This opinion will be unpublished and

may not be cited except as provided by

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






County of St. Louis,





Building Restoration Corporation,



Filed July 24, 2001


Harten, Judge


Itasca County District Court

File No. C8-99-600190


Alan Mitchell, St. Louis County Attorney, Vernon D. Swanum, Assistant County Attorney, County Attorney’s Office, 100 North Fifth Avenue West, Suite 501, Duluth, MN 55802 (for appellant)


Michael W. Haag, Steven J. Sheridan, Andresen, Haag, Paciotti, & Butterworth, P.A., 100 Alworth Building, P.O. Box 745, Duluth, MN 55801-0745 (for respondent)


            Considered and decided by Harten, Presiding Judge, Kalitowski, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N




            Appellant St. Louis County brought an action against respondent Building Restoration Corporation for breach of contract and negligence.  Appellant challenges evidentiary rulings made by the district court at trial and the district court’s decision to grant no more than a partial new trial.  Because the district court did not abuse its discretion in making the challenged decisions, we affirm.



            Appellant contracted with both Barr Engineering and respondent to renovate the St. Louis County Courthouse in Virginia (the Courthouse).  Barr Engineering was to provide architectural services and make recommendations for the project; respondent was to perform the actual construction work. 

The Courthouse is primarily constructed of bricks; however, the building’s trimming and front columns are terra cotta, a clay building material, that is molded and hardened.  The original terra cotta had developed cracks and breakage.  Respondent’s contractual duties included patching and repairing the terra cotta masonry, which involved coating the repaired masonry.  Respondent coated the masonry with a product manufactured by ProSoCo.  The job was completed in October 1995. 

            In early 1996, appellant discovered that the coating applied by respondent had failed to bond with the surface of the terra cotta masonry, resulting in flaking and blistering of the coating.  In attempting to remedy the problem, respondent and ProSoCo provided additional services and coating at no charge.  Respondent removed the old coating by water blasting and applied a new coating, but that coating failed as had the earlier coating.

In 1999, appellant hired a new contractor to apply a different coating to the terra cotta masonry.  The new contractor removed the old coating by water blasting with a grit or sand additive, thereby abrading or roughing up the surface prior to application of the new coating.  This resulted in a successful terra cotta repair.

            Appellant sued Barr Engineering and respondent, alleging breach of contract and negligence.  Respondent filed a third-party complaint against ProSoCo.  Appellant settled with both Barr Engineering and ProSoCo; at the time of trial, respondent was the only remaining defendant. 

            Appellant filed a motion in limine seeking to prevent respondent from presenting evidence at trial concerning appellant’s final efforts to correct the problem relating to the coating on the terra cotta masonry, reasoning that such efforts constituted subsequent remedial measures inadmissible under the Minnesota Rules of Evidence.  The district court denied the motion. 

            At trial, the parties produced evidence concerning the 1999 techniques used to remove the old coating from the terra cotta masonry, that is, the abrading technique.  Counsel for respondent also elicited testimony from a county employee, who had observed another person’s Internet search that produced an Internet posting recommending abrading prior to application of coating to terra cotta masonry. 

            The jury returned a special verdict form, stating that respondent had not failed to substantially comply with the “plans and specification relative to the painting of the terra cotta on the Virginia Courthouse remodeling project”; that appellant was damaged in the amount of $12,000; and that respondent was 20% at fault.  Finding the verdict inconsistent, the district court granted appellant a new trial on the issues of liability and comparative fault, but let the damage figure stand.  Following a new trial, a second jury found that respondent had been negligent and was 40% at fault.  This appeal followed. 



1.         Evidentiary Issues


Absent erroneous interpretation of the law, the question of whether to admit or exclude evidence is within the district court’s discretion.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).

a.                  Subsequent Remedial Measures


Appellant contends that the district court erred in permitting respondent to present evidence of subsequent remedial measures at trial.  Specifically, appellant claims that the district court erred in permitting respondent to show that the county’s new contractor used a sandblasting or abrading technique to remove the old coating, thereby roughening the surface of the terra cotta masonry before applying the new coating.  Appellant claims that this evidence was offered for the purpose of demonstrating the negligence of Barr Engineering, evidence that tended to reduce respondent’s negligence.

Evidence of subsequent remedial measures is inadmissible if offered to prove “negligence or culpable conduct in connection with the event” at issue, but otherwise may be admitted.  Minn. R. Evid. 407.  The district court ruled—and appellant concedes—that the evidence concerning the county’s latest techniques for removing the coating is relevant to the issue of appellant’s damages.  The district court noted that because the amount of damages was at issue, the county needed to produce evidence that the 1999 repairs constituted a fair estimate of the county’s damages.  This, according to the district court, opened the door into an inquiry as to whether the 1999 sandblasting was reasonable or constituted proper mitigation of damages.  Cf. Johnson v. Farmers Union Cent. Exch., Inc., 414 N.W.2d 425, 432-33 (Minn. App. 1987) (evidence that worker was not wearing goggles at time of accident admissible for purpose of showing failure to mitigate damages), review denied (Minn. Nov. 24, 1987).  As respondent points out, it was

entitled to show there was an additional cost associated with the new surface preparation, that it was not part of the original contract, and that [the county] could not recover it under the applicable measure of damages.


To the extent that the evidence could be used for another purpose, appellant could have requested a cautionary instruction but apparently did not do so.  See State v. DeZeler, 230 Minn. 39, 48, 41 N.W.2d 313, 319 (1950).  We conclude that the district court did not abuse its discretion in admitting evidence of the 1999 coating-removal technique.

b.                  Hearsay


Subject to certain exceptions, hearsay is inadmissible.  Minn. R. Evid. 802.   Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”  Minn. R. Evid. 801(c). 

Here, a St. Louis County employee testified that he observed an unidentified Internet web site’s indication that terra cotta masonry should be abraded or roughed up prior to being coated.  It is unclear whether this testimony was offered for the truth of the matter asserted.  Evidence of the unidentified website’s pre-coating recommendations appears to be preliminary to the more pertinent discussion of the actual work done in 1999.  Even if the district court erred in admitting the employee’s testimony, the erroneously admitted statements are cumulative of the successful 1999 coating operation.  As such, the purported error was harmless, nonprejudicial, and would not alter the result of the trial.  See In re Welfare of D.T.N., 508 N.W.2d 790, 797 (Minn. App. 1993) (“A reviewing court will not reverse a trial court for an error that it can see did not change the result.” (citation omitted)), review denied (Minn. Jan. 14, 1994).  We see no prejudicial abuse of discretion on this ground.

2.         New Trial on All Issues


The county contends that it was entitled to a new trial on all issues—including damages—not just the issues of liability and comparative fault.

“A new trial may be granted * * * on all or part of the issues * * *.”  Minn. R. Civ. P. 59.01.  “The trial court has the undoubted power to grant a new trial on one of several issues when it is distinct from the others so that justice does not demand a retrial on all the issues.”  Koenigs v. Werner, 263 Minn. 80, 84, 116 N.W.2d 73, 76 (1962). 

“The granting of a new trial rests almost entirely in the discretion of the trial court and will be reversed only for a clear abuse of discretion.”  200 Levee Drive Ass’n, Ltd. v. County of Scott, 532 N.W.2d 574, 578 (Minn. 1995).  Moreover, the granting of a partial new trial also lies within the discretion of the trial court.  Parkside Mobile Estates v. Lee, 270 N.W.2d 758, 763 (Minn. 1978).

            A trial court may order a new trial when damages appear entirely inadequate, but the jury’s verdict should not be changed unless there is no evidence reasonably supporting it or it is manifestly contrary to the evidence.  Bartosch v. Lewison, 413 N.W.2d 530, 533 (Minn. App. 1987).

            Here, the issue of damages was distinct from the issue of comparative fault.  The record reflects that during the first trial the jury had access to evidence relating to the itemized costs of the original construction project and the costs associated with the 1999 project.  Because there was sufficient evidence for the jury to make an informed determination as to damages following the first trial, we conclude that the district court did not abuse its discretion in declining to grant a new trial on all the issues.