This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Kenneth R. Kunzer,





Gary Bronikowski, et al.,



Filed June 8, 2004


Anderson, Judge


Washington County District Court

File No. C0-03-2295


Kenneth R. Kunzer, 2764 Chisholm Avenue, North St. Paul, MN  55109-1712 (pro se appellant)


Gary Bronikowski, Vickie Theresa Tuttle, 9350 Lake Road, Woodbury, MN  55125 (respondents)


            Considered and decided by Peterson, Presiding Judge; Shumaker, Judge; and Anderson, Judge.

U N P U B L I S H E D  O P I N I O N




            Appellant challenges the judgment of the district court that respondents did not materially breach a rental contract.  Appellant argues that (1) the district court abused its discretion by excluding relevant evidence; (2) the district court abused its discretion by omitting proposed language from the jury instructions; (3) respondents materially breached the lease agreement; (4) the special verdict returned by the jury should be set aside; and (5) the district court abused its discretion by refusing to grant appellant’s motions for JNOV or, in the alternative, a new trial.  We affirm. 



            In September 2000, Appellant Kenneth Kunzer leased a rental property in Woodbury, Minnesota to respondents Gary Bronikowski and Vickie Tuttle (respondents). In March 2003, Kunzer wrote a letter to respondents alleging breaches of the rental contract and citing numerous alleged code violations on the property.  Some of these alleged breaches and violations included: an unauthorized hole in the roof of the rental property, an unauthorized vent in the wall of the property, a problem with oil on the property, a problem with unregistered vehicles on the property, and an unauthorized business operating on the property. Kunzer refused to accept rent from appellants in March 2003, arguing that respondents’ late rent payment was a material breach of the rental agreement.  Kunzer instituted an eviction action against respondents arguing that the alleged breaches and violations constituted material breaches of the rental contract.  The matter was tried to a jury, which returned a special verdict concluding that respondents did not materially breach their lease agreement with Kunzer.  After the jury returned the verdict, Kunzer filed for JNOV or, in the alternative, a new trial.  The district court denied Kunzer’s motions.  Kunzer now appeals.




            Kunzer argues that the district court abused its discretion by excluding exhibits he proposed to introduce into evidence at trial.  We disagree.  Absent an 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).  Further, even if the district court did abuse its discretion in its evidentiary rulings, Kunzer is not entitled to a new trial unless he can demonstrate that he was prejudiced by the exclusion.  Midway Ctr. Assoc. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975).

            Here, the district court excluded (1) Kunzer’s verified eviction complaint; (2) the table of contents Kunzer created itemizing late rent letters sent from Kunzer to Bronikowski; (3) photocopied pages of a brochure entitled “Landlords and Tenants: Rights and Responsibilities, From the Office of Minnesota Attorney General Mike Hatch”; (4) a copy of the Washington County residential disposal guide for oil and filters; (5) a copy of the Washington County residential disposal guide for tires; and (6) a brochure for speakers printed by Bronikowski.  Kunzer does not argue persuasively either how the district court erroneously interpreted the law when it excluded the evidence or why the exclusion of evidence in this case was prejudicial.  Therefore, he has shown neither that the district court erroneously interpreted the law in excluding his exhibits nor that it abused its discretion by excluding those exhibits.


            Kunzer claims that the district court abused its discretion when it omitted proposed language from the instructions to the jury.  We disagree.   We generally will not review a challenge to jury instructions when the party challenging the instructions did not timely object to the instructions at the district court.  Colby v. Gibbons, 276 N.W.2d 170, 178 (Minn. 1979).  Here, Kunzer admitted on the record that the district court gave him the opportunity to object to the instructions before the instructions were read to the jury, and Kunzer did not object to the instructions.  By failing to object before the district court gave the instructions to the jury, Kunzer waived his right to challenge the jury instructions on appeal.


            Kunzer argues on appeal that the respondents committed several material breaches of the terms of the lease between the two parties.  The question of whether a breach is material is a question of fact.  Difazio v. Exelon Serv.’s, Inc., No. Civ. 02-3562(JRT/FLN) (D. Minn. Mar. 5, 2004) (citing Cloverdale Foods of Minn., Inc. v. Pioneer Snacks,580 N.W.2d 46, 49 (Minn. App. 1998).  Here, Kunzer seeks not to overturn the verdict of the jury but instead to reargue the same claim he made at the district court.  Because the role of the court of appeals is to correct errors, not to find facts, we do not determine this type of fact question on appeal.  In re Welfare of M.D.O., 462 N.W.2d 370, 374-75 (Minn. 1990); see also Kucera v. Kucera, 275 Minn. 252, 254, 146 N.W.2d 181, 183 (1966) (concluding that the supreme court will not determine issues of fact on appeal). 



            Kunzer argues that the special verdict of the jury is clearly against the weight of the evidence, has no support in the record, and should be set aside.  We disagree.  A jury’s answer to a special-verdict question “can be set aside only if no reasonable mind could find as did the jury.”  Domtar, Inc. v. Niagara Fire Ins. Co., 563 N.W.2d 724, 734 (Minn. 1997); see also Hughes v. Sinclair Mktg., Inc., 389 N.W.2d 194, 198 (Minn. 1986) (jury verdict will be sustained “on any reasonable theory of the evidence”).  We view the evidence “in a light most favorable to the jury verdict . . . if the jury’s special verdict finding can be reconciled on any theory, the verdict will not be disturbed.”  Hanks v. Hubbard Broad., Inc., 493 N.W.2d 302, 309 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993). 

            Here, respondents presented evidence that they had permission from Kunzer to create a hole and a vent in the property and that they responded to Kunzer’s demands to remedy the code violations on the property by cleaning up the vehicles and oil on the property.  Further, it is unlikely that Kunzer’s allegations even rise to the level of a material breach of contract.  See Steller v. Thomas, 232 Minn. 275, 282, 45 N.W.2d 537, 542 (1950) (providing that a breach is material when “one of the primary purposes” of the contract is violated); see also Black’s Law Dictionary 183 (7th ed. 1999) (defining a material breach as “[a] substantial breach of contract, usu[ally] excusing the aggrieved party from further performance and affording it the right to sue for damages”).  The jury’s verdict finds reasonable support in the record; we will not disturb the verdict.




            Kunzer argues that the district court abused its discretion by refusing to grant Kunzer’s motions for JNOV or, in the alternative, a new trial.  We disagree.  Where the district court denies a motion for JNOV, we affirm “if, in the record, there is any competent evidence reasonably tending to sustain the verdict.”  Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998) (quotation omitted).  “Unless the evidence is practically conclusive against the verdict, this court will not set the verdict aside.”  Id. (quotation omitted).  “The evidence must be considered in the light most favorable to the prevailing party and an appellate court must not set the verdict aside if it can be sustained on any reasonable theory of the evidence.”  Id.  Further, the district court has the discretion to grant a new trial; we do not disturb this exercise of discretion “absent a clear abuse of that discretion.”  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).  “On appeal from a denial of a motion for a 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.”  ZumBerge v. N. States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992).

After reviewing the evidence submitted at trial, including Bronikowski’s statements that he was authorized by Kunzer to create a hole and vent, and that Bronikowski cleaned up the property as soon as Kunzer brought the code and contractual violations to his attention, we conclude that the district court’s denial of Kunzer’s motions was not an abuse of discretion.