                        This opinion will be unpublished and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
                                   A14-0773

                               Johnny L. Moore, et al.,
                                    Appellants,

                                          vs.

                       Park Nicollet Methodist Hospital, et al.,
                                    Respondents.

                                Filed March 9, 2015
                                      Affirmed
                                   Larkin, Judge

                           Hennepin County District Court
                             File No. 27-CV-10-19720


Thomas F. Handorff, Handorff Law Offices, P.C., St. Louis Park, Minnesota (for
appellants)

William L. Davidson, Paul C. Peterson, Eric J. Steinhoff, Lind, Jensen, Sullivan &
Peterson, P.A., Minneapolis, Minnesota (for respondent)


      Considered and decided by Halbrooks, Presiding Judge; Johnson, Judge; and

Larkin, Judge.

                       UNPUBLISHED OPINION

LARKIN, Judge

      Appellants challenge the district court’s summary judgment on their medical-

malpractice action, arguing that the district court abused its discretion by allowing
respondents to amend their answer to include a statute-of-limitations defense. Appellants

also argue that they are entitled to summary judgment on the issue of liability. Because

the district court did not abuse its discretion in allowing the amendment and because

appellants’ action is barred under the applicable statute of limitations, we affirm the

summary judgment.

                                          FACTS

       Appellant Johnny Moore sustained injuries in January 2006, when he fell during a

post-surgery hospitalization at respondent Park Nicollet Methodist Hospital.               On

January 15, 2010, Moore and his wife served Park Nicollet with a summons and

complaint, alleging that the fall occurred on January 15, 2006, and that Park Nicollet was

negligent. Park Nicollet answered the complaint, generally denying that Mr. Moore

sustained a fall. Park Nicollet did not assert a statute-of-limitations defense in its answer.

       In July 2010, Park Nicollet moved to dismiss the Moores’ complaint for failure to

comply with the expert-identification requirements of Minn. Stat. § 145.682 (2008). In

its supporting memorandum, Park Nicollet referred to Minn. Stat. § 541.076(b) (2008),

which provides a four-year statute of limitations for negligence actions against health

care providers and noted that the Moores filed their complaint “on January 15, 2010—the

day the four-year statute of limitation expired.” Park Nicollet did not argue that the

Moores’ suit was barred under the statute of limitations.

       Park Nicollet filed a supplemental reply memorandum in support of its dismissal

motion, along with a supplemental attorney affidavit. The attorney affidavit included

portions of Mr. Moore’s medical records as an exhibit. The records include several


                                              2
progress notes indicating that Mr. Moore slipped and fell the night of January 1, 2006.1

Park Nicollet quoted from these records and referenced details about Mr. Moore’s fall,

but it did not note the discrepancy between the date of the fall alleged in the complaint

(January 15, 2006) and the date documented in the medical records (January 1, 2006).

The Moores cited the same medical records in their memorandum opposing Park

Nicollet’s dismissal motion. They also did not note the discrepancy.

         The district court granted Park Nicollet’s motion and dismissed the Moores’

complaint with prejudice for failure to comply with expert-affidavit requirements. The

Moores appealed, and this court reversed and remanded, concluding that expert testimony

was not necessary and that section 145.682 therefore did not apply. Moore v. Park

Nicollet Methodist Hosp., No. A11-591, 2011 WL 6306658, at *3 (Minn. App. Dec. 19,

2011).

         During discovery on remand, Park Nicollet realized that Mr. Moore fell and

suffered his injuries on January 1, 2006, two weeks earlier than the date alleged in the

complaint. As to why the correct date of Moore’s fall was not discovered until 2013, one

of Park Nicollet’s attorneys stated that he did not receive Moore’s medical records until

February 10, 2010, a week after serving Park Nicollet’s answer and that he “did not have

an opportunity to review the entire 2,600 plus page record” at that time.



1
  For example, a note dated January 1, 2006, states that Moore was found “sitting on [the]
floor in [the] bathroom” and said that he had “slipped backing up” but “did not fall on
[his] incision or hip.” A note dated January 2, 2006, states that Moore “had [a] fall
apparently late last [night]. While getting up, [he] slipped and fell. Eval[uated] by house
resident last [night,] felt to be normal.”

                                             3
      In May 2013, Park Nicollet’s attorneys asked the Moores if they would agree to

allow Park Nicollet to amend its answer to assert a statute-of-limitations defense. The

Moores’ attorney refused, believing that “[t]he affirmative defense ha[d] been waived.”

The same day, Park Nicollet moved the district court for leave to amend its answer to

include a statute-of-limitations defense and for summary judgment. In its supporting

memorandum, Park Nicollet described the complaint’s allegation that the fall occurred on

January 15 as “a direct misstatement of fact” and asserted that “[t]here is clear,

undisputed and overwhelming evidence that the parties are now aware this incident

occurred at night on January 1.” Park Nicollet cited the same medical records that were

included with the attorney affidavit supporting its July 2010 motion to dismiss. Park

Nicollet also cited the Moores’ September 2012 answer to an interrogatory, which quoted

those same hospital records, and an additional medical record that indicated the fall

occurred sometime before January 2, 2006. The Moores opposed both motions, arguing,

in part, that Park Nicollet “has clearly waived the statute of limitations affirmative

defense” because “at all times relevant, [Park Nicollet] had in its possession complete

control and custody of [Moore’s] medical file.”

      In November 2013, the district court granted Park Nicollet’s motion to amend its

answer but denied its motion for summary judgment. The district court concluded that

“justice require[d]” it to allow Park Nicollet to amend and that the Moores had failed to

show that they would be prejudiced by the amendment. Regarding summary judgment,

the district court stated that the motion was “premature” because “the statute of

limitations defense [was] not yet properly before the Court.” Three days later, Park


                                            4
Nicollet filed an amended answer that “affirmatively allege[d] that [the Moores’] claims

are barred in whole or in part by the applicable statute of limitations.”

       Shortly thereafter, Park Nicollet moved for summary judgment, arguing that the

Moores’ claims are “time-barred under the four-year medical malpractice statute of

limitations.” Park Nicollet asserted that the case “never should have been brought” given

the expiration of the statute of limitations and that “but for the misstatement [in the

complaint], this case would have been dismissed long ago.” In opposing Park Nicollet’s

request for summary judgment, appellants once again argued that Park Nicollet “ha[d]

clearly waived, relinquished and abandoned a statute of limitations affirmative defense.”

They also argued that it would be “inequitable, unfair and unjust” to grant Park Nicollet’s

request for relief. The Moores moved for partial summary judgment on the issue of Park

Nicollet’s liability.

       The district court granted Park Nicollet’s motion for summary judgment and

dismissed the Moores’ lawsuit with prejudice, concluding that it was untimely. The

district court denied the Moores’ motion for partial summary judgment on Park Nicollet’s

liability, reasoning that it was unnecessary to reach that issue given the statute-of-

limitations ruling. The Moores appeal.

                                      DECISION

                                              I.

       After a responsive pleading is served, “a party may amend a pleading only by

leave of court or by written consent of the adverse party; and leave shall be freely given

when justice so requires.” Minn. R. Civ. P. 15.01. But leave should not be given if doing


                                              5
so “would result in prejudice to the other party.” Fabio v. Bellomo, 504 N.W.2d 758, 761

(Minn. 1993). “The [district] court has wide discretion to grant or deny an amendment,

and its action will not be reversed absent a clear abuse of discretion.” Id. 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).

       The Moores offer several arguments in support of their contention that the district

court should not have granted Park Nicollet leave to amend its answer to include the

statute-of-limitations defense.   None persuades us that the district court abused its

discretion by allowing the amendment.

       The Moores initially argue that the district court should not have allowed the

amendment because Park Nicollet waived the statute-of-limitations defense by not

including the defense in its original answer. The district court rejected the Moores’

waiver argument, relying on Oreck v. Harvey Homes, Inc., which states that “even if a

statute of limitations defense is not properly pleaded in the answer, the trial court has

broad discretionary powers to permit a party to amend its pleading.” 602 N.W.2d 424,

427 (Minn. App. 1999), review denied (Minn. Jan. 25, 2000).

       A party seeking to raise the statute of limitations as an affirmative defense must

specifically plead that defense. Minn. R. Civ. P. 8.03; Rhee v. Golden Home Builders,

Inc., 617 N.W.2d 618, 621 (Minn. App. 2000). Failure to do so results in a waiver of the

defense. Rhee, 617 N.W.2d at 621. However, no waiver occurs if the party amends its

pleading to include the affirmative defense. See Rehberger v. Project Plumbing Co., Inc.,


                                             6
295 Minn. 577, 578, 205 N.W.2d 126, 127 (1973) (“A failure to plead an affirmative

defense, without later amendment of the pleading, waives the defense.”); Oreck, 602

N.W.2d at 427. Accordingly, Park Nicollet’s failure to include the statute-of-limitations

defense in its original answer did not preclude it from obtaining leave of the court to

amend the answer to include the defense. See Rhee, 617 N.W.2d at 621 (“Pleadings may

be amended to assert an affirmative defense.”).

       The Moores also raise the doctrine of laches and imply that it should prevent Park

Nicollet from raising the statute-of-limitations defense at this stage in the litigation. The

district court rejected the Moores’ reliance on the doctrine of laches, reasoning that laches

“prevents the assertion of a stale claim, not a defense.” See Minn. R. Civ. P. 8.03 (“In a

pleading to a preceding pleading, a party shall set forth affirmatively . . . laches . . . and

any other matter constituting an avoidance or affirmative defense.”).

       “Laches is an equitable defense,” which discourages “stale demands.” Ryan v.

Minneapolis Police Relief Ass’n, 251 Minn. 250, 255, 88 N.W.2d 17, 21 (1958). Under

the equitable doctrine of laches, “when one sits on one’s rights for too long a time, that

person’s claim should be estopped from continuing because it would be inequitable to

require the defendant to fight the suit.” Gully v. Gully, 599 N.W.2d 814, 825 (Minn.

1999) (emphasis added). The Moores do not provide legal authority or argument that

persuades us that they may rely on the doctrine of laches to avoid a statute-of-limitations

defense.

       Lastly, the Moores argue that they were prejudiced by the amendment. Prejudice

to the party opposing a motion to amend is a “major consideration” in the district court’s


                                              7
decision. McDonald v. Stonebraker, 255 N.W.2d 827, 830 (Minn. 1977). “Ordinarily,

unless a party opposing an amendment can establish some prejudice other than merely

having to defend against an additional claim or defense, an amendment will be allowed.”

Envall v. Indep. Sch. Dist. No. 704, 399 N.W.2d 593, 597 (Minn. App. 1987), review

denied (Minn. Mar. 25, 1987). “Although an adverse decision on the merits is obviously

prejudicial, prejudice is a question of fundamental fairness.       Prejudice may be

demonstrated by lack of notice, procedural irregularities, or lack of a meaningful

opportunity to respond to the motion.” Bradley v. First Nat’l Bank of Walker, N.A., 711

N.W.2d 121, 128 (Minn. App. 2006).        Other relevant factors are “the stage of the

proceedings,” whether a “substantial delay will result,” and whether the amendment will

“accomplish nothing, such as when the amendment does not state a cognizable legal

claim.” Envall, 399 N.W.2d at 597.

      The Moores assert that Park Nicollet’s amendment caused them “severe,” “harsh,”

“brutal,” and “unjust” prejudice. The only prejudice they identify is Park Nicollet’s

assertion of the statute-of-limitations defense and its attendant request for summary

judgment.   Ordinarily, having to defend against an additional defense is inadequate

prejudice to preclude amendment. See id. Moreover, the district court noted that Park

Nicollet’s “statute of limitations defense was made known to the Moores before the close

of discovery.”   Although the district court granted leave to amend, it denied Park

Nicollet’s immediate request for summary judgment.       The district court’s approach

allowed the Moores time to conduct discovery regarding the statute-of-limitations

defense and to prepare for summary-judgment proceedings.


                                           8
       This court recently opined that a district court does not abuse its discretion by

allowing an amendment when the opposing party will have time to conduct discovery

regarding the amendment and “does not identify any way in which he was prejudiced.”

Monson v. Suck, 855 N.W.2d 323, 326 n.2 (Minn. App. 2014), review denied (Minn.

Dec. 30, 2014). Larson v. State, 451 N.W.2d 213 (Minn. App. 1990), is also instructive.

In Larson, this court considered whether the district court erred by permitting the

defendant to amend its answer to include a statute-of-limitations defense three years after

the action was commenced. Id. at 216. We noted that the plaintiff made “no showing of

prejudice” and that the district court “continued discovery for two months and

rescheduled the hearing on the motion for summary judgment in an effort to lessen the

possibility of prejudice to [the plaintiff.]” Id. Under the circumstances, the district court

committed “no error.” Id. The circumstances here are like those in Larson, and we

similarly discern no error.

       The Moores suggest that the timing of the amendment is fundamentally unfair, and

therefore prejudicial, given the extensive pre-amendment litigation in this case. But the

Moores share responsibility for the delay and any unnecessary litigation. The district

court was “troubled” by the fact that the Moores did not explain “why January 15, 2006

was the date alleged in the Complaint.” We similarly are troubled by the Moores’ failure

to ascertain the correct date of injury within the limitations period. At oral argument to

this court, the Moores acknowledged that they did not obtain the necessary medical

records before the statute of limitations expired, and they do not allege that Park Nicollet




                                             9
prevented them from doing so.        Under the circumstances, the amendment was not

fundamentally unfair.

       In sum, the district court did not abuse its discretion by allowing Park Nicollet to

amend its answer to include the statute-of-limitations defense.

                                             II.

       “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, 504 N.W.2d at 761. “[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).

       The Moores’ only argument against the district court’s summary dismissal of its

lawsuit is that the district court “would not have granted Park Nicollet’s motion for

summary judgment but-for the fact that it allowed Park Nicollet to amend its answer.”

The Moores reiterate their contention that Park Nicollet “waived its affirmative defense.”

We have concluded that the district court did not abuse its discretion by granting Park

Nicollet leave to amend and further discussion of that issue is unnecessary.

       “An action by a patient or former patient against a health care provider alleging

malpractice . . . must be commenced within four years from the date the cause of action


                                             10
accrued.” Minn. Stat. § 541.076(b) (2014). For purposes of section 541.076, “health

care provider” includes hospitals. Minn. Stat. § 541.076(a) (2014). “When a medical-

malpractice claim is based on a single act of allegedly negligent conduct rather than a

course of treatment, the cause of action accrues when the plaintiff sustains damage from

the act.” Mercer v. Andersen, 715 N.W.2d 114, 120 (Minn. App. 2006).

       The Moores do not dispute that Mr. Moore fell and sustained the injuries that are

the basis for their lawsuit on January 1, 2006. Their medical-malpractice action therefore

accrued on January 1, 2006, and the four-year statute of limitations under section

541.076(b) expired on January 1, 2010. The Moores served Park Nicollet with their

summons and complaint two weeks later on January 15, 2010. See Minn. R. Civ. P.

3.01(a) (“A civil action is commenced against each defendant . . . when the summons is

served upon that defendant. . . .”). The district court therefore did not err by concluding

that the Moores’ action is barred under section 541.076(b). We therefore affirm the

summary dismissal of the Moores’ lawsuit against Park Nicollet based on the statute of

limitations. Given our affirmance, the Moores’ remaining argument that the district court

should have granted them partial summary judgment on the issue of liability is moot, and

we do not address it. See Isaacs v. Am. Iron & Steel Co., 690 N.W.2d 373, 376 (Minn.

App. 2004) (“[A]n issue may be dismissed as moot if an event occurs that . . . renders it

impossible to grant effective relief.”), review denied (Minn. Apr. 4, 2005).

       Affirmed.




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