This case arises out of the Parties’ failed construction contract. Plaintiff Fifth Side Lodging, LLC is an entity formed for the sole purpose of developing a Fairfield Inn and Townplace Suites hotel in Edina, Minnesota. Rise is a commercial contractor specializing in “multifamily and hospitality modular construction projects.”
In May 2019, Fifth Side and Rise began negotiating the Project in which Rise would serve as general contractor in Fifth Side’s construction of a hotel in Edina, Minnesota. The parties met numerous times for purposes of understanding each other’s financial health, general business practices, history in the industry, and overall ability to timely execute the contemplated Project.
On June 1, 2023, Rise and Fifth Side executed a construction contract (Agreement). Fifth Side sued Rise after Rise terminated the construction contract due to Fifth Side’s failure to supply adequate financial assurances.
Rise filed a motion to exclude the expert testimony of Ben D. Nolan, who opined that Fifth Side had the financial ability to fund the Project, and that Fifth Side met its obligation under the Owner’s Financial Assurances provision.
Construction Expert Witness
Ben Davis Nolan has served the construction industry for over thirty-eight years, having worked as a project engineer for the US Army Corps of Engineers (ACOE), project manager for a major general contractor, marine contractor, utility contractor, and president of a general contracting company.
His career has progressed from hands-on construction and engineering field work to construction dispute resolution and management consulting. Nolan has managed over two hundred consulting engagements for clients since 1992.
Discussion by the Court
Rise filed a motion to exclude the testimony of Nolan, who opined that Fifth Side had the financial ability to fund the Project, and that Fifth Side met its obligation under the Owner’s Financial Assurances provision. Rise argued that Nolan’s first opinion was irrelevant to the narrow contract claims, which center on whether Fifth Side met its obligation under the Agreement’s Owner’s Financial Assurances provision. Rise also argued that Nolan improperly relied on documents Fifth Side did not provide to Rise before contract termination. The Court agreed with Rise.
The core issues for the jury are whether Fifth Side met its obligation under the Owner’s Financial Assurances provision and, conversely, whether Rise had the right to terminate the Agreement under that provision.
Because Nolan’s opinion that Fifth Side had the financial ability to complete the project is irrelevant to those issues, he is barred from testifying on that topic. The same is true for any post-termination evidence demonstrating Fifth Side’s financial wherewithal.
Indeed, the question is not whether Fifth Side could in fact fund the Project, but rather whether it provided Rise with reasonable evidence that it could do so.
As a result, Nolan may not testify as to Fifth Side’s financial ability to complete the Project, nor may he discuss post-termination documents he relied on to establish Fifth Side’s financial wherewithal. Any post-termination evidence regarding Fifth Side’s financial means is likewise inadmissible. Nolan may testify, however, as to whether the documents Fifth Side provided to Rise pre-termination were sufficient, in his opinion, to meet the Owner’s Financial Assurances provision.
Held
The Court granted in part and denied in part Defendants’ motion to exclude the testimony of Ben Nolan.
Key Takeaway
The proponent of the expert testimony bears the burden of proving its admissibility by a preponderance of the evidence. While Nolan’s qualifications are not really in dispute, Nolan’s opinion that Fifth Side had the financial ability to complete the project is irrelevant to the core issues.
Case Details:
| Case Caption: | Fifth Side Lodging, LLC V. Rise Construction Services, LLC |
| Docket Number: | 0:23cv2649 |
| Court Name: | United States District Court, Minnesota |
| Order Date: | March 30, 2026 |
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