This opinion will be unpublished and

may not be cited except as provided by

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






Ole Rud, et al.,





Marlene Straley

 as legal representative of Raymond Saienga,



Filed September 10, 2002


Toussaint, Chief Judge


Chippewa County District Court

File No. C199324


Marcel B. Darval, Darval Nelson Wermerskirchen and Frank, P.O. Box 1175, Willmar, MN 56201 (for respondents)


Jon C. Saunders, Anderson Larson Hanson & Saunders, P.L.L.P., 331 Southwest Third Street, P.O. Box 130, Willmar, MN 56201 (for appellant)


            Considered and decided by Toussaint, Chief Judge, Lansing, Judge, and Peterson, Judge.[1]


U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            After respondents Carolyn and Ole Rud succeeded Carolyn’s brother, Raymond Saienga, deceased, as attorneys-in-fact for Carolyn’s mother, they sued Saienga on the mother’s behalf, alleging that he had mismanaged finances.  Respondents partially prevailed in their suit.  On appeal, both parties challenge the district court’s findings of fact and application of the law.  Because the record supports the district court’s findings and we conclude that the district court neither abused its discretion nor misapplied the law, we affirm.


            Raymond Saienga was attorney-in-fact for his mother, Minnie Saienga, until he was replaced by his sister and brother-in-law, respondents Carolyn and Ole Rud. Respondents sued Saienga on Minnie Saienga’s behalf, alleging that he had mismanaged her funds by not repaying amounts he borrowed from her and by making poor investments.  Saienga was unable to testify at trial because of his Alzheimer’s disease.  Ultimately, the district court awarded judgment against him for $54,628.20 plus $30,574.62 in interest.  Saienga appealed, and respondents filed a notice of review. [2]   



            Appellant argues first that this case should have been dismissed because Minnie Saienga testified that she did not want to sue Saienga.  In bringing the suit, respondents were acting as agents with Minnie Saienga as their principal.  Appellant claims that Minnie Saienga’s testimony imposed a limitation on respondents’ authority to sue.  Appellant relies on Rein v. New York Life Ins. Co., 210 Minn. 435, 441, 299 N.W. 385, 388 (1941)(holding that a principal can limit the authority of its agents).  But Minnie Saienga’s testimony regarding whether she wanted to sue Saienga was unclear.

            Moreover, a principal can ratify an agent’s conduct by acquiescing in it.  Anderson v. First Nat. Bank, 303 Minn. 408, 410, 228 N.W.2d 257, 259 (Minn. 1975). Minnie Saienga participated in the trial without objecting.  The district court found Minnie Saienga “competent at the time of trial and at all prior times relevant hereto”; this finding is not challenged.  Nor did Minnie Saienga terminate respondents’ power of attorney during trial.  And it cannot be disputed that she understood that terminating their power of attorney would end their ability to act for her and, consequently, their lawsuit; she had previously terminated appellant’s power of attorney.  We reject appellant’s argument that the suit should have been dismissed.


            Both parties challenge findings of fact made by the district court.  Findings of fact are not set aside unless clearly erroneous.  Minn. R. Civ. P. 52.01. 

            Appellant challenges the finding that Saienga did not repay his mother for certain loans, arguing that there was no promissory note or other promise to repay.  However, the lack of a promissory note or other explicit promise to repay is not dispositive; evidence of the loans was provided by checks with references to “loan” on the memo line and by the associated check-register entries.  A loan includes the right to repayment.  Firstar Eagan Bank v. Marquette Bank, 466 N.W.2d 8, 11 (Minn. App. 1991), review denied (Minn. Apr. 29, 1991).  Appellant argues further that Minnie Saienga’s testimony on whether the loans had been repaid was inconclusive.  But the district court admitted that her testimony was inconclusive, made a credibility determination, and resolved the question against Saienga. This court defers to district court credibility determinations.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).

            Appellant also challenges the finding that no accord and satisfaction occurred.  Whether accord and satisfaction occurs is a fact question.  Webb Bus. Promotions, Inc. v. Am. Elec. & Entm’t Corp., 617 N.W.2d 67, 73 (Minn. 2000).  Accord and satisfaction requires a written document containing “a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim.”  Weed v. Comm’r of Revenue, 550 N.W.2d 285, 288 (Minn. 1996) (emphasis added; citations omitted).  Appellant claims that a check from Saienga to Minnie Saienga bearing the notation “loan pd. back” on the memo line was a conspicuous statement that all loans prior to January 3, 1992, the date of the check’s negotiation, had been repaid.  But Minnie Saienga made many loans to Saienga, and his “loan pd. back” notation does not identify which loan(s) were paid back. The district court did not clearly err in not finding accord and satisfaction had occurred. 

            Respondents challenge the finding that no fiduciary relationship existed between Saienga and Minnie Saienga before July 23, 1986, when Saienga received his first power of attorney.  “The existence of a fiduciary relationship is a question of fact.”  Toombs v. Daniels, 361 N.W.2d 801, 809. (Minn. 1985).  A fiduciary relationship exists when one person puts confidence in another, resulting in the second person having superiority over and influence on the first.  Id.  The district court found that, prior to July 23, 1986, Minnie Saienga was competent, made financial decisions, and signed many of her own financial and legal documents and that Saienga’s filling out her checks before he was her attorney- in-fact did not show a fiduciary relationship because “this was [her] habit with many persons to whom she gave checks.”  These findings are consistent with testimony from Minnie Saienga and other witnesses and support the finding of no fiduciary relationship.  The district court also stated that witness credibility greatly influenced its decision.  We defer to district court credibility determinations.  Sefkow, 427 N.W.2d at 210.  Respondents have not shown the finding of no fiduciary relationship before July 23, 1986, to be clearly erroneous. 

            Finally, respondents challenge the finding that Saienga was not liable for their claims under Codes C and D of Schedule A to the judgment.  The district court found that Saienga had shown the relevant expenditures either were for Minnie Saienga’s expenses or had another reasonable explanation.  Respondents contend that Saienga produced inadequate documentation to refute their claims.  However,  “[a] written statement that gives reasonable notice of all transactions entered into by the attorney-in-fact on behalf of the principal is an adequate accounting.”  Minn. Stat. § 523.21 (2000).  Sworn testimony supported by notes on checks and check registers identifying the reasons for expenditures is adequate proof of the disposition of the funds in question.  Cf. M.S.M. Corp. v. Knutson Co., 283 Minn. 527, 529, 167 N.W.2d 66, 68 (1969) (stating, where mortgagee disbursed funds on behalf of mortgagor, party in fiduciary relationship with another has obligation to provide “adequate proof of the amount paid and the purpose of the disbursement”).  The findings regarding the claims under Codes C and D are not clearly erroneous.


            Appellant challenges the district court’s conclusion that the statute of limitations does not prevent respondents from recovering certain loans made to Saienga by Minnie Saienga prior to July 28, 1993.  The construction and applicability of statutes of limitations are legal questions that we review de novo.  Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn. 1998).

            The relevant statute of limitations, Minn. Stat. § 541.05(1) (2000), sets a six-year limit on actions on contracts and other obligations for which “no other limitation is expressly prescribed[.]”  The limitations period of Minn. Stat. § 541.05(1) does not begin to run until a demand for payment is made, and a demand must be made within the statutory period except “where the parties contemplate a delay in making the demand to some indefinite time in the future, [in which case] the statutory period for bringing the action is not controlling.”  In re Estate of Dahle, 384 N.W.2d 556, 559 (Minn. App. 1986) (citations omitted).  Minnie Saienga’s loans to Saienga were loans for which an indefinite delay of repayment was contemplated.  The loans had no recited repayment date; Minnie Saienga continued to lend to Saienga over an extended period, and the record lacks evidence that Minnie Saienga ever asked for repayment.  Therefore, appellant has not met the burden of proving the elements of a statute-of-limitations defense.  See Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988) (stating “[o]ne asserting the statute of limitations also has the burden of proving all the elements of that affirmative defense”)[3]

In making its determination, the district court relied on In re Estate of Fauskee, 497 N.W.2d 324 (Minn. App. 1993), review denied (Minn. May 18, 1993).  Appellant challenges the applicability of that case and argues that the applicable case is Troup v. Rozman, 286 Minn. 88, 174 N.W.2d 694 (1970). Neither case controls here.  Fauskee involved the interaction of a now repealed statute (and its comment) with Minn. Stat. §§ 541.01, 541.05 (1990).  Fauskee, 497 N.W.2d at 326-27.  Troup involved an action on a demand note and recited the general rule that a cause of action on a demand note accrues on the note’s date unless a contrary intention is shown on the note. Troup, 286 Minn. at 90, 174 N.W.2d at 696.  Here, there was no demand note, so Troup is distinguishable. 

The statute of limitations does not preclude respondents’ recovery of the loans.


            Appellant challenges the district court’s determination that respondents’ claims are not barred by laches.  Laches is an equitable defense and does not preclude legal remedies.  See LaValle v. Kulkay, 277 N.W.2d 400, 403 n.3 (Minn. 1979); Aronovitch v. Levy, 238 Minn. 237, 242, 56 N.W.2d 570, 574 (1953); Petersen v. DeKalb Pfizer Genetics, 354 N.W.2d 887, 889 (Minn. App. 1984).  Although respondents sought various forms of relief, they received only damages, a legal remedy.  Because legal relief was available to them, equitable relief was not.  Cf. Lindberg v. Gebo, 381 N.W. 2d 905, 907 (Minn. App. 1986)(holding equitable relief unavailable to a party who had legal remedies, including “a suit for damages”).  Therefore, because respondents received no equitable remedies, any failure of the district court to apply laches was harmless and must be ignored.  See Minn. R. Civ. P. 61 (court must disregard any error that does not affect the substantial rights of the parties).


            Both parties challenge the district court’s decisions relative to the amendment of pleadings.  Whether to allow amendment of pleadings is discretionary with a district court.  Niccum v. Hydra Tool Corp., 438 N.W.2d 96, 98 (Minn. 1989).  The decision to allow amendment, however, may be based on construction of a statute, and statutory interpretation is a question of law reviewed de novo.  Becker v. State Farm Mut. Auto. Ins. Co., 611 N.W.2d 7, 10 (Minn. 2000). 

            Appellant challenges the granting of respondents’ motion to include a negligence claim regarding a “mystery investment” with regard to which the district court found Saienga liable for $18,648.22.  Appellant argues that an attorney -in-fact cannot be held liable absent a showing of bad faith and that respondents made no showing that Saienga acted in bad faith when he was Minnie Saienga’s attorney-in-fact.  But appellant misreads Minn. Stat. § 523.21(2000).  It states:

In exercising any power conferred by the power of attorney, the attorney-in-fact shall exercise the power in the same manner as an ordinarily prudent person of discretion and intelligence would exercise in the management of the person’s own affairs and shall have the interests of the principal utmost in mind.  The attorney-in-fact is personally liable to any person, including the principal, who is injured by an action taken by the attorney-in-fact in bad faith under the power of attorney or by the attorney-in-fact's failure to account when the attorney-in-fact has a duty to account under this section.


The attorney-in-fact statute has two standards.  First, an “ordinarily-prudent-person” standard applicable to an attorney-in-fact’s use of powers conferred by a power of attorney (i.e., for acts taken on behalf of the principal).  An “ordinarily-prudent-person” standard is functionally a negligence standard.  See Erickson v. Quarstad, 270 Minn. 42, 49 132 N.W.2d 814, 819 (Minn. 1964) (stating “[n]egligence is commonly defined in this state as the doing of something which an ordinarily prudent person would not do or the failure to do something which an ordinarily prudent person would do under like or similar circumstances”).  Second, an attorney-in-fact is liable to “any person, including the principal” for an exercise of a power conferred by the power of attorney, when the exercise is in bad faith.  Thus, an attorney-in-fact is liable to a principal for negligence and to anyone injured for bad-faith conduct.  Respondents alleged that Saienga’s negligence had injured a principal, i.e., Minnie Saienga, for whom he was attorney-in-fact.  Respondents’ negligence claim was not defective, and there was no abuse of discretion in allowing its inclusion in the complaint. 

            Appellant also challenges the district court’s refusal to consider a document submitted when the record was reopened to allow the parties to address the question of interest.  Appellant submitted an “NASD ARBITRATION STATEMENT OF CLAIM” that had been generated in a proceeding ancillary to a criminal action against the securities dealer who had previously worked with the Saienga family.  The NASD statement addressed the “mystery investment,” but it did not address interest.  Because the statement had not been submitted earlier and did not address the matter for which the record had been reopened, the district court was within its discretion in not considering it.  Cf. Rathbun v. W.T. Grant Co., 300 Minn. 223, 238, 219 N.W.2d 641, 651 (1974) (stating that district court, when considering motion for amended findings, “may neither go outside the record, nor consider new evidence”); Minn. Mut. Fire & Cas. Co. v. Retrum, 456 N.W.2d 719, 723 (Minn. App. 1990) (upholding denial of motion for new trial where, among other things, motion was based on “[a] new factual argument”). 

            Respondents challenge the district court’s denial of their motion to amend the complaint to include negligence claims for investments other than the “mystery investment.”  The district court found that respondents failed to enter adequate foundation regarding Saienga’s conduct in regard to those investments and that the foundation they did produce was less than convincing.  A decision on the sufficiency of the foundation for evidence is within the discretion of the trial court.  McKay’s Family Dodge v. Hardrives, Inc., 480 N.W. 2d 141, 147 (Minn. App. 1992) review denied (Minn. Mar. 26, 1992).  Specifically, the district court found that the non-mystery investments “may have been, when the investment was made, of stable, sound, and conservative nature.  They may not have been.  The Court could only speculate and guess.”  Respondents also offered as foundation Saienga’s comments in his affidavit of restitution in the securities dealer’s criminal proceeding.  The court found that these comments “lack foundation and are subsequent self-serving observations entitled to little or no weight.”  Notwithstanding respondents’ argument that this affidavit was an admission against Saienga’s interest and was not self-serving as to them, we must defer to the district court’s determination.  See Straus v. Straus, 254 Minn. 234, 235, 94 N.W.2d 679, 680 (1959) (stating that appellate courts defer to district court resolution of fact issues presented by conflicting affidavits).  There was no abuse of discretion in the district court’s denial of respondent’s motion to amend on the ground of inadequate foundation. [4]


            The statutory interest rate is six percent “unless a different rate is contracted for in writing.”  Minn. Stat. § 334.01 (2000).  The district court ruled that Saienga was liable for six percent simple interest because none of the loans for which he was found liable imposed an interest rate.  Although respondents concede on appeal that the loan payments Minnie Saienga received from Saienga are “unclear” as to how interest was calculated, they contend that either the maximum legal rate of eight percent or the market rates at the times the loans were made should be used. 

            To support this contention, respondents rely on Fallon v. Fallon, 110 Minn. 212, 218, 124 N.W. 994, 995 (1910)(holding that “[a]n implied contract to pay interest arises where the circumstances of a transaction justify the inference that the parties contracted with reference to interest”).  But Fallon involved an “exceptional” record that justified the application of an exception to the general rule.  Id. at 218, 124 N.W.2d at 995.  We decline to reverse the district court’s application of the general rule based on a record that respondents admit is “unclear.” 

            Respondents also rely on the NASD statement to argue that the district court should have awarded interest at seven to ten percent on Minnie Saienga’s investment damages between the 1995 settlement of the NASD claim and the July 1999 start of this lawsuit, but they fail to explain why a statement in an arbitration proceeding that was ancillary to the criminal action against the securities dealer should be binding on interest questions in this case.

            In summary, we see neither abuse of discretion nor erroneous application of the law in any of the district court’s determinations.



[1] The Honorable Daniel F. Foley, one of the founding members of this court, who continued to serve by appointment order from the supreme court after his retirement, fully participated in the consideration of this appeal.  Due to Judge Foley's untimely death before the filing of the opinion, Judge Randolph W. Peterson has been assigned as a substitute, and now joins the panel in issuing this decision.


[2] Raymond Saienga died while this appeal was pending.  Appellant Marlene Straley, his legal and personal representative, chose to pursue this appeal pursuant to this court’s order of June 7, 2002.


[3] Respondents argue that the district court’s incorrect application of the statute of limitations resulted in a $200 error regarding a September 1979 loan.  Even if respondents are correct, the error is de minimis.  Cf. Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985) (refusing to remand for de minimis error). 


[4] The district court also denied respondents’ motion to amend on the grounds that expert testimony was required, respondents had not offered any, and Saienga would not have the opportunity to offer any.  Because the record supports the grounds for the denial, we need not address respondents’ claim that expert testimony was not required.