This opinion will be unpublished and

may not be cited except as provided by

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







Mary Ellen Wagner, individually

and as trustee for the next of kin of

Helen Elizabeth Biegger, Deceased,

Appellant (C8-01-1265),


Laurence C. Schonher, et al.,

Respondents (C9-01-1307),




Robert D. Lewis, Jr.,

Respondent (C8-01-1265),

Appellant (C9-01-1307).


Filed April 23, 2002


Gordon W. Shumaker, Judge


Dakota County District Court

File No. C8007632


William D. Harper, Paul D. Peterson, 6043 Hudson Road, Suite 307, Woodbury, MN 55125 (for appellant Wagner and respondents Schonher)


Lee L. LaBore, Lori Jensen-Lea, 10285 Yellow Circle Drive, P.O. Box 70, Hopkins, MN 55343 (for respondent/appellant Lewis)


            Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Parker, Judge.*                            

U N P U B L I S H E D  O P I N I O N


            These are cross-appeals.  Appellant Mary Ellen Wagner challenges the district court’s denial of her motion for judgment notwithstanding the verdict, or, in the alternative, a new trial, arguing that the evidence does not support the verdict, the court erred in its jury instructions, and various irregularities in procedure deprived her of a fair trial.  Appellant Robert D. Lewis, Jr., argues that the court erred in entering judgment against him in accordance with Minn. R. Civ. P. 68.   Because we find no error or irregularity that affected the verdict and no error in the district court’s enforcement of the rule 68 offer, we affirm.


            This case involves a fatal motor vehicle collision on Highway 169 near Belle Plaine at about 6:00 p.m. on August 15, 1997.  The highway there has two northbound and two southbound lanes separated by a concrete median divider.

            A rainstorm marked by intermittent bursts of heavy rain was passing through the area.  Because of the storm, it was dark.  Puddles of water had settled on the travel lanes in both directions.

            Laurence Schonher was driving a Ford Aerostar van in a southbound lane.  Shirley Schonher and Helen Biegger were passengers in the van.  Robert Lewis was driving a Ford Explorer in a northbound lane.

            Some of the evidence is in conflict, but Lewis testified that when he reached the crest of a hill he was in the right‑hand northbound lane and was behind a U‑Haul truck.  The truck was spraying water from its rear wheels onto Lewis’s windshield.  He also noticed that southbound vehicles were splashing water into the northerly lanes.

            As Lewis began to go down the hill, he changed to the left-hand northerly lane, but stayed two or three car-lengths behind the truck.  He noticed that the truck started to fishtail.  Lewis began to tap his brakes to slow down.  He encountered a large amount of water on the road, and his vehicle began to hydroplane.  He lost control, and his vehicle crossed over the median and struck the Schonher van.  The impact killed Helen Biegger and injured the Schonhers.

A state trooper who reconstructed the accident opined that Lewis was driving too fast for road conditions and that, although the rainfall was torrential just before the collision and the road was flooded, those conditions do not constitute an emergency; rather they are road hazards of which a driver needs to be aware.

            The Schonhers and Mary Ellen Wagner, as trustee for Helen Biegger’s next of kin, sued Lewis in the same action.  Trial was set for February 27, 2001.  On January 12, 2001, Lewis moved to continue the trial because Laurence Schonher had not attended an independent medical examination.  The Schonhers did not object but Wagner did.  The district court ordered the continuance only of the Schonhers’ case.  The Wagner claim was to be tried as scheduled.

            On February 21, 2001, Lewis tendered to the Schonhers a settlement offer of $500,000, ostensibly under Minn. R. Civ. P. 68.

            The Wagner trial concluded on March 2, 2001, with the jury finding that Lewis had not been “negligent in the operation of his motor vehicle on August 15, 1997.”

            The Schonhers accepted the offer on March 5, 2001, and soon thereafter requested that the court enter judgment.  Lewis declined to pay the settlement, contending that the Schonhers’ acceptance was untimely.

Lewis moved to dismiss the Schonher action on the ground of collateral estoppel.  Wagner moved for judgment notwithstanding the verdict or, in the alternative, a new trial.  The district court denied the motions and granted judgment in favor of the Schonhers on the settlement.  Wagner and Lewis filed cross‑appeals.


            Wagner contends the verdict was perverse; the district court applied the incorrect legal standard in deciding the motion for a new trial; the court erroneously instructed the jury on the “emergency rule”; defense counsel’s misconduct deprived Wagner of a fair trial; the evidence does not support the verdict; and Wagner is entitled to judgment notwithstanding the verdict as a matter of law.

“Emergency Rule” Jury Instruction

            Over Wagner’s objection, the district court instructed the jury on the “emergency rule”:

If there was an emergency that a person did not cause, that person is not negligent if he or she acted in a way a reasonable person would have acted.  In deciding if he or she acted reasonably consider:

            1.         The circumstances of the emergency; and

            2.         What the person did or did not do.


4 Minnesota Practice, CIVJIG 26.35 (1999).

            Wagner’s objection preserved for review any error the district court might have committed by giving the instruction.  See Minn. R. Civ. P. 59.01(f) (must object to error of law at time of trial).

            The district court enjoys broad latitude in instructing the jury.  Kirsebom v. Connelly, 486 N.W.2d 172, 174 (Minn. App. 1992).  However, if the erroneous jury instruction destroys the substantial correctness of the charge, causes a miscarriage of justice, or results in substantial prejudice, a new trial is warranted.  Kissoondath v. U.S. Fire Ins. Co., 620 N.W.2d 909, 915-16 (Minn. App. 2001), review denied (Minn. Apr. 17, 2001).

            A party is entitled to the emergency‑rule instruction if it is consistent with the party’s theory of the case and

the evidence submitted by such party would sustain a finding that he had been confronted with a sudden peril or emergency and acted under its stress.


Siegler v. Conner, 396 N.W.2d 612, 615 (Minn. 1986) (quotation omitted).  Additionally, the party “must show, among other things, that his own negligence did not create or contribute to the perilous situation.”  Fleahman v. Lehman, 388 N.W.2d 417, 419 (Minn. App. 1986), review denied (Minn. Aug. 20, 1986).

            In its order denying Wagner’s motion for a new trial, the district court ruled that Lewis’s testimony supported an instruction on the emergency rule.  Wagner argues that Lewis failed to show that he was without negligence during the moments leading to the collision.  Specifically, Wagner argues that Lewis knew the highway held a lot of water; knew there was water spray coming from both directions of travel; knew that the lanes narrowed so that water would continue to spray from the opposite lanes; was following the northbound truck too closely; and failed to slow down appropriately.

            The emergency rule is an exception to the general rule that drivers must exercise ordinary and reasonable care.  Berg v. Nelson, 559 N.W.2d 722, 724 (Minn. App. 1997), review denied (Minn. May 13, 1997).  Under this exception, a driver who is confronted with an emergency that he did not create through his own negligence will not be charged with negligence for failing to choose the best or safest course of action in dealing with the emergency.  Id.

            The jury was entitled to believe Lewis’s version of the events leading to the collision.  See Brooks v. Doherty, Rumble & Butler, 481 N.W.2d 120, 127 (Minn. App. 1992) (jury has responsibility to weigh evidence and credibility of witnesses), review denied (Minn. Apr. 29, 1992).  There is nothing inherently incredible about his testimony.  By his version, Lewis was driving at the speed of the other traffic.  The jury reasonably could have concluded that a significantly slower speed would have presented a hazard to traffic behind him, causing vehicles to swerve or perhaps collide with the rear of his vehicle.

            Although there was a possibility that opposite‑lane vehicles might spray water onto Lewis’s windshield, the spray from the truck was a certainty.  The jury reasonably could have found that switching lanes was a prudent thing to do to avoid the spray that was constantly occurring.

            Lewis testified that he followed two or three car‑lengths behind the truck and was not trying to pass it.  The accident reconstructionist gave his opinion that Lewis was following too closely.  The jury was entitled to believe either witness and was not required to accept the trooper’s opinion or the testimony of other witnesses as to Lewis’s position on the road.

            Lewis admitted that he knew there were puddles of water on the road, but he testified about his surprise when he encountered a “river” that caused his car to hydroplane.  The jury reasonably could have distinguished between puddles and a “river” and could reasonably have found that the “river” was a peril Lewis could not anticipate.

Thus, the district court properly recognized that there was evidence that, if believed by the jury, would entitle Lewis to the benefit of the emergency rule.  The court’s decision to give the instruction is also in accord with other cases with similar facts.  See, e.g., Fleahman, 388 N.W.2d at 420 (instruction proper where evidence showed that actor driving at a similar speed to other cars, but in a different lane of traffic than most other vehicles, while in icy conditions, does not establish negligence as a matter of law, or unquestionably show that actor’s own negligence contributed to emergency); Siegler, 396 N.W.2d at 614-15 (instruction proper where evidence showed similar speed to other cars, but car in lane next to actor’s began moving into actor’s lane, spraying slush onto windshield, and actor tried to avoid by veering car further into direction of oncoming traffic; accident occurred when actor tried to steer car out of slush in which it became stuck on side of road, rather than apply brakes).  The district court did not err in giving the emergency rule instruction.

Evidentiary Support for Liability Verdict

1.         Legal standard used by the court

Wagner argues that the district court applied an inappropriate standard of law in considering whether to grant a new trial, and thus erred in denying her motion for a new trial.  We are not bound by and need not give deference to a district court’s decision on a purely legal issue.  Frost-Benco Elec. Ass’n. v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984). 

Wagner cites Lamb v. Jordan, 333 N.W.2d 852, 855-56 (Minn. 1983), in arguing that the district court applied the wrong standard in determining whether a new trial is to be granted for insufficient evidence.  In Lamb, the court found that the test to determine whether a new trial is warranted is whether

the verdict is so contrary to the preponderance of the evidence as to imply that the jury failed to consider all the evidence or acted under some mistake or from some improper motive, bias, feeling or caprice, instead of honestly and dispassionately exercising its judgment.


Id.  Wagner argues that the appropriate standard is whether “the jury’s verdict is not supported by a preponderance of the evidence.”

The district court used a comparable standard supported by cases decided both before and after Lamb.  That standard provides that a court may substitute its judgment for that of the jury

only if there is no evidence reasonably tending to sustain the verdict or if the verdict is manifestly and palpably against the weight of the evidence. 


Baker v. Amtrak Nat’l R.R. Passenger Corp., 588 N.W.2d 749, 753 (Minn. App. 1999) (citation omitted).  See also Vikse v. Flaby, 316 N.W.2d 276, 283 (Minn. 1982); Otterness v. Horsley, 263 N.W.2d 403, 405 (Minn. 1978); Stumne v. Vill. Sports & Gas, 309 Minn. 551, 552, 243 N.W.2d 329, 330 (1976); Templin v. Crestliner, Inc., 263 Minn. 149, 151, 116 N.W.2d 178, 180 (1962); Boschee v. Duevel, 530 N.W.2d 834, 842 (Minn. App. 1995) (quotation and citation omitted), review denied (Minn. June 14, 1995).  Cf. ZumBerge v. N. States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992) (citation omitted) (“On appeal from a denial of a motion for new trial, the verdict must stand unless it is manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict.”), review denied (Minn. Apr. 29, 1992).  This standard, although seemingly more stringent than that recited in Lamb, is actually consistent with the Lamb standard. 

To apply the “Lamb” standard, we look at what result the preponderance of the evidence supports; then we consider whether the verdict is “so contrary” to that result that we may infer the jury acted inappropriately.  Under the “non-Lamb” standard, we look to see what result the evidence supports, accepting as true all evidence supporting the verdict, then consider whether the verdict is “manifestly and palpably contrary” to that result.  If there is any difference between the two standards, it is only that the “non-Lamb” standard explains the phrase “so contrary” in the Lamb standard, and clarifies the way in which we are to consider the evidence.  See Hasnudeen v. Onan Corp.,552 N.W.2d 555, 557 (Minn. 1996) (we give great deference to the fact-finder’s determinations of witness credibility).  Despite language differences, the two standards when applied are functionally the same.  The district court did not err in applying the “non-Lamb” standard to determine whether the evidence sufficiently supports the verdict.

2.         Evidentiary support for liability

Wagner argues that the evidence does not support the jury’s verdict and the district court erred in denying her motion for a new trial.  Minn. R. Civ. P. 59.01 (g) (new trial may be granted if the verdict is not justified by the evidence).  Because the district court has the discretion to grant a new trial, we 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).  Only if there is no evidence to support the verdict, or if the verdict is manifestly contrary to the weight of the evidence, can a court substitute its conclusion for that of the jury.  Baker, 588 N.W.2d at 753 (citation omitted). 

Although the evidence is contested and inconsistent, the jury, as the trier of fact, determines witness credibility and the weight to be given to the testimony.  Stall v. First Nat’l Bank of Buhl, 375 N.W.2d 841, 845 (Minn. App. 1985).  Faced with an emergency, Lewis chose to go into another lane instead of slowing down so as to avoid the rain splashing on his windshield from the truck in front in him.  Viewing the evidence in the light most favorable to the jury’s verdict, the evidence is not manifestly and palpably contrary to the verdict. Rather, the evidence reasonably sustains the jury’s verdict that Lewis was not acting negligently at the time of the accident and was reacting to an emergency condition.  Thus, the district court did not abuse its discretion in denying a new trial on this issue, and the verdict must stand. 

Passion/Prejudice of the Jury

Wagner argues that the damages award, in the context of the liability verdict, shows that the jury acted under the influence of passion or prejudice, and entitles her to a new trial under Minn. R. Civ. P. 59.01 (e).  The jury awarded no damages to Wagner.  The district court found that, although the damages verdict was “perverse” standing alone, a new trial would not be appropriate because the jury found that Lewis was not liable, and that it could not be concluded that the jury acted with passion or prejudice. 

The district court’s decision whether to grant a new trial for insufficient damages will not be reversed in the absence of a clear abuse of discretion.  O’Neil v. Wells Concrete Prods. Co., 477 N.W.2d 534, 538 (Minn. App. 1991), review denied (Minn. Jan. 17, 1992).  A damage award that is

less than the proven or undisputed damages may be overturned as the product of passion or prejudice unless the jury has also determined that there is no liability on the part of the defendant, and that finding is supported by credible evidence.


Radloff v. Jans, 428 N.W.2d 112, 115-16 (Minn. App. 1988) (citation omitted), review denied (Minn. Oct. 26, 1988).

            There is credible evidence that Lewis was acting in the face of a peril that he did not create through his own negligence and thus his driving conduct was not negligent.  If the jury believed this evidence, as it obviously did, it could reasonably determine that Lewis was not liable for the collision.  Thus, even if the damages award was arguably “perverse,” the district court did not abuse its discretion in denying Wagner’s motion for a new trial.

Irregularities in the Trial

            Wagner argues that irregularities, the misconduct of Lewis’s attorney, and unfair surprise deprived her of a fair trial, and thus she is entitled to a new trial under Minn. R. Civ. P. 59.01 (a), (b), or (c).  Whether the district court erred in denying a motion for a new trial depends on whether the denial involved a violation of a clear legal right or a manifest abuse of discretion.  Sherman v. Marden, 525 N.W.2d 550, 552 (Minn. App. 1994). 

Irregularity in the proceedings

A new trial may be granted upon the showing of an irregularity in the district court’s proceedings, or in any order or in an abuse of discretion, “whereby the moving party was deprived of a fair trial.”  Minn. R. Civ. P. 59.01 (a).  An irregularity in the proceeding is a “failure to adhere to a prescribed rule or method of procedure not amounting to an error in a ruling on a matter of law.”  Boschee, 530 N.W.2d at 840.  Wagner argues that Lewis’s reference in his opening statement to two witnesses who were not included on either party’s witness list; his attempt to admit those witnesses’ statements into evidence; his lack of candor to the court regarding the availability of those witnesses; and his misstatement of the method of calculating damages during his closing argument were irregularities in the trial. 

Wagner is required to show both that an irregularity occurred and that the irregularity deprived her of a fair trial.  Id.  She argues that she has met this standard because the alleged irregularities resulted in a perverse jury verdict.

a.         Lack of candor

Wagner argues that Lewis’s attorney was not forthright in his statement to the court that he attempted to subpoena the two witnesses mentioned in his opening statement, but he could not find them, and thus they were not available to testify.  Wagner argues that she has affidavits by those witnesses attesting that they could be easily found and were available to testify.  However, all detailed conversation relating to the ability to find these witnesses and their availability to testify occurred outside the hearing of the jury.  We are not persuaded that an arguable lack of candor by counsel to the court, outside the presence of the jury, would somehow have prejudiced the jury.

b.         Mention of witnesses in opening statement and offering their statements during trial

Wagner complains Lewis’s attorney mentioned in his opening statement the potential testimony of two witnesses who were not included on either party’s witness list.  Wagner argues that Lewis later attempted to admit their statements into evidence, despite their absence from any witness list and despite their availability to testify.  The primary consideration in determining whether to grant a new trial for improper remarks is whether the remarks caused prejudice.  Janssen v. Neal, 302 Minn. 177, 182, 223 N.W.2d 804, 807 (1974). 

The district court concluded that the mention of these two witnesses would not have prejudiced the jury.  The court found that Lewis’s attorney mentioned the witnesses in his opening statement, and that he mentioned these two witnesses again while cross-examining an expert witness.  The district court noted that using the statements to ascertain whether the expert considered all of the statements in his assessment was a proper use of the statements, and that the jury could have inferred that this was the testimony Lewis’s attorney referred to in his opening statements.  See Minn. R. Evid. 703(b) (“Nothing in this rule restricts admissibility of underlying expert data when inquired into on cross-examination.”).  The district court also found that if any party was prejudiced by the failure to call the witnesses, it would be Lewis, because Lewis’s attorney mentioned the witnesses in his opening statement.  The court did not abuse its discretion in these rulings or in denying the motion for new trial on the matters reflected in the rulings.

c.         Damage calculation at closing

            Wagner also argues that Lewis’s counsel misstated the law regarding the calculation of damages during his closing argument, creating further irregularities in the proceedings.

The record shows that Wagner objected to every arguable misstatement of the law, and in response the district court gave a detailed curative instruction.  Steps taken by the district court in response to an irregularity can cure the potential prejudice to a party.  Boschee, 530 N.W.2d at 840.  The district court took those steps.  Furthermore, the district court is in the best position to determine whether Lewis’s conduct prejudiced the jury.  Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn. 1994).  In its order denying a new trial, the district court found that its curative instructions, as well as the “admittedly” confusing law in the area of damages, led to the court’s conclusion that Lewis’s comments in closing argument were not improper.  Based upon the record and the district court’s reasoning in its order, the district court did not abuse its discretion in denying Wagner’s motion for a new trial on this issue.


            Wagner argues that she is entitled to a new trial under Minn. R. Civ. P. 59.01 (b), because of the misconduct of Lewis’s attorney.  She contends that the same conduct of Lewis’s attorney that constituted irregularities in the trial is a ground for a new trial for misconduct.  Whether to “grant a new trial because of attorney misconduct is not governed by fixed rules, but instead rests wholly within the district court’s discretion.”  Johnson, 518 N.W.2d at 600 (citation omitted).  The primary “consideration in determining whether to grant a new trial is prejudice.”  Id. (quotation omitted). 

            The district court gave curative instructions and otherwise responded appropriately to each of Wagner’s objections when the alleged misconduct occurred.  In its order denying Wagner’s motion for a new trial, the district court considered the alleged misconduct, but found that (1) the comments made in opening statements had no impact on the jury; (2) there is no evidence that counsel deliberately misled the court with his explanation as to his attempts to locate witnesses; and (3) there was no showing that counsel was attempting to improperly influence the jury in his closing argument regarding the calculation of damages, acknowledging that the law is confusing in the area in which Lewis’s attorney allegedly made misstatements. 

The district court’s findings are supported by the record.  There is no evidence that counsel deliberately misled the district court regarding the availability of the two witnesses.  As to the other allegations of misconduct, Wagner objected to most of the statements, and the district court’s intervention likely cured any prejudice that otherwise might have resulted.  Based upon the record and the district court’s reasoning, we hold that the district court did not abuse its discretion in denying a new trial on this issue.

            Wagner also argues that as a matter of public policy we should grant a new trial, because the behavior of Lewis’s counsel must have consequences in order to maintain the integrity of the judicial system.  However, a new trial for misconduct of counsel is never granted as a disciplinary measure, but only to prevent a miscarriage of justice.  Ellingson v. Burlington N. R.R. Co., 412 N.W.2d 401, 404 (Minn. App. 1987), review denied (Minn. Nov. 13, 1987).  Thus, we deny Wagner’s request.

Unfair Surprise

Wagner next argues that the disclosure of the unlisted witnesses and counsel’s attempt to admit their statements into evidence were unfair surprises and entitled her to a new trial under Minn. R. Civ. P. 59.01 (c).  Wagner bases this argument on the same conduct as the other allegations.  The district court did not address this issue in its order denying a new trial.  We generally will not consider matters not considered in the court below.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

Denial of JNOV

Finally, Wagner argues that the district court erred in denying its motion for a judgment notwithstanding the verdict.  As an alternative to a motion for new trial for insufficient evidence, Wagner may move for a JNOV.  Muelhauser v. Erickson, 621 N.W.2d 24, 28 (Minn. App. 2000).  Whether a JNOV should be granted is a question of law.  Boschee, 530 N.W.2d at 842. 

A JNOV “may be granted only when the evidence is so overwhelming on one side that reasonable minds cannot differ as to the proper outcome.”  Id. (quotation omitted).  The evidence must be considered and viewed in the light most favorable to the verdict.  Id.  Thus, we must assume that testimony for the nonmoving party is credible and must also permit every reasonable inference to be drawn from the evidence in favor of the nonmoving party.  Baker, 588 N.W.2d at 752. 

Wagner urges that, based upon the evidence, reasonable minds could not differ about Lewis’s negligence, and thus the district court erred in denying her motion for JNOV.  However, if conflicting, credible testimony was presented on issues of negligence or causation, the district court did not err in denying a motion for JNOV.  Boschee, 530 N.W.2d at 842.

As discussed above, there was conflicting, but credible evidence on the issue of Lewis’s negligence.  Reasonable minds could differ on that issue.  See id. (“Where one party’s testimony, if believed, would support the verdict, the conclusion that reasonable minds could not differ cannot be reached.” (citation omitted)).  The district court did not err in denying appellant’s motion for JNOV.

Wagner also argues that the district court erred in using the same standard in denying a new trial as for the JNOV.  The district court denied the JNOV, “for the reasons stated above.”  No further findings were made. 

The standard for granting a JNOV is, indeed, more stringent than that for granting a new trial.  See Lamb, 333 N.W.2d at 856 (standard for motion for new trial not as “rigorous” as the judgment notwithstanding the verdict standard).  However, it may be inferred from the district court’s findings that it concluded that, since Wagner was not able to meet the standard for a new trial, she necessarily would not meet the more stringent standard for a JNOV.  There was no error in this ruling.

Judgment Under Rule 68

            Ruling that the Schonhers had accepted Lewis’s settlement offer, the district court ordered judgment in favor of the Schonhers.  Lewis contends the court erred in ordering judgment because the offer had terminated before the Schonhers accepted it.  We review de novo a district court’s rulings of law on rule 68 offers of judgment.  Farmer’s State Bank of Darwin v. Swisher, 631 N.W.2d 796, 799 (Minn. 2001).

            Rule 68 applies to an offer of judgment made more than ten days before a trial begins.  Such an offer is irrevocable for ten days and must be accepted in writing within that period or is deemed withdrawn.  Minn. R. Civ. P. 68.

            Lewis made an offer of judgment of $500,000 to the Schonhers on February 21, 2001.  The trial on the Wagner wrongful death claim began on February 27, 2001, and the jury returned its verdict on March 2, 2001.  On March 5, 2001, the Schonhers sent to Lewis by fax and hand‑delivery a written acceptance of the offer.  Lewis argues that the acceptance was untimely because the trial had already begun and the commencement of the trial automatically terminated the offer.  See Stoebe v. Merastar Ins. Co., 554 N.W.2d 733, 735-36 (Minn. 1996) (if an offer is made within ten days of trial, the offer terminates when trial begins).

            If Stoebe controls, we agree with Lewis that the offer terminated before the Schonhers accepted it.  If Stoebe does not control, the acceptance was timely.  After granting a continuance of the Schonhers’ trial, the district court reset that trial for April 16, 2001.  Lewis obviously made his offer of judgment prior to ten days before that trial began. Under the rule for computing time, the tenth day after Lewis’s offer fell on March 5, 2001, the day on which the Schonhers accepted the offer in writing.  See Minn. R. Civ. P. 6.01 (in computing time, the day of the act shall not be included, and the last day shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which case the period runs until the end of the next nonweekend or holiday day).

            The dispositive issue is whether the commencement of the Wagner wrongful death trial functioned also as the commencement of the Schonher trial for purposes of applying rule 68 and Stoebe.

            Lewis argues that the respective claims of the Schonhers and Wagner were joined in a single action from the outset of the lawsuit.  He notes that it was only a month before trial that the district court allowed the Schonher claim to be tried on a later date than the Wagner claim, and then “it was only the damages portion that was effectively rescheduled.”  He contends that the liability issue was to be tried only once, in the Wagner trial, and that the Schonhers’ attorney participated in the liability aspect of the trial “in order to prevent the court from having to try liability twice.”  Lewis also argues that public policy dictates that a party should not be allowed to await the outcome of a companion liability case before deciding whether to accept or reject an offer of judgment.  To hold otherwise, Lewis contends, would promote a “race to the Courthouse steps.”

            Although the Wagner wrongful-death claim and the Schonhers’ personal injury claims arose out of the same facts, involved the same defendant, and shared the same factual and legal issues on the question of liability, it cannot reasonably be said that the Wagner trial, even on the common issue of liability, was also the Schonher trial.  The Wagner case was tried on issues of liability and damages.  When the court continued the Schonher trial, it did not limit that trial to damages.  Nor did the Schonhers ever agree to such a limitation.

            Despite being brought together in one lawsuit, and despite common liability issues, the Wagner case and the Schonher case were separate cases with separate identities.  Those separate identities would have been retained even if the claims had been tried at the same time.  See Minn. R. Civ. P. 42.01 (where separate actions involve a common question of law or fact, district court judge has discretion to order joint trial on any or all matters at issue); Peterson v. Minneapolis Star & Tribune, 282 Minn. 264, 273, 164 N.W.2d 621, 627 (1969) (where cases are consolidated for trial, each claim retains its separate identity).  Thus, unless prevented by some rule of law, the Schonhers were entitled to have their own trial on both damages and liability, and that trial had not begun as of the date they accepted Lewis’s offer of judgment.

            According to Lewis, the rule of law that prevents the relitigation of his liability is collateral estoppel.  A party may be collaterally estopped from litigating an issue that (1) is identical to an issue in prior litigation in which (2) the party to be estopped was a party or in privity with a party, (3) the party to be estopped had a full and fair opportunity to litigate the issue in the prior action, and (4) the prior action resulted in a judgment on the merits.  Ellis v. Minneapolis Comm’n on Civil Rights, 319 N.W.2d 702, 704 (Minn. 1982).

            Whether collateral estoppel applies is a mixed question of fact and law and is subject to de novo review.  Lyon Fin. Servs., Inc. v. Waddill, 625 N.W.2d 155, 158‑59 (Minn. App. 2001), review denied (Minn. June 19, 2001).

            Although Lewis’s liability was an issue in both cases and the Wagner case ended in a judgment on the merits on that issue, it is clear that the Schonhers were not parties to the Wagner trial, and they had no opportunity whatsoever to be heard in that case.  Lewis notes that the same law firm represented Wagner and the Schonhers and the firm tried the Wagner case with a view toward establishing liability that would inure to the Schonhers’ benefit.  No matter who the lawyers were and what legal strategy they had in mind, the court continued the Schonher case for a separate trial and imposed no limitation on the issues to be tried.  The Schonhers were entitled to litigate Lewis’s liability despite the result in the Wagner case.  If the cases had been sued out separately and the parties had been represented by different lawyers in separate trials, it would be untenable to hold that the result of the first case to be tried would bind the parties in the second case merely because liability was a common issue.  The parties in the second trial clearly would not have had an opportunity to be heard.  The mere fact that the same law firm represented both Wagner and the Schonhers should not alter that reasoning.  The Schonhers simply did not have their day in court in the Wagner trial.

            Furthermore, we hold that the Schonhers and Wagner were not in privity.  “Privies include nonparties who control an action and ‘those whose interests are represented by a party to the action.’”  Balasuriya v. Bemel, 617 N.W.2d 596, 600 (Minn. App. 2000) (quoting Margo‑Kraft Distribs., Inc. v. Minneapolis Gas Co., 294 Minn. 274, 278, 200 N.W.2d 45, 48 (1972)), review denied (Minn. Nov. 21, 2000).  Undoubtedly, Wagner wished the Schonhers the best in their separate litigation, but Wagner did not in any way represent the interests of anyone but Wagner, and the Schonhers had no control whatsoever over the Wagner litigation.

            Thus, the Schonhers were not bound by any determination in the Wagner case, and the commencement of the Wagner trial had no bearing on the timing of their acceptance of the offer of judgment.  Because their acceptance was timely, the district court did not err in ordering judgment in accordance with the offer.  See Minn. R. Civ. P. 68 (if the offer is accepted, either party may file it and the court administrator shall enter judgment).

            Finally, we are not persuaded that our holding on the rule 68 issue will promote a “race to the courthouse” that would violate public policy.  Our holding simply supports the district court’s appropriate action in enforcing a rule 68 offer and recognizes the right of people with ostensibly valid claims to have a genuine opportunity to be meaningfully heard on those claims.



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