This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







Ronald Peterson, et al.,





BASF Corporation, a foreign corporation,



Filed August 30, 2005

Reversed and remanded; motions denied

Halbrooks, Judge


Norman County District Court

File No. C2-97-295



Douglas J. Nill, Douglas J. Nill, P.A., 1100 One Financial Plaza, 120 South Sixth Street, Minneapolis, MN  55402; and


J. Michael Schwartz, Lockridge Grindal Nauen, P.L.L.P., 100 Washington Avenue, Suite 2200, Minneapolis, MN  55401 (for respondents)


Winthrop A. Rockwell, John P. Borger, Bruce Jones, John P. Mandler, Faegre & Benson, L.L.P., 2200 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN  55402-3901 (for appellant)


            Considered and decided by Minge, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges the district court’s order denying its motion for approval of a qualified settlement fund, ruling that appellant lacks standing.  Respondents move to dismiss the appeal and to strike statements made at oral argument.  Because we conclude that appellant has standing to raise this issue, we reverse and remand to the district court for a decision on the motion.  We deny respondents’ motions.


            Respondents Ronald Peterson and other farmers sued appellant BASF Corporation in a class-action consumer-fraud suit under the New Jersey Consumer Fraud Act, based on appellant’s marketing and pricing of certain herbicides.  N.J. Stat. Ann. § 56:8-1-116 (West 2002).  The jury returned a verdict in favor of respondents and awarded damages in the amount of $15,000,000.  The district court trebled damages and awarded costs and attorney fees under the consumer-fraud act, as well as granting prejudgment interest.  This court affirmed, as did the supreme court, but the United States Supreme Court vacated and remanded on a narrow preemption issue.  Peterson v. BASF Corp., 657 N.W.2d 853 (Minn. App. 2003), aff’d, 675 N.W.2d 57 (Minn. 2004), vacated and remanded, 125 S. Ct. 1968 (2005).  Decision on the preemption issue is pending in our supreme court.

            Meanwhile, a postjudgment issue arose in the district court regarding the distribution of the common fund arising from the jury verdict.  The district court ruled that appellant did not have standing to raise the issue, this court affirmed, and the supreme court denied appellant’s petition for review.  Peterson v. BASF Corp., No. A04‑1553 (Minn. App. Apr. 26, 2005), review denied (Minn. July 19, 2005).

            Appellant then moved the district court for an order approving a qualified settlement fund in anticipation of paying the judgment and to assist it in tax planning for the 2004 calendar year.  The district court granted respondents’ motion to strike and denied appellant’s motion on the ground that appellant lacks standing.  This appeal follows.


            We first address the preliminary issue of whether this appeal is moot.  The issue of mootness is a question of law, which this court reviews de novo.  In re McCaskill, 603 N.W.2d 326, 327 (Minn. 1999).  Appellant is seeking district court approval of a qualified settlement fund (QSF).  Appellant asserts that in order to qualify for certain tax treatment, the IRS requires court approval, but acknowledges that the time for benefiting from the QSF in 2004 has passed.

            An appellate court “will decide only actual controversies.  If the court is unable to grant effectual relief, the issue raised is deemed to be moot resulting in dismissal of the appeal.”  In re Schmidt, 443 N.W.2d 824, 826 (Minn. 1989).  An exception arises if the issue is “capable of repetition yet evading review.”  Id.  This exception applies if the issue “does not remain a live controversy until the completion of appellate review but due to its nature may reoccur.”  McCaskill, 603 N.W.2d at 328.  Because the issue of appellant’s standing to seek approval of the QSF may recur and yet again evade review, we conclude that it is not moot.

            A second preliminary issue is whether the district court lacked jurisdiction to enter the order at issue in this appeal because the earlier order, in which the district court ruled that appellant does not have standing to address the issue of distribution of the common fund, had been appealed.  Peterson v. BASF Corp., No. A04-1553 (Minn. App. Apr. 26, 2005), review denied (Minn. July 19, 2005).  Whether a district court has jurisdiction is a question of law reviewed de novo.  In re Thulin, 660 N.W.2d 140, 143 (Minn. App. 2003).

            When an appeal is filed, the district court’s authority “to make any order necessarily affecting the order or judgment appealed from” is suspended.  Minn. R. Civ. App. P. 108.01, subd. 1; see Spaeth v. City of Plymouth, 344 N.W.2d 815, 825 (Minn. 1984).  But the district court “may proceed upon any other matter included in the action and not affected by the judgment or order from which the appeal is taken.”  Minn. R. Civ. App. P. 108.03.  “Generally, the trial court retains authority to enforce the judgment, and to consider and rule on matters that are supplemental or collateral to the judgment.”  Minn. R. Civ. App. P. 108.01 1998 advisory comm. cmt.  Although both orders address standing, they address separate issues, and the district court retained authority to rule on the QSF issue.

            We now address the current controversy.  A party has standing when resolution of the issue may adversely affect the party’s interests.  Sierra Club v. Morton, 405 U.S. 727, 740, 92 S. Ct. 1361, 1368 (1972).  Appellant contends that resolution of its motion for approval of the QSF will affect its interests because, with such approval, it can obtain certain tax benefits in connection with the use of the fund to pay the judgment.  Respondents vehemently dispute the applicability of the QSF.  Without reaching the merits of the argument, we conclude that appellant has shown that it has standing to raise the issue, and we remand this matter to the district court for resolution of the motion.

            Respondents’ motion to dismiss is denied.  Respondents’ motion to strike statements made by appellant at oral argument regarding the availability of a QSF is also denied.

            Reversed and remanded; motions denied.