may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Dave Winn, et al.,
Harry A. Johnson, Jr., et al.,
Steven C. Simon, et al.,
Filed December 15, 1998
Hennepin County District Court
File No. 9518101
Patricia J. Hartmann, 2600 Firstar Center, 101 East Fifth Street, St. Paul MN 55101 (for appellants)
Timothy R. Thornton, Richard G. Mark, Michael C. Krikava, Paul C. Thissen, Briggs and Morgan, 2400 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondents)
Considered and decided by Willis, Presiding Judge, Kalitowski, Judge, and Amundson, Judge.
In this consolidated appeal, appellants challenge: (1) the exclusion of testimony of their expert witness; (2) certain jury instructions; (3) various evidentiary rulings; and (4) the grant of summary judgment on appellant Johnson's claims. Respondents challenge the denial of their motion for judgment notwithstanding the verdict (JNOV) with respect to plaintiffs who recovered at trial. We affirm.
A. Valuation Testimony
At trial, the district court did not allow appellants' expert witness, Larry Crain, to testify about the value of American Sharecom, Inc. (ASI) and its stock. The court excluded this testimony because on the stand Crain stated he could not recall the figures he used in calculating the value of ASI and its stock. In addition, when questioned by the court, Crain was unable to offer anything to link the value of the stock to Simon's allegedly unacceptable multiples.
It is not the role of this court to second-guess an evidentiary ruling of the district court. See Hagen, 306 Minn. at 528, 236 N.W.2d at 162 ("The qualification of a witness to render expert testimony is a question to be determined by the trial court, whose ruling will not be reversed unless it is based on an erroneous view of the law or clearly not justified by the evidence."). Because Crain was unable to give a recognizable factual basis for his expert testimony, we conclude the district court was within its discretion in excluding the testimony.
B. Fiduciary Duty Testimony
The district court also refused to allow Crain's testimony concerning a corporate officer's fiduciary duties because it impermissibly involved legal conclusions. Although a person whose profession or vocation concerns a certain topic may testify as an expert, Hagen, 306 Minn. at 528, 236 N.W.2d at 163 (1975), legal analysis by a nonlawyer expert is ordinarily inadmissible. Behlke v. Conwed Corp., 474 N.W.2d 351, 359 (Minn. App. 1991), review denied (Minn. Oct. 11, 1991).
Courts have come to different conclusions about when it is permissible to allow a nonlawyer witness to address legal determinations. See Conover v. Northern States Power Co., 313 N.W.2d 397, 402 (Minn. 1981) (finding that the district court erred in admitting testimony from a nonlawyer witness that the defendant's conduct violated the National Electrical Safety Code); Pratt v. State, Dep't of Natural Resources, 309 N.W.2d 767, 770 (Minn. 1981) (assuming a nonlawyer witness could testify as to whether certain lakes were public waters according to state statute); State v. Ellis, 476 N.W.2d 662, 666 (Minn. App. 1991) (permitting a nonlawyer housing inspector to testify that conditions violated the housing code), review denied (Minn. Dec. 13, 1991). Because Minnesota courts have come to different conclusions on this issue, we cannot say the district court's exclusion of Crain's purported legal conclusions constituted an abuse of discretion.
Further, even if the court's ruling was incorrect, we cannot say it constituted reversible error. Appellants were allowed to argue that respondents exploited their superior positions to take control of ASI, and made a great deal of money on the sale of ASI while previous shareholders did not. After six weeks of trial the jury determined that respondents breached their fiduciary duties with respect to two sets of plaintiffs, but acted appropriately with respect to appellants. We conclude the jury was adequately informed about fiduciary duties, so that any error regarding Crain's testimony on this subject would not justify a new trial.
District courts are allowed considerable latitude in selecting the language of jury instructions. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986). Further, rulings on trial procedure are inherently discretionary, and will not be reversed absent an abuse of that discretion. See Shacter v. Richter, 271 Minn. 87, 93, 135 N.W.2d 66, 70 (1965) ("It is not for an appellate court to anticipate or prohibit errors of the trial court or to interfere with its discretionary orders as to trial procedure.").
A. Measure of Damages
This was a bifurcated trial, with phase one reserved for determining liability and phase two for measuring an alternative damage award in light of the amount of money for which ASI sold. Two sets of plaintiffs prevailed in phase one, and damages were determined in both phases.
1. Phase One Instruction
In its jury instructions at the end of phase one, the district court gave an out-of-pocket damage instruction, rather than a rescissionary instruction, and the jury awarded $1 per share for every share that plaintiffs sold. Appellants assert this constituted reversible error and that rescissionary damages should apply instead because disgorgement of profit is required when the wrongdoer has been fraudulently enriched. We disagree.
Under the "out-of-pocket" rule, a defrauded party may be entitled to damages in the amount paid less the value of the object of the fraud. Estate of Jones by Blume v. Kvamme, 449 N.W.2d 428, 431 (Minn. 1989). A defrauded party may alternatively sue for rescissionary damages. Kvamme, 449 N.W.2d at 432 (citing Restatement of Restitution § 166 comment b (1937)). Using a rescissionary damages measure, the fraudulent party holds the property in constructive trust for the defrauded transferor. Wright v. Wright, 311 N.W.2d 484, 485 (Minn. 1981); Penn Anthracite Mining Co. v. Clarkson Securities Co., 205 Minn. 517, 522, 287 N.W.15, 18 (1939) (citing Restatement, Restitution, § 166). That trust includes any proceeds from the property. Kvamme, 449 N.W.2d at 432.
Out-of-pocket damages are commonly awarded in fraud cases. See, e.g., Stahl v. McGenty, 486 N.W.2d 157, 160 (Minn. App. 1992); Nave v. Dovolos, 395 N.W.2d 393, 398 n.1 (Minn. App. 1986); Yost v. Millhouse, 373 N.W.2d 826, 830-31 (Minn. App. 1985); Kvamme, 449 N.W.2d at 431. In Kvamme, the supreme court upheld a rescissionary damage award to defrauded sellers of stock. Kvamme, 449 N.W.2d at 432 (Minn. 1989). The Kvamme court, however, did not specify that rescissionary damages are always appropriate in cases involving stock transactions, but merely stated that the district court was within its discretion in awarding rescissionary damages and thereby preventing the wrongdoer from retaining the proceeds of his wrongful conduct. Id. at 432.
We note that there was no finding of fraud in this case, only a breach of fiduciary duty. Further, even with a finding of fraud, appellants have failed to cite authority stating that rescissionary damages are the only appropriate remedy. We therefore cannot say the district court abused its discretion in instructing the jury based on the out-of-pocket damages rule.
2. Phase Two Instruction
In phase two of the trial, the court instructed the jury to base any alternative award on how long plaintiffs would have likely retained their ASI stock. The court rejected an instruction that plaintiffs were entitled to the amount the stock had appreciated since the misconduct took place. Where the disposal or retirement of stock makes it impossible to return the parties to the status quo, the equivalent value of the stock at the time of resale is the proper measure of damages. Myzel v. Fields, 386 F.2d 718, 745-49 (8th Cir. 1997). See Wenzel v. Mathies, 542 N.W.2d 634, 642 (Minn. App. 1996) (finding that the new purchaser's profits were a "fair and reasonable measure" of the defrauded party's damages), review denied (Minn. Mar. 28, 1996). Speculative, remote, or conjectural damages, however, are not recoverable. Sievert v. First Nat'l Bank in Lakefield, 358 N.W.2d 409, 415 (Minn. App. 1984), review denied (Feb. 5, 1985).
The case here involved a complicated fact pattern that was drawn out over a period of years. It was within the district court's discretion to determine that additional damages would either be too speculative to be compensable, or would not be causally related to the misconduct. Thus, we conclude the court's jury instruction was not an abuse of discretion.
B. Respondeat Superior
Appellants contend the district court erred by not instructing the jury that the corporation, ASI, could be responsible for the conduct of its employees. The theory of respondeat superior imposes vicarious liability on an employer for all acts of its employees that occur within the scope of employment, regardless of the employer's fault. Oslin v. State, 543 N.W.2d 408, 414 (Minn. App. 1996), review denied (Minn. Apr. 1, 1996). Initially, the court agreed to include appellants' requested jury instruction on this theory. However, at the end of phase one, after the jury found that there was no fraud by respondents, the court deleted the vicarious liability instruction.
A respondeat superior instruction would not have changed the outcome here. Respondeat superior merely transfers liability. Because the jury made a finding of no fraud as to appellants' claims there was no liability to transfer. Although the instruction would have allowed the successful plaintiffs to obtain their award from ASI, there is overwhelming evidence that respondents have the means to pay the damage award. We therefore conclude the district court's failure to give a respondeat superior instruction is not reversible error.
C. Consumer Fraud Act
Appellants argue that the district court erred as a matter of law in its jury instruction regarding the Consumer Fraud Act (Act) by instructing the jury that the Act did not apply if appellants were "merchants" at the time they sold their ASI stock. The district court based this instruction on its reading of the supreme court's holding in Church of Nativity of Our Lord v. Watpro Inc., 491 N.W.2d 1 (Minn. 1992).
We need not reach the issue of whether the district court correctly interpreted Watpro. The jury here returned special verdict forms, finding with respect to each plaintiff, including those who succeeded on the fiduciary duty claim, that respondents did not use any "fraud, misrepresentation or misleading statement" in connection with the sale of the stock. We conclude that because the jury found no actionable wrongdoing, any error by the district court in limiting the Act does not constitute reversible error.
Appellants further argue that the district court erred in its instruction by not including the terms "false pretense," "false promise," and "deceptive practices." We disagree and again find no reversible error because we conclude those terms are subsumed under the broader terms "fraud," "misrepresentation," and "misleading statement" used by the district court.
D. Fiduciary Duties
The court in its jury instructions stated that a director "does not stand in a fiduciary duty to a stockholder in respect to his stock." Appellants contend this was error because the jury should have been allowed to determine whether special facts existed that may have created a fiduciary duty between respondents and appellants. See Strong v. Repide, 213 U.S. 419, 431, 29 S. Ct. 521, 525 (1909) (finding that "special facts" existed that led to a fiduciary duty between officers and shareholders). We disagree. The jury here obviously believed it could find that there was a fiduciary duty as evidenced by the fact it determined that respondents breached their fiduciary duties with respect to two sets of plaintiffs. We thus conclude that even if the instruction was incorrect, it did not constitute reversible error.
Evidentiary rulings rest within the broad discretion of the district court, and its rulings will not be disturbed unless they constitute an abuse of discretion, or are based on an erroneous view of the law. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990).
A. Amount of Gain on Frontier Sale
During the liability phase of the trial the district court did not allow the jury to hear evidence that respondents made a $200 million profit on the sale of ASI. Appellants assert that the profits obtained from the sale of ASI are probative of whether respondents misrepresented the value of ASI stock. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Minn. R. Evid. 403. Further, evidence of wealth can prejudice a jury. See Anderson v. Hawthorn Fuel Co., 277 N.W. 259, 260, 201 Minn. 580 (Minn. 1938) (improper to call jury's attention to wealth of company where not an issue).
Appellants were allowed to inform the jury that respondents made a "substantial gain." If reference to the specific amount of gain had been allowed, the jury may have inappropriately found fraud based on the amount of profit rather than on respondents' conduct. In the case of a bifurcated trial, it is appropriate to keep this highly prejudicial information from the jury until after liability is determined. See Grosfield v. Clearwater Clinic, 417 N.W.2d 640, 642 (Minn. 1988) ("[W]hen a bifurcation question arises, the trial court resolves the problem by applying the criteria of convenience, prejudice, expedition, and economy."). We conclude the district court did not abuse its discretion by excluding the evidence until phase two of the trial.
B. Exclusion of O'Hagan's Deposition and Testimony
The district court excluded James O'Hagan's deposition and testimony on the basis of attorney-client privilege. Absent a clear abuse of discretion, a district court's orders regarding discovery will not be disturbed. Shetka v. Kueppers, Kueppers, Von Feldt & Salmen, 454 N.W.2d 916, 921 (Minn. 1990). In addition, the district court has discretion over the conduct of attorneys appearing before it. See M.M. v. R.R.M., 358 N.W.2d 86, 90 (Minn. App. 1984) (holding district court acted within its discretion in refusing to dismiss attorney because of alleged conflict of interest).
The argument against allowing an attorney to depose or cross-examine a former client is a strong one, based on both fairness to the former client and the policies behind the attorney-client privilege itself. See National Texture Corp. v. Hymes, 282 N.W.2d 890, 894-96 (Minn. 1979) (noting that an attorney should not use information obtained in the course of representing that client to the disadvantage of the client; and discussing the purpose of the attorney-client privilege, that is, to encourage the client to confide openly and fully in his or her attorney without fear or apprehension). Here, James O'Hagan, by sworn affidavit stated that he met with appellants' attorney and consulted with her for purposes of litigation. In addition, there is evidence that the district court based its ruling in part on the fact that O'Hagan's attorney stated that if called to testify, O'Hagan would invoke the Fifth Amendment in response to any questions beyond his name and address. The combination of O'Hagan's affidavit concerning appellants' attorney and O'Hagan's stated intention to plead the Fifth Amendment leads us to conclude the district court did not abuse its discretion by excluding O'Hagan's deposition and testimony.
The district court, in granting summary judgment on the claims of appellant Johnson, held that: (1) there were no material fact issues as to whether Johnson relied on respondents' representations of the value of the ASI stock; and (2) Johnson released respondents from any claims arising out of his sale of stock options and there are no material facts as to whether respondents wrongfully concealed information from Johnson during the negotiation of the stock option purchase. On appeal from summary judgment, we must determine whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).
A. Reliance as to Value of ASI Stock
Appellant Johnson argues that he relied on Simon's misrepresentations regarding the value of the ASI stock, and this issue of fact precludes summary judgment. We disagree. A fraud claim cannot stand absent the essential element of reliance. Breezy Point Airport, Inc. v. First Fed. Sav. & Loan Ass'n of Brainerd, 288 Minn. 534, 536, 179 N.W.2d 612, 615 (citing Love v. Anderson, 240 Minn. 312, 61 N.W.2d 419 (1953)).
The district court, in dismissing appellants' fraud claim, found:
By no stretch of the imagination could a reasonable person conclude that Dr. Johnson was duped by any representation by Simon as to the value of or that he relied on such representation in deciding to sell his stock.
The evidence indicates Johnson: (1) was ASI's largest shareholder; (2) had representation on the ASI Board of Directors; (3) had guidance from advisors regarding his sale of the stock; and (4) was a sophisticated investor, with experience in stock transactions involving a great deal of money. In addition, in his deposition, Johnson expressed frustration with respondents for not going public or selling sooner, and stated that this motivated him to sell. Based on this evidence we conclude the district court correctly determined that Johnson could not establish that he reasonably relied on respondents' representations about the value of the stock in deciding to sell.
Finally, we agree with the district court's conclusion that to the extent Johnson's fraud claim is based on either respondents' failure to take ASI public, or respondents' alleged misrepresentations regarding a management buy-out, the claims are barred by the statute of limitations.
B. Claims Regarding Johnson's Sale of Stock Options
Although Johnson entered into an agreement releasing respondents from any claims arising out of the sale of his stock options, Johnson claims that because of misrepresentations by respondents the release should not be given effect. Specifically, Johnson alleges that respondents' attorney, Al Woodward, made misrepresentations regarding negotiations between ASI and NorLight, a Wisconsin company. Johnson alleges that Woodward told him that NorLight terminated negotiations with ASI because NorLight "apparently" had a change in board membership. Because evidence was presented that NorLight may actually have been concerned about possible litigation from ASI shareholders, Johnson contends the district court erred in determining no reasonable person could conclude Woodward's statement was an affirmative misrepresentation of material fact. We disagree.
The affidavits of Gary Henshue, the president of NorLight, indicate that he did not give respondents a detailed explanation of the reasons for terminating negotiations with ASI but alluded to "concerns about the structure of the proposal and other issues." Further, the alleged misrepresentation was prefaced with the term "apparently," which supports the notion that Woodward was not making a statement of fact. We conclude the district court properly gave effect to the signed release, and determined that Johnson's claims based on the sale of stock options fail as a matter of law.
Two sets of plaintiffs recovered at trial: the Weitzels and the Garrisons. These plaintiffs differ from the others in that Simon personally called them on the telephone and recommended that they sell their stock. The jury determined that because of the particular facts involving these plaintiffs, respondents owed them a fiduciary duty, and breached that duty by not being more forthcoming about the true nature of the transactions and the value of the stock. Based on the evidence, the jury could have determined that a fiduciary duty existed and was breached. Therefore, we conclude the verdict is supported by sufficient facts and the district court properly denied respondents' motion for JNOV.