This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






Christiansen Construction Company, Inc.





Tom Lundberg, et al., d/b/a Tom’s Stop, Inc.,



Filed November 7, 2000


Peterson, Judge


Beltrami County District Court

File No. C6981136


Rebecca S. Anderson, 514 America Avenue Northwest, P.O. Box 880, Bemidji, MN  56601 (for respondent)


Thomas L. D’Albani, 205 Seventh Street, Bemidji, MN  56601 (for appellants)

            Considered and decided by Toussaint, Chief Judge, Peterson, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N



            This appeal is from a judgment and order denying appellants’, Tom and Mildred Lundberg, individually and d/b/a Tom’s Stop, Inc., motion for a new trial.  The Lundbergs argue that they should be granted a new trial because counsel for respondent Christiansen Construction Company, Inc., committed misconduct during closing argument by referring to evidence not in the record regarding the Lundbergs’ financial condition.  We affirm.


            The Lundbergs and Christiansen entered into a contract under which Christiansen agreed to be the general contractor for a convenience store called Tom-Stop.  The parties’ dispute concerns the contract’s price term.  The Lundbergs claim the parties agreed on a maximum contract price of $526,000, with additional money to be paid for add-ons, and Christiansen claims that the parties agreed to an eight-percent cost/plus contract with no maximum price.  An eight-percent cost/plus contract means the contractor is paid the cost of materials and labor charges plus eight percent of the total materials and labor costs for overhead and profit.  There was no written contract.

            Tom Lundberg testified that after receiving a contract proposal from CI Construction, he met with Don Berg, a project manager for Christiansen, to discuss Christiansen doing the project.  According to Tom Lundberg, Berg said that Christiansen could do the project for at least $50,000 less.  The CI proposal contained a $564,000 ceiling price, and Tom Lundberg testified that Berg guaranteed that Christiansen would not charge more than $526,000 for the project.

            Berg testified that he worked out the details of the contract with Tom Lundberg and that there was no maximum ceiling price.  Berg also testified about several changes that Christiansen made to the CI proposal; that some of the changes were requested by Tom Lundberg initially; the reasons for any changes suggested by Christiansen were explained to Tom Lundberg; Tom Lundberg understood that the changes would result in increased costs; and Tom Lundberg approved all of the changes.  Tom Lundberg acknowledged that changes were made to the specifications proposed by CI and that he understood that changes could result in increased costs.

            Shortly after delivery of the petroleum tanks, a hard frost occurred, which increased the cost of pouring concrete around the tanks.  Berg testified that pouring the concrete around the petroleum tanks could not be delayed until spring due to laws governing petroleum tanks.  Berg testified that due to the extremely cold weather conditions, he recommended, to save money, placing crushed gravel or crushed concrete on walkways and waiting until spring to pour concrete, but Tom Lundberg refused.

            During cross-examination, Christiansen’s counsel questioned Tom Lundberg about exhibit four, which the Lundbergs state contained copies of the Lundbergs’ bank statements and cancelled checks:

            Q  Okay.  You provided evidence through exhibit 4 showing all the payments that you made?  Mr. Lundberg, if you’d like to take a minute and go through that.  There’s only one check to Bemidji Blacktop, isn’t that correct?  I’d like to refer you to check number--check dated July 8th, 1997.


            * * * *


            Q  There’s no other check in that pile to Bemidji Blacktop, is there?


            A  That’s correct.


            * * * *


            Q  Okay.  And I believe you testified that you paid Larry Johnson for the tile $17,000.00?


            A  That’s approximately correct.


            Q         But the evidence you provided to us through exhibit 4 shows that you actually paid $13,868.00, isn’t that correct?


Exhibit four was not offered or admitted into evidence.  The Lundbergs’ counsel did not object to any of the cross-examination regarding exhibit four.

            The Lundbergs’ counsel sought to elicit evidence regarding whether the Lundbergs had ever gotten behind in their payments to the bank on the Tom-Stop loan.  Christiansen’s counsel objected to the evidence as irrelevant, and the trial court sustained the objections.  The Lundbergs presented evidence that they had to take out loans in addition to the initial $500,000, including a $100,000 override and an $80,000 loan secured by assets other than Tom-Stop, to meet unexpected expenses for Tom-Stop.  Randy Frisk, the bank’s commercial loan officer, testified that the bank had told Tom Lundberg that he would have to pay any costs over $600,000 on his own.  Frisk also testified that after receiving the $80,000 loan, Tom Lundberg came to the bank and said, “I still owe money.”

            During closing argument, Christiansen’s counsel stated:

            We have the testimony of Don Berg who told you, that’s what I always understood, it was cost plus at eight percent.  We have the testimony of Edythe Christiansen who told you, that’s what I always understood, in fact, that’s the way I billed it.  Not only that, we have the bills.  * * * Every single bill shows eight percent.


            There was no confusion.  Mr. Lundberg knew.  He changed his mind.  How do we know he changed his mind?


            Well, when you take a look at exhibit 4 when you go back there, and I’d like you to do that, why don’t you take a look at how much money Mr. Lundberg had in June.  He ran out of money, starting [sic] having non-sufficient funds, overdrafts.  It’s a good time to change your mind.


            The Lundbergs’ counsel objected on grounds that the argument misstated a fact and referred to evidence outside the record.  Following a bench conference, the court directed Christiansen’s counsel to continue, and counsel continued as follows without objection:

            Take a look at exhibit 4, look through it.  And look through it for a couple reasons.  You know, I know that Mr. Lundberg testified here today about all these costs that he’s had.  But what was provided to us?  I mean what did we know about these costs that he’s claiming?  Look through that, look at those numbers.  Those numbers don’t match what he’s provided us.  He testified to it today, but he hasn’t provided any document.


            After the jury retired to deliberate, the trial court and counsel discovered that exhibit four had not been admitted into evidence.  The trial court proposed the following curative instruction:

In [Christiansen’s] closing argument, [counsel] made reference to exhibit 4 * * *.  That exhibit was not introduced into evidence * * *.  [Christiansen’s counsel] then stated that Mr. Lundberg may have had non-sufficient funds or overdrafts * * *.  There was no evidence introduced to support that statement and you should disregard it * * *.


The trial court then noted that a curative instruction “could, unfortunately, draw the jury’s attention to the issue” and invited the Lundbergs’ attorney to suggest different language for a curative instruction.  The trial court left the decision whether to give a curative instruction up to the Lundbergs, who declined.  Less than one hour after the jury retired, the bailiff informed the court that the jury was looking for exhibit four.  The trial court stated that since the jury was looking for exhibit four, it would be a perfect time to give a curative instruction, but the Lundbergs again declined.  About five hours after retiring, the jury returned a verdict in favor of Christiansen.


            “The question of granting a new trial for misconduct of counsel is governed by no fixed rules, but rests almost wholly in the discretion of the trial court.”  Nadeau v. County of Ramsey, 277 N.W.2d 520, 523 (Minn. 1979).

            The purpose of a new trial is not to punish counsel, but to cure prejudice.  A new trial is not warranted unless the misconduct of counsel clearly resulted in prejudice to the losing party.


Sather v. Snedigar, 372 N.W.2d 836, 839 (Minn. App. 1985) (citations omitted).

            Following three days of testimony, Christiansen’s counsel made a single, brief reference to nonsufficient funds and overdrafts.  Christiansen’s counsel made a second reference to exhibit four, arguing that it would show that the amounts the Lundbergs paid directly to subcontractors were less than the amounts testified to by Tom Lundberg.  Although exhibit four was not admitted into evidence, Christiansen’s counsel cross-examined Tom Lundberg about it without objection, and his responses to her questions indicated that the payments shown by cancelled checks were less than amounts testified to by Tom Lundberg.  Thus, even though exhibit four was not admitted into evidence, counsel’s argument that Tom Lundberg paid less to subcontractors than he claimed was supported by evidence in the record.

            Christiansen’s counsel’s reference to nonsufficient funds and overdrafts was not serious misconduct.  Although the Lundbergs argue that the reference resulted in the verdict in favor of Christiansen because it caused the jury to conclude that the Lundbergs’ failure to pay the entire amount charged by Christiansen was because of their financial inability to do so, as the trial court found, the Lundbergs’ financial condition was not a material issue in the case.  The trial court also found that based on evidence presented by the Lundbergs, the jury could have concluded that the Lundbergs were having financial difficulties.  This finding is supported by evidence about cost overruns, particularly those due to cold weather, and by Frisk’s testimony about the $80,000 loan and Tom Lundberg’s statement that he still owed money.

            The trial court judge “is present during the trial and is best positioned to determine whether or not an attorney’s misconduct has prejudiced the jury.”  Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn. 1994).  We also note that the trial lasted three days, the trial court instructed the jury to disregard any statements by counsel that did not match the jury’s recollection of the evidence, and the jury deliberated for almost five hours before returning a verdict.  Considering all of these factors in light of the broad discretion accorded the trial court in deciding whether to grant a new trial based on misconduct by counsel and in light of the evidence in its entirety, we cannot conclude that the trial court abused its discretion by concluding that a new trial was not warranted because the misconduct committed by Christiansen’s counsel did not clearly result in prejudice to the Lundbergs.

            Our decision is also supported by the Lundbergs’ declining the trial court’s offer to give a curative instruction.  See State v. Griese, 565 N.W.2d 419, 428 (Minn. 1997) (failure to seek a curative instruction weighs heavily against granting a new trial).  The trial court has discretion to determine whether a curative instruction is appropriate to correct erroneous statements in a closing argument.  Poston v. Colestock, 540 N.W.2d 92, 93 (Minn. App. 1995), review denied (Minn.  Jan. 25, 1996).  The record does not show that the trial court was incorrect when it stated that a curative instruction could have alleviated any prejudice caused by the misconduct.  As the trial court indicated, it could have given a curative instruction in response to the jury’s question about exhibit four without drawing undue attention to Christiansen’s counsel’s statement about nonsufficient funds and overdrafts.  The trial court did not abuse its discretion by denying the Lundbergs’ new trial motion.