Michael Mierva, Appellant, vs. Dr. Paul Holmberg, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1106

 

Michael Mierva,

Appellant,

 

vs.

 

Dr. Paul Holmberg,

Respondent.

 

Filed May 11, 2004

Affirmed Willis, Judge

 

Ramsey County District Court

File No. C3-02-8503

 

Jeffrey Petersen, Kampmeyer, Kronschnabel, Bader & Daly, 386 North Wabasha Street, Suite 1500, St. Paul, MN  55102 (for appellant)

 

Robert E. Kuderer, Johnson & Condon, PA, 7401 Metro Boulevard, Suite 600, Minneapolis, MN  55439-3034 (for respondent)

 

            Considered and decided by Willis, Presiding Judge; Schumacher, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

In this appeal from the dismissal of his case, appellant argues that the district court (1) "erred" by denying his motion to amend his complaint to include a claim for punitive damages, (2) "erred" by granting respondent's motion to dismiss, and (3) committed prejudicial error by engaging in improper ex parte communication with respondent's attorney.  Because (1) appellant's motion to amend his complaint was procedurally deficient, (2) the motion to dismiss was granted after appellant stated at trial that he had no witnesses or evidence on the issue of damages, and (3) the record shows that the judge did not engage in improper ex parte communication with respondent's attorney, we affirm.

FACTS

On December 21, 2000, respondent Paul Holmberg, D.V.M., performed bilateral inguinal hernia surgery on appellant Michael Mierva's 14-year-old miniature dachshund.  The next day, when Mierva went to Holmberg's clinic to pick up his dog, he noticed that the dog "was deathly cold, shaking and his muscles were hard."  Holmberg kept the dog in his care, and the dog died that night. 

In April 2002, Mierva brought an action against Holmberg in Ramsey County conciliation court, claiming that his dog died because Holmberg "illegally advised" him and was running an "illegitimate business."  In July, the conciliation court judge awarded Mierva $350 in compensatory damages and $500 in punitive damages; in August, Holmberg removed the action to district court. 

On February 25, Holmberg moved for (1) a partial summary judgment determining that Mierva's damages were limited to the dog's fair market value and (2) an order bifurcating the issues of liability and damages.  After a hearing in April, the district court granted Holmberg's motion for partial summary judgment by ordering that Mierva's damages would be limited to the dog's fair market value and that if the parties did not stipulate to a fair market value, the issues of liability and damages would be tried separately, with damages to be tried first. 

When there was no stipulation as to fair market value, a trial on damages was started on May 20.  The district court granted Holmberg's motion to dismiss when Mierva stated that he had no evidence that established the dog's fair market value.  This appeal follows.

D E C I S I O N

I.

 

            Mierva argues that the district court "erred" because it "denied Mierva's motion to amend his complaint to include a claim for punitive damages."  But see LeDoux v. N.W. Publ'g, Inc., 521 N.W.2d 59, 69 (Minn. App. 1994) (holding that an appellate court may not reverse a district court's denial of a motion to add a claim for punitive damages absent an abuse of discretion), review denied (Minn. Nov. 16, 1994).  Although the district court did not address Mierva's motion in its April 1, 2003 order, Mierva argues that because the court granted Holmberg's motion for partial summary judgment on the issue of limiting Mierva's damages claim to the dog's fair market value, the district court denied his motion.

            In a civil action, punitive damages "shall be allowed . . . only upon clear and convincing evidence that the acts of the defendant show deliberate disregard for the rights or safety of others."  Minn. Stat. § 549.20, subd. 1(a) (2002).  A defendant acts with a "deliberate disregard for the rights or safety of others" when

the defendant has knowledge of facts or intentionally disregards facts that create a high probability of injury to the rights or safety of others and:

(1) deliberately proceeds to act in conscious or intentional disregard of the high degree of probability of injury to the rights or safety of others; or

(2) deliberately proceeds to act with indifference to the high probability of injury to the rights or safety of others.

 

Minn. Stat. § 549.20, subd. 1(b). 

After a plaintiff commences an action, he may move the court to amend his pleading to add a claim for punitive damages.  Minn. Stat. § 549.191 (2002).  The record shows that in December 2002, Mierva moved for leave to serve a formal complaint in the action removed from conciliation court or, in the alternative, "to amend the pleadings."  In the proposed complaint attached to his motion, Mierva sought punitive damages, without having first obtained the court's consent to assert such a claim.  At the hearing on his motion, Mierva's attorney told the court that "the punitive request was a mistake that somehow slipped through an early draft."  Mierva then provided the court with an amended proposed complaint without the punitive-damages claim.  On April 1, 2003, Mierva moved in writing to amend his complaint to include a claim for punitive damages but did not serve notice of the date, time, and place of a hearing on his motion.  See Minn. R. Civ. P. 6.04 (providing that if a motion is made in writing, it must be served with a written notice of the hearing thereon no later than five days before the hearing). 

Because Mierva did not serve written notice of a hearing on the motion, it was procedurally deficient.  Thus, we conclude that Mierva's argument that the district court "erred" when it "denied" his motion is misplaced.  In fact, the district court did not rule on his motion.  But because Mierva's motion was not properly before the court, it was not error for the district court to fail to rule on the motion, thereby implicitly denying it.

II.

            At the trial on damages, after Mierva stated that he had no evidence that established the dog's fair market value, the district court granted Holmberg's motion to dismiss.  Rule 41.02(b) of the Minnesota Rules of Civil Procedure provides:

After the plaintiff has completed the presentation of evidence, the defendant, without waiving the right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law, the plaintiff has shown no right to relief. In an action tried by the court without a jury, the court as trier of the fact may then determine the facts and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.

 

Minn. R. Civ. P. 41.02(b).  Dismissal under Minn. R. Civ. P. 41.02 will be sustained on appeal absent a showing of a clear abuse of discretion.  Zuleski v. Pipella, 309 Minn. 585, 586, 245 N.W.2d 586, 587 (1976).

To prove a negligence claim, the plaintiff must show that (1) the defendant had a legal duty to the plaintiff; (2) there was a breach of that duty; (3) the breach of the duty was the proximate cause of the harm to the plaintiff; and (4) damage.  Gilbertson v. Leininger, 599 N.W.2d 127, 130 (Minn. 1999).  Because Minn. R. Civ. P. 41.02 permits a defendant to move for dismissal when the plaintiff has not shown that he is entitled to relief after presenting his evidence, the district court did not abuse its discretion by granting Holmberg's motion to dismiss after Mierva stated that he had no evidence on damages to present.

III.

            Mierva further argues that the district court committed prejudicial error by conducting an ex parte settlement discussion with Holmberg's attorney. 

A judge shall not initiate, permit or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impeding proceedings except  that . . . [a] judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge. 

 

Minn. Code Jud. Conduct, Canon 3A(7)(d). 

The transcript shows that the parties met separately with the trial judge to discuss stipulating to the fair market value of Mierva's dog.  Because Mierva consented to the trial judge's separate conferences with the parties, the judge did not engage in improper ex parte communication.  

            Affirmed.