This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







Steven Pickard,


Joan Pickard,





Alfred Goudge, d/b/a Goudge Construction,




Filed January 30, 2001


Anderson, Judge


Chisago County District Court

File No. C7971031


Steven and Joan Pickard, 6431 260th Street, Wyoming, MN  55092 (pro se appellants)


David Essling, 1217 West 7th Street, St. Paul, MN  55102 (for respondent)


            Considered and decided by Harten, Presiding Judge, Klaphake, Judge, and Anderson, Judge.


U N P U B L I S H E D   O P I N I O N


            Appellants challenge the district court’s refusal to grant a new trial, arguing (1) newly discovered evidence reveals inconsistent witness testimony, (2) witness unavailability precluded certain testimony, and (3) the court improperly excluded medical testimony.  Because appellants have failed to show that the district court abused its discretion in denying a new trial, we affirm.


            In 1997, appellants Steven and Joan Pickard brought an action against their home designer, real estate agency, and contractor, respondent Alfred Goudge d/b/a/ Goudge Construction, alleging injuries caused by the design, craftsmanship, and construction of their home.  The district court granted summary judgment in favor of all defendants, including respondent.  Appellants sought review, and this court reversed the summary judgment with respect to respondent only, noting that material facts supported appellants’ claims against the contractor.  Pickard v. Goudge, No. C2-98-1010 (Minn. App. Nov. 24, 1998).          

            At trial, appellants attempted to prove that respondent’s defective construction of their home breached warranties and caused medical injuries.  At the close of the testimony, however, the district court directed a verdict as to the medical injury claims.  The jury rejected the breach of warranty claims.

            The district court denied appellants’ motion for a new trial.  This appeal followed. 


            The district court denied appellants’ motion for a new trial.  Appellants’ contend that decision constituted an abuse of discretion because the district court (1) failed to recognize newly discovered evidence; (2) rejected appellants’ claim of witness unavailability; and (3) excluded relevant evidence.  Because the district court has the discretion to grant a new trial, this court will not disturb the decision absent a clear abuse of that discretion.  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).  On appeal from denial of a motion for a new trial, review is limited to grounds assigned as error in the new trial motion.  Tews v. Husqvarna, Inc., 390 N.W.2d 363, 366 (Minn. App. 1986) review denied (Minn. Sept. 24, 1986).


Appellants first contend that the district court abused its discretion by rejecting newly discovered evidence.  Appellants claim that a recently signed realtor’s affidavit, when viewed in conjunction with the warranty certifying the completion of their house, contradicts respondent’s testimony that he did not live in Forest Lake or meet with appellants at his home.  Relying on Minn. R. Civ. P. 59.01, appellants argue that this contradiction misled the jury as to the implied warranty claims.  Rule 59.01 allows a new trial for “[m]aterial evidence newly discovered” which, with reasonable diligence, could not have been found and produced at the trial.  Minn. R. Civ. P. 59.01(d).  

The realtor’s affidavit is not newly discovered evidence because the realtor could have been found before trial and the affidavit offered at trial.  See Lewin v. Proehl, 211 Minn. 256, 262, 300 N.W. 814, 817 (1941) (holding that newly discovered evidence is that which was not available at trial, and new trial properly denied when counsel failed to conduct personal search and inspection of files).  Appellants claim to have attended this disputed meeting with their realtor, and therefore knew the importance of the realtor’s impeaching testimony at trial.  But appellants did nothing to solicit the realtor’s testimony until after the trial.  The district court observed that “the evidence submitted upon a motion for new trial could have been covered at trial on cross examination for impeachment purposes.”  We agree and conclude that the district court did not abuse its discretion by denying appellants’ motion for a new trial based on the realtor’s affidavit.

The warranty associated with the completion of appellants’ home also does not qualify as newly discovered evidence under rule 59.01.  The warranty, dated May 28, 1991, was mentioned during respondent’s testimony.  See Vangsness v. Vangsness, 607 N.W.2d 468, 478 (Minn. App. 2000) (evidence addressed at trial is not newly discovered evidence under the rules).  The district court did not abuse its discretion in denying appellants’ motion for a new trial based on newly discovered evidence.


Appellants next claim the district court abused its discretion by failing to recognize witness unavailability.  Appellate review, however, is limited to grounds assigned as error in the new trial motion.  Tews, 390 N.W.2d at 366.  The motion for a new trial does not allege error by the court on the grounds of witness unavailability, but states that a witness, unavailable at trial, has useful information, an issue not raised at trial.  As a result, the district court rejected appellants’ request, stating

[a]ny problem with witness availability could have been dealt with by a request for a continuance or some other similar relief in order to accommodate the witness.  There was no request made to the court.


We conclude that the district court did not abuse its discretion in refusing to grant a new trial based on witness unavailability because appellants failed to allege any error by the court supporting their argument. 


            Finally, appellants allege that the district court abused its discretion by excluding unspecified medical evidence.  Appellants claim that the exclusion prejudiced the jury’s outlook on the merits of the entire trial. 

As a general rule, an appellant bears the burden of providing an adequate record.  Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn. App. 1995); see also Noltimier v. Noltimier, 280 Minn. 28, 29, 157 N.W.2d 530, 531 (1968) (pro se status does not affect obligation to provide adequate record).  The record must be sufficient to show the alleged errors and all matters necessary for consideration of the questions presented.  Truesdale v. Friedman, 276 Minn. 402, 404, 127 N.W.2d 277, 279 (1964).  Appellants provided only a partial transcript, which does not contain any medical-evidence testimony.  Appellants’ brief and motion for a new trial also fail to state what medical evidence was excluded.  As a result, we cannot review specific exclusions of medical evidence, if any exist at all, to determine whether the district court abused its discretion resulting in prejudice.  Appellants failed to meet their burden of providing an adequate record and that failure compels us to reject appellants’ medical evidence exclusion claim.  See Noltimier, 280 Minn. at 29, 157 N.W.2d at 531 (holding that if the record is not sufficient to support review, the appeal may be dismissed); Truesdale, 276 Minn. at 404, 127 N.W.2d at 279 (the record must be sufficient to show the alleged errors and all matters necessary for consideration of the questions presented). 

There is a possible alternative interpretation of appellants’ argument that medical evidence was wrongfully excluded.  Appellants may be arguing that the court erred by concluding, as a matter of law, the medical injury claim was meritless.  Because we are cognizant of the “latitude and consideration [that] is provided by all courts to persons appearing pro se” we choose to address this alternative argument.  Liptak v. State ex rel. City of New Hope, 340 N.W.2d 366, 367 (Minn. App. 1983).

On appeal from a directed verdict, this court makes an independent determination of whether the evidence was sufficient to present a fact question to the jury.  Boone v. Martinez, 567 N.W.2d 508, 510 (Minn. 1997).  In making such a determination, this court reviews the evidence in the light most favorable to the nonmoving party.  Id.

Appellants submitted various internet documents and medical journal articles to the district court in an effort to provide medical explanations for their alleged injuries.  The district court reviewed these documents before granting a directed verdict on this issue, and in its post-trial memorandum, the court stated: 

[t]here was not any offered testimony of a medical doctor where there was at least the start of a basis to assert that as an expert the doctor could state to a reasonable degree of medical certainty that the problems alleged were caused by the defendant’s actions.


For respondent’s conduct to be the proximate cause of appellant’s injury,

[i]t must appear that * * * the act is one which the party ought, in the exercise of ordinary care, to have anticipated was likely to result in injury to others. 


Wartnick v. Moss & Barnett, 490 N.W.2d 108, 113 (Minn. 1992) (citation omitted).  Viewing the internet and journal articles as the “excluded evidence” for which appellants seek relief, we conclude that appellants failed to establish that the defective construction caused their medical injuries.  The district court’s conclusion that appellants failed to establish causation is sufficient grounds to conclude that the district court did not err in denying appellants’ motion for a new trial.