnesota Human Rights Act. Both Price and the Nankin argued that Patterson had not produced sufficient evidence to sustain counts five and six which alleged intentional and negligent infliction of emotional distress. Price’s motion for partial summary judgment did not request that the complaint be dismissed for insufficient service of process, but Price did mention in his reply memorandum to the court that he had asserted the defense of insufficient service of process by answer. By order of February 13,1998, the district court granted the defendants’ motion and ordered that partial summary judgment be entered in defendants’ favor. In its accompanying memorandum, the district court acknowledged by footnote the parties’ dispute concerning the sufficiency of service of process but made no findings on the claim. The district court’s order of February 13, 1998, was an adjudication on the merits in defendants’ favor on counts two, five and six.

On April 20, 1998, nearly seven and a half months after asserting the defense by answer, Price moved for dismissal of the complaint on the ground of insufficient service of process. During that seven and a half-month period, the statute of limitations had run, barring Patterson’s complaint if properly served. During that time Price actively participated in the litigation. He appeared at his deposition on November 7, 1997, and his attorney attended and participated in other depositions. He participated in court-ordered arbitration held on March 2, 1998. Price obtained subpoenas from the court and deposed three witnesses between April 10, 1998 and April 23,1998.

The district court granted Price’s motion for summary judgment based upon insufficient service of process. The court found that service of process had been insufficient because Price did not reside at his parents’ home, a finding Patterson does not challenge in this appeal. The district court also found that the statute of limitations had run on the remaining claims.

The court of appeals affirmed the district court’s summary judgment in favor of Price dismissing the complaint for insufficient service of process. See Patterson, 594 N.W.2d at 549. We granted review on the issue of whether Price had waived the defense of insufficient service of process.

II

On appeal from a grant of summary judgment, we must determine whether any genuine issues of material fact exist and whether the district court erred in its application of the law. See Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn.1988). We review de novo the construction of a rule of court procedure. See State v. Nerz, 587 N.W.2d 23, 24-25 (Minn.1998). The determination of whether personal jurisdiction exists is also a question of law that we review de novo. See V.H. v. Estate of Bimbaum, 543 N.W.2d 649, 653 (Minn.1996) (citing Valspar Corp. v. Lukken Color Corp., 495 N.W.2d 408, 411-12 (Minn. 1992)).

The parties do not dispute the relevant facts. Patterson concedes the material fact that his complaint was not properly served and there is no dispute that Price sought and obtained partial summary judgment without having raised by motion sufficiency of service of process. Thus, we turn to the legal issue of whether the defense of insufficient service of process, asserted by answer, is waived under these circumstances.

III

Under the rules of civil procedure, the defense of insufficient service of process is waived if omitted from an answer or if omitted from a motion to dismiss under Rule 12. See Minn. R. Civ. P. 12.08(a). Specifically, Rule 12.07 provides that if a party moves to dismiss an action under one of the grounds provided in Rule 12, other defenses and objections permitted to be raised by Rule 12 must be raised at that time or they are waived, except as provided in Rule 12.08(b). See Minn. R. Civ. P. 12.07. Rule 12.08(c) provides an additional exception to the “one motion” rule for challenges to the court’s subject matter jurisdiction. See Minn. R. Civ. P. 12.08(c). The rule reflects our goal “to prevent piecemeal assertion of technical defenses.” Minn. R. Civ. P. 12.07 advisory committee note.

Price did not file a motion under Rule 12, he filed a motion for partial summary judgment. The question presented then, is whether Rule 12.07 describes the exclusive basis on which a jurisdictional defense may be waived, or whether ineffective service of process may also be waived by implication through conduct of the defendant. To answer that question, we are guided first by our case law dealing with waiver, then by principles of construction of the rules of procedure, and finally by federal case law interpreting analogous provisions of the Federal Rules of Civil Procedure.

This court has previously found waiver of a claim of insufficient service of process. In Mississippi Valley Dev. Corp. v. Colonial Enters., Inc., 300 Minn. 66, 71, 217 N.W.2d 760, 763 (1974), we held that the corporate defendant submitted itself to the trial court’s jurisdiction by moving the trial court to compel arbitration, appealing its decision and securing a bond. Given its affirmative invocation of the court’s powers, we held the defendant could not claim that service was ineffective. See id. at 72, 217 N.W.2d at 764.

However, in Mississippi Valley the defendant had not previously asserted the defense of insufficient service of process, indeed never answered the complaint. Where, as here, the defendant has put the plaintiff on notice of its objection to jurisdiction, the waiver analysis is changed from that presented in Mississippi Valley. The question remains whether bringing a motion for partial summary judgment waives a defense of insufficiency of process asserted by answer.

The rules of procedure should be construed to discourage unnecessary litigation. See Kisch v. Skow, 305 Minn. 328, 332, 233 N.W.2d 732, 735 (1975). In this case, Price obtained partial summary judgment adjudicating part of Patterson’s claim against him, but later argued successfully that the district court was without jurisdiction over him as to the entire matter because of insufficient service of process. Price’s strategy in the litigation therefore created needless litigation: if the district court was without jurisdiction because of insufficient service of process, arguably its earlier order adjudicating a portion of the claim by partial summary judgment was invalid. Where the defendant has affirmatively invoked the jurisdiction of the court to rule in its favor in this manner, avoidance of piecemeal and unnecessary litigation weigh in favor of finding a waiver of a jurisdictional defense not asserted by motion.

The rules reflect a preference that actions be determined on the merits and not on the basis of technical compliance with the rules. See State Bank of Morristown v. Labs, 275 N.W.2d 37, 39 (Minn.1979). We have not treated service of process as a mere technicality, as it serves the important function of actual, formal notice to the defendant of the action. See, e.g., Tullis v. Federated Mut. Ins. Co., 570 N.W.2d 309, 312 (Minn.1997); Thiele v. Stich, 425 N.W.2d 580, 584 (Minn.1988). Where the party protected by a procedural rule consciously chooses to not assert the rule-based defense in an effort to avoid a determination of the issue, however, the rules do not serve their protective function. Deliberate avoidance of a determination of the issue in this fashion is contrary to the spirit of the rules.

The United States Supreme Court has recognized that by engaging in certain conduct during litigation a defendant may involuntarily waive the defense of lack of personal jurisdiction:

[T]he requirement of personal jurisdiction may be intentionally waived, or for various reasons a defendant may be es-topped from raising the issue. These characteristics portray it for what it is— a legal right protecting the individual. The plaintiffs demonstration of certain historical facts may make clear to the court that it has personal jurisdiction over the defendant as a matter of law— i.e., certain factual showings will have legal consequences' — but this is not the only way in which the personal jurisdiction of the court may arise. The actions of the defendant may amount to a legal submission to the jurisdiction of the court, whether voluntary or not.

Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 704-05, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982) (emphasis added) (holding Rule 87(b)(2)(A) of the Federal Rules of Civil Procedure may be applied to support a finding of personal jurisdiction). More specifically, federal circuit courts have held that a jurisdictional defense asserted in an answer may yet be waived by “failure to assert it seasonably, by formal submission in a cause, or by submission through conduct.” Yeldell v. Tutt, 913 F.2d 533, 539 (8th Cir.1990) (holding that despite including defense of lack of personal jurisdiction in their answer defendants waived defense by not asserting it until appeal) (quoting Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 168, 60 S.Ct. 153, 84 L.Ed. 167 (1939)); see also United States v. Ziegler Bolt & Parts Co., 111 F.3d 878, 882 (Fed.Cir.1997) (holding that a defendant’s literal compliance with procedural rules does not end the waiver analysis); Continental Bank, N.A. v. Meyer, 10 F.3d 1293, 1297 (7th Cir.1993) (objection to personal jurisdiction waived by extensive participation in the merits); Datskow, 899 F.2d at 1300, 1303 (defendant waived defense of ineffective service despite including it in answer; defendant actively participated in litigation for six months without asserting the defense).

We conclude that the language of Rule 12.08 “sets only the outer limits of waiver; it does not preclude waiver by implication.” Yeldell, 913 F.2d at 539 (quoting Marquest Medical Prods. v. EMDE Corp., 496 F.Supp. 1242, 1245 n. 1 (D.Colo.1980)). We agree with the federal courts that have held that defendants must not only comply with the letter of the rule, but also with “the spirit of the rule, which is ‘to expedite and simplify proceedings in the * * * [c]ourts.’ ” Id. (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1342 (2d ed.1990)); see also Minn. R. Civ. P. 1 (requiring construction of the Minnesota Rules of Civil Procedure to effect the “just, speedy and inexpensive” resolution of claims).

Price characterizes his actions as simple participation in the litigation, which we agree does not, standing alone, amount to waiver of a jurisdictional defense. Rather, it is the failure to provide the court an opportunity to rule on the defense before affirmatively invoking the court’s jurisdiction on the merits of the claim that is determinative. Indeed, even proceeding with trial on the merits does not waive the defense where the defendants brought a motion to dismiss for lack of jurisdiction that the trial court denied. See Anderson v. Mikel Drilling Co., 257 Minn. 487, 495-96, 102 N.W.2d 293, 300 (1960). In that case we held that because the defendants brought a motion to dismiss they did not waive the defense by proceeding in the litigation. See id. at 496, 102 N.W.2d at 300.

Likewise, in State ex rel. Adent v. Industrial Comm’n, the defendants petitioned for a writ of prohibition to prevent the industrial commission from requiring the defendants to proceed with a workers’ compensation hearing on the merits before deciding whether there was jurisdiction over the defendants. See 234 Minn. 567, 48 N.W.2d 42 (1951). We held that the defendants would not waive their defense by proceeding on the merits. See id. at 569, 48 N.W.2d at 43.

In both Mikel Drilling and Adent, the defendants did more than simply bring the issue to the plaintiffs’ attention; they requested a determination of the issue of jurisdiction before proceeding on the merits. Our case law demonstrates that a defendant is free to proceed on the merits of a case without fear of waiving the defense so long as the court has been provided an opportunity to determine the validity of the defense. See also Media Duplication Serv., Ltd. v. HDG Software, Inc., 928 F.2d 1228, 1233 n. 2 (1st Cir.1991) (acknowledging that the defendant may waive the defense through conduct but finding no waiver where defendant raised insufficiency of service first in motion to dismiss, then in answer, then in opposition to plaintiffs motion for summary judgment and then in defendant’s motion to dismiss for lack of subject matter jurisdiction). Therefore, defendants need not guess whether their conduct in litigation will amount to waiver if they have provided the court an opportunity to rule on their jurisdictional defense. Cf. Michelson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 709 F.Supp. 1279, 1284 (S.D.N.Y.1989) (rejecting plaintiffs argument that any participation in litigation constitutes waiver where defendant was awaiting ruling on motion to dismiss and participated in the litigation).

Price asks this court to hold that he had not subjected himself to the district court’s authority and jurisdiction when he asked for partial summary judgment. While participating in litigation through discovery and responding to an opposing party’s motions are not sufficient to waive the defense, moving for a decision on the merits of part of a claim invites the court to exercise its authority on behalf of the moving party and implicitly acquiesces to the court’s exercise of jurisdiction over that party, much like the injunctive relief requested in Mississippi Valley. See 300 Minn. at 72, 217 N.W.2d at 764. Clearly Price submitted himself to the authority and jurisdiction of the district court by moving for partial summary judgment.

We conclude that once a defendant affirmatively invokes the court’s power to determine the merits of all or part of a claim, the defendant cannot then deny the court’s jurisdiction over him based on defective service. Therefore, we hold that by failing to move the district court to dismiss Patterson’s claims before, or contemporaneously with, moving for partial summary judgment, Price affirmatively invoked the jurisdiction of the district court and waived by implication the defense of insufficient service of process.

Reversed and remanded to the district court for further proceedings consistent with this opinion.

      . Personal jurisdiction under the long-arm statute is not an issue in this case and, thus, we do not decide whether waiver by implication of jurisdictional defenses is applicable to a defendant "wishing to contest whether it was obliged to defend in a distant court.” See Datskow v. Teledyne, Inc., 899 F.2d 1298, 1303 (2d Cir.1990).

      . There are different accounts of how the papers were served. In his deposition, Price said that he found the papers in the driveway of his parents' home. Price’s younger brother, Norman, submitted an affidavit claiming that the process server approached Norman at his parents' home. When Norman would not answer the process server's questions, the server threw the papers into the house. Norman later gave the papers to his brother. However, Price does not dispute that he received the summons and complaint.

      . Minn. R. Civ. P. 12.08(a) provides:
      A defense of lack of jurisdiction over the person, insufficiency of process, or insufficiency of service of process is waived (1) if omitted from a motion in the circumstances described in Rule 12.07, or (2) if it is neither made by motion pursuant to this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15.01 to be made as a matter of course.
      Minn. R. Civ. P. 12.08(a).

      . Where our rules of procedure parallel the federal rules, “federal cases interpreting the federal rule are helpful and instructive but not necessarily controlling” on our interpretation of the state counterpart. See Johnson v. Soo Line R.R. Co., 463 N.W.2d 894, 899 n. 7 (Minn.1990).