This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Donna Gangestad,



BCBSM, Inc.,


Filed May 26, 1998


Mulally, Judge*

Concurring specially, Foley, Judge**

St. Louis County District Court

File No. C795602262

David L. Brehmer, Rachel B. Rosen, Lynn Wolters, Brehmer & Rosen, P.L.L.P., 5001 West 80th Street, Suite 745, Bloomington, MN 55437 (for appellant)

Eric J. Magnuson, Gregory M. Weyandt, Doreen A. Mohs, Rider, Bennett, Egan & Arundel, LLP, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent)

Considered and decided by Toussaint, Chief Judge, Foley, Judge,and Mulally, Judge.

*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10. **Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.*



Appellant Donna Gangestad challenges: (1) the admission of evidence and other trial procedures, including the absence in the record of discussions and rulings; (2) the jury's verdict; and (3) the denial of her motion to amend her complaint. We affirm.


This is a breach of contract action based on a settlement agreement reached between respondent BCBSM and appellant Dr. Donna Gangestad, a chiropractor who was discontinued as a BCBSM, Inc., provider.

On September 9, 1994, the parties signed the written settlement agreement that provided for appellant's readmission to the provider network following a successful qualification period. On December 1, 1994, BCBSM denied appellant readmission to the provider network, claiming appellant over-treated her patients and did not meet the required criteria for acceptance. Appellant argues that she did not receive the entire six-month qualification period to which she was entitled.

Respondent asserts that the parties had agreed orally that the period would begin June 1, 1994, but it was not until September that the written agreement was actually signed. The settlement agreement provided that if appellant was not admitted or reinstated as a provider by December 1, 1994, and if BCBSM did not act in good faith, appellant could sue. She did so, but the jury found that there was no breach of contract. Thus, no damages were awarded. Appellant did not move for a new trial, but raised her complaints for the first time in this appeal.



In Sauter the supreme court reaffirmed

the general rule that matters such as trial procedure, evidentiary rulings and jury instructions are subject to appellate review only if there has been a motion for a new trial in which such matters have been assigned as error.

Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn. 1986). The court further explained the policy behind this requirement:

In our view, the motion for a new trial provides both trial court and counsel with a unique opportunity to eliminate the need for appellate review or to more fully develop critical aspects of the record in the event appellate review is sought. Counsel is required to focus the trial court's attention on the specifics of an objection which, though properly framed during trial, might not have been fully explained or the impact of which might not have been understood during trial. The trial court is given time for reflection and the opportunity to consider the context in which the alleged error occurred and the effect it might have had upon the outcome of the litigation. In short, it is given the opportunity to correct its own errors without subjecting the parties and the appellate courts to the time, expense and inconvenience involved in an appeal.

Id. at 201-02.

Generally on appeal from a judgment where no motion for a new trial was made, "the only questions for review are whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and the judgment."

Novack v. Northwest Airlines, Inc., 525 N.W.2d 592, 596 (Minn. App. 1995) (quoting Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976)).

Since under Sauter appellant cannot appeal "issues arising during the course of trial" without having moved for a new trial, id. at 202, we are limited in our consideration to the issue of whether there was sufficient evidence to sustain the jury's findings. Novack, 525 N.W.2d at 596.


We will not set aside a jury verdict unless it is "manifestly and palpably contrary to the evidence viewed as a whole and in the light most favorable to the verdict." Roemer v. Martin, 440 N.W.2d 122, 124 (Minn. 1989) (quoting Vanderweyst v. Langford, 303 Minn. 575, 576, 228 N.W.2d 271, 272 (1975)). We will sustain the verdict "if it is possible to do so on any reasonable theory of the evidence." Id. The jury found in its special verdict form that BCBSM did not breach its contract with appellant Donna Gangestad. Thus, it was unnecessary for the jury to determine damages.

Appellant argues that the jury's verdict was contrary to the evidence because she was denied acceptance into the provider network on December 1, 1994. She contends she had not completed her full six-month qualification period that began when the settlement agreement was signed on September 9, 1994.

The jury, however, must have agreed with BCBSM's contention that the parties had an oral agreement that the qualification period was to begin on June 1, 1994. Although the contract included language that indicated it was effective when signed, the contract also stated that BCBSM would let appellant know by December 1, 1994, whether she would be reinstated to the network (which itself would not have been six months from the signing date). The jury also must have agreed appellant was properly denied reinstatement because she over-treated her patients and failed to meet the required criteria.

We conclude there is evidence in the record to support both of these findings that would in turn lead the jury to decide the contract was not breached. Thus, the jury's verdict is not "manifestly and palpably contrary to the evidence viewed as a whole in the light most favorable to the verdict."


The decision of whether to grant a motion to amend a complaint is within the district court's discretion. Davis v. Midwest Discount Sec., Inc., 439 N.W.2d 383, 388 (Minn. App. 1989). "A denial of a motion to amend is proper when the movant fails to establish evidence to support the allegations the movant seeks to amend." Id. "An amendment may also be denied if it will accomplish nothing, such as when the amendment does not state a cognizable legal claim." Envall v. Independent Sch. Dist. No. 704, 399 N.W.2d 593, 597 (Minn. App. 1987), review denied (Minn. Mar. 25, 1987).

In response to appellant's motion to amend her complaint to include the tort of misrepresentation and to add a claim for punitive damages, the district court found:

There is no evidence separate from the allegation of breach of covenant or breach of contract to convert this matter into a misrepresentation matter. Changing the name doesn't change the substance. It is still a claim that a settlement agreement signed by both sides, with attorneys, was breached.

Likewise, 549.20 and the case law on punitive damages have very stringent requirements. Even the allegations here don't rise to that level.

Since the jury found no general damages, there could be no punitive damages. We conclude it was within the district court's discretion to deny the motion to amend because the proposed amendments were not supported by the law.


FOLEY, Judge (concurring specially)

I concur in the result.