This opinion will be unpublished and

may not be cited except as provided by

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




Richard and Kathy Radel,



Minnesota Holstein-Friesian Breeders

Association, Inc.,


Filed August 4, 1998

Affirmed as modified

Willis, Judge

Olmsted County District Court

File No. C5932591

William D. Mahler, 301 Ironwood Square, 300 Third Avenue Southeast, Rochester, MN 55904 (for appellants)

James J. Galman, Cara J. Debes, Jardine, Logan & O'Brien, PLLP, 444 Cedar Street, Suite 2100, St. Paul, MN 55101 (for respondent)

Considered and decided by Short, Presiding Judge, Toussaint, Chief Judge, and Willis, Judge.



On an appeal from the second trial in this case, Richard and Kathy Radel challenge the district court's calculation of damages in their negligent brokerage action. By notice of review, respondent Minnesota Holstein-Friesian Breeders Association seeks a new trial on the comparative negligence of all parties. We affirm but modify the damages to $90,000.


In September 1992, appellants Richard and Kathy Radel, longtime beef and swine farmers, decided to enter the dairy farming business. They contacted respondent Minnesota Holstein-Friesian Breeders Association (MHA), which brokers sales of dairy cattle for a commission paid by the seller. MHA Executive Secretary Jim Kraus, after inspecting production records from the previous May, arranged for the sale to the Radels of a herd owned by Bloom Lake Farms. The owner of Bloom Lake Farms, who lives in Colorado, had hired Richard Beardsley, an independent contractor, to manage the herd. In the summer of 1992, Bloom Lake Farms began cutting back on the quality and quantity of the herd's feed, and Beardsley delegated many of his duties to an assistant after Beardsley suffered an injury in July.

The Radels visited Bloom Lake Farms with Kraus and saw the herd on September 22, 1992. The next day, they made a down payment. Kraus inspected the herd on September 27. The Radels agreed to take possession of most of the cattle on October 17. On October 16, the Radels paid the balance of the purchase price for the cattle due to arrive the next day. Kraus was not present when the herd was delivered.

When the cattle arrived on October 17, they appeared to be in very poor health. A number of them contracted pneumonia and died the following winter, which a veterinarian testified was a result of poor care during the previous year. The herd produced milk at a level significantly below the production the May 1992 records reflected.

The Radels sued Bloom Lake Farms, its owner, and MHA, alleging intentional fraud, negligent misrepresentation, negligent brokerage, and violation of the Consumer Fraud Act. The defendants made a third-party claim against Beardsley but voluntarily dismissed the claim at the close of the evidence. The district court granted MHA's motion for a directed verdict on the negligence claims, concluding that the Radels had failed to establish an industry-based standard of care. With a finding of negligence against MHA thereby precluded, the jury returned a special verdict form finding the Radels 60% at fault; Beardsley 34% at fault; and Bloom Lake Farms 6% at fault. The jury found that none of the defendants had engaged in intentional misrepresentation.

The Radels moved for a new trial on their negligent brokerage and negligent misrepresentation claims against MHA and appealed the denial of their motion. This court determined that the district court erred in dismissing the negligence claims against MHA and that the Radels were therefore entitled to a new trial. Radel v. Bloom Lake Farms, 553 N.W.2d 109, 113 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996). This court also concluded that the district court had properly included Beardsley on the special verdict form. Id.

Because this court remanded only the issue of MHA's negligence, the district court on remand limited the retrial to that issue and listed only MHA and the Radels on the special verdict form. The jury found that the Radels had suffered $150,000 in damages but were 40% at fault. The court concluded that, because the first jury had assigned 40% of the total fault to the other defendants, it could only apportion the 60% originally attributed to the Radels; it therefore determined that the Radels were entitled to 36% of the total damages, or 60% of 60%. In response to the Radels' motion for an amended judgment, the district court adhered to its calculation method but corrected an arithmetic error and awarded damages of $54,000.

The Radels appeal from the amended judgment, challenging the calculation of damages. Although MHA had made no motion for a new trial, it filed a notice of review, arguing that the district court was required to include the other defendants on the special verdict form and raising several other issues. We affirm as modified.


The relevant issues in this case are questions of law, which this court reviews de novo. See Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

The Radels base their argument on the comparative fault statute, which provides:

Contributory fault does not bar recovery in an action by any person * * * to recover damages for fault resulting in * * * economic loss, if the contributory fault was not greater than the fault of the person against whom recovery is sought, but any damages allowed must be diminished in proportion to the amount of fault attributable to the person recovering. The court may, and when requested by any party shall, direct the jury to find separate special verdicts determining the amount of damages and the percentage of fault attributable to each party and the court shall then reduce the amount of damages in proportion to the amount of fault attributable to the person recovering.

Minn. Stat. § 604.01, subd. 1 (1996). The Radels argue that because the statute provides that damages must be "diminished" or "reduce[d]" by the amount of a plaintiff's comparative fault, they are entitled to all the damages found by the jury except for the 40% of fault that the second jury attributed to them. We agree.

A defendant's liability is not limited to the amount of its fault; rather, where plaintiffs suffer an indivisible injury, they are entitled to the entire award of damages, less the percentage of their fault. Jack Frost, Inc., v. Engineered Bldg. Components Co. Inc., 304 N.W.2d 346, 352 (Minn. 1981). Where there are multiple defendants, each is jointly and severally liable for the plaintiffs' total award. Fiedler v. Spoelhof, 483 N.W.2d 486, 489 (Minn. App. 1992), review denied (Minn. June 10, 1992). The remedy for any individual defendant is an action for contribution against its co-defendants. Maday v. Yellow Taxi Co., 311 N.W.2d 849, 850 (Minn. 1981). But a jury determination that a particular defendant is less at fault than the plaintiffs, even in a different trial, precludes a co-defendant from obtaining contribution from that defendant. Spitzack v. Schumacher, 308 Minn. 143, 147-48, 241 N.W.2d 641, 644 (1976). Thus, an individual defendant ultimately may be liable for damages in excess of its percentage of fault. See, e.g., Horton v. Orbeth, Inc., 342 N.W.2d 112, 114 (Minn. 1984) (requiring defendant found 75% at fault to pay 90% of damages). Because there was no appeal from the first jury's determination that Bloom Lake and Beardsley were less at fault than the Radels and therefore not liable for damages, MHA is liable for the entire damage award, less the Radels' percentage of fault.

To determine accurately the plaintiffs' percentage of fault, a court is required to submit to the jury the negligence of anyone whose fault might have contributed to the plaintiffs' damages, even if some of those entities are not parties to the action or could not be held liable for the payment of damages. Lines v. Ryan, 272 N.W.2d 896, 902-03 (Minn. 1978). Neither jury in this case had the opportunity to compare the potential fault of all parties. MHA argues, in effect, that if the jury in the second trial had been allowed to consider the fault of Bloom Lake Farms and Beardsley, it might have determined MHA's fault to be less than the 40% attributed to the Radels, making no defendant liable. See Cambern v. Sioux Tools, Inc., 323 N.W.2d 795, 798-99 (Minn. 1982) (concluding that defendants' fault cannot be aggregated for purposes of comparison to plaintiff's absent a joint economic venture). MHA presented evidence that some deterioration of the herd could have taken place between the date of Kraus's inspection on September 27, 1992, and the delivery of the herd on October 17, 1992, and claims that its duty to the Radels ended when the sale was arranged. Cf. Greer v. Kooiker, 312 Minn. 499, 510, 253 N.W.2d 133, 141 (1977) (stating that relationship between broker and principal is one of contract and that broker is entitled to commission upon completion of sale negotiations even if sale ultimately does not take place).

But matters of trial procedure are generally subject to appellate review only if there has been a motion for a new trial in which such matters were assigned as error. Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn. 1986). Because MHA made no motion for a new trial, we conclude that it has waived its argument that Bloom Lake Farms and Beardsley should have been included on the special verdict form in the second trial. 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)). MHA makes no claim that the evidence is insufficient to support a jury finding that MHA was 60% at fault, and by failing to move for a new trial, MHA has waived its argument that the jury was not entitled to find damages of $150,000. Therefore, the only remaining question is whether the district court's judgment was proper in light of the jury's finding. Because the court failed to apply the comparative fault statute properly, we modify the award of damages to $90,000, representing the total award of $150,000, less the 40% attributed to the Radels' negligence.

Affirmed as modified.