This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0230
Glendalough Homeowners’ Association,
Respondent,
vs.
Jovani Nassar, defendant and third party plaintiff,
Appellant,
vs.
Evermoor Community Association, third party defendant,
Respondent,
Community Development, Inc., third party defendant,
Respondent,
HOA Financial Services, LLC, third party defendant,
Respondent,
McCombs, Frank, Roos Associates, third party defendant,
Respondent,
Southview Design, Inc., et al., third party defendants,
Respondents,
City of Rosemount, third party defendant,
Respondent.
Filed November 23, 2015
Affirmed in part, reversed in part, and remanded
Larkin, Judge
Dakota County District Court
File No. 19HA-CV-13-2194
Peter G. Van Bergen, Rachel B. Beauchamp, Cousineau McGuire Chartered,
Minneapolis, Minnesota (for respondent Glendalough Homeowners’ Association and
Community Development, Inc.)
John R. Neve, Evan H. Weiner, Neve Webb, PLLC, Minneapolis, Minnesota (for
appellant Jovani Nassar)
Michael J. Will, Stich Angell Kreidler Unke & Scattergood, P.A., Minneapolis,
Minnesota (for respondent Evermoor Community Association)
Nicole R. Weinand, Law Offices of Thomas P. Stilp, Golden Valley, Minnesota (for
respondent HOA Financial Services, LLC)
Thomas L. Garrity, Law Offices of Jeffrey A. Magnus, Bloomington, Minnesota (for
respondent McCombs, Frank, Roos Associates)
Christina E. VonderHaar, Colby Lund, Arthur Chapman Kettering Smetak & Pikala,
Minneapolis, Minnesota (for respondent Southview Design, Inc.)
Elisa M. Hatlevig, Jardine, Logan & O’Brien, PLLP, Lake Elmo, Minnesota (for
respondent City of Rosemount)
Considered and decided by Chutich, Presiding Judge; Ross, Judge; and Larkin,
Judge.
UNPUBLISHED OPINION
LARKIN, Judge
Appellant challenges the district court’s summary-judgment dismissal of his
claims against respondents, arguing that the district court erred by (1) concluding that the
majority of his claims are barred by the two-year statute of limitations under Minn. Stat.
§ 541.051 (2014), (2) dismissing his claims for contribution and indemnity with
prejudice, and (3) concluding that he did not raise a genuine issue of material fact
regarding his slander-of-title claims. Appellant also argues that the district court erred by
2
denying his request for attorney fees and his request for expert-witness fees as a taxable
cost. Because the district court did not err by granting summary judgment in
respondents’ favor or by denying appellant’s expert-witness fees request, we affirm in
part. But because the district court abused its discretion by denying appellant’s attorney-
fees request, we reverse in part and remand.
FACTS
This case involves a dispute between appellant Jovani Nassar and respondent
Glendalough Homeowners’ Association (Glendalough), which began when Glendalough
fined Nassar for failing to sod his property in accordance with an association covenant.
Glendalough is a nonprofit corporation and a common-interest community in Rosemount,
Minnesota. Glendalough is governed, in part, by a document entitled “Declaration of
Covenants for Glendalough.” The Glendalough declaration establishes “covenants,
conditions, restrictions, reservations and easements” that apply to members of the
Glendalough community. Respondent Evermoor Community Association (Evermoor) is
a nonprofit corporation and “master association” under the Minnesota Common Interest
Ownership Act (MCIOA), Minn. Stat. § 515B.1-101 to .4-118. See Minn. Stat.
§ 515B.2-121 (2014) (describing master associations). Glendalough is a neighborhood
association within Evermoor.
Nassar is a member of Glendalough and is subject to the Glendalough declaration.
In August 2008, Nassar entered into a purchase agreement with Lennar Construction to
purchase a home in the Glendalough development. The parties closed on the purchase in
March 2009.
3
Fady and Sylvana Chamoun are also Glendalough members and own property that
borders Nassar’s. Nassar’s and the Chamouns’ purchase agreements provided for “a
drainage easement between their properties,” prohibited landscaping within the easement,
and required the owners to “maintain that portion of his or her yard that lies within the
drainage . . . easement.”
Lennar built the Nassar and Chamoun homes and retained respondent McCombs,
Frank, Roos Associates (MFRA) to survey the lots and grade them according to the
requirements of respondent City of Rosemount (the City). Respondent MFRA completed
the grading on the Chamouns’ property in August 2008. Respondents Southview Design
Inc. and Southview Design and Construction Inc. (Southview) completed landscaping on
the Chamouns’ property the next month.
Soon after Nassar moved into his home in March 2009, he discovered problems
with Lennar’s grading and with Southview’s landscaping. Nassar hired a civil engineer
who inspected Nassar’s property and opined that a drainage swale intended to be located
on the property line between Nassar’s and the Chamouns’ lots was actually situated
approximately five feet onto Nassar’s property. The engineer attributed the swale’s
misplacement to the construction, landscaping, and sodding of the Chamouns’ property
and predicted that the current placement of the swale would devalue Nassar’s home and
“potentially create an unsafe situation” resulting from water concentration and ice.
Nassar informed the City and Glendalough of the problem.
In December 2009, Nassar sued the Chamouns for negligence, nuisance, trespass,
and breach of contract. Nassar alleged that the Chamouns improperly landscaped, altered
4
the grade of the drainage easement in violation of their purchase agreement, and failed to
maintain the drainage easement. The district court granted summary judgment for the
Chamouns, and Nassar appealed.
In May 2010, Glendalough notified Nassar that he was violating a term of the
Glendalough declaration that required him to sod his yard. Glendalough informed Nassar
that he had until June 15 to sod and that it could assess him a daily fine of $25 if he did
not. On June 15, Glendalough began assessing the daily fine. Nassar’s attorney wrote
Glendalough, stating that Nassar was unable to sod because of Lennar’s improper grading
and the Chamouns’ improper landscaping.
In March 2011, respondent HOA Financial Services LLC notified Nassar that
respondent Community Development Inc. (CDI) was filing a $6,778 association lien
against Nassar’s property for the unpaid fines. Both HOA Financial and CDI are agents
of Glendalough. HOA Financial recorded the lien in August 2011.
In February 2012, this court affirmed the district court’s dismissal of Nassar’s
contract and trespass claims against the Chamouns, but it reversed the dismissal of his
negligence and nuisance claims and remanded them for trial. Nassar v. Chamoun, No.
A11-0793, 2012 WL 426595, at *5 (Minn. App. Feb. 13, 2012).
In October 2012, Nassar sued Lennar for rescission of their purchase agreement
based on Lennar’s allegedly improper grading. An arbitrator found that the grading was
inadequate and, among other things, ordered Lennar to pay Nassar $13,000 for repairs.
Nassar moved the district court to vacate the award, arguing that the arbitrator had
exceeded his authority. The district court denied the motion, and Nassar appealed. This
5
court affirmed the arbitration award. Nassar v. U.S. Home Corp., No. A13-1137, 2014
WL 621700, at *1 (Minn. App. Feb. 18, 2014), review denied (Minn. Apr. 29, 2014).
Afterward, the district court granted Lennar’s motion for attorney fees in part and
awarded Lennar $9,852.13. Nassar appealed, and this court affirmed. Nassar v. U.S.
Home Corp., No. A14-1108, 2015 WL 1880294, at *1 (Minn. App. Apr. 27, 2015),
review denied (Minn. July 21, 2015).
In December 2012, Glendalough filed the underlying suit against Nassar seeking a
$26,388.45 lien on Nassar’s property for assessments based on his failure to sod his
property. Nassar answered with a counterclaim against Glendalough. Nassar also filed a
third-party complaint against Evermoor, CDI, HOA Financial, MFRA, Southview, and
the City. Nassar’s claims included breach of contract, breach of fiduciary duty, due
process and equal protection violations, mandamus, negligence, negligent or reckless
misrepresentation, nuisance, slander of title, and trespass. In his third-party complaint,
Nassar also requested “damages by way of contribution and/or indemnity, as may be
appropriate, for all or any portion of the sums for which [he] may be adjudged liable to
[Glendalough].”
In May 2013, on remand in Nassar’s case against the Chamouns, a jury found that
the Chamouns did not create a nuisance, were not negligent, and did not trespass on
Nassar’s property and that Nassar was not entitled to any damages. The district court
denied Nassar’s motions for a new trial, judgment as a matter of law, and amended
findings, and this court affirmed the district court’s rulings. Nassar v. Chamoun, No.
6
A13-2097, 2014 WL 4672400, at *1 (Minn. App. Sept. 22, 2014), review denied (Minn.
Dec. 16, 2014).
In the fall of 2013, Glendalough moved for summary judgment against Nassar’s
counterclaims, and the other respondents moved for summary judgment against Nassar’s
third-party complaint. Respondents argued, in part, that all of Nassar’s claims except
slander of title are time-barred under Minn. Stat. § 541.051 and that Nassar failed to raise
a genuine issue of material fact regarding his slander-of-title claim. The district court
granted respondents’ motions and dismissed Nassar’s counterclaims and third-party
complaint with prejudice. Nassar requested leave to move for reconsideration under
Minn. R. Gen. Pract. 115.11. The district court denied his request.
In May and July 2014, Nassar successfully moved the district court for relief
several times based on Glendalough’s failure to respond to discovery. As a result, the
district court ordered Glendalough to pay Nassar nearly $4,000 in attorney fees and
prohibited Glendalough from presenting certain evidence.
In October 2014, Glendalough moved to dismiss its complaint with prejudice
under Minn. R. Civ. P. 41.01(b). Glendalough stated that, “after the completion of
discovery and depositions, [it] realized the issues with its case” and that it would satisfy
its lien on Nassar’s property and pay for the judgment owed for costs and attorney fees.
The district court initially granted Glendalough’s motion, dismissed the case with
prejudice, and entered judgment accordingly. Later, the district court vacated the
judgment at Nassar’s request. Nassar applied for taxation of cost and disbursements in
the amount of $8,740.80, about half of which was for expert-witness fees, and requested
7
attorney fees under Minn. R. Civ. P. 37.02 and 37.03. The district court once again
dismissed Glendalough’s complaint with prejudice and denied Nassar’s requests for
expert-witness and attorney fees. Nassar appeals.
DECISION
“A motion for summary judgment shall be granted when the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue of material fact and that either party
is entitled to a judgment as a matter of law.” Fabio v. Bellomo, 504 N.W.2d 758, 761
(Minn. 1993). “[Appellate courts] review a district court’s summary judgment decision
de novo. In doing so, we determine whether the district court properly applied the law
and whether there are genuine issues of material fact that preclude summary judgment.”
Riverview Muir Doran, LLC v. JADT Dev. Grp., LLC, 790 N.W.2d 167, 170 (Minn.
2010) (citation omitted). “On appeal, the reviewing court must view the evidence in the
light most favorable to the party against whom judgment was granted.” Fabio, 504
N.W.2d at 761.
I.
Nassar contends that the district court erred by concluding that his claims against
Glendalough, Evermoor, and the City are time-barred under section 541.051. “When the
district court grants summary judgment based on the application of a statute to
undisputed facts, the result is a legal conclusion that we review de novo.” Weston v.
McWilliams & Assocs., Inc., 716 N.W.2d 634, 638 (Minn. 2006).
Section 541.051, subdivision 1(a), provides, in pertinent part:
8
Except where fraud is involved, no action by any
person in contract, tort, or otherwise to recover damages for
any injury to property, real or personal . . . arising out of the
defective and unsafe condition of an improvement to real
property, shall be brought against any person performing or
furnishing the design, planning, supervision, materials, or
observation of construction or construction of the
improvement to real property or against the owner of the real
property more than two years after discovery of the injury
....
The district court determined that the grading, construction, and landscaping on
and around the Nassar and Chamoun properties were improvements to real property and
that all of Nassar’s claims except slander of title arose from the alleged defective and
unsafe condition of those improvements. The district court therefore concluded that the
two-year limit under section 541.051 applies and that, because Nassar filed his
counterclaim and third-party complaint more than two years after discovering the injury
to his property, Nassar’s claims must be dismissed as untimely.
Nassar challenges the district court’s ruling, arguing that section 541.051 does not
apply because Glendalough, Evermoor, and the City did not perform or furnish the
grading, construction, and landscaping, and are not owners within the meaning of the
statute. He relies on Jensen-Re P’ship v. Superior Shores Lakehome Ass’n, 681 N.W.2d
42, 42 (Minn. App. 2004) (concluding that section 541.051’s two-year statute of
limitations “does not apply to a suit brought by individual condominium unit owners
against the condominium-owners’ association charged with the duties to manage and
maintain the condominium complex”), review denied (Minn. Sept. 21, 2004). However,
Nassar never raised that argument in the summary-judgment proceeding in the district
9
court. In fact, he argued just the opposite. In his memorandum opposing respondents’
summary-judgment motions, Nassar argued that Glendalough, Evermoor, and the City
“own and possess an easement on the property” and, “[b]y virtue of their respective
easement rights as set forth in the Master Declaration and the Declaration of Covenants
. . . retain control over the drainage swale at issue.” Thus, the district court never
considered or determined whether any of the respondents are not owners of the property
such that section 541.051 is inapplicable.
Some respondents therefore object to this court’s consideration of Nassar’s
ownership argument. They contend that because Nassar did not argue in the district court
that Glendalough, Evermoor, and the City are not owners, this court should not consider
that issue. The objection has merit. “A reviewing court must generally consider only
those issues that the record shows were presented and considered by the trial court in
deciding the matter before it.” Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988)
(quotation omitted). “Nor may a party obtain review by raising the same general issue
litigated below but under a different theory.” Id.
In district court, Nassar’s only argument against application of section 541.051
was that his claims fall within the statutory exception for negligent-maintenance claims.
The district court considered and rejected that argument, ruling that all of Nassar’s claims
except slander of title arise from the defective improvement to his property, and not from
negligent maintenance, operation, or inspection. Nassar did not ask the district court to
determine, in the summary-judgment proceeding, whether section 541.051 was
inapplicable based on respondents’ ownership status. Thus, Nassar has raised the same
10
general issue litigated below (the applicability of section 541.051) under a different
theory (respondents’ status as owners). Nassar has also reversed his position on appeal
by claiming, contrary to his position in the district court, that Glendalough, Evermoor,
and the City are not owners. Neither is allowed. See id.; Sec. Bank of Pine Island v.
Holst, 298 Minn. 563, 564, 215 N.W.2d 61, 62 (1974) (stating that it is elementary that a
party cannot shift his position on appeal). Moreover, respondents persuasively argue that
the factual record necessary to address Nassar’s new ownership theory is inadequate
because they had no opportunity to develop the record with that theory in mind. For all
of these reasons, we are not inclined to consider Nassar’s new ownership theory on
appeal.
Nassar notes that in his request for leave to move for reconsideration, he argued
that Glendalough and Evermoor “do not own the property and were not involved in its
construction” and that section 541.051 therefore does not apply. But “[m]otions for
reconsideration are not opportunities to present facts that were available when the prior
motion was considered and will not be allowed to supplement the record on appeal.” Am.
Bank of St. Paul v. Coating Specialties, Inc., 787 N.W.2d 202, 206 (Minn. App. 2010)
(citing Minn. R. Gen. Pract. 115.11 1997 advisory comm. cmt.), review denied (Minn.
Oct. 27, 2010). Nassar also argues that an appellant can refine his arguments on appeal.
See Jacobson v. $55,900 in U.S. Currency, 728 N.W.2d 510, 522-23 (Minn. 2007)
(allowing refinement). But Nassar has not refined his argument; he has completely
reversed it.
11
Because Nassar’s current ownership theory was not presented to or considered by
the district court in the summary-judgment proceeding, it is not properly before this court
and we do not give it further consideration. See Thiele, 425 N.W.2d at 582.
As an alternative to his ownership theory, Nassar contends that section 541.051
does not bar his claims against Glendalough, Evermoor, and the City because the
statute’s negligent-maintenance exception applies. Subdivision 1(d) of section 541.051
provides, “Nothing in this section shall apply to actions for damages resulting from
negligence in the maintenance, operation or inspection of the real property improvement
against the owner or other person in possession.” “There are two requirements to the
exception—one based on what kind of action is involved and the other based on whom
the action is against.” Siewert v. N. States Power Co., 793 N.W.2d 272, 288 (Minn.
2011). The district court rejected Nassar’s negligent-maintenance theory based on the
first requirement. The district court concluded that “Nassar’s claims . . . arise from the
defective condition of his property caused by the improper grading, swale construction
and landscaping, and not from any party’s negligent maintenance, operation or inspection
of it.” The district court stated, “It is the very existence of those defective conditions that
caused Nassar’s damages.”
Nassar argues that several documents in the record “present a fact issue as to the
issue of negligent maintenance.” But all of those documents regard the original
construction, grading, and landscaping. For example, Nassar notes that a professional
engineer stated that the drainage swale violates Glendalough’s and the City’s
requirements and that an attorney told Glendalough that the grading violated the
12
Glendalough declaration and landscaping policy. Those opinions regard the construction
of the drainage swale; they do not suggest negligent maintenance, operation, or
inspection. Indeed, the attorney letter that Nassar quotes from states that “the property
was not graded according to the approved grading plan.” Even Nassar’s argument that
the landscaping violated Glendalough policies is based solely on the original landscaping,
and not on maintenance, operation, or inspection.
The negligent-maintenance exception to section 541.051 applies to activities that
“generally occur after an improvement is built” and “are usually performed by an owner
or tenant,” and is meant “to leave undisturbed the limitation period for ordinary
landowner’s liability.” Ocel v. City of Eagan, 402 N.W.2d 531, 534 (Minn. 1987). The
allegations supporting Nassar’s claims are based on the faulty construction, grading, and
landscaping that was completed approximately six months before Nassar discovered his
injury. The short period between the improvement and Nassar’s discovery of his injury
supports the district court’s conclusion that Nassar’s claims are not based on negligent
maintenance. Cf. Blaine v. City of Sartell, 865 N.W.2d 723, 725 (Minn. App. 2015)
(discussing a negligent-maintenance claim based on an injury caused by a ditch
constructed 25 years before the injury). We therefore affirm the district court’s decision
that the negligent-maintenance exception does not apply as a matter of law and that all of
Nassar’s claims except slander of title are time-barred under section 541.051.
II.
Nassar contends that the district court erred by dismissing his claims for
contribution and indemnity with prejudice. A district court has “a wide discretion in
13
determining whether dismissals shall be with or without prejudice.” Falkenstein v.
Braufman, 251 Minn. 444, 452, 88 N.W.2d 884, 889 (1958). Absent an abuse of that
discretion, this court will not reverse a district court’s decision to dismiss with prejudice.
See Mercer v. Andersen, 715 N.W.2d 114, 120 (Minn. App. 2006) (“We review a
dismissal with prejudice for an abuse of discretion . . . .”).
“Contribution requires, first, a common liability of two or more actors to the
injured party, and second, payment by one of the actors of more than its fair share of the
common liability.” Brown v. Lee, 859 N.W.2d 836, 840 (Minn. App. 2015) (quotation
omitted), review denied (Minn. May 19, 2015). “Indemnity instead arises out of a
contractual relationship, either express or implied by law, which requires one party to
reimburse the other entirely.” Blomgren v. Marshall Mgmt. Servs., Inc., 483 N.W.2d
504, 506 (Minn. App. 1992) (quotation omitted). Nassar acknowledges that “the
dismissal of Glendalough’s claims against [him] may have rendered [his] contribution
and indemnity claims moot,” but he argues that if he “were to be sued again due to the
defective condition, he would be entitled to seek contribution and indemnity from at-fault
parties at that time.”
Nassar’s contribution and indemnity claims are based solely on Glendalough’s suit
against Nassar. Nassar’s third-party complaint states that he “is seeking compensation
for the damages he has suffered, to be determined at trial, from Third-Party Defendants
for all or any portion of the sums for which he may be adjudged liable to [Glendalough]
herein.” Thus, the only contribution and indemnification claims that were dismissed are
those that stem from Glendalough’s suit against Nassar, which was dismissed with
14
prejudice. Nassar does not establish that the dismissal of his contribution and
indemnification claims stemming from Glendalough’s suit will prevent him from seeking
contribution or indemnification—assuming he has a valid legal basis to do so—if he is
sued by someone other than Glendalough.1 We therefore affirm the district court’s
dismissal of Nassar’s contribution and indemnification claims with prejudice.
III.
Nassar contends that the district court erred by granting summary judgment on his
slander-of-title claims against Glendalough, HOA Financial, and CDI. The elements of
slander of title are:
(1) That there was a false statement concerning the real
property owned by the plaintiff;
(2) That the false statement was published to others;
(3) That the false statement was published maliciously;
(4) That the publication of the false statement concerning
title to the property caused the plaintiff pecuniary loss in the
form of special damages.
Paidar v. Hughes, 615 N.W.2d 276, 279-80 (Minn. 2000).
The district court dismissed Nassar’s slander-of-title claims because it concluded
that Nassar presented “mere conjecture and no probative evidence to support his claim
that the lien contained a false statement or was filed maliciously.” The Glendalough
declaration provides, in pertinent part:
If sod and/or other Landscaping is not timely installed, then
the Association shall have the right (but not the obligation)
. . . to impose a fine against the Lot Owner in an amount up to
1
Some respondents argue that Nassar’s contribution and indemnity claims fail on the
merits. Those arguments are persuasive, but because it is not necessary to do so, we do
not address the substantive validity of the claims.
15
$25 per day from the sod installation deadline through the day
the sod is completely installed; and the Association shall have
the right to file and enforce a lien against the Lot for such
costs or fines.
It is undisputed that Nassar did not sod his yard by the installation deadline.
However, Nassar argues that the lien was “unauthorized” because Glendalough did not
follow procedural requirements in the master and Glendalough declaration when
imposing the fines and filing the lien. Even if Glendalough violated procedural
requirements, it does not follow that Glendalough maliciously made a false statement
concerning Nassar’s property by filing the lien. “The filing of an instrument known to be
inoperative is a false statement that, if done maliciously, constitutes slander of title.”
Paidar, 615 N.W.2d at 280 (emphasis added). “It is clear however that, if a [person]
does no more than file for record an instrument which he has a right to file, he commits
no wrong.” Kelly v. First State Bank of Rothsay, 145 Minn. 331, 333, 177 N.W. 347, 347
(1920). The person claiming slander of title has the burden to prove that the statements
were false and “were made without probable cause thereof.” Quevli Farms, Inc. v. Union
Sav. Bank & Trust Co., 178 Minn. 27, 30, 226 N.W. 191, 192 (1929). A statement
constitutes slander of title “if the statement is in fact false, and knowledge of the falsity is
brought home to the person making it, or if the statement is made without knowledge of
its falsity, but is made with malice and for an ulterior purpose.” Virtue v. Creamery
Package Mfg. Co., 123 Minn. 17, 46-47, 142 N.W. 1136, 1136 (1913).
Two cases inform our analysis. The first is Brickner v. One Land Dev. Co., in
which a real-estate-development company entered into a purchase agreement to buy a
16
property, and the seller served the company with a notice of statutory cancellation. 742
N.W.2d 706, 709 (Minn. App. 2007), review denied (Minn. Mar. 18, 2008). Later, an
assignee of the company filed notice of an adverse claim against the property. Id. at 710.
The district court concluded that the assignee slandered the title to the seller’s property,
and this court affirmed. Id. at 710, 712. Regarding the false-statement and malice
elements, this court noted that “it is clear that [the assignee] knew the purchase
agreement had been canceled” and “knew when he filed a notice of adverse claim against
the property that he no longer held an interest in the property.” Id. at 711, 712.
The second case is Kelly v. First State Bank of Rothsay, which involved a slander-
of-title claim and doubt regarding the validity of the recorded mortgage underlying the
claim. 145 Minn. at 332, 177 N.W. at 347. In Kelly, a farmer obtained a bank loan and
secured the loan by granting the bank a mortgage on his farm. Id. His wife was to co-
sign the mortgage later. Id. Before the bank recorded the mortgage, the farmer conveyed
the farm to a third party by warranty deed “subject only to the ‘recorded mortgage
thereon.’” Id. The deed was recorded, and the third party notified the bank. Id. There
was a dispute regarding when the third party learned of the bank’s mortgage. Id. The
farmer told the bank that he told the third party about the mortgage, but the third party
insisted that he did not know of the mortgage until after he recorded his deed. Id.
The bank consulted its attorney and recorded its mortgage without the farmer’s
wife’s signature. Id. The supreme court held that the bank was not liable to the third
party for slander of title. Id. at 333, 177 N.W. at 348. The supreme court noted that it
was unclear whether the bank was entitled to a lien due to the prior record of the third
17
party’s deed and stated, “If [the bank] had lost the lien of its mortgage, then the question
whether the recording of it was a wrong, depended on the question whether the act was
done in good faith.” Id. The supreme court concluded that the bank had acted reasonably
and that there was no evidence of bad faith, stating:
We think [the bank] was within its rights in acting on the
assurance of [the farmer] that [the third party] had notice of
[the bank’s] mortgage. Good faith did not require that [the
bank] determine the question of veracity between [the farmer]
and [the third party] or act at its peril. We think [the bank’s]
president acted as the average [person] of sound business
morals would or might have acted under the same
circumstances and that his conduct did not render [the bank]
liable.
Id. at 333, 177 N.W. at 348.
The circumstances in this case are more like those in Kelly than Brickner. It is
undisputed that the Glendalough declaration authorized Glendalough to assess fines and
file a lien if “sod and/or other Landscaping is not timely installed.” It is also undisputed
that Nassar informed Glendalough that he disputed the validity of the lien. But unlike the
circumstances in Brickner, Nassar’s challenge to the validity of the lien does not show
that Glendalough, HOA Financial, or CDI knew the lien was inoperative at the time of
filing. Like the bank in Kelly, which knew that there was a dispute regarding the validity
of its mortgage when it recorded the mortgage, Glendalough’s awareness of the dispute
regarding the validity of its lien is insufficient to show malice. See id.
Nassar relies on the fact that Glendalough eventually vacated the lien and
dismissed its case against him. But Glendalough vacated the lien after the district court’s
summary-judgment ruling. This court cannot rely on that action when reviewing the
18
district court’s grant of summary judgment. See Wall v. Fairview Hosp. & Healthcare
Servs., 584 N.W.2d 395, 404 (Minn. 1998) (rejecting argument that appellate court
“should consider the entire trial record and not merely the evidence before the district
court at summary judgment”).
In sum, Nassar’s assertion that Glendalough did not follow requisite procedures in
assessing the fines and filing the lien is not sufficient to raise a genuine issue of material
fact regarding falsity and malice. When a party bears the burden of proving a claim and
fails to present sufficient evidence to raise a genuine issue of material fact regarding a
necessary element, summary judgment is appropriate. See Fabio, 504 N.W.2d at 761 (“A
motion for summary judgment shall be granted when the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue of material fact and that either party is entitled to a judgment as
a matter of law.”). Because Nassar does not identify a genuine issue of material fact
regarding whether Glendalough, HOA Financial, or CDI maliciously made a false
statement by filing the lien on his property, we affirm the district court’s summary-
judgment dismissal of Nassar’s slander-of-title claims.
IV.
Nassar contends that the district court erred by denying his request for attorney
fees. “We will not reverse the district court’s decision on attorney fees absent an abuse
of discretion.” Carlson v. SALA Architects, Inc., 732 N.W.2d 324, 331 (Minn. App.
2007), review denied (Minn. Aug. 21, 2007).
19
After Glendalough moved for voluntary dismissal, Nassar moved for an award of
attorney fees against Glendalough under Minn. R. Civ. P. 37.02 and 37.03. Rule 37.02
authorizes the district court to “require [a] party failing to obey [an order to provide or
permit discovery] . . . to pay the reasonable expenses, including attorney fees, caused by
the failure.” Minn. R. Civ. P. 37.02(b). Rule 37.03 authorizes the district court to order a
party to pay “reasonable expenses,” including reasonable attorney fees, if the party “fails
to admit . . . the truth of any matter as requested pursuant to Rule 36” and the opposing
party “thereafter proves . . . the truth of any such matter.” Minn. R. Civ. P. 37.03(b).
As support for his attorney-fees request, Nassar argued that Glendalough’s
responses to his interrogatories were incomplete and inaccurate and caused him to
conduct unnecessary depositions. The district court denied Nassar’s request, stating,
“While it may be possible to recover attorneys’ fees on the basis of Rule 37.02 and 37.03,
in this case [Nassar] has attempted to use those independent bases as a type of Rule 11
motion for sanctions.”
Nassar argues that the district court abused its discretion by treating his attorney-
fees request as a rule 11 motion. His argument is persuasive. Rule 11 “do[es] not apply
to discovery requests, responses, objections, and motions that are subject to the
provisions of Rules 26 through 37.” Minn. R. Civ. P. 11.04. Although the district court
is correct that rule 11 applies to misrepresentations to the court, see Minn. R. Civ. P.
11.02-.03, that is not what Nassar alleged as a basis for attorney fees.
We reverse the district court’s denial of attorney fees and remand for the district
court to determine the extent to which Nassar is entitled to attorney fees under rule 37.
20
See Braend ex rel. Minor Children v. Braend, 721 N.W.2d 924, 927 (Minn. App. 2006)
(stating that a district court abuses its discretion when its findings are not supported by
the record or it misapplies the law).
V.
Nassar contends that the district court erred by denying his request for expert-
witness fees as a taxable cost. “In every action in a district court, the prevailing party . . .
shall be allowed reasonable disbursements paid or incurred . . . .” Minn. Stat. § 549.04,
subd. 1 (2014). “The judge of any court of record, before whom any witness is
summoned or sworn and examined as an expert in any profession or calling, may allow
such fees or compensation as may be just and reasonable.” Minn. Stat. § 357.25 (2014);
see also Minn. R. Gen. Pract. 127 (providing that expert-witness fees “shall be in such
amount as is deemed reasonable”). “The district court is permitted to tax costs for
pretrial preparation time.” Buscher v. Montag Dev., Inc., 770 N.W.2d 199, 209 (Minn.
App. 2009), review denied (Minn. Oct. 28, 2009).
Generally, an award of costs and disbursements is a matter within the district
court’s sound discretion and will not be disturbed absent an abuse of that discretion.
Lake Superior Ctr. Auth. v. Hammel, Green & Abrahamson, Inc., 715 N.W.2d 458, 482
(Minn. App. 2006), review denied (Minn. Aug. 23, 2006). A district court abuses its
discretion if its decision contravenes “logic and facts on the record,” is “arbitrary or
capricious,” or is based on “an erroneous view of the law.” Posey v. Fossen, 707 N.W.2d
712, 714 (Minn. App. 2006) (quotation omitted).
21
As support for his request for expert-witness fees, Nassar submitted an invoice
from a landscape architect for 24.5 hours of work. Nassar requested reimbursement of
$4,410 for the architect’s fee. The district court denied the request because the invoice
was “not sufficiently detailed for the Court to make a determination on what fees are
taxable.” The district court noted that the invoice had “no breakdown [of] how many
hours were spent researching, how many spent on preparing exhibits, etc.”
Nassar argues that the district court did not find that it was “unreasonable” for him
to incur expert-witness costs and did not ask questions about the invoice or request
supplemental documentation and that the district court therefore abused its discretion.
We are not persuaded. Because the district court provided an acceptable reason for
denying Nassar’s request, we affirm the district court’s ruling.
Affirmed in part, reversed in part, and remanded.
22