# Davies v. West Publishing Co.

> Court of Appeals of Minnesota · March 6, 2001 · 622 N.W.2d 836

URL: https://www.frixlaw.com/law-library/cases/9593482

## Case

- **Full name:** Lawrence K. DAVIES, on Behalf of Himself and All Others Similarly Situated, Respondent, v. WEST PUBLISHING COMPANY, Et Al., Appellants
- **Court:** Court of Appeals of Minnesota
- **Decided:** March 6, 2001
- **Citations:** 622 N.W.2d 836; 25 Employee Benefits Cas. (BNA) 2400; 2001 Minn. App. LEXIS 240; 2001 WL 214263
- **Precedential status:** Published
- **Opinion:** Dissent by Randall
- **Judges:** Kalitowski, Randall, Crippen
- **Cited by:** 27 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9593482

## How later opinions describe it (automated extraction)

- stating that district court's decision following application of a statute to undisputed facts is not binding on this court
- applying a six-year statute of limitations to breach of fiduciary duty claims based on financial distributions from the same fund occurring over a period beginning in 1967
- rejecting continuing violation doctrine and distinguishing continuing course of conduct from separate distinct acts

## Opinion text

RANDALL, Judge
(dissenting)
I respectfully dissent. I agree with the certification, but I also agree with the district court’s finding that defendant/appellant’s statute of limitations defense is inapplicable.
In its May 1, 2000, order, the district court’s accompanying memorandum stated in relevant part:
The Court rules that Defendants’ statute of limitations defense is inapplicable. The Court makes this ruling on two alternative theories 1) Former Minn. Stat. § 50.12 is applicable here and serves to bar the statute of limitations defense; and alternatively, 2) Minn.Stat. § 541.05 may apply, however, * *⅜ * because Defendants’ actions constitute a continuing course of action, the six year period did not start to run until the last distribution made in 1998.
Addressing Minn.Stat. § 541.05, the district court said in relevant part:
Second, this Court finds that WPSA’s manner of operation throughout the approximately 30 years of its existence where it made pro-rata distributions to all employees, may be characterized as a continual, fluid process of non-disclosure to its depositors. The Court finds that the series of distributions of moneys from the WPSA fund constitute a continuing course of conduct, rather than an isolated series of events. Improper distributions continued in a systematic, periodic pattern from 1967 until the last distribution approximately 30 years later in 1996. The Court agrees that Minnesota recognizes a “continuing torts doctrine” under which a tort is deemed continuous as opposed to a one-time event, and the limitations period does not begin to run until the date the tor-tious conduct ends. Hence, here since the 16 all-employee distributions started in 1967 and ended in 1996, no statute of limitations can run until the date of the last distribution, which was on November 29,1996.
The district court correctly noted that the statute of limitations could not begin to run until November 1996, and because the plaintiffs brought their action in 1999, it was easily within the six-year limit.
The majority acknowledges that the continuing violation doctrine is not confined (although commonly applied) to discrimination cases. I find nothing negative in the Minnesota Supreme Court case of Toombs v. Daniels, 361 N.W.2d 801 (Minn.1985), because Toombs was not a continuing violation case. There is no indication in the record that the plaintiff sought application of the doctrine. Toombs , actually, is an excellent example of the potentially harsh results of not applying the doctrine; it is not authority for failing to do so.
Toombs examined two separate limitations, neither relevant to the instant case. Under Minn.Stat. § 541.05, subd. 1(6), which limits fraud claims, the plaintiff could only reach trust distributions that occurred in the six years prior to the claim. Toombs, 361 N.W.2d at 810 . It is 'precisely because the continuing violation doctrine was not argued or applied that *844 the plaintiff could not reach earlier fraudulent distributions. The other limitation considered in Toombs was § 541.05, subd. 1(7), which involves trusts. The majority cites language considering when the clock starts ticking for such claims. These citations are not “instructive” because the statute of limitations has certainly run in the case at bar (assuming § 50.12 is inapplicable). Respondent admits this. This is why he asserts (as the plaintiff in Toombs should have) the continuing violation doctrine. Citations concerning when a clock starts ticking are of no use when everyone agrees time is up.
In the final analysis, I conclude, as the district court did, that nonstop conduct occurring over “x” years, comprising “x” payments is, as a matter of law, continuous.
I dissent and would remand this case to the district court for further proceedings.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9593482. Public record. Not legal advice.