Glendalough Homeowners' Association v. Jovani Nassar, and third party v. Evermoor Community Association, third party Community Development, Inc., third party HOA Financial Services, LLC, third party McCombs, Frank, Roos Associates, third party Southview Design, Inc., third party City of Rosemount, third party

This opinion will be unpublished and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UNPUBLISHED OPINION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.

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 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.

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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.

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 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).

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 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.

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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).

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 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.

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