This opinion will be unpublished and

may not be cited except as provided by

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






MacNeil Environmental, Inc., et al.,





Philip G. Allmon, et al.,



Filed April 30, 2002


Harten, Judge


Ramsey County District Court

File No. C0-00-4775


John G. Westrick, Tammy L. Merkins, Westrick & McDowall-Nix, P.L.L.P., 400 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for appellants)


Mike Hatch, Attorney General, Martha J. Casserly, Assistant Attorney General, 445 Minnesota Street, Suite 1200, St. Paul, MN 55101 (for respondents)


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

U N P U B L I S H E D   O P I N I O N




            Appellants, a corporation providing environmental services and its president, brought an action against respondent Minnesota Department of Children, Families and Learning, claiming that respondent had engaged in unpromulgated rulemaking by altering a contract provision so that appellants were precluded from providing management assistance programs.  Appellant corporate president also brought a battery claim against one of respondent’s employees who had rubbed his knuckles on appellant corporate president’s head.  After the district court granted respondent summary judgment on both claims, appellants unsuccessfully moved for relief under Minn. R. Civ. P. 60.02, arguing that recent statutory amendments supported their arguments.  Because we see no abuse of discretion in the denial of appellants’ rule 60.02 motion and neither a genuine issue of material fact nor an error of law in the summary judgment, we affirm.



1.         Summary Judgment


            On an appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court erred in applying the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

            A.        Unpromulgated Rulemaking

            Minn. Stat. § 124.83, subd. 8(b) (Supp. 1993) provided that respondent Minnesota Department of Children, Families and Learning (CFL)

may contract with regional service organizations, private contractors, Minnesota safety council, or state agencies to provide management assistance to school districts for health and safety capital projects.[1]


Pursuant to this statute, respondent exercised its discretion and contracted with regional service organizations.[2]  The contracts used in 1993 and 1995 provided that the service organizations were to “[h]ire or otherwise contract for a competent Health and Safety professional by joint decision * * *.”  In accord with this provision, some service organizations contracted with appellants MacNeil Environmental, Inc., and James H. MacNeil.

In 1997, respondent changed its contract to provide that service cooperatives were to “[h]ire a competent Health and Safety professional (a S. C. [Service Cooperative] employee) by joint decision * * *.”  The change meant that service cooperatives could not contract with appellants.  Appellants argue that this contractual change violated the statutory requirements for making and promulgating rules set out in Minn. Stat. §§ 14.001-69 (1996) (the Administrative Procedure Act).

Appellants’ argument implies that the contract provision was a “rule” within the meaning of Minn. Stat. § 14.02, subd. 4, (1996):

[E]very agency statement of general applicability and future effect * * * adopted to implement or make specific the law enforced or administered by that agency or to govern its organization or procedure.


The contract’s applicability was limited to respondent and the service cooperatives, and its duration was limited to two years.  Therefore, the contract provision was not a statement of “general applicability and future effect” and does not meet the statutory definition of “rule.” 

            Appellants, however, rely on Minn. Stat. § 14.03, subd. 3, (1996) (listing ten  exclusions from the Minn. Stat. § 14.02, subd. 4, definition of “rule”) to argue that, because contract provisions are not among the ten exclusions, they are included within the definition of the rule.  But Minn. Stat. § 14.03, subd. 3, does not claim to provide an exhaustive list of exclusions, nor does Minn. Stat. § 14.02, subd. 4, define a rule as “anything not listed in Minn. Stat. § 14.03, subd. 3.”  Appellants’ reliance is misplaced; many things not listed as exclusions would nevertheless not qualify as rules.[3]  See, e.g., In re Leisure Hills Health Care Ctr., 518 N.W.2d 71, 74-75 (Minn. App. 1994) (Department of Health procedures for inspecting nursing homes are not rules), review denied (Minn. 16 Sept. 1994); Minnesota Chamber of Commerce v. Minnesota Pollution Control Agency, 469 N.W.2d 100, 105 (Minn. App. 1991) (MPCA requirement for site-specific water quality criteria was not a rule), review denied (Minn. 24 July 1991).

            Appellants also rely on language in Minn. Stat. § 14.02, subd. 4, defining a rule as “adopted to implement or make specific the law enforced or administered by that agency.”  They argue that the contract provision made specific Minn. Stat. §§ 123B.57, subd. 8(b): the statute permitted respondent to “contract with regional service organizations, private contractors, Minnesota safety council, or state agencies” and the contract provision required it to subcontract only with service organizations.  But Minn. Stat. § 14.02, subd. 4, does not define a rule as anything “adopted to implement or make specific the law enforced or administered” but rather an “agency statement of general applicability and future effect * * * adopted to implement or make specific the law enforced or administered.”  (Emphasis added).  Appellants cannot ignore one part of the definition to apply another.  See Minn. Stat. § 645.17 (2) (2000) (court may be guided by the presumption that the legislature intends an entire statute to be effective and certain).

            We conclude that respondent’s contract provision was not a rule within the meaning of Minn. Stat. § 14.02, subd. 4.

            B.        Battery

            A battery is an intentional, unpermitted, offensive bodily contact with another.  Paradise v. City of Minneapolis, 297 N.W.2d 152, 155 (Minn. 1980).  Testimony from both respondent Philip Allmon, the alleged tortfeasor, and appellant MacNeil, the victim, indicates that Allmon intended to rub MacNeil’s head with his knuckles and that MacNeil had not given him permission to do so.  MacNeil also testified that he had neither reported nor sought treatment for any injury and could not show any pecuniary damage, but that he found the touching offensive.  The question before us, therefore, is whether a victim’s unsubstantiated, subjective assertion that a contact was offensive meets the standard for battery.

            “[A] bodily contact is offensive if it offends a reasonable sense of personal dignity.”  Restatement (Second) of Torts, § 19 (1965).  An offensive contact

must be one which would offend the ordinary person and as such one not unduly sensitive as to his personal dignity.  It must, therefore, be a contact which is unwarranted by the social usages prevalent at the time and place at which it is inflicted.

Restatement (Second) of Torts, § 19 cmt. a (1965).[4]  MacNeil and Allmon had known each other for many years; Allmon was a former employee of MacNeil.  The contact occurred during a break in a meeting that had become tense.  Allmon testified that he made the gesture in the context of an apology to MacNeil because Allmon thought he might have embarrassed MacNeil during the meeting.  Testimony does not reflect that Allmon had intended or MacNeil perceived any aggression in the gesture.  An ordinary person would not have found the knuckle-rub offensive as that term is used in the context of battery.

            We conclude that there was no error of law in the summary judgment.

2.         Rule 60.02 Motion

            On an appeal from a district court’s decision to deny relief under Rule 60.02, we consider whether the district court’s decision constituted an abuse of discretion.


In re Welfare of Children of Coats, 633 N.W.2d 505, 510 (Minn. 2001).  Two months after respondent was granted summary judgment on the ground that its contract provision requiring that the health and safety professional hired to review health and safety work be a service cooperative employee, the legislature amended Minn. Stat. §123B.57, subd. 8(b), to provide that respondent “shall not exclude private contractors from the opportunity to provide any health and safety services to school districts.”  Appellants argue that this entitles them to relief under Minn. R. Civ. P. 60.02 (b), providing for relief from judgment in the case of newly discovered evidence, or under Minn. R. Civ. P. 60.02(f), providing for relief justified by “[a]ny other reason.”

            Appellants supply no support for their view that a change in a statute is newly discovered evidence entitling them to relief from judgment; and granting them relief on that basis would be a retroactive application of the statute.  “No law shall be construed to be retroactive unless clearly and manifestly so intended by the legislature.”  Minn. Stat. § 645.21 (2000).  The legislature gave no indication that it intended the amendment to Minn. Stat. § 123B.57, subd. 8(b), to be retroactive.

            Appellants argue that a retroactive application is permissible because the amendment to Minn. Stat. § 123B.57, subd. 8(b), was only a “clarification” of the law, not a change in it.  But the amendment did not “clarify” anything; there was no confusion as to respondent’s pre-amendment right to exclude private contractors from providing review services.  Moreover,

            [a]ny attempt to give retroactive effect to a “clarification” obtained through the sole initiative of a disappointed litigant seeking to reverse an adverse ruling in a still-pending lawsuit should be treated with great skepticism.


Rural American Bank of Greenwald v. Herickhoff, 485 N.W.2d 702, 709-10 (Minn. 1992) (Simonett, J., concurring). 

            The district court did not abuse its discretion in denying appellants relief under rule 60.02.  


[1] Respondent was then known as the Minnesota Department of Education, and the statute has been renumbered as Minn. Stat. § 123B.57, subd. 8(b).

[2] Service organizations are now known as service cooperatives.

[3] Appellants cite statutes from two other states that exclude contract provisions from rulemaking requirements, but no statutes from states that include contract provisions, the position appellants urge us to adopt.

[4] See also Holdren v. General Motors Corp., 31 F. Supp. 2d 1279, 1286 (D. Kan. 1998) (supervisor did not commit battery when patting employee on the back, because such conduct would not be deemed offensive by a reasonable person); Wishnatsky v. Huey, 584 N.W.2d 859, 861-62 (N.D. App. 1998) (pushing a door closed when a person attempted to enter and intrude on private conversation would not be offensive to an ordinary person).