This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




T. Randal Productions, Inc.,


T.R. Partnership, et al.,



IVI Publishing, Inc., et al.,


Carlyle Halverson,


Filed March 2, 1999


Randall, Judge

Hennepin County District Court

File No. CT 96-3854

Frank R. Berman, Julia A. O'Brien, Frank R. Berman, P.A., 510 Marquette Avenue South, Suite 200, Minneapolis, MN 55402 (for appellant)

Richard D. Snyder, Faye Knowles, David D. Meyer, Fredrikson & Byron, P.A., 1100 International Centre, 900 Second Avenue South, Minneapolis, MN 55402 (for respondents IVI Publishing, Inc., Ronald Buck, and Charles A. Nickoloff);

Thomas H. Crouch, Steven C. Eggimann, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent Carlyle Halverson)

Considered and decided by Short, Presiding Judge, Lansing, Judge, and Randall, Judge.



Appellant argues the district court erroneously instructed the jury on damages, improperly denied its request for a Schwartz hearing, and improperly allowed expert testimony. Appellant also argues that opposing counsel engaged in misconduct during closing arguments. We affirm on all issues.


Appellant T. Randal Productions, Inc. (Randal) brought suit against respondents in Hennepin County District Court, alleging that respondents deprived it of its interest in a joint venture it had allegedly formed with respondents. Randal claimed that it was entitled to one-half of the value of the alleged joint venture in the amount of $16.29 million. Respondents disputed the existence and value of the alleged joint venture.

Following a trial, the jury found that there was no joint venture. However, the jury did find that respondent had committed certain business torts and awarded Randal $480,000. Randall appeals from the district court's denial of its motion for a new trial on damages and request for a Schwartz hearing.


The decision to grant a new trial generally lies within the sound discretion of the district court and will not be reversed absent a clear abuse of that discretion. Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990). If the district court decided, as a matter of law, whether to grant a new trial, a de novo standard of review applies. Id. When reviewing an appeal from the 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. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992) (citation omitted), review denied (Minn. Apr. 29, 1992).

Randal argues that the district court erroneously instructed the jury on the issue of damages. District courts are afforded considerable discretion in selecting the language in jury instructions. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986). When the jury instructions fairly and correctly state the applicable law, this court will not grant a new trial. Alevizos v. Metropolitan Airports Comm'n, 452 N.W.2d 492, 501 (Minn. App. 1990), review denied (Minn. May 11, 1990). Errors in the instructions are "considered fundamental or controlling if they 'destroy the substantial correctness of the charge as a whole,' cause a miscarriage of justice, or result in substantial prejudice." Lindstrom v. Yellow Taxi Co., 298 Minn. 224, 229, 214 N.W.2d 672, 676 (1974) (quoting Adelmann v. Elk River Lumber Co., 242 Minn. 388, 396, 65 N.W.2d 661, 667 (1954) (footnote omitted)) (other citations omitted). Jury instructions must be considered as a whole, and there is no reversible error "[w]here the jury instructions, when read together, correctly state the law on a particular issue in language which can be understood." Hahn v. Tri-Line Farmers Co-op, 478 N.W.2d 515, 523 (Minn. App. 1991) (citation omitted), review denied (Minn. Jan. 27, 1992).

Respondents argue that under the doctrine of invited error, Randal may not challenge the jury instructions because it proposed the language of both challenged jury instructions. Under the doctrine of invited error, a party generally "cannot avail himself of invited error." McAlpine v. Fidelity & Cas. Co., 134 Minn. 192, 199, 158 N.W. 967, 970 (1916) (citation omitted). "A party is concluded by an instruction given at his own request[,]" and in such circumstances, the district court's charge, "even though it be erroneous, becomes the law of the case." Heise v. J. R. Clark Co., 245 Minn. 179, 191, 71 N.W.2d 818, 826 (1955); see also Lee v. Wilson, 167 Minn. 248, 250, 208 N.W. 803, 804 (1926) (holding jury instruction given at plaintiff's request "whether right or wrong, is the law of the case so far as plaintiff is concerned") (citations omitted). A party may not challenge jury instructions where the instructions were discussed and approved by all counsel before the charge and the district court gave the instructions as discussed and approved without objection by counsel. LaValle v. Aqualand Pool Co., 257 N.W.2d 324, 327 (Minn. 1977).

Here, the record shows that Randal drafted the proposed jury instructions on the issue of damages; the instructions were agreed to by respondents and approved by the district court. The district court used the exact language proposed by Randal, and Randal made no objection when the jury was charged. Likewise, counsel for both sides discussed the damages instructions offered by Randal, approved them, and the district court charged the jury without objection from Randal's counsel. We conclude that under the doctrine of invited error, Randal may not challenge the jury instructions.

Randal next argues that counsel for respondents IVI Publishing, Inc., Ronald Buck, and Charles Nickoloff engaged in misconduct during his closing argument because his comments contradicted the district court's ruling that certain claims by Randal did not require the existence of a joint venture.

The decision of whether to grant a new trial based on an attorney's misconduct "is not governed by fixed rules, but instead rests wholly within the discretion of the trial court." Johnson v. Washington County, 518 N.W.2d 594, 600 (Minn. 1994) (citation omitted). This is because the district court judge "is present during the trial and is best positioned to determine whether or not an attorney's misconduct has prejudiced the jury." Id. at 601. "[T]he primary 'consideration in determining whether to grant a new trial is prejudice.'" Id. at 600 (quoting Wild v. Rarig, 302 Minn. 419, 433, 234 N.W.2d 775, 786 (1975) (citation omitted)).

Randal is correct when it states that the district court ruled that the jury was not required to find that a joint venture existed in order to award damages for a number of its claims. However, Randal chose as the measure of damages for all its claims, including those that did not require the existence of a joint venture, the value of one-half of the interest in the joint venture. Respondents' counsel simply argued that if no joint venture existed, it had no value, and the jury therefore could not value Randal's damages. This argument is consistent with the evidence presented at trial, Randal's theory on the issue of damages, the language of the damages instruction agreed to by the parties and given by the district court, and logic. If a joint venture did not exist, it had no value. Respondents' counsel's comments were not improper.

Also, we conclude that Randal did not suffer undue prejudice by counsel's comments. Although the jury found that no joint venture existed, it did find that respondents committed certain other business torts and awarded Randal $480,000. This verdict indicates that, despite comments by respondents' counsel, the jury did not believe that it was required to find the existence of a joint venture to award at least some damages. In addition, counsel for Randal repeatedly argued during closing argument that the jury did not have to find the existence of a joint venture in order to award damages.

Given the jury verdict of $480,000 in damages and Randal's counsel during closing argument, we conclude that Randal did not suffer undue prejudice by respondent counsel's comments. Randal is not entitled to a new trial on this ground.

Randal next argues that the district court erred when it denied Randal's request for a Schwartz hearing to examine whether the jury properly understood the instructions and whether the jury acted under the influence of passion and prejudice.

The purpose of a Schwartz hearing is to investigate possible juror misconduct and to prevent attorneys from contacting and questioning jurors after the jury renders a verdict. Frank v. Frank, 409 N.W.2d 70, 72 (Minn. App. 1987), review denied (Minn. Sept. 30, 1987). A Schwartz hearing will be permitted only where the moving party establishes a prima facie case of jury misconduct. State v. Wilson, 535 N.W.2d 597, 606 (Minn. 1995). A prima facie case is established when the moving party submits sufficient evidence that, standing alone and unchallenged, warrants the conclusion of juror misconduct. Id. The decision to grant a Schwartz hearing lies within the discretion of the district court. Zimmerman v. Witte Transp. Co., 259 N.W.2d 260, 262 (Minn. 1977).

"After a jury has been discharged, no affidavit of a juror, and no affidavit of any other person relating to what a juror had said, will be received to impeach the verdict where the facts sought to be shown inhere in the verdict itself, such as the attempt to show that the jurors misapprehended the evidence, or did not understand the charge of the court, or that they misconceived the legal consequences of their factual findings * * *."

Nebben v. Kosmalski, 307 Minn. 211, 217-18, 239 N.W.2d 234, 238 (1976) (quoting 14A Dunnell Minn. Digest New Trial § 7109(2) (3d ed. 1973)) (other citations omitted). Because jurors are to be protected from harassment once they are discharged, "attorneys should never contact and interrogate a juror for the purpose of gathering evidence for a Schwartz hearing." Arney v. Helbig, 383 N.W.2d 4, 6 (Minn. App. 1986); see also Zimmerman, 259 N.W.2d at 262-63 ("Neither an attorney nor his agent should initiate questioning of jurors concerning possible misconduct." (citation omitted)).

Randal failed to establish a prima case of jury misconduct or irregularity requiring a Schwartz hearing. Randal simply alleges that the jury disregarded the "sole damage" instruction and did not consider the testimony of the two expert witnesses. A claim of jury misapprehension over jury instructions or the evidence is not a proper basis on which to grant a Schwartz hearing. See Nebben, 307 Minn. at 217-18, 239 N.W.2d at 238 (holding evidence jury misapprehended evidence or did not understand court's charge may not be used to impeach jury verdict). Similarly, Randal failed to present any evidence of jury misconduct or evidence that the jury's deliberations were improperly affected by any outside influence. The district court did not abuse its discretion in denying Randal's motion for a Schwartz hearing.

Likewise, Randal's statement that "the jury took an unauthorized view of the measure of damages" is without merit. The phrase "unauthorized view" in the context of jury misconduct refers to jurors actually viewing the scene of an accident or an instrumentality at issue in the case. See Olberg v. Minneapolis Gas Co., 291 Minn. 334, 340, 191 N.W.2d 418, 423 (1971) (holding it is misconduct for juror to take unauthorized view or make experiment). Here, there is no accident scene or instrumentality involved in the case. The jury did not take any "unauthorized view." The jury simply looked at the evidence and found against appellant. Randal's claim on this ground is rejected.

Randal next argues that the district court improperly allowed respondents' expert to testify on the issue of damages because the expert's opinion was not timely disclosed. The decision to grant a new trial on the ground of surprise is within the discretion of the district court and will rarely be reversed on appeal. Zorgdrager v. State Wide Sales, Inc., 489 N.W.2d 281, 284 (Minn. App. 1992). The district court's decision whether to admit expert testimony is also within its discretion and will not be reversed absent an abuse of that discretion. Id.

Here, there is little, if any, basis for Randal's claim that it suffered undue surprise or prejudice by the testimony of respondents' expert, Arthur Cobb, a certified public accountant. Cobb was first identified by respondents in their answer to Randal's expert interrogatory on June 3, 1997. That was nearly three-and-a-half months before the trial commenced on September 15. In their answer, respondents stated in detail that Cobb was expected to testify, among other things, regarding his estimated value of an assumed joint venture and that such value was no more than $310,000 at any time before 1995; that the report by Randal's expert was fatally flawed because it was based on incorrect assumptions, inappropriate data, and calculations inconsistent with prevailing business practices; and that the determination of IVI Publishing's fair market value was "speculative and grossly overstated."

Here, Randal knew or should have known that Cobb would not place the value of the joint venture at more than $310,000 and that the value of any joint venture was significantly less than its expert's valuation. As such, Randal cannot claim undue prejudice or surprise with regard to Cobb's testimony. See id. (holding no "surprise" or prejudice where nature of opposing expert's testimony "should have been clear" from pleadings and discovery); see also Swanson v. Williams, 303 Minn. 433, 435, 228 N.W.2d 860, 862 (1975) (holding party's knowledge of what testimony will or will not be presented precludes claim for new trial based on surprise).

Randal further argues that the district court erred when it excluded testimony that Cobb was not an assistant professor at the University of Minnesota but was instead a "lecturer." The decision of whether to admit or exclude evidence rests within the district court's discretion, and its ruling will not be reversed unless it is based on an erroneous view of the law or is an abuse of discretion. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). An error in the exclusion of evidence may be ground for a new trial only where it appears "'that such evidence might reasonably have changed the result of the trial if it had been admitted.'" Jenson v. Touche Ross & Co., 335 N.W.2d 720, 725 (Minn. 1983) (quoting Poppenhagen v. Sornsin Constr. Co., 300 Minn. 73, 79-80, 220 N.W.2d 281, 285 (1974) (footnote and citations omitted)).

Here, Randal was allowed to cross-examine Cobb in front of the jury about his status at the University. Likewise, the jury heard testimony that Cobb has a Master's Degree in Accounting from the University of Iowa; was a teaching assistant at the University of Iowa; worked for a number of large accounting firms, including Price Waterhouse, Touche Ross, Peat Marwick; and that he has been in private practice for a number of years. The jury was able to consider Cobb's status at the University and assess the weight to be given his testimony. The district court did not abuse its discretion when it refused to allow Randal to present an additional witness on whether Cobb held the title "lecturer" or "assistant professor."