Menard, Inc. v. County of Dakota, 19HA-CV-19-1966

CourtTax Court of Minnesota
Writing for the CourtWendy S. Tien, Chief Judge
PartiesMenard, Inc. (Store #3047), Petitioner, v. County of Dakota, Respondent.
Decision Date11 June 2021
Docket Number19HA-CV-20-2197,19HA-CV-19-1966

Menard, Inc. (Store #3047), Petitioner,

County of Dakota, Respondent.

Nos. 19HA-CV-19-1966, 19HA-CV-20-2197

Tax Court of Minnesota, Regular Division, Dakota County

June 11, 2021

This matter came before the Honorable Wendy S. Tien, Chief Judge of the Minnesota Tax Court, on respondent Dakota County's motion in limine and for sanctions.

Jeffery J. McNaught, Attorney at Law, represents petitioner Menard, Inc. (Store #3047) ("Menard").

Suzanne W. Schrader, Assistant County Attorney, represents respondent Dakota County.


Dakota County moves this court to exclude from evidence in this matter any appraisal or testimony that Petitioner may offer from any expert other than Andy Donahue, the appraiser identified in Petitioner's notice of testifying expert dated March 12, 2021, and for sanctions on the grounds that: (1) Petitioner failed to fully comply with this court's Scheduling Order; and (2) Petitioner failed to fully comply with this court's order on the record of April 29, 2021 as memorialized in its subsequent written order dated May 25, 2021. Petitioner opposes the motion.

The court, upon all the files, records, and proceedings herein, now makes the following:


1. Respondent's motion in limine is denied.[1]

2. Respondent's motion to compel is denied; provided, however, that the County's motion regarding interrogatory 12 is denied without prejudice pending a motion for protective order as set forth in the following Memorandum.

3. Respondent's motion for sanctions is denied.



Wendy S. Tien, Chief Judge

I. Background

On June 1, 2020, this court filed a Scheduling Order governing this matter.[2] The Scheduling Order required each party to "notify all other parties (but not the court) in writing of the identity of the appraiser/expert retained … and the date on which the appraiser/expert was retained" within ten days of retaining the appraiser or expert and, in any event, no later than 45 days before the close of discovery.[3] The Scheduling Order specifies that failure to comply with the notice requirement may result in exclusion of the appraisal or expert report and the appraiser's or expert's testimony at trial.[4]

On March 12, 2021, Menard sent the County its notice of testifying expert, stating that Andy Donahue had been retained on March 11, 2021, as Menard's only appraiser.[5] At the hearing on its motion to compel discovery in these matters, however, the County inquired whether or not Mr. Donahue had in fact been retained as Petitioner's appraiser.[6] Specifically, although Menard's counsel stated that Mr. Donahue had in fact been retained, [7] the County expressed doubt and requested authorization to contact Mr. Donahue directly to confirm his retention.[8] To resolve any potential confusion regarding Mr. Donahue's retention, the Court directed Mr. McNaught to confirm whether Mr. Donahue was retained in these matters and to provide "an updated or corrected notice of expert to the County" not later than May 7, 2021.[9]

On May 7, 2021, Menard provided the County with an Amended Notice of Testifying Expert.[10] This amended notice stated that Mr. Donahue was no longer retained and named Wade Landreville as Petitioner's retained appraiser in these matters.[11] The County contends that this amended notice violates the Scheduling Order, as Menard did not move to amend the scheduling order to change its named expert.[12] The County further contends Mr. Landreville's retention violates this court's April 29, 2021 order by indicating the retention of a different appraiser, as opposed to furnishing to the County an updated notice of expert confirming Mr. Donahue's retention.[13]

On May 10, 2021, the County filed and served its motion in limine and for sanctions in the above-captioned cases.[14] Menard opposes the motion.[15] A hearing on the County's motion took place on May 24, 2021.

II. Governing Law

A. Motions in limine

Motions in limine are intended to prevent the "injection into trial matters which are irrelevant, inadmissible and prejudicial." Hebrink v. Farm Bureau Life Ins. Co., 664 N.W.2d 414, 418 (Minn.App. 2003) (quoting Black's Law Dictionary 1013 (6th ed. 1991)) (internal quotations omitted). A motion in limine that is "tantamount to a motion for summary judgment" or otherwise functions as a dispositive motion is subject to the procedural rules governing dispositive motions. Hebrink, 664 N.W.2d at 418-19. Accordingly, where a party's motion in limine effectively seeks to deprive its opponent of an essential element of its case as a matter of law, the motion must comply with the rules governing summary judgment. Id. at 419 (citing Minn. R. Civ. P. 56.03; Minn. R. Gen. Pract. 115.03(a) (setting the notice requirements for dispositive motions)).

Furthermore, even where a district court has the authority to grant summary judgment sua sponte based on the grant of a motion in limine, the adverse party must be given a meaningful opportunity to oppose the action. Id. at 419 (citing Fed. Land Bank of St. Paul v. Obermoller, 429 N.W.2d 251, 255 (Minn.App. 1988)). "Prejudice is unavoidable when a trial court denies any opportunity to marshal evidence in opposition to a basis for summary judgment raised sua sponte." Id. at 419-20 (quoting Doe v. Brainerd Int'l Raceway, Inc., 514 N.W.2d 811, 822 (Minn.App. 1994), rev'd on other grounds, 533 N.W.2d 917 (Minn. 1995)).

Minnesota Statutes section 271.06, subdivision 7 (2020), provides that, in general, the Minnesota Rules of Civil Procedure govern the procedures in the tax court, where practicable. Rule 16.02 authorizes the court to enter a scheduling order setting deadlines for, among other things, the completion of discovery and "any other matters appropriate in the circumstances of the case." Minn. R. Civ. P. 16.02(c) & (g). Such an order "shall control the subsequent course of the action and shall be modified only to prevent manifest injustice." Minn. R. Civ. P. 16.05. In addition, Rule 16.06 provides for sanctions for failure to obey a scheduling or pretrial order, including prohibiting the introduction of evidence.[16]

A scheduling order "shall not be modified except by leave of court upon a showing of good cause." Minn. R. Civ. P. 16.02; Maudsley v. Pederson, 676 N.W.2d 8, 12 (Minn.App. 2004) ("[W]hether or not to enforce its own scheduling order is clearly within the district court's discretion."). Factors relevant to determining whether a pretrial order should be modified include:

(1) the degree of prejudice to the party seeking modification
(2) the degree of prejudice to the party opposing modification
(3) the impact of a modification at that stage of the litigation
(4) the degree of willfulness, bad faith, or inexcusable neglect on the part of the party seeking modification

Cotroneo v. Pilney, 343 N.W.2d 645, 649 (Minn. 1984). "[A] balancing approach provides the clearest mode of analysis." Id.

B. Discovery

Trial courts "[have] considerable discretion in granting or denying discovery requests." Erickson v. MacArthur, 414 N.W.2d 406, 407 (Minn. 1987); see also Montgomery Ward & Co., Inc. v. Cnty. of Hennepin, 450 N.W.2d 299, 305 (Minn. 1990) (applying Erickson to the tax court). The purpose of pretrial discovery is "to encourage the exchange of relevant information by the parties prior to trial and to discourage and prevent unjust surprise and prejudice at trial, especially where the testimony of expert witnesses is concerned." Gale v. Cnty. of Hennepin, 609 N.W.2d 887, 891 (Minn. 2000). Generally speaking, "each litigant has equal discovery rights." Sandberg v. Comm'r of Revenue, 383 N.W.2d 277, 281 (Minn. 1986).

Rule 26.02 governs the scope and limits of discovery and provides in part as follows:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Minn. R. Civ. P. 26.02(b). The frequency or extent of use of discovery methods "shall be limited by the court" upon a determination the discovery is unreasonably cumulative or duplicative, is obtainable from another source, or the burden of proposed discovery is outside the scope permitted by Rule 26.02(b). Minn. R. Civ. P. 26.02(b)(3)(i) & (iii). A party may seek compliance with a discovery request by motion to compel discovery. Minn. R. Civ. P. 37.01(b)(2).

Minnesota Rule 26.02(b) and Federal Rule of Civil Procedure 26(b)(1) are identical. Where state and federal rules of procedure are identical or virtually so, federal cases interpreting the analogous federal provision are helpful. See Johnson v. Soo Line R.R. Co., 463 N.W.2d 894, 899 n.7 (Minn. 1990) ("When our rules of practice are modeled after the federal rules, federal cases interpreting the federal rule are helpful and instructive but not necessarily controlling on how we will interpret our state counterpart."); State by Mattson v. Boening, 276 Minn. 151, 152, 149 N.W.2d 87, 89 (1967). With respect to motions to compel discovery requests pursuant to Federal Rule 26(b), relevancy is "broadly construed," and a discovery request should be considered relevant if there is "'any possibility' that the information sought may be relevant to the claim or defense of any party." Leard v. YRC, Inc., No. 8:09-CV-408, 2011 WL 108700, at *1 (D. Neb. Jan. 10, 2011). The tax court generally allows broad discovery, so long as that...

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