This opinion will be unpublished and

may not be cited except as provided by

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






Frank Gonzalez,





Imperial Camper Sales, Inc.,



Filed May 22, 2001


Amundson, Judge


Washington County District Court
File No. C5-99-472



Clair E. Schaff, 925 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, Minnesota 55402 (for appellant)


John F. Cameron, 4100 Multifoods Tower, 33 South Sixth Street, Minneapolis, Minnesota 55402 (for respondent)


Considered and decided by Amundson, Presiding Judge, Toussaint, Judge, and Huspeni, Judge.[*]


U N P U B L I S H E D   O P I N I O N



            Appellant former employee brought employment-related claims against respondent employer.  The district court granted respondent’s motion for a directed verdict on appellant's racial discrimination claim and found, after trial, that appellant had not proven his claims of fraudulent inducement under Minn. Stat. § 181.64 (2000) or promissory estoppel.  The district court denied appellant's motion for a new trial based on newly discovered evidence, ruling that, with reasonable diligence, appellant could have found and produced the evidence at trial.  Appellant contends the district court abused its discretion in denying his motion for a new trial.   We affirm.


Appellant Frank Gonzalez was working for Norwest Bank in October 1997 when Jeffrey Ellingson, general manager of respondent Imperial Camper Sales, Inc. (Imperial), spoke to him about coming to work for Imperial.  Gonzalez had worked in the banking industry since 1994 and was earning approximately $27,000 a year plus benefits.  According to Gonzalez, Ellingson offered him a position in finance with a guaranteed salary of $45,000 per year.  Ellingson, however, contended that Gonzalez was hired only as a salesperson on commission, with no salary guarantee.  Gonzalez left Norwest and went to work for Imperial in January 1998.  Once he was hired, he inquired and found out he was working on a commission basis.  He told Ellingson that there had been a misunderstanding about his compensation and left Imperial voluntarily in May 1998.

This action was originally based on racial discrimination under the Minnesota Human Rights Act, discrimination in violation of 42 U.S.C. § 1981 (2000), promissory estoppel, and fraudulent inducement to entering employment under Minn. Stat. § 181.64 (2000).  The trial court dismissed Gonzalez’s discrimination claims at a hearing on respondent’s motion for a directed verdict.  After a trial on the merits, the trial court ruled that Gonzalez had failed to establish his claims of promissory estoppel and fraudulent inducement by a preponderance of the evidence. 

About a month after trial, Robert Lee, a salesman at Imperial, consulted with Clair Schaff, Gonzalez’s attorney, on an unrelated employment matter after Lee had an altercation with Ellingson.  Schaff inquired whether Lee knew about the Gonzalez hiring.  In an affidavit, Lee stated that he had been concerned because he did not think that Imperial needed another salesperson.  He spoke to Ellingson, who reassured him that although Gonzalez was hired initially to work in finance and sales, the current finance person was planning to leave her position and Gonzalez would replace her full time in finance.

Lee was neither deposed nor called as a witness at trial, although his name had been listed in defendant’s answers to Gonzalez’s first set of interrogatories as a person with knowledge of plaintiff’s performance and behavior while employed.  His name had also appeared on Imperial’s witness list as a person who was employed while plaintiff was employed and had general knowledge of activities concerning Imperial’s daily operations and plaintiff’s conduct. 

After the discovery of Lee’s information, Gonzalez moved for a new trial on the basis of newly discovered evidence under Minn. R. Civ. P. 59.01(d). In denying the motion for a new trial, the court ruled that reasonable diligence could have produced Lee’s testimony at trial.   This appeal followed.



We will not disturb the trial court’s decision on whether to grant a new trial absent a clear abuse of discretion.  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).  Our review on appeal 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).

Minn. R. Civ. P. 59.01(d) provides that a new trial may be granted when a party newly discovers material evidence which, with reasonable diligence, could not have been found and produced at the trial.  The Minnesota Supreme Court has held that

granting a new trial based on newly discovered evidence requires a showing that the evidence could not have been discovered through the exercise of due diligence before the trial; that at the time of trial the evidence was not within the petitioner’s or his counsel’s knowledge; that the evidence is not impeaching, cumulative, or doubtful; and that it is likely to produce a different result.


Vikse v. Flaby, 316 N.W.2d 276, 284 (Minn. 1982) (citations omitted).


Due diligence requires the use of available discovery tools as well as reasonable investigation efforts.  Regents of Univ. of Minn. v. Medical, Inc., 405 N.W.2d 474, 479 (Minn. App. 1987), review denied (Minn. July 15, 1987). Although Imperial did not disclose Lee’s exact knowledge of the relevant facts, Gonzalez had pretrial notice of Lee both as a possible source of information and as a potential witness.  Despite this notice, Lee was never deposed or called to testify.  The exercise of due diligence required further inquiry to produce Lee’s testimony in a timely fashion.  Therefore, the trial court did not abuse its discretion in ruling that reasonable diligence could have produced the evidence at trial.

Although they need not be additionally proved, other factors of the Vikse test similarly do not afford relief from the trial court’s determination.  New evidence that is merely impeaching is insufficient to warrant a new trial.  May v. Strecker, 453 N.W.2d 549, 556 (Minn. App. 1990), review denied (Minn. June 15, 1990).  There may be exceptions to this rule only “in the most extraordinary circumstances.” Regents of Univ. of Minn., 405 N.W.2d at 480.  To warrant a new trial, the newly-discovered evidence must be of the quality and caliber that it would likely produce a different result at trial.  Schweich v. Ziegler, Inc.,463 N.W.2d 722, 732 (Minn. 1990).

No extraordinary circumstances exist here.  Lee’s affidavit, which tends to impeach Ellingson’s testimony, is not the kind of compelling evidence that would lead a court to order a new trial to maintain the integrity of the judicial process.  See Disch v. Helary, Inc., 382 N.W. 2d 916, 919 (Minn. App. 1986), review denied (Minn. April 24, 1986) (granting new trial based on newly discovered witness who presented evidence of a conspiracy to give false testimony on the part of respondent's key witnesses).  The evidence may also be considered doubtful, since Lee did not come forward until he had his own altercation with Ellingson. 

            Finally, there has been no showing that Lee’s testimony would have produced a different result at trial.  The application of the doctrine of promissory estoppel requires the showing of a clear and definite promise, intent to induce reliance, the occurrence of such reliance, and the necessity of enforcing the promise to prevent injustice.  Ruud v. Great Plains Supply, Inc., 526 N.W.2d 369, 372 (Minn. 1995).  Lee’s affidavit was silent regarding Ellingson’s alleged promise to pay Gonzalez $45,000 per year, a key element in the promissory estoppel claim.  The affidavit’s language that Gonzalez was hired to work first in both finance and sales, then to move into finance, is consistent with the interpretation of a misunderstanding between the parties, rather than with the intentional misrepresentation required to prove fraudulent inducement.  In any case, it reflects an ambiguity in the parties’ intent, which the trial court was in the best position to resolve.




[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.