This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Ronald Peterson, et al.,
a foreign corporation,
Filed April 26, 2005
Affirmed; motion granted
Toussaint, Chief Judge
Norman County District Court
File No. C2-97-295
J. Nill, Douglas J. Nill, P.A., 1100 One Financial Plaza,
Hugh V. Plunkett, III, Phoenician East, 4723 North 65th Street, Scottsdale, AZ 85251; and
Michael Schwartz, Lockridge Grindal Nauen, P.L.L.P.,
Winthrop A. Rockwell, John P. Borger, Bruce Gregory Jones, John P. Mandler, Faegre & Benson, L.L.P., 2200 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402 (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Toussaint, Chief Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Appellant appeals from a post-judgment order determining that (a) appellant did not have standing to participate in proceedings relating to distribution of the common fund; and (b) if unclaimed funds remain after distribution, appellant will have the opportunity to argue that it has standing to object to the proposed final distribution of those funds. Because appellant did not have standing to participate in distribution of the common fund and because the issue of final distribution of unclaimed funds is not yet ripe, we affirm.
D E C I S I O N
In this consumer-fraud class action appeal arising from a nationwide class action in which respondents, a group of farmers (farmers), asserted that appellant BASF Corporation (BASF) violated the New Jersey Consumer Fraud Act (NJCFA), N.J. Stat. Ann. §§ 56:8-1-56:8-116 (West 2002). On April 2, 2002, following a jury trial, the district court entered a judgment against BASF totaling over $52 million.
After the supreme court affirmed the judgment, the farmers notified BASF that they intended to stop serving BASF with motions addressing distribution of the common fund. In the event that there were any unclaimed funds after distribution, the farmers indicated they would notify BASF, but noted that this was unlikely because the farmers intended to propose various methods of distribution that would completely consume the common fund.
BASF moved the district court for an order requiring the farmers to continue to serve BASF with all papers filed with the district court, arguing that it had standing to participate in the distribution proceedings. The farmers then moved for an order ruling that (1) the court had addressed BASF’s post-judgment standing in its April 2, 2002, judgment; (2) BASF had, therefore, waived this issue by failing to raise it in its appeal from the judgment; and (3) the farmers need only notify and serve BASF with motions relating to any unclaimed funds after distribution of the common fund.
On July 7, 2004, the district court ruled that the farmers “need only notify and serve [BASF] with common fund distribution motions . . . if there are any unclaimed funds after distribution of the common fund.” In that event, the court held that BASF may argue whether it has standing to object to the farmers’ proposed final distribution of any unclaimed funds. The court also indicated that in its April 2, 2002 judgment, it intended that BASF’s post-judgment standing, relative to the distribution of any funds upheld on appeal, would be limited to the issue of those unclaimed funds remaining after final distribution of the common fund.
Standing - Ripeness
We initially must address whether the issue of standing was ripe when BASF appealed from the April 2, 2002 judgment and whether BASF waived the issue by failing to raise it in its earlier appeal.
If an issue
was ripe for review in an earlier appeal but was not raised, it may be deemed
waived in the later appeal. Peterson
v. BASF Corp., 675 N.W.2d 57, 66-67 (addressing issue raised in petition
for review) (
Standing - Merits
court in its July 7, 2004, order indicated that BASF did not have standing to
participate in proceedings relating to the distribution of the common
fund. Standing is a question of law,
which we review de novo. Britamco
Underwriters, Inc. v. A & A Liquors of
that they own the common fund until the individual claimants can prove that
they established an “ascertainable loss” under the NJCFA, N.J. Stat. Ann. §
56:8-19. Judgment was entered on the
jury’s award of damages to the farmers. A
judgment “means the final determination of the rights of the parties in an
action or proceeding.”
finality of the judgment, BASF argues that because the verdict found aggregate
rather than individual damages, the complete chain of liability has not been
established until the individual claimants come forward and prove the amount of
their loss pursuant to the NJCFA. See N.J. Stat. Ann. § 56:8-19. It argues that it has a due-process right to
notice and an opportunity to participate in the distribution hearings, based on
its theory that it has a property interest as to any unclaimed funds after
distribution is complete. See Sisson
v. Triplett, 428 N.W.2d 565, 568 (
BASF’s claims, we must review the award of damages in a class-action suit. After there is a showing of the defendant’s
liability to the class, class members can seek monetary recovery either through
individual proof of losses or through common proof of the defendant’s aggregate
damage liability to the class. 3 Alba
Conte & Herbert B. Newberg, Newberg on Class Actions § 10:17 at 517
(4th ed. 2002). Here, the farmers sought
damages at trial through common proof of BASF’s aggregate damage liability to
the class. This stage of trial to
establish damages is conducted “strictly in accordance with accepted
evidentiary standards” for determination of damages suffered or profits
unjustly awarded at the expense of class members.
In the next
stage of litigation, the class-wide damage award must be distributed to the
asserts, however, that the Supreme Court has recognized that a defendant in a
litigated class action has standing to object to a proposed common fund distribution
because that distribution would reduce the defendants’ potential reversionary
interest in unclaimed portions of that fund.
See Boeing Co. v. Van Gemert, 444
the issue was “whether a proportionate share of the fees awarded to lawyers who
represented the successful class may be assessed against the unclaimed portion
of the fund created by a judgment.” Boeing, 444
The judgment on the merits stripped Boeing of any present interest in the fund. Thus, Boeing had no cognizable interest in further litigation between the class and its lawyers over the amount of fees ultimately awarded from money belonging to the class. But Boeing did have an interest, arising from its colorable claim for the return of excess money, in whether attorneys’ fees could be assessed against the entire fund rather than against the portion actually claimed. Since the District Court’s order assessed attorney’s fees against the entire fund, it was a final judgment on the only issue in which Boeing still had an interest. In the peculiar circumstances of this case, Boeing could secure review of the allocation of fees only by appealing from this adverse judgment.
Here, in contrast, there was no such judgment entered. Instead, the district court ruled that if there were any unclaimed funds, BASF could at that time argue that it has standing to address the issue. We conclude that the “peculiar circumstances” in Boeing are not present here, or that it stands for the proposition that BASF has standing to participate in the distribution of the common fund. Similarly, the additional cases cited by BASF also fail to support its claim.
We further conclude that BASF has not demonstrated that it has standing to participate in the distribution of the aggregate damages to the individual class members. It was accorded due process at trial when, subject to evidentiary standards, the issue of damages was fully litigated. No further process is due.
claims that it has standing to participate in distribution of any unclaimed
balance that may exist after distribution of the common fund. The district court reserved the issue of
whether BASF has standing to argue this issue.
This court cannot give an advisory opinion or rule on an issue not considered
by the district court. In re Schmidt,
443 N.W.2d 824, 826 (
BASF also contends that it is entitled to notice of the motions on the distribution of funds. Under Minn. R. Civ. P. 5.01, all parties must be served with notice of motions. But BASF’s argument that it is entitled to notice is based on its belief that it has standing to participate in proceedings on that issue. Because BASF does not have standing or a due-process interest in the proceedings, it is not entitled to notice.
Finally, BASF moves to strike portions of the farmers’ appendix as well as text in their brief referring to those materials. Because that material contains documents that were filed after the date of the order being appealed, we do not consider them in this appeal. BASF’s motion to strike is, therefore, granted.
The decision of the district court holding that BASF does not have standing to address distribution of the common fund and deferring decision of whether it will have standing to address distribution of any unclaimed portion of the common fund is affirmed.
Affirmed; motion granted.
 Here, although the judgment is not yet “final” because BASF’s petition for certiorari to the United States Supreme Court is pending, this does not form the basis for BASF’s claim that the common funds belong to BASF until they are distributed.
case cited by the farmers, however, is persuasive. In Sampson v. Eastman Kodak Co., 552
N.E.2d 1194 (