This opinion will be unpublished and

may not be cited except as provided by

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








John C. Wiherski,





Richard J. Kliber, et al.,




Filed September 18, 2002


Robert H. Schumacher, Judge


Morrison County District Court

File No. C0-99-1199



Timothy Raymond Reuter, 1287 North Second Street, Suite 101, Post Office Box 368, Sauk Rapids, MN 56379 (for respondent)


Tonya T. Hinkemeyer, 1995 200th Street, Clearwater, MN 55320 (for appellants)



Considered and decided by Minge, Presiding Judge, Schumacher, Judge, and Peterson, Judge.



On appeal in this contract-for-deed dispute, appellants Richard J. Kliber and Susan K. Kliber argue (a) they were entitled to a Schwartz hearing to determine whether a conversation between a bailiff and a juror during deliberations impacted the jury's resolution of the case; (b) they were entitled to a new trial to consider excluded evidence of respondent John C. Wiherski's history of debts because that information was relevant to several aspects of the trial, including Wiherski's credibility; and (c) the evidence does not support the jury's verdict regarding the amount due on the contract for deed. We affirm.


On December 1, 1995, the Klibers and Wiherski entered into a contract for deed for the purchase of a home by Wiherski from the Klibers. In May 1999, Wiherski entered into a purchase agreement for the sale of the home to John and Joanne Holtz. The payoff figure on the contract for deed submitted by the Klibers showed that Wiherski owed $73,996.35. Wiherski disagreed with the payoff amount, but went ahead with the sale because he had to honor the purchase agreement with the Holtzes. At closing, $74,000 of the sale proceeds was paid to the Klibers.

On October 25, 1999, Wiherski brought an action against the Klibers alleging breach of contract, unjust enrichment, fraud and undue influence, and defamation, among other claims. The district court granted the Klibers' motion for summary judgment on all of Wiherski's claims except for his breach of contract claim. On August 1, 2001, a jury found that the Klibers breached their contract with Wiherski by requiring payment of more than required to pay off the contract for deed, and awarded Wiherski $14,500.

On August 8, 2001, the court held a conference on the record with both attorneys in chambers. The court informed them that one of the jurors in the trial was claustrophobic and had problems if he was in the jury room too long. The court had given the jury bailiff permission to let this juror walk down a hallway to stand in front of a window in a secured corridor. As both the bailiff and the juror were looking out the window, another judge's law clerk was walking past them and overheard the words, "Is that the house on the west side?" After hearing arguments on the Klibers' motions for a Schwartz hearing and a new trial, the district court denied the motions. This appeal followed.


The Klibers argue that they are entitled to a Schwartz hearing. "The standard of review for denial of a Schwartz hearing is abuse of discretion." State v. Church, 577 N.W.2d 715, 721 (Minn. 1998) (citation omitted).

Although Schwartz hearings are to be liberally granted, a defendant must establish a prima facie case presenting "sufficient evidence which, standing alone and unchallenged, would warrant the conclusion of jury misconduct."


Id. at 720 (quoting State v. Larson, 281 N.W.2d 481, 484 (Minn. 1979)).

The Klibers contend that the statement, "Is that the house on the west side?" entitled them to a Schwartz hearing. The district court found that

there has been an insufficient showing of any irregularity in the proceedings to warrant a Schwartz hearing in this case. One statement, overheard and taken out of context, does not satisfy the burden articulated in the Schwartz case.


The court concluded that "the evidence is insufficient to support [the Klibers'] motion for a Schwartz hearing." We agree with the district court. The alleged statement was irrelevant to the case. We cannot say on the record before us that the district court abused its discretion in denying the Klibers' motion for a Schwartz hearing.

The Klibers argue that they are entitled to a new trial because the district court excluded evidence of prior judgments against Wiherski. 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). "Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party's ability to demonstrate prejudicial error." Id. at 46 (quotation omitted). The district court has the discretion to grant a new trial, and 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).

The Klibers contend that the district court should have admitted previous judgments against Wiherski and cite Cole v. Paulson, 380 N.W.2d 215 (Minn. App. 1986), for support. In Cole, the appellants challenged the admission into evidence of several notices of default and prior unlawful detainer actions. Id. at 219. This court held that the district court did not abuse its discretion in admitting this evidence because the "evidence was relevant to the parties' understanding of the agreement as shown by their subsequent conduct." Id.

Cole is readily distinguishable from the present case. The notices of default and unlawful detainer actions admitted into evidence in Cole involved the same individuals that were parties to the lawsuit. Here, the Klibers sought admission into evidence of judgments obtained by third parties against Wiherski that were unrelated to the contract at issue. The Klibers argue that the prior judgments were relevant to show that Wiherski had a history of unpaid debts and to impeach Wiherski's statements that he had the financial ability to pay his debts. Even if the evidence is relevant, however, it

may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.


Minn. R. Evid. 403.

The Klibers were unable to demonstrate prejudicial error. We conclude that the district court was within its discretion in excluding evidence of the prior judgments against Wiherski and in denying the Klibers' motion for a new trial.

The Klibers argue that the evidence does not support the jury's verdict. "A verdict will not be set aside unless the evidence against it is practically conclusive." Ouellette by Ouellette v. Subak, 391 N.W.2d 810, 817 (Minn. 1986) (citation omitted). The Klibers argue that the evidence presented at trial does not justify the jury's verdict. "A new trial may be granted to all or any of the parties and on all or part of the issues" if "[t]he verdict, decision, or report is not justified by the evidence, or is contrary to law * * * ." Minn. R. Civ. P. 59.01 (g).

First, the evidence must be reviewed in the light most favorable to the verdict. Second, an appellate court will overturn a jury verdict only if no reasonable mind could find as the jury did. However, implicit in those rules is the premise that there must exist some evidence to support the verdict, and if there exists no supportive evidence or if the jury's verdict is perverse and palpably contrary to the evidence, an appellate court will, and should, reverse.


Reedon of Faribault, Inc. v. Fidelity & Guar. Ins. Underwriters, Inc., 418 N.W.2d 488, 491 (Minn. 1988) (citations omitted).

The Klibers contend that there was insufficient evidence on which to base a verdict for Wiherski. At trial, Wiherski presented Exhibit 10, which listed $41,677.77, as the sum of money the Klibers received from him between December 1995 and May 1999. Richard Kliber testified that both Wiherski's and Wiherski's mother's social security checks were directly deposited in Kliber's account, beginning in February 1996. Some months, more than the monthly payment of $550 would be deposited in Kliber's account. Richard Kliber testified that he would refund the amount of overpayment to Wiherski in cash. Wiherski testified that Richard Kliber refunded some of his overpayments to him in cash, but not all of it. Wiherski testified that when he asked Kliber where the rest of the money was, Kliber would respond, "If you need more, let me know," or Kliber would say the money was being used for taxes, insurance, or something else. No receipts were issued for these payments or refunds. Based on the testimony and evidence presented, the jury could have awarded Wiherski any amount from $0 to $32,322.23. The jury awarded Wiherski $14,500.

Viewing the evidence in the light most favorable to the verdict, a reasonable mind could find as the jury did. The district court stated in its memorandum accompanying the November 2001 order:

There is nothing in the record or the jury's verdict to conclude that the jury failed to consider all the evidence or acted in an incorrect manner when returning a verdict in favor of [Wiherski] in this case. [The Klibers'] burden to succeed on a motion for new trial is heavy. Here, the [Klibers] have failed to offer sufficient evidence to justify a new trial.


We conclude that the district court did not abuse its discretion in denying the Klibers' motion for a new trial.