A18-0391

This opinion will be unpublished and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
A18-0390
A18-0391

Paul Roberts,
Appellant (A18-0390, A18-0391),

vs.

HydraMetrics, LLC,
Respondent (A18-0390),

Rollin Thornton, et al.,
Respondents (A18-0391).

Filed February 11, 2019
Affirmed
Hooten, Judge

Anoka County District Court
File Nos. 02-CV-16-6188, 02-CV-16-6190

Richard G. Jensen, Elise R. Radaj, Fabyanske, Westra, Hart & Thomson, P.A.,
Minneapolis, Minnesota (for appellant)

Bradley A. Kletscher, Tyler W. Eubank, Barna, Guzy & Steffen, Ltd., Minneapolis,
Minnesota (for respondent HydraMetrics)

Jeffrey W. Thone, Kirby C. Graff, Sanford, Pierson, Thone & Stre an, PLC, Wayzata,
Minnesota (for respondents Thornton, et al.)

Considered and decided by Rodenberg, Presiding Judge; Hooten, Judge; and Jesson,
Judge.

2
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
In these consolidated appeals, appellant, who owns a one-third interest in respondent
company, challenges the summary judgment granted by the district court in favor of
respondents, respondent company, and its two other owners, dismissing cla ims arising
from his termination as CEO. We affirm.
FACTS
Appellant Paul Roberts founded respondent HydraMetrics , LLC, with Kevin
McGauley in October of 2003. Shortly after, respondent Rollin Thornton bought into the
company. Appellant, McGauley, and Thornton each owned a one -third interest in the
company. Appellant and McGauley each contributed $1,000 as capital invest ment to
HydraMetrics while Thornton contributed $300,000. As a condition of Thornton investing
in the company , he required that appellant and McGauley sign a Non -Competition and
Confidentiality Agreement (NCA) and a Member Control Agreement (MCA). Effective
2010, following pressure from his co -owners and concern about his job performance,
McGauley sold his share in HydraMetr ics to respondent Paul Bechtold, who was then a
non-owner employee of the company . In July of 2011, HydraMetrics passed a
compensation resolution authorizing certain bonuses for appellant, with a stipulatio n that
one category, the “Tier four” bonus, would be deferred until Bechtold paid McGauley the
balance of what he owed for the sale of McGauley’s ownership interest. The balance was
originally due in October of 2014, but the final payment was pushed back multiple times.
The compensation resolution did not contemplate a schedule of payments, but simply read

3
that, “Until the purchase agreement of Kevin McGauley ’s shares has been fully paid out
by Paul Bechtold, the Tier four bonus will be accrued as deferred compensation and not
recognized or paid.”
Appellant was terminated from his position as CEO of HydraMetrics in January of
2016, but retained his ownership interest. In May of 2016, appellant demanded immediate
payment of his Ti er four bonus from HydraMetrics. In November of 2016, appellant
brought a lawsuit against HydraMetrics, raising claims of: wrongful termination,
employment-based minority -shareholder oppression, and failure to pay compensation
owed after discharge. Appellant later brought an additional lawsuit against Thornton and
Bechtold (together the Individual Respondents) raising claims of: breach of fiduciary duty,
unfair prejudice, tortious interference, and c ivil-conspiracy. In June of 2017, during the
pendency of this litigation and following Bechtold’s final payment to McGauley,
HydraMetrics paid appell ant his accrued Tier four bonus. T he district court granted
summary judgment for both HydraMetrics and th e Individual Respondents . These
consolidated appeals follow.
D E C I S I O N
Summary judgment is appropriate “if the movant shows that there is no genuine
issue as to any material fact and the movant is entitled to judgment as a matter of law. ”
Minn. R. Civ. P. 56.01. “On appeal, we review a grant of summary judgment ‘to determine
(1) if there are genuine issues of material fact and (2) if the district court erred in its
application of the law.’” Osborne v. Twin Town Bowl, Inc., 749 N.W.2d 367, 371 (Minn.
2008) (quoting K.R. v. Sanford, 605 N.W.2d 387, 389 (Minn. 2000)). In our review, we

4
view the evidence in the light most favorable to the nonmoving party. Elec. Fetus Co. v.
City of Duluth , 547 N.W.2d 448, 452 (Minn. App. 1996), review denied (Minn. Aug. 6,
1996).
I. The district court did not err by concluding that appellant was an at -will
employee who had no reasonable expectation of lifetime employment.

Appellant raises two distinct claims for relief . First, appellant argues that
HydraMetrics breached his contract for lifetime employment with the company. Second,
appellant asserts that the district court erred by determining that he was not entitled to
equitable relief regarding his claim of employment-based minority shareholder oppression.
Appellant claims that he had a contract for lifetime employment with HydraMetrics,
and that HydraMetrics breached that contract by firing him from his position as CEO. He
argues t hat as an owner of the business, he had a reasonable expectation of continue d
employment, and that “expectation of continuing employment creates a contract between
the owner and the company.”
In a well -reasoned order rejecting appellant’s claims , the district court correctly
recognized that, “The doctrine of wrongful termination and the doctrine of employment -
based shareholder oppression are distinct theories of relief.” See Gunderson v. All. of
Comput. Prof’ls, Inc., 628 N.W.2d 173, 190 (Minn. App. 2001), review granted (Minn.
July 24, 2001) and appeal dismissed (Minn. Aug. 17, 2001). This court in Gunderson
explicitly distinguished between wrongful -termination a nd employment -based
shareholder-oppression claims. Id. at 189–90. This distinction comes from the different
sources of the claims. See id. (noting that the doctrine of wrongful termination can arise

5
from either breach of contract or tort, while employment -based shareholder oppression is
an equitable doctrine).
The Gunderson court framed the proper analysis of these claims as such:
The wrongful -termination doctrine affords discharged
employees of all corporations a remedy in the form of wages
and/or reinstatement, regardless of whether they are also
shareholders, if they can establish the existence of an express
or an implied contractual agreement or a promise inducing
reliance. The threshold question in wrongful -termination
cases, therefore, is whether a contractual agreement or a
promise inducing reliance existed.

The oppression doctrine, on the other hand, affords
closely-held-corporation sharehold ers relief when the
controlling shareholders frustrate their reasonable expectations
as shareholder -employees. Accordingly, the threshold
question in the context of a claim of shareholder oppression
based on the termination of employment is whether a minority
shareholder’s expectation of continuing employment is
reasonable.

Id. at 190 (citations omitted).
This conflicts somewhat with a decision that came from this court roughly nine
years before Gunderson was decided. See Pedro v. Pedro , 489 N.W.2d 798 , 802 –03
(Minn. App. 1992) (Pedro II) (affirming because under “the unique facts” of the case the
district court’s “award of future damages for lost wages is wholly consistent with the
court’s broad equitable powers . . . and is warranted based upon its finding of a contract for
lifetime employment”).1 To the extent that Gunderson conflicts with the court’s decision

1 This opinion was the result of the second appeal arising from the same matter. See Pedro
v. Pedro, 463 N.W.2d 285 (Minn. App. 1990) (Pedro I), review denied (Minn. Jan. 24,
1991).

6
in the Pedro cases, the court in Gunderson implied that Pedro may have been analyzed
incorrectly.2 See Gunderson, 628 N.W.2d at 190.
Appellant argues that because Pedro II was cited by this court as recently as 2017,
it is still good law. See Blum v. Thompson , 901 N.W.2d 203 , 216 (Minn. App. 2017),
review denied (Minn. Oct. 25, 2017). But the court in Blum did not cite Pedro II for its
analysis of whether a contract for lifetime employment existed because Blum did not
involve either a claim for wrongful termination or a claim of employment -based
shareholder oppression. Id. at 216–20. In relevant part, Blum dealt with a common-law
claim for breach of fiduciary duty, where the district court sua sponte rejected the claim on
the grounds that monetary damages were not available. Id. at 216. The Blum court cited
both Pedro I and Pedro II in its reversal of the district court on this point. Id. (citing Pedro
II, 489 N.W.2d at 802 & n.1; and Pedro I, 463 N.W.2d at 288 ). Blum also cited to these
cases for general propositions of law involving the standard of review for reviewing
compliance with fiduciary duties, the scope of permissible equitable relief, and what courts
consider to determine the permissible source of reasonable expectations. Id. at 218–20.
While appellant cites to Gunderson for the proposition that the “expectation of
continuing employment creates a contract between the owner and the company,” the case
does not support this argument, and in fact contradicts appell ant’s assertion . As noted

2 The court approvingly cited a law review comment in its analysis, and included an
explanatory parenthetical that read, “ concluding that the Pedro I court ‘extended the law
too far in its efforts to compensate a symp athetic plaintiff.’” Gunderson, 628 N.W.2d at
190 (citing Sandra L. Schlafge, Comment, Pedro v. Pedro: Consequences for Closely Held
Corporations and the At -Will Doctrine in Minnesota , 76 Minn. L. Rev. 1071, 1089 –96
(1992)).

7
above, Gunderson explicitly requires separate analyses of wrongful termination (which
considers express or implied contracts) and employment -based shareholder oppression
(which considers the reasonable expectations of minority sh areholders). Gunderson, 628
N.W.2d at 190.
We therefore conclude that the district court correctly determined that Gunderson
presents the appropriate framework to analyze appellant’s claims.
Breach of Contract for Lifetime Employment

We next consider whether the district court erred in granting summary judgment for
HydraMetrics on appellant’s wrongful-termination claim.
Under Minnesota law, without an express or implied agreement, employment is
presumed to be at-will. Aberman v. Malden Mills Indus., Inc., 414 N.W.2d 769, 771 (Minn.
App. 1987) (“Unless otherwise agreed between the parties, the employment relationship is
at will.”). Without a specific agreement to the contrary , even a contract for “permanent
employment” is presumed to be at -will. Pine River State Bank v. Mettille , 333 N.W.2d
622, 628 (Minn. 1983). To overcome this presumption, an employee must present
“objective evidence that the employer clearly intended to create a lifetime -employment
contract.” Gunderson, 628 N.W.2d at 181 –82 (citi ng Aberman, 414 N.W.2d at 771).
“General statements about job security, company policy, or an employer ’s desire to retain
an employee indefinitely are insufficient to overcome the presumption that employment is
at will.” Id. at 182.
Appellant clearly was an at-will employee. Appellant argues that the MCA provides
for such a contract in and of itself. Appellant also argues that the NCA that he signed,

8
which expressly classifies appellant as an “at -will” employee of HydraMetrics, is not
dispositive of the question. Appellant argues that , if the NCA did create an at-will
employment contract, the parties’ conduct modified that contract so as to guarantee him
lifetime employment. And finally, he argues that genuine issues of material fact exist that
preclude summary judgment.
Again, this court begins with the presumption that appellant was an at -will
employee. Aberman, 414 N.W.2d at 771. We next consider the written agreements
between the parties. See Gunderson, 628 N.W.2d at 182 (directing that courts co nsider
oral and written negotiations between the parties to determine the existence of an express
or implied contract for lifetime employment).
Here, appellant signed the NCA on November 14, 2003. This agreement labeled
appellant as “Employee” and Hydra Metrics as “Employer.” It contains the following
clauses:
WHEREAS, Employer desires to employ Employee
and Employee desires to accept employment with Employer on
an at-will basis

. . . .

7. Nothing contained in this Agreement shall be
deemed to bind Em ployee to remain employed by Employer
for any period of time or to assure Employee of continued
employment by Employer. Employer has the right to terminate
Employee’s employment at any time, for any reason, with or
without cause or notice.

Just three da ys later, on November 17, 2003, appellant, McGauley, and Thornton
signed the MCA, which contained a covenant that “[a]s a material part of the consideration

9
for the execution of this Agreement” appellant and McGauley would “contemporaneously
. . . enter into a Non-competition and Confidentiality Agreement” with HydraMetrics. As
the district court correctly determined, these two documents further add to the initial
presumption that appellant was an at-will employee of HydraMetrics.
Appellant argues that the MCA contained language which guaranteed him lifetime
employment. Appellant cites to language in the MCA that supposedly evidences an intent
that appellant act as a full-time employee of HydraMetrics. It reads that
all Members will continue as Members and carry out the duties
and obligations undertaken by them hereunder and that, except
as otherwise expressly required or permitted hereby, each
Member hereby covenants and agrees not to (a) take any action
to file a certificate of dissolution, (b) withd raw or attempt to
withdraw from the Company . . . .

But this falls far short of “clear and unequivocal language by the employer
evidencing an intent to provide job security” that caselaw requires to overcome the baseline
presumption that appellant was an at-will employee. Gunderson, 628 N.W.2d at 182. This
is especially true given that the NCA, which expressly categorized appellant as an at -will
employee, was referenced as consideration for Thornton signing the MCA.
As part of this argument, appellant as serts that statements about his employment
create “a genuine issue of material fact.” But there is nothing in the record that could lead
a reasonable fact-finder to rule in his favor on the issue , even viewing the evidence in the
light most favorable to a ppellant. See Cederstrand v. Lutheran B hd., 117 N.W.2d 213,
216, 224 (Minn. 1962) ( holding that no reasonable fact -finder could conclude that
employer’s promise to give employees “job[s] as long as they wished until retirement” was

10
sufficient to creat e mo re than at -will employment). And th ere is no language in the
agreement that overcomes appellant’s explicit agreement accepting “at-will” employment,
and consenting that he could be fired “at any time, for any reason, with or without cause or
notice.”
Appellant also argues that if he was an at -will employee initially, the parties’
conduct modified the contract to grant him lifetime employment. HydraMetrics argues
that this court should not consider modification because appellant did not argue the theory
in his complaint . It is well -settled law that appellant s cannot raise new arguments on
appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). But while appellant did
not specifically argu e modification in his complaint, he did make the argume nt to the
district court in his mo tion opposing summary judgment . Therefore, the question of
whether the parties’ conduct modified appellant’s employment contract is properly before
this court.
But that does not mean the argument has merit. A contract may be modified by the
conduct of the parties after that contract is executed. See Pollard v. Southdale Gardens of
Edina Condo. Ass’n, Inc., 698 N.W.2d 449, 453 (Minn. App. 2005). But to modify an at-
will employment contract into one requiring cause for termination, the parties must “make
clear their intent to do so.” Pine River, 333 N.W.2d at 629.
Here, appellant has failed to present any evidence of clear intent to modify
appellant’s employment contract. Appellant argues that the fact that he was an owner and
that he did not follow some of the requirement s within the employee handbook shows an
intent to modify the contract. But appellant was an owner of HydraMetrics at the time that

11
he signed the original NCA and MCA. Appellant’s ownership does not evidence an intent
to modify the contract because it was a condition that existed at the time the parties
executed the original contract. While appellant’s failure to comply with some of the
policies within the employee handbook could lend support to appellant’s modification
argument, it falls short of the clear intent necessary to modify the explicit language of the
NCA and MCA, especially given the language in the MCA providing that the agreemen t
could only be modified with unanimous consent of the members.
We therefore affirm the district court’s grant of summary judgment on this question,
and hold that appellant was not wrongfully terminated because he was an at-will employee
and had no contract for lifetime employment.
Equitable relief for “common law expectation of continued employment”
Appellant’s second argument requires a slightly different approach. Appellant did
not raise Minn. Stat. § 322B.833 (2016)3 or request equitable re lief in his complaint.
Before the district court granted summary judgment, appellant moved the court for leave
to amend the complaint to explicitly add such a claim. The district court considered this
motion and the underlying claim on the merits, and de nied appellant’s request to am end
his complaint on the ground that the equitable claim could not survive summary judgment.

3 Appellant asserted statutory claims under Minn. Stat. § 322B.833 against limited liability
company HydraMetrics and the Individual Respondents . The 2016 version of the
Minnesota Limited Liability Company Act (MLLCA), Minn. Stat. §§ 322B.01 –.975
(2016), was in effect at the time this action was initiated. The MLLCA has been repealed
and replaced by the Minnesota Revised Uniform Limited Liability Company Act
(MRULLCA). 2014 Minn. Laws ch. 157, art. 1, §§ 1, 91 . No party argues that the
MRULLCA applies, and so we apply the MLLCA to this action . See Minn. Stat.
§ 322C.1204 (2018) (providing staggered effective dates for application of the new act).

12
“Generally, the decision to permit or deny amendments to pleadings is within the
discretion of the district court and will not be r eversed absent a clear abuse of discretion.”
Johns v. Harborage I, Ltd. , 664 N.W.2d 291, 295 (Minn. 2003). “Whether the district
court has abused its discretion in ruling on a motion to amend may turn on whether it was
correct in an underlying legal ruling.” Doe v. F.P., 667 N.W.2d 493, 500–01 (Minn. App.
2003), review denied (Minn. Oct. 21, 2003). It is not an abuse of discretion to deny a
motion to amend where the proposed claim would not survive summary judgment.
Johnson v. Paynesville Farmers’ Union, 817 N.W.2d 693, 714 (Minn. 2012). Therefore,
whether or not the district court erred in denying appellant’s motion to amend his complaint
turns on whether the district court was correct in its ruling that the claim could not survive
summary judgment. See id.
The district court concluded that the presumption that the parties’ written agreement
reflected their reasonable expectations was further supported by the explicit language of
the NCA and MCA that appellant signed, categorizing appellant as an at-will employee.
The district court determined that the language of the MCA contemplating appellant’s full-
time employment at HydraMetrics simply imposed requirements on appellant while he was
employed at HydraMetrics, and that “[o]nly a strained reading of the MCA could lead to a
conclusion that it created an expectation of continuing employment.” The district court
also determined that there was no evidence to support that any of the other members shared
appellant’s expectation of continued employment, t hat appellant’s initial contribution and
“sweat equity” was insufficient to create an inference of continued employment, and that

13
the offhand comments from HydraMetrics’ s attorney were insufficient to justify any kind
of reasonable expectation of continued employment.
Appellant argues that he had a reasonable expectation of continued employment for
as long as he was a member of HydraMetrics, and that he is entitled to equitable relief
under Minn. Stat. § 322B.833. He also argues that there are genuine issues of material fact
which should have precluded the district court’s grant of summary judgment.
Addressing appellant’s first argument, “t he threshold question in the context of a
claim of shareholder oppression based on the termination of employment is whether a
minority shareholder’s expectation of continuing employment is reasonable.” Gunderson,
628 N.W.2d at 190. Appellant cites a great deal of caselaw to support the proposition that
“an owner of a closely held company has an expectation of continuing employment.” But
the cases that appellant cites do not directly support this argument. In all of these cases,
courts held that owner-employees of a closely held corporation may have, or typically have
an expectation of continuing employment. Appellant does not cite to a single case holding
that owner-employees in such cases have a per se reasonable expectation of continuing
employment.
Appellant does cite to numerous facts that could support a conclusion that he had a
reasonable expectation of continuing employment. He was a co-founder of HydraMetrics,
he worked there for 12 years, he took no salary for the first few months that he worked
there, and he did not follow some of the requirements contained in the employee handbook.
But none of this would be sufficient to overcome the presumption created by the document

14
he signed that explicitly allowed HydraMetrics “ the right to terminate [appellant’s]
employment at any time, for any reason, with or without cause or notice.”
Appellant argues that under Gunderson, “written agreements are not dispositive of
shareholder expectations in all circumstances.” See 628 N.W.2d at 186. This is an accurate
statement of law. But Gunderson, just a few lines later, reiterated that “written agreements
should, nonetheless, be honored to the extent they specifically state the terms of the parties’
bargain.” Id.; cf. Minn. Stat. § 302A.751, subd. 3a (2018 ) (noting that when considering
whether to grant equitable relief in a shareholder dispute within a closely held corporation
“any written agreements, including employment agr eements and buy-sell agreements, . . .
between or among one or more shareholders and the corporation are presumed to reflect
the parties’ reasonable expectations concerning matters dealt with in the agreements”).
Appellant has failed to present any facts or circumstances which can overcome the
presumption that his written agreements with HydraMetrics “reflect the parties’ reasonable
expectations.” Minn. Stat. § 322B.833, subd. 4 . We therefore affirm the district court’s
denial of appellant’s motion to amend , as the claim could not survive summary judgment
because no reasonable fact -finder could conclude that appellant had a reasonable
expectation of continued employment.
II. The district court did no t err in concluding that Bechtold making his final
payment to McGauley was a condition precedent to HydraMetrics ’s payment
of the Tier four bonus to appellant.

Appellant argues that HydraMetrics failed to pay him the “Tier four” bonus he was
due when he was discharged, and that “interest, penalties, costs, and fees” are owed to him
now even though the bonus itself has since been paid. Minn. Stat. § 181.13 (a) (2018)

15
provides for civil penalties when an employer fails to pay wages “actually earned and
unpaid at the time of the discharge.” This is “ a timing statute, mandating not what an
employer must pay a discharged employee, but when an employer must pay a discharged
employee.” Lee v. Fresenius Med. Care, Inc. , 741 N.W.2d 117, 125 (Minn. 2007).
“[W]ages that an employee has actually earned are defined by the employment contract
between the employer and the employee .” Id. at 127. “To recover under the statute the
employee must establish an independent, substantive legal right . . . to the particular wage
claimed.” Caldas v. Affordable Granite & Stone, Inc., 820 N.W.2d 826, 837 (Minn. 2012).
Because Minn. Stat. § 181.13(a) provides for a civil penalty , it must be strictly construed.
Lee, 741 N.W.2d at 125.
The district cou rt concluded that summary judgment on appellant’s claim was
appropriate because Bechtold making his final payment to McGauley was a c ondition
precedent to the Tier four bonus, and so the bonus was not “earned” under the statute when
appellant made his dema nd for payment. While we frame o ur analysis slightly different ,
the district court was correct in its conclusion.
As noted, for section 181.13(a) to apply, “ the employee must establish an
independent, substantive legal right . . . to the particular wage claimed.” Caldas, 820
N.W.2d at 837. Here, the agreement providing for appellant’s compensation contained the
following passage: “Until the purchase agreement of Kevin McGauley’s shares has been
fully paid out by Paul Bechtold, the Tier four bonus will be accrued as deferred
compensation and not recognized or paid.” Under the plain language of the agreement,
appellant had no substantive legal right to the bonus until Bechtold made his final payment.

16
And it is not contested that once Bechtold made his final payment, appellant received his
Tier four bonus in full.
We therefore affirm the district court’s grant of summary judgment for
HydraMetrics on this issue on the grounds that appellant did not have a substantive legal
right to his Tier four bonus until Bechtold made his final payment for the purchase of
McGauley’s shares in the company.
III. The district court did not err by determining that the Individual Respondents
did not breach their fiduciary duty to appellant.

Appellant makes further claims that are all settled by the dispositive questions about
his employment. In the first of these claims, appellant argues that the Individual
Respondents violated their fiduciary duty towards him by frustrating his reasonable
expectation of continued employment. Members in a closely held corporation do owe each
other a fiduciary duty to act in “an honest, fair, and reasonable manner in the operation of
the corporation,” and Minnesota recognizes a common -law claim for breach of that duty.
Gunderson, 628 N.W.2d at 185 (quotation omitted).
This claim is based upon a premise that appellant had a reasonable expectation of
continued employment and is simply targeted toward the Individual Respondents instead
of HydraMetrics. It does not merit separate analysis. If a ppellant had a reasonable
expectation of continued employment, then he would be entitled to relief from
HydraMetrics under his claim of employment-based shareholder oppression. If he did not
have a reasonable expectation of continued employment, then he is not entitled to relief
from the Individual Respondents under this theory either. And because we have already

17
ruled that appellant did not have a reasonable expectation of continued employment, the
Individual Respondents could not breach their fiduciary duty to appellant by frustrating his
subjective expectation of lifetime employment.
Appellant also argues that the Individual Respondents breached their fiduciary duty
by interfering with appellant’s relationship with HydraMetrics. This argument appears t o
simply reassert appellant’s immediately preceding claim. But again, if appellant was an
at-will employee with no reasonable expectation of continued employment , then the
Individual Respondents were free to fire him without any reason at all. To the ext ent that
appellant intends to raise any claim beyond this, it is unclear what he is arguing or why he
could be entitled to relief.
We therefore affirm the district court’s ruling that the Individual Respondents did
not breach any fiduciary duty that they owed to appellant.
IV. The district court did not err by concluding that the Individual Respondents
did not violate Minn. Stat. § 322B.833 as a matter of law.

Appellant next argues that the district court erred when it concluded that the
Individual Respondents did not act in an unfairly prejudicial manner toward him and
summarily dismissed his claim under Minn. Stat. § 322B.833. This statute authorizes a
court to grant equitable relief when a governor acts “fraudulently, illegally, or in a manner
unfairly prejudicial toward one or more members.” Minn. Stat. § 322B.833, subd. 1(2)(ii).
Conduct that is “unfairly prejudicial . . . frustrates the reasonable expectations of
shareholders in their capacity as shareholders.” Berreman v. W. Publ’g Co., 615 N.W.2d
362, 374 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000).

18
Appellant’s claim here appears to be yet another argument premised on his assertion
that he had a reasonable expectation of lifetime employment. Appellant does not make any
distinct arguments about his expectation in this section, and again this claim does not merit
a separate analysis. We therefore affirm the district court’s grant of summary judgment in
favor of the Individual Respondents on this issue.
V. The district court did not err by concluding as a matter of law that the
Individual Respondents did not tortiously interfere with appellant’s
employment.

Appellant also argues that the Individual Respondents tortiously interfered with his
employment contract with HydraMetrics. “To establish a prima facie case of tortious
interference with contract, a plaintiff must show: (1) the existence of a contract;
(2) knowledge of the contract by the alleged wrongdoer; (3) intentional procurement of the
contract’s breach; (4) absence of justification; and (5) damages caused by the breach. ”
Metge v. Cent. Neighborhood Improvement Ass ’n, 649 N.W.2d 488, 500 (Minn. App.
2002). A corporate officer or agent may be personally liable for tortious con tract
interference if he or she acts outside the scope of his or her duties. Nordling v. N. States
Power Co., 478 N.W.2d 498, 506 (Minn. 1991). While “malice may not be an element of
the tort of tortious interference, it is often persuasive evidence on w hether the defendant’s
conduct was proper and justified or improper and not justified .” Id. (citing Stephenson v.
Plastics Corp. of Am., 150 N.W.2d 668, 680 n.17 (Minn. 1967)). “The burden of proving
actual malice is on the plaintiff.” Id. at 507.
The district court concluded that appellant failed to make a sufficient showing of
malice on the part of the Individual Responde nts such that a reasonable fact -finder could

19
conclude that they tortiously interfered with appellant’s employment contract. Appellant
argues that the district court erred because there was evidence in the record of malice, but
does not identify what that evidence is or even assert what it hypothetically could be. But
while appellant argues that the district court made a factual d etermination that the
Individual Respondents did not act out of malice, a better characterization of the district
court’s ruling is that it determined that appellant simply did not meet his burden of showing
malice. Appellant has also failed to identify a nything in the record that could create a
genuine issue of material fact as to whether the Individual Respondents were motivated by
actual malice. We therefore affirm the district court’s grant of summary judgment on the
issue of whether the Individual Re spondents tortiously interfered with appellant’s
employment.4
Affirmed.

4 The district court granted summary judgment on appellant’s civil-conspiracy claim
because t hat claim was predi cated on the tortious-interference argument. Because we
affirm the district court’s grant of summary judgment dismissing appella nt’s tortious -
interference claim, we also affirm the district court’s grant of summary judgment
dismissing appellant’s civil-conspiracy claim.