Dennis Lougee, et al., Appellants,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0226

Dennis Lougee, et al.,
Appellants,

vs.

Craig Eugene Pehrson,
Respondent.

Filed February 4, 2019
Affirmed
Smith, Tracy M., Judge

Itasca County District Court
File No. 31-CV-14-1034

Jerome D. Feriancek, Peter J. R aukar, Thibodeau, Johnson & Feri ancek, PLLP, Duluth,
Minnesota (for appellants Dennis Lougee and Proficient Cleaners, Inc.)

Cheryl Hood Langel, Daniel J. Singel, McCollum, Crawley, Moschet, Miller & Laak, Ltd.,
Minneapolis, Minnesota (for respondent)

Considered and decided by Johnson, Presiding Judge; Ross, Judg e; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellants Dennis Lougee and Pr oficient Cleaners Inc. (Lougee) sued respondent
Craig Pehrson for defamation and related torts based on stateme nts about Lougee that
Pehrson made to police. That suit was dismissed under Minnesota ’s anti-SLAPP statute,

2
Minn. Stat. § 554.02 (2012). Thereafter, the supreme court held the anti-SLAPP statute
unconstitutional as app lied to tort claims. See Leiendecker v. Asian Women United of
Minn., 895 N.W.2d 623, 638 (Minn. 2017) ( Leiendecker II ). Based on that decision,
Lougee moved the district court for relief from the judgment of dismissal under Minn. R.
Civ. P. 60.02(e)-(f). The district court denied his motion, and Lougee appeals. We affirm.
FACTS
In early 2012, Pehrson reported to police that Lougee was engaged in various types
of insurance fraud. Following a police investigation, the count y attorney declined to
prosecute. In 2014, Lougee sued Pehrson, alleging that Pehrson had defamed or slandered
Lougee and had committed the tort s of business disparagement an d deceptive trade
practices.
An understanding of t he anti-SLAPP statute and recent supreme court decisions on
the statute provides context for what happened next. Minnesota’ s anti-SLAPP (Strategic
Lawsuit Against Public Participation) statute immunizes public participation—defined as
“speech or lawful conduct that is genuinely aimed in whole or in part at procuring favorable
government action,” including re ports to law enforcement—unless the participation is
tortious or violates someone’s constitutional rights. Minn. Sta t. §§ 554.01, subd. 6, .03
(2018). To save immune parties the time and expense of trial, t he statute alters the
procedural rules when a party cl aiming immunity under the statu te brings a dispositive
motion. See Minn. Stat. § 554.02. In 2014, the supreme court interpreted those procedural
rules in Leiendecker v. Asian Women United of Minn. , 848 N.W.2d 224 (Minn. 2014)
(Leiendecker I ). It held that the statute shifts the burdens of proof, produc tion, and

3
persuasion to the nonmoving party. Leiendecker I, 848 N.W.2d at 231; see Minn. Stat.
§ 554.02, subd. 2(2). If the nonmoving party fails to prove, by clear and convincing
evidence, that the moving party’s acts were not immune under section 554.03, the district
court must dismiss the claim even if the nonmoving party shows that there are genuine
issues of material fact. Leiendecker I , 848 N.W.2d at 231; see Minn. Stat. § 554.02,
subd. 2(3). The supreme court remanded the case in Leiendecker I for further proceedings.
Id. at 233.
In 2015, after the supreme court issued Leiendecker I, Pehrson moved for summary
judgment under the anti-SLAPP statute. See Minn. Stat. § 554.02. Lougee opposed the
motion, but did not challenge the constitutionality of section 554.02. In January 2016, the
district court, following the standard set out in Leiendecker I, granted Pehrson’s motion
and dismissed Lougee’s lawsuit with prejudice. This court affir med in September 2016.
Lougee v. Pehrson , A16-0404, 2016 WL 4723426, at *5 (Minn. App. Sept. 12, 2016),
review granted (Minn. Nov. 23, 2016) and order granting review vacated (Minn. June 28,
2017).
In the meantime, Leiendecker’s litigation had c ontinued followi n g r e m a n d . T h e
district court in that case ruled that section 554.02, as const rued by the supreme court,
violated Leiendecker’s right to a jury trial. Leiendecker II, 895 N.W.2d at 628. The supreme
court granted accelerated review.
While Leiendecker II was pending before the Minnesota Supreme Court, Lougee
petitioned for further review. Th e supreme court granted Lougee ’s petition and stayed
proceedings “pending final disposition in” Leiendecker II.

4
In 2017, the supreme court issued its opinion in Leiendecker II, holding Minn. Stat.
§ 554.02 unconstitutional as applied to claims at law alleging torts. Id. at 628, 637-38. The
supreme court noted that, under Leiendecker I, a district court’s ruling on anti-SLAPP
immunity “necessarily decides the merits of the tort action itself.” Id. at 636. If the district
court found that the nonmoving p arty had failed to prove that t he moving party was not
immune, it would dismiss the claim with prejudice. Id. If it found that the nonmoving party
had met its burden, a jury trial would also be precluded because t he court would have
already determined by clear and convincing evidence that the moving party’s conduct was
tortious. Id. Because the district court’s resolution of a motion under section 554.02 would
determine the whole action, application of that section is unconstitutional when a party has
the right to trial by jury. Id. Because the jury-trial right ext ends to tort actions seeking
money damages, id. at 634, the court held section 554.02 unconstitutional as appl ied to
those actions, id. at 638.
One month later, the supreme court vacated its prior order in L ougee’s case and
denied further review. Lougee then moved the district court for relief from the final
judgment under Minn. R. Civ. P. 60.02(e)-(f). The district court denied the motion.
This appeal follows.
D E C I S I O N
On a motion under rule 60.02, the district court has discretion to decide whether to
grant relief, and this court reviews the district court’s decis ion for abuse of discretion.
Simington v. Minn. Veterans Home , 464 N.W.2d 529, 530 (Minn. App. 1990), review
denied (Minn. Mar. 15, 1991). The meaning of a rule of civil procedur e is a question of

5
law that we review de novo. City of Barnum v. Sabri, 657 N.W.2d 201, 204 (Minn. App.
2003).
Lougee argues that the district court erred in declining to gra nt relief under Minn.
R. Civ. P. 60.02. He contends that the supreme court’s decision in Leiendecker II justifies
relief from the operation of the judgment against him under either Minn. R. Civ. P. 60.02(e)
or (f).
I. Rule 60.02(e)
Rule 60.02(e) permits a district court to relieve a party from a final judgment, order,
or proceeding if “it is no longer equitable that the judgment s hould have prospective
application.” Minn. R. Civ. P. 60.02(e). Lougee’s claims were d ismissed by the district
court before the supreme court decided Leiendecker II. Lougee argues that, in light of
Leiendecker II, his claims were unfairly dismis sed on the basis of a law that w a s n o t
constitutional. He asserts that the res judicata effect of the dismissal constitutes prospective
application under rule 60.02(e).
Whether a judgment of dismissal has prospective application und er Minn. R. Civ.
P. 60.02(e) is a question about the meaning of a procedural rule and is reviewed de novo.
Sabri, 657 N.W.2d at 204.
It is settled that injunctions are orders with prospective application. See Jacobson v.
County of Goodhue , 539 N.W.2d 623, 625- 26 (Minn. App. 1995) (affirming a distric t
court’s order vacating an injunction under Minn. R. Civ. P. 60.02(e)), review denied (Minn.
Jan. 12, 1996). Similarly, an order that has a prospective effect comparable to an injunction
is covered by rule 60.02(e). Sabri, 657 N.W.2d at 205. The order at issue in Sabri was

6
covered by rule 60.02(e) because it authorized the city, in the future, to tear down a building
owned by Sabri. Id. Though not formally an injunction, the order applied directly to permit
future conduct by the city and thus had prospective effect. Id.
Lougee argues that the judgment dismissing his lawsuit is compa rable to an
injunction because it has the effect of prohibiting Lougee from bringing his lawsuit in the
future. However, Lougee’s argument overextends Sabri’s reasoning. Though Lougee is
correct that dismissal has future effects—it serves as a bar to subsequent lawsuits based on
the same facts—it does not determine the substantive rights of the parties in the future.
Moreover, the future impact of th e dismissal in this case is sh ared by all judgments;
Lougee’s interpretation would make rule 60.02(e) a tool to vacate any judgment based on
any law that was subsequently interpreted inconsistently with t hat judgment. And rule
60.02 is not intended as a tool for “general correction of judi cial error.” Sullivan v. Spot
Weld, Inc., 560 N.W.2d 712, 716 (Minn. A pp. 1997) (quotation omitted), review denied
(Minn. Apr. 27, 1997). Thus, interpreting res judicata effect as a prospective application is
inconsistent with the limited nature of rule 60.02.
Further, Minnesota cases interpreting “prospective application” indicate that cases
concerning the comparable federal rule of civil procedure—Fed. R. Civ. P. 60(b)(5)—can
guide our interpretation of rule 60.02(e). See Sabri, 657 N.W.2d at 206; Jacobson, 539
N.W.2d at 625. The federal rule allows a court to reopen a final judgment when “applying
it prospectively is no longer equitable.” Fed. R. Civ. P. 60(b)(5). Federal courts have held
that the test for whether a judgment applies prospectively is whether the judgment requires
the court “to supervise changing conduct or conditions that are provisional or tentative.”

7
Moody v. Empire Life Ins. Co. (In re Moody), 849 F.2d 902, 906 (5th Cir. 1988). That test
is satisfied by an injunction, as in Jacobson, and by an injunction-like order, as in Sabri,
indicating that state courts and federal courts interpret their respective rules similarly.
Moreover, federal courts have repeatedly held that judgments of dismissal are not
prospective and cannot be reopene d by invocation of rule 60(b)( 5). See, e.g., Tapper v.
Hearn, 833 F.3d 166, 171 (2d Cir. 2016) (“Numerous other circuits have considered issues
substantially similar to the one before us today, and all have held that a judgment or order
of dismissal . . . does not apply p rospectively within the mean ing of Rule 60(b)(5).”);
Comfort v. Lynn Sch. Comm. , 560 F.3d 22, 28 (1st Cir. 2009) (stating that the plaintiffs’
argument for reopening a judgment “confuses prospective application with the res judicata
effect that attaches to almost every final judgment”); Coltec Indus., Inc. v. Hobgood , 280
F.3d 262, 272 (3rd Cir. 2002) (holding that dismissal of a constitutional challenge did not
have “prospective application,” even though it meant that Coltec could not assert its now-
viable constitutional claims and defenses); Kirksey v. City of Jackson, 714 F.2d 42, 43 (5th
Cir. 1983) (holding that a judgment of dismissal was not “prosp ective in effect” and that
rule 60(b)(5) did not apply, even though the dismissed claims s ubsequently became
supported by a statutory amendment).
Though these federal opinions do not bind this court, the consi stency of their
holdings and Minnesota courts’ past reliance on federal interpretations of rule 60(b)(5) for
guidance in interpreting rule 60.02(e) makes them persuasive. T he res judicata effect of a
judgment is not a prospective application within the meaning of rule 60.02(e). The district

8
court therefore did not abuse its discretion by denying Lougee’ s motion for relief under
clause (e).
II. Rule 60.02(f)
Lougee asserted to both the district court and this court that he was entitled to relief
under rule 60.02(f), which permits relief from final judgment f or “[a]ny other reason
justifying relief from the operation of the judgment.” Minn. R. Civ. P. 60.02(f). But he did
not present any argument or authority with respect to clause (f ), and “[a]n assignment of
error in a brief based on mere assertion and not supported by a rgument or authority is
waived unless prejudicial error is obvious on mere inspection.” Poeschel v. Comm’r of
Pub. Safety, 871 N.W.2d 39, 47 (Minn. App. 2015) (quotation omitted). Although Lougee
likely forfeited his argument under clause (f), we address it a nd conclude that the district
court did not abuse its discretion by denying relief under that clause.
Relief is not available under clause (f) where one of the other clauses of rule 60.02
is a more appropriate basis for relief. Chapman v. Special Sch. Dist. No. 1 , 454 N.W.2d
921, 924 (Minn. 1990). The initia l question is therefore whethe r s o m e o t h e r c l a u s e
specifically covers this situation. The first four clauses of r ule 60.02 are obviously not
applicable: Lougee does not allege any “mistake, inadvertence, surprise, or excusable
neglect”; his argument is not based on new evidence; he does not claim fraud or misconduct
by Pehrson; and the judgment is not void. See Minn. R. Civ. P. 60.02(a)-(d). And, as
discussed above, clause (e) does not apply, because the judgmen t of dismissal does not
have prospective application within the meaning of the rule. Be cause no other clause
applies, we consider clause (f).

9
Relief under clause (f) is “reserved for extraordinary situatio ns.” Simington, 464
N.W.2d at 531. In Simington, we evaluated whether a change in legal precedent was an
extraordinary situation that com pelled a district court to reop en judgment. Id. at 529. In
that case, Simington’s federal discrimination claims had been d ismissed as time-barred
under then-governing caselaw holding that the statute of limita tions was two years. Id. at
530. Thereafter, based on inter vening United States Supreme Cou rt decisions, we
concluded that the statute of li mitations under the federal sta t u t e w a s s i x y e a r s . Id.
Simington moved to reopen judgment under rule 60.02(f). Id. In upholding the district
court’s denial, we held that the change in law extending the statute of limitations was “not
necessarily an extraordinary ci rcumstance” that justified reope ning the earlier judgment.
Id. at 531. We so held even though, at the time the law changed, Simington’s claims were
within the new six-year limitations period and would not have b een time-barred had he
sued then. Id. at 530. Here, had Lougee been opposing dismissal of his claims under the
anti-SLAPP statute after the supreme court’s decision in Leiendecker II, he almost certainly
would have succeeded. But, as Simington indicates, the fact that Lougee would have
prevailed under new legal precedent is not necessarily extraordinary. Id. at 531.
We note that Simington’s procedural setting differs from this case. In Simington, the
plaintiff did not appeal the adverse judgment against him and the judgment was final well
before the law changed. Here, Lougee appealed the judgment against him (on grounds other
than the constitutionality of the statute); he lost at the cour t of appeals, and the supreme
court at first granted but eventually denied further review aft er deciding Leiendecker II.
Thus, the supreme court’s decision that the anti-SLAPP statute is unconstitutional as

10
applied to tort claims took place before the judgment in Lougee’s case was final. See U.S.
Home Corp. v. Zimmerman Stucco & Plaster, Inc., 749 N.W.2d 98, 101 (Minn. App. 2008)
(stating that a grant of summary judgment was not final while a timely appeal was pending),
review denied (Minn. Aug. 5, 2008).
Even if the procedural setting here presents the sort of “extra ordinary situation” in
which relief under rule 60.02(f) could be available, Lougee did not raise the argument that
the anti-SLAPP statute is uncons titutional in the initial proce eding and “failure to defend
on all possible theories is not a basis for vacating a judgment.” See Midway Nat’l Bank of
St. Paul v. Bollmeier, 474 N.W.2d 335, 339 (Minn. 1991) (affirming denial of relief under
60.02(f)). Lougee makes four arguments why forfeiture should no t apply in the
circumstances of this case.
First, Lougee contends that he is not arguing that the anti-SLA PP statute is
unconstitutional but is instead seeking relief based on the fact that the statute has since been
ruled unconstitutional. This is a distinction without a differe nce. At bottom, Lougee’s
argument for relief from judgment is that application of the an ti-SLAPP statute violated
his constitutional right to trial by jury. See Leiendecker II, 895 N.W.2d at 634-35. This is
a constitutional argument. Lougee’s assertion that his rule 60. 02 motion does not raise a
constitutional argument is incorrect.
Second, Lougee contends that fa ilure to raise a constitutional argument does not
result in forfeiture. But Lougee’s sole citation in support of this proposition is to a
concurring opinion stating that waiver of certain constitutional rights should not be “lightly
presumed.” See Onvoy, Inc. v. SHAL, LLC , 669 N.W.2d 344, 358-59 (Minn. 2003)

11
(Anderson, Paul H., J., concurring) (“[W]aiver of [the right of access to the courts and the
right to trial by jury] is not to be lightly presumed.”). The w aiver mentioned in that
concurrence was not procedural w aiver but was waiver by contrac tual agreement to
arbitrate disputes. Id. at 357. In fact, failure to raise ripe constitutional claims forfeits those
claims. See State v. Osborne, 715 N.W.2d 436, 441 (Minn. 2006) (“[E]rrors—even those
affecting constitutional rights—can be forfeited for purposes of appeal by failure to make
a timely objection . . . .”).
Third, Lougee argues that his claim was not subject to forfeiture because it was not
a viable claim until Leiendecker II held the anti-SLAPP law unconstitutional. He bases this
argument on the principle that statutes are entitled to a presu mption of constitutionality.
See In re Tveten , 402 N.W.2d 551, 556 (Minn. 1987) (“[A] duly enacted statute c arries
with it a presumption in fav or of its constitutionality.”). But Leiendecker II h e l d t h a t
challenges to Minnesota’s anti-SL APP statute became ripe once Leiendecker I was
decided. Leiendecker II, 895 N.W.2d at 632 (“Thus, only after we reversed the court of
appeals did the Leiendeckers’ [constitutional] claim . . . beco me viable.”). Leiendecker I
was decided in June 2014, over a year before Pehrson moved for summary judgment based
on Minnesota’s anti-SLAPP statute. See Leiendecker I , 848 N.W.2d at 224. Thus, the
argument that Minnesota’s anti-SLAPP statute is unconstitutional was viable when Lougee
opposed Pehrson’s motion for di smissal under that statute. Loug ee’s failure to raise it
therefore cannot be attributed to lack of viability.
Finally, Lougee argues that the supreme court’s decision in Leiendecker II “is to be
given full retroactive effect.” This retroactivity, he argues, extends to reopening final

12
judgments. In support of his argument, Lougee cites to Hoff v. Kempton, 317 N.W.2d 361
(Minn. 1982), as well as a pair of criminal cases, State v. Mullen , 577 N.W.2d 505, 512
(Minn. 1998) and State v. Neely, 604 N.W.2d 120, 123 (Minn. App. 2000). Assuming that
Lougee is correct and Leiendecker II is to be given retroactive effect, that fact does not
require the district court to reopen a final judgment. “Rule 60.02 reflects a balance between
the need for finality in judgment s and the need for relief from judgments under very
specific circumstances.” Carter v. Anderson , 554 N.W.2d 110, 113 (Minn. App. 1996),
review denied (Minn. Dec. 23, 1996). Clause (f) is intended to cover “unfore seen
contingencies.” Id. (quoting Anderson v. Anderson, 179 N.W.2d 718, 722 (Minn. 1970)).
Judicial error is foreseeable. Even if the dismissal of Lougee’ s claims was judicial error,
the district court was not compelled under rule 60.02(f) to reopen the judgment to correct
that error.
In sum, Lougee fails to show that the district court abused it s discretion in denying
relief under either clause (e) or clause (f) of rule 60.02.
Affirmed.