Moen v. Mikhail

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454 N.W.2d 422 (1990)

Gregory James MOEN, Respondent, v. Salma MIKHAIL, M.D., George E. Reisdorf, M.D., et al., petitioners, Appellants.

No. C3-89-540.

Supreme Court of Minnesota.

April 20, 1990.

Rehearing Denied May 10, 1990.

Robert R. Dunlap, Susan Scheffer, Dunlap, Finseth, Berudt & Sandberg, P.A., Rochester, for George Reisdorf, et al.

Kenneth R. White, Farrish, Johnson & Maschka, Mankato, for Salma Mikhail.

Evan H. Larson, Peter D. Plunkett, Warren F. Plunkett & Assoc., Austin, for respondent.

Considered and decided by the court en banc without oral argument.

SIMONETT, Justice.

We granted the petitions of defendants Salma Mikhail and George E. Reisdorf to review a split decision of the court of appeals, the majority of which concluded that the trial court is vested with discretion to extend the time limitations contained in Minn.Stat. ยง 145.682 (1988) upon a showing of excusable neglect and that it abused that discretion in determining that plaintiff made no showing of excusable neglect. Moen v. Mikhail, 447 N.W.2d 462 (Minn. App.1989). We reverse.

Here, the trial court improperly first concluded that it was without any discretion to extend the time limitations of section 145.682 in a medical malpractice action. See Stern v. Dill, 442 N.W.2d 322, 324 (Minn.1989). However, our review of the record leads to our conclusion that Moen provided no reasonable excuse for his failure to provide the requisite affidavits in a timely fashion and that, therefore, he would not have been entitled to the requested extension. Summary judgment was properly awarded to the defendants.

Reversed.