Ricky Johnson, d/b/a Rick Johnson’s Deer and Beaver, Inc., Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0531

Ricky Johnson, d/b/a Rick Johnson’s Deer and Beaver, Inc.,
Respondent,

vs.

Anoka County,
Appellant.

Filed November 27, 2017
Affirmed
Rodenberg, Judge

Anoka County District Court
File No. 02-CV-15-2744

Scott A. Johnson, Todd M. Johnson, Jo hnson & Johnson Law, LLP, Minnetonka,
Minnesota (for respondent)

Anthony C. Palumbo, Anoka County Attorney , Andrew T. Jackola, Assistant County
Attorney, Jason J. Stover, Assistant County Attorney, Anoka, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Halbrooks, Judge; and
Rodenberg, Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Anoka County challenges the di strict court’s partial summary judgment
ruling that appellant breached the parties’ contracts for the collection of deer carcasses on
Anoka County highways. Appellant further ch allenges the district court’s finding after
trial to the court that resp ondent Ricky Johnson sustained over $420,000 in damages as a

2
result of appellant’s breach. Because the distri ct court did not err in granting respondent
partial summary judgment on liability, and its findings regarding da mages are supported
by the record, we affirm.
FACTS
Respondent sued appellant An oka County for breach of contract. The parties had a
series of three written contracts from 1999 through 2015. Under the contracts, respondent
provided services to remove deer and beaver carcasses from Anoka County highways. The
first contract covered the term of March 1, 19 99 through February 29, 2000. It contained
an option to renew for four additional one-year terms, and was extended through 2004 by
the parties’ agreement.
The language of the first contract stated that respondent would provide services for
the “pick-up and disposal of all deer carcasses located on or near Anoka County highways.”
In late 2004, appellant re-bid the contract for an initial term of January 1, 2005 to
December 31, 2006. Respondent was awarded the second contract, which contained option
years to extend its term through 2010. Respondent performed under this second contract
until appellant re-bid the contract for a thir d time, for an initial term of April 1, 2011
through December 31, 2012, w ith options to extend thro ugh 2015. Re spondent was
awarded the third contract and performed carcass-removal services through December
2015. The second and third contracts include d the provision that re spondent would pick
up and be paid for “all” deer carcasses on Anoka County highways.
The three contracts provided that responde nt would be paid a monthly “flat rate” for
removal of the first ten deer carcasses, plus a fixed-dollar amount for each beaver carcass

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he collected, and a second fixed-dollar amount for each deer carcass beyond the first ten
he collected per month. Respondent was resp onsible for all of his equipment, insurance,
cell phone, motor vehicle, winch, and fuel co sts under the contracts. After respondent
collected a deer carcass, he transported it to a wildlife center where the carcasses were used
to feed the center’s wolves.
In 2003, appellant began using jail inmate s to remove and disp ose of some of the
deer carcasses. It did not notify respondent that it was doing so. The inmates eventually
started taking the carcasses to the same wildlife center that respondent had been using for
deer carcass disposal. Appella nt continued to use the servi ces of the inmates until 2015.
It is appellant’s use of inmates to remove and dispose of some of the deer carcasses that is
the subject of respondent’s breach-of-contract claim. Respondent lost revenue by appellant
not allowing him to collect and be paid for removal of “all the deer carcasses” in Anoka
County. The record contains no evidence of any agreement to modify the parties’
contracts, each of which contained a clause requiring that any modification be made in
writing.
The parties agree that respondent became aware of appellant’s use of inmates to
pick up some of the deer carcasses years be fore this action was commenced. The parties
also agree that resp ondent complained to appellant’s employees regarding the use of
inmates. One of appellant’s employees assured respondent th at the use of inmate labor
would stop. Respondent contacted an attorney to consider taking action against appellant
for its continuing breach before he bid on the third contract, but he did not then sue
appellant.

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Respondent eventua lly sued appellant on May 1, 2015, claiming that appellant
breached its contracts with respondent by not permitting him to collect “all” deer carcasses
on Anoka County highways. The parties ma de cross-motions for summary judgment.
Respondent moved for partial summary judgment against appellant on the issue of liability
for breach of contract. Appe llant moved for summary judg ment dismissing all claims
against it, arguing that it did not breach the contracts because the parties intended the word
“all” in the contracts to mean something othe r than “all.” In the alternative, appellant
argued that respondent waived his claimed exclusive right to remove deer carcasses under
the contracts, because he continued to perform under the contracts despite knowledge that
appellant was using the inmates. Appellant also argued that respondent waived his claimed
exclusive right under the contract by re-bidding on the second and third contracts without
bringing suit for the claimed breach.
The district court granted respondent’s motion for partial summary judgment on the
issue of liability for breach of contract. It denied appellant’s summary judgment motion.
It found the contracts between the parties to be unambiguous and that respondent was
entitled to collect “all” deer carcasses under the contracts. The district court also rejected
appellant’s argument that respon dent waived his rights unde r the contracts, finding no
evidence in the record creating a genuine issue of material fact that respondent intentionally
waived his rights.
The issue of appellant’s liability for breach of contract being resolved, the parties
proceeded to trial on damages. Appellant moved pretrial for a jury instruction on the issue
of mitigation of damages. The district court denied this mo tion, reasoning that appellant

5
had not presented enough evidence to warrant the requested instruction. Respondent also
moved pretrial to exclude a defense witness from testifying because the witness was not
properly disclosed during discovery. The witness had only been identified by appellant in
response to one of two relevant interrogatories from respondent. The district court granted
this motion. After these pretrial rulings, appella nt waived its right to a jury trial, and the
damage issues were tried to the court.
At trial, appellant attempted to provide rebuttal evidence to respondent’s testimony
that the deer population had b een consistently increasing over time, through a Minnesota
Department of Natural Resources report indi cating that the number of deer harvested
through hunting had decreased during the years 2009 to 2014. The district court did not
find the evidence to be relevant and declined to admit it. At the close of respondent’s case-
in-chief, appellant moved for dismissal under rule 41.02(b), arguing that respondent had
not proven his damages with a reasonable degree of certainty that would allow the court to
calculate his damages. Minn. R. Civ. P. 41.02(b). The district court denied the motion.
Appellant argued that res pondent’s damages should be limited to $71,500.
Appellant based this calculation on deer-co llection numbers kept by the inmates who
collected some of the deer carcasses. The district court did not find these paper records to
be credible. The district court found that respondent’s resulting revenue loss was pure
profit. It found that appellant’s argumen ts regarding any damage-offset amounts would
require speculation and therefore made no offset. The district court computed respondent’s
damages based on his past earnings and testimony regarding the number of deer carcasses
provided to the wildlife center. Crediting re spondent’s testimony, and giving less weight

6
to the evidence offered by appellant, the district court found that respondent had $420,418
in lost profits from 2009 to 2015. Recoverabl e damages were limited to that time period
by the statute of limitations.
Appellant made no motion for a new trial or for amended findings following the
trial. This appeal followed.
D E C I S I O N
The statute of limitations confines damages to the six-year period before this action
was initiated.

Respondent acknowledges his recovery is limited by the statute of limitations to the
six years preceding his commencement of this action. Minn. Stat. §541.05, subd. 1 (2014).
In context, he is entitled to his provable damages during the six years prior to May 1, 2015,
the date that the complaint was served on appellant, and up to December 31, 2015, the date
the third contract ended.
Despite appellant’s initial identification of nine issues in its statement of the case, we
address five issues on appeal.

Appellant identified nine issues in its stat ement of the case. We address five of
these issues here. Following a special term order requesting briefing on the jurisdictional
basis for a number of the issues, appellant voluntarily abandoned the issues of whether the
district court erred by precluding a defense witness from testifying because it failed to
adequately disclose the witness to responde nt and whether the district court erred by
excluding appellant’s rebuttal evidence regarding the growing deer population at trial.
We now determine that two other issues identified by appella nt are not properly
before us. First, appellant argues that the district court erred by prohibiting appellant from

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presenting a mitigation-of-damages defense at trial by denying its motion in limine for a
mitigation-of-damages jury instruction. “[T]he general rule [is] 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). However, substantive questions
of law may be decided on appeal without an earlier motion for new trial. Alpha Real Estate
v. Delta Dental Plan of Minn., 664 N.W.2d 303, 310 (Minn. 2003). On appeal, we review
a district court’s jury instructions for abuse of discreti on, and will afford relief on appeal
“if the jury instruction was erroneous and such error was prejudicial to respondent, or if
the instruction was erroneous and its effect cannot be determined.” Daly v. McFarland,
812 N.W.2d 113, 122 (Minn. 20 12) (quotations omitted). Appe llant waived its jury-trial
right after the district court ruled on appellant’s jury-instruction request. After trial to the
court, appellant did not move for a new tria l. Whether the district court abused its
discretion when it declined to give the mitigation-of-damag es jury instruction is not
properly before us. Because th ere was no jury trial, the district court’s denial of the
requested instruction cannot have been prejudicial as there was no jury to instruct.
Second, appellant challenges the district c ourt’s denial of its motion to dismiss at
the close of respondent’s case-in-chief under Minn. R. Civ. P. 41.02(b). The rule permits
a defendant to move for dismissal “on the gr ound that upon the facts and the law, the
plaintiff has shown no right to relief.” Minn. R. Civ. P. 41.02(b). In a bench trial, the
district court judge “may then determine the facts and render judgment against the plaintiff
or may decline to render any judgment until the close of all the evidence.” Id. Matters of

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trial procedure, evidentiary ru lings, and jury instructions are not reviewable on appeal
unless a motion for a new trial is made at the end of the trial. Sauter, 389 N.W.2d at 201.
Appellant has appealed the district court’s partial summary judgment for respondent on
liability and the district court’s damage award. The issues raised by the rule 41 motion are
subsumed in the other issues raised.
Accordingly, we address the following issues on appeal (which together encompass
the remaining five issues identified in appellant’s opening brief): (1) whether the district
court erred by denying appellant’s moti on for summary judgment and granting
respondent’s motion for partial summary judgment on the issue of liability and ( 2) whether
the district court’s findings of fact regarding responden t’s damages are adequately
supported by the record.
The district court properly granted resp ondent’s motion for partial summary
judgment and denied appellant’s motion for summary judgment.

Appellant first contends that (1) partia l summary judgment should not have been
granted for respondent because appellant’s defenses of waiver and modification by conduct
created factual questions for trial and (2) its own motion for summary judgment should
have been granted because respondent waived his right to exclusivity under the contract as
a matter of law, or in the alternative that the parties modified the contract by their conduct.
“A motion for summary judgment shall be granted when the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue of material fact and that either party is entitled to a judgment
as a matter of law.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). A reviewing
court views “the evidence in the light most favorable to the party against whom judgment

9
was granted.” Id. We conduct this review de novo. Riverview Muir Doran, LLC v. JADT
Dev. Grp., LLC , 790 N.W.2d 167, 170 (Minn. 2010). No genuine issue for trial exists
“[w]here the record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party.” DLH, Inc. v. Russ , 566 N.W.2d 60, 69 (Minn. 1997) (alteration in
original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587,
106 S. Ct. 1348, 1356 (1986)).
The district court’s grant of respondent’s motion for partial summary judgment on
the issue of appellant’s liability for breach of contract is supported by the record. First, the
contracts between the parties are not ambiguous concerning the duties of the parties. All
three contracts, drafted by appellant, provided that respondent was entitled to pick up “all”
deer carcasses along Anoka County highways. When we inte rpret a contract, we must
“determine if the language is clear and un ambiguous, meaning it only has one reasonable
interpretation. If so, we give effect to the language of the [agreement].” Seagate Tech.,
LLC v. W. Dig. Corp., 854 N.W.2d 750, 761 (Minn. 2014) (quotation omitted). Here, the
word “all” is not ambiguous. We apply its plain meaning. Doing so, appellant was entitled
to collect all of the deer carcasses on Anok a County highways during the term of the
contracts, and appellant was obligated to pay him accordingly. Nothing could be clearer.
Appellant breached the contract terms by using inmates to pick up some of the carcasses.
Appellant argues that summary judgm ent on liability for respondent was
inappropriate because, even if the contracts are unambiguous, there was a genuine dispute
of fact regarding whether respondent waived his right to remove “all” of the deer carcasses.
“Waiver is the voluntary and intentiona l relinquishment of a known right.” Ill. Farmers

10
Ins. Co. v. Glass Serv. Co., 683 N.W.2d 792, 798 (Minn. 2004). Generally, it is a question
of fact and “is rarely to be inferred as a matter of law.” Valspar Refinish, Inc. v. Gaylord’s,
Inc., 764 N.W.2d 359, 367 (Minn. 2009) (quotation omitted). “Knowledge and intent are
essential elements of waiver . . . [b]ut the requisite knowledge may be actual or constructive
and the intent to waive may be inferred from conduct.” Id. (quotation and citation omitted).
“The intent to waive, which involves an operation of the mind, must be clearly established
as a fact.” Local 1142 v. United Elec. , Radio & Mach. Workers , 247 Minn. 71, 77, 76
N.W.2d 481, 484 (1956). A party resisting summary judgment based on a waiver defense
must “present specific facts showing that there is a genuine issue of waiver for trial.”
Valspar, 764 N.W.2d at 368. And, waiver must arise from “voluntary choice” and “not
mere negligence.” City of Minneapolis v. Minne apolis Police Relief Ass’n , 800 N.W.2d
165, 178 (Minn. Ap p. 2011) (quoting In re Commitment of Giem , 742 N.W.2d 422, 432
(Minn. 2007)).
Here, by the accounts of both parties, respondent complained to appellant multiple
times regarding appellant’s breach of the contra ct terms. At one point, he consulted an
attorney concerning appellant’s breach. Appe llant presented no ev idence contrary to
respondent’s testimony that he complained about appellant’s actions. No evidence in the
record would allow us to infer that appellant intentionally waived hi s right to collect all
deer carcasses on Anoka County highways. To the contra ry, the evidence definitively
establishes that respondent continued to co mplain to appellant regarding appellant’s
noncompliance with the contracts.

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Appellant argues that the district court’s findings regarding respondent’s repeated
objections to appellant’s breach “lacked specificity or support.” But the state of the record
is that respondent testified regarding his objections and appellant offered no countervailing
evidence of any voluntary and intentional statements or conduct amounting to waiver.
Because the record contains no evidence that respondent intentionally waived his rights to
collect all deer carcasses under the contracts, the district court did not err by granting
respondent’s motion for partial summary judgment on liability. There was no genuine fact
issue to try.
Appellant makes a second, similar argument concerning the district court’s grant of
partial summary judgment in favor of respondent: that there was a genuine dispute of fact
whether the parties modified the terms of the contracts by their conduct. “It is well settled
that the conduct of contracti ng parties may be evidence of a subsequent modification of
their contract.” Yaritz v. Dahl, 367 N.W.2d 616, 618 (Minn. App. 1985) (citing Wolpert v.
Foster, 312 Minn. 526, 532, 25 4 N.W.2d 348, 352 (1977)). “Whether a pre-existing
agreement has been modified depends on the pa rties’ objective manifestations, not their
subjective understanding.” Beer Wholesalers, Inc. v. Miller Brewing Co., 426 N.W.2d 438,
440 (Minn. App. 1988), review denied (Minn. Aug. 24, 1988). The general prohibition
against parol evidence does not apply when ev idence is used “to explain the parties’
conduct subsequent to the written agreement.” Flynn v. Sawyer , 272 N.W.2d 904, 908
(Minn. 1978).
In Alexander v. Holmberg , we found that a lease agre ement was modified by the
parties’ conduct subsequent to the agreement. 410 N.W.2d 900, 901 (Minn. App. 1987).

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There, evidence was provided to the district court that the lessor “agreed to accept
payments for lesser amounts, and di d so for much of the lease.” Id. We held that the
lessor’s testimony and receipts indicating the regular payment of the lesser amounts were
sufficient to create a genuine i ssue of material fact as to whether the lease had been
modified by the parties. Id.
Here, in contrast, no record evidence indicates conduct demonstrating respondent’s
agreement to any modification of the contracts between the parties. Instead, he repeatedly
objected to appellant’s disregard of the terms of the parties’ contracts.
Appellant started using inmates to pick up dead deer in 2003. A second contract
containing the same exclusivity and modification language was drafted by appellant for
2005. And a third contract, ag ain drafted by appe llant, contained the same language for
the period starting in 2011. Had the parties intended to modify their contractual agreement
after the inmates were first used to collect deer carcasses, appellant would doubtless have
changed the language of the second and third contracts when it drafted them. Tellingly, it
made no such change, and cont inued to include in each written contract not only the
exclusivity language, but also the provision that modifications of the agreement must be
made in writing. Although the district court did not make an explicit finding on this issue
when it granted respondent’s partial summ ary judgment motion, no record evidence
supports appellant’s modification-by-conduct defense sufficient to present a factual dispute
for trial. The district court did not err in granting partial summary judgment in favor of
respondent.

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Appellant’s further argument that the district court should have granted its summary
judgment motion relies on the same argument that respondent waived its contractual rights
as a matter of law and that the parties modi fied the contracts through their conduct.
Appellant’s waiver-as-a-matter-of-law argume nt fails for the same reasons discussed
above. Waiver is generally a question of fact that should “rarely” be inferred by a court as
a matter of law. Valspar, 764 N.W.2d at 367. Appellant produced no evidence regarding
the element of intent in support of its waiver defense. The record ev idence fails to even
support an inference that the parties modifi ed the contract thro ugh their conduct, as
discussed above. Because the ev idence in the record admits of no conclusion other than
that respondent did not intentionally waive his rights to remove all of the deer carcasses on
Anoka County highways under the contract or agree to the modification of the contract by
his conduct, the district court did not e rr by denying appellant’s motion for summary
judgment.1

1 Appellant also argues that the election-of-remedies doctrine requires a plaintiff to decide
whether to affirm and enforce a breached contract, or to disaffirm and rescind a breached
contract, citing to our decision in Loppe v. Steiner , 699 N.W.2d 342, 349 (Minn. App.
2005). That case is not applicable here. Th ere, we considered whether the election-of-
remedies doctrine requires a plaintiff to choose a specific remedy to argue to the fact-finder,
an issue not raised here. Id. In Loppe, we held that “[a]s applied to contracts, the principle
of election of remedies requires a plaintiff to choose whether to affirm or disaffirm a
contract.” Id. (citing Blythe v. Kujawa , 177 Minn. 79, 82, 224 N. W. 464, 465 (1929)).
There, we stated that in a contract-for-deed dispute, the plaintiff-vendee could not seek the
remedy of specific performance under a cont ract while simultaneously demanding to
rescind the contract. Blythe, 177 Minn. at 82, 224 N.W.2d at 46 5. Appellant claims that
because respondent neither affirmed nor disaffirmed th e contract, and instead “sat on his
rights for over twelve years,” his claim is no longer valid. However, the election-of-
remedies doctrine does not give the breaching party the right to decide when its breach is
no longer actionable. Appellant’s argument is unsupported by Minnesota law.

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The record supports the district court’s damages findings.
Appellant argues that the district court’s damage findings are not supported by the
record and that the district court erred in its damages calculation by failing to offset
respondent’s damages by the am ounts that appellant argues he saved on account of its
breach. Because appellant made no motion for either a new trial or for amended findings,
“our review is limited to dete rmining whether the evidence sustains the findings of fact,
and whether the findings sustain the conclusions of law and the judgment.” U.S. Bank N.A.
v. Cold Spring Granite Co. , 802 N.W.2d 363, 3 70 (Minn. 2011). We review a district
court’s findings of fact using th e “clearly erroneous” standard. Id. A finding is clearly
erroneous if we are “left with the definite and firm conviction that a mistake has been
made.” Rasmussen v. Two Harbors Fish Co. , 832 N.W.2d 790, 797 (Minn. 2013)
(quotation omitted). Generally, a plaintiff ha s the burden of prov ing the existence of
damages “to a reasonable certainty” and the amount of these damages to a “reasonable
probability.” Jacobs v. Rosemount Dodge-Winnebago S. , 310 N.W.2d 71, 78 (Minn.
1981). While damages may not be “speculative, remote, or conjectural, . . . mathematical
precision in proof of lo ss” is not necessary. Duchene v. Wolstan , 258 N.W.2d 601, 606
(Minn. 1977) (citation omitted ). “[P]roof to a reasonabl e, although not necessarily
absolute, certainty” is what the law requires. Id. (quotation omitted).
After a three-day trial on the issue of damages, the district court made the following
findings relevant to its damages calculation: First, that appellant admitted it used jail
inmates to collect deer carcasses from 2003 to 2015. Second, that each of these carcasses
was “a source of revenue and profits” for which respondent was entitled to be paid pursuant

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to his contract to pick up and be paid for “all” of the Anoka County deer carcasses. Third,
the district court declined to reduce or offset respondent’s damages. It found that the
revenue lost by appellant’s breach of the parties’ agreements would have been “pure profit”
because respondent had essentiall y all of the same expenses each year regardless of the
reduction in the number of carcasses he picked up. The district court concluded that
offsetting or reducing respondent’s damages as appellant requested would require it to
speculate. Fourth, the district court found that there was an increase in the deer population
from 2003 to 2014. Fifth, it found that, in each year, the Carlos Avery Wildlife Center fed
its wolves at least 1,400 deer carcasses fro m Anoka County; the wildlife center was
respondent’s sole drop-off point for deer carcasses. These factual findings are all supported
by the record.
The district court made detailed calculations of respondent’s recoverable damages,
all of which are supported by the record. Fo r each year, it calculated what respondent’s
yearly income should have been under the contract, based on the amount respondent earned
for each deer carcass, multiplied by 1,400 (the number of Anoka County deer carcasses
delivered annually to the wildlife center). From this subtotal, the district court subtracted
the amount appellant paid respondent to determ ine respondent’s net lost profits for each
year. Adding up the amount of lost profits so computed for each year, the district court
concluded that respondent lost profits of $420, 418 as a result of appellant’s breach of the
parties’ contract. These findings and the conclusion are supported by the record.
Because its factual findings are supported by the record, the district court did not
clearly err. Because appellant failed to move for a new trial or for amended findings, our

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review is limited to determining if the record supports the district court’s findings of fact,
and whether its conclusions of law and the judgment are supported by these findings. The
district court’s findings support its conclusi ons of law and its fi nal determination of
respondent’s recoverable damages.
The district court did not err by granting respondent’s motion for partial summary
judgment on the issue of liability for breach of contract and its findings regarding damages
are adequately supported by the record.
Affirmed.