Olimpia Onofre Cedillo, et al., Respondents,

This opinion will be unpublished and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
A18-0860

Olimpia Onofre Cedillo, et al.,
Respondents,

vs.

Herbert Azubuike Igbanugo, et al.,
Appellants.

Filed May 20, 2019
Affirmed
Hooten, Judge

Hennepin County District Court
File No. 27-CV-16-7603

Michael Gavigan, Matthew Lawlyes, Wilson Law Group, Minneapolis, Minnesota (for
respondents)

Herbert A. Igbanugo, Jason A. Nielson, Igbanugo Partners Int’l Law Firm, PLLC,
Minneapolis, Minnesota (for appellants)

Considered and decided by Reyes, Presiding Judge; Hooten, Judge; and Cochran,
Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
Respondents brought claims against appellants for malpractice, consumer fraud, and
breach of contract arising out of appellants’ legal representation of them in immigration
matters and won monetary judgments at trial. Appellants present a number of arguments

2
on appeal relating to their motions for a new trial and judgment as a matter of law (JMOL),
and respondents cross-appeal. We affirm.
FACTS
Appellants Herbert Igbanugo and Igbanugo Partners International Law Firm
represented respondents Olimpia Onofre Cedillo, Maria Delgado, and Alejandra Catano
Galvan individually in immigration matters. Respondents were all born in Mexico , and
they each have daughters who are United States citizens. Respondents claimed that with
the assistance of their daughters, who served as interpreters, they hired appellants to help
them with their ultimat e goal of obtaining green cards through their daughters’ status as
citizens. As part of that process, respondents signed contracts with appellants to submit
I-130 and I-601A forms in order to obtain provisional unlawful presence waivers. Using
the I-601A form, a person is able to obtain a provisional waiver if he or she has a qualifying
relative who is a United States citizen. It was respondents’ understanding, based upon their
conversations with appellants, that they would be able to obtain these waivers because their
daughters are United States citizens.
However, after paying for appellants ’ services, respondents later learned that the
only qualifying relatives on the I-601A form are spouses and paren ts—not children—and
that the form itself, in a section titled “Information About Your Qualifying Relative,” gives
only four options for qualifying relatives: U.S. Citizen Spouse, U.S. Citizen Parent, LPR
Spouse, and LPR Parent (LPR meaning lawful permanent resident). None of the
respondents had qualifying relatives under the I-601A form.

3
Although appellants eventually informed respondents that they could not use the
I-601A waiver, they did not refund respondents the money they had paid. Respondents
testified that appellants had given them a great deal of hope about the potential to fix their
residency status, but when they found out that appellants could not help them, they lost all
hope, felt “destroyed,” lived with the day -to-day fear of being found by immigration, and
worried about being separated from family.
Respondents sued appellants for, inter alia, legal malpractice, breach of contract,
and violation of t he Minnesota Consumer Fraud Act. Respondents claimed that the fact
that only spouses and parents counted as qualifying relatives on the I -601A form was
considered to be generally known in the legal community at the time that respondents
entered into their contracts with appellants and that appellants had misrepresented that their
daughters would be qualifying relatives under the I-601A form.
A jury trial was held in late 2017. The jury found appellants liable to respondents
for legal malpractice, breach of contract, and violation of the Consumer Fraud Act and that
respondents were entitled to judgments for damages. Appellants moved for JMOL or a
new trial. The district court denied both motions. Respondents moved for ad ditional
findings and attorney fees. The district court denied those motions as well.
This appeal follows.
D E C I S I O N
Appellants make several arguments. Broadly, they argue that the district court erred
in denying their motions for JMOL or a new trial and that their attorney was improperly
disqualified as a necessary witness . Respondents argue on cross -appeal that the district

4
court erred in denying their motion s for amended findings and attorney fees. We address
each argument in turn.
We also note that appellants argued extensively regarding their version of the facts,
both in their briefs and at oral argument. But as a reviewing court, we are not p ermitted
“to engage in fact-finding anew.” Rasmussen v. Two Harbors Fish Co., 832 N.W.2d 790,
797 (Minn. 2013); see also In re Welfare of M.D.O. , 462 N.W.2d 370, 374 –75 (Minn.
1990) (holding that the role of the court of appeals is to correct errors, not to find facts).
Instead, we are limited by our standard of review to determining whether the findings of
fact are clearly erroneous. Gill v. Gill, 919 N.W.2d 297, 301 (Minn. 2018); see also Minn.
R. Civ. P. 52.01. This involves examining the record to see if the findings are supported
by reasonable evidence and viewing the evidence in the light most favorable to the verdict.
Rasmussen, 832 N.W.2d at 797. To conclude that a finding of fact is clearly erroneous,
“we must be left with the definite and firm conviction that a mistake has been made.” Id.
(quotation omitted). Appellants do not identify any specific findings of fact that were
clearly erroneous. And viewing the evidence in the light most favorable to the verdict, we
conclude that appellants have failed to meet their burden of showing clear error.
And to the extent that they would like to retry the case before us, we note that as an
appellate court we are not permitted to usurp “the role of the trial court by reweighing the
evidence.” Sefkow v. Sefkow , 427 N.W.2d 203, 210 (Minn. 1988). Rather, “Deference
must be given to the opportunity of the [finder of fact] to assess the credibility of the
witnesses.” Id. Having made that clear, we now turn to appellants’ legal arguments.

5
I. Judgment as a Matter of Law
Appellants attack the district court’s decision on their motion for JMOL from
several different angles. They make specific arguments regarding JMOL on respondents’
Consumer Fraud Act, malpractice, and emotional-distress-damages claims. A party may
move for JMOL during a trial, and to succeed they must show that “there is no legally
sufficient evidentiary basis for a reasonable jury to find” against them on an issue. Minn.
R. Civ. P. 50.01(a). A party may also move for JMOL after the trial, as appellants did here.
Minn. R. Civ. P. 50.02. We review a district court’s decision to deny a motion for JMOL
de novo. In re Estate of Butler , 803 N.W.2d 393, 399 (Minn. 2011). In doing so, “we
apply the same standard as the district court and view the ev idence in the light most
favorable to the nonmoving party.” Id.
i. Consumer Fraud Act
Appellants argue that the district court erred in denying their motion for JMOL on
respondents’ Consumer Fraud Act claim. Under the Consumer Fraud Act, the “act, use, or
employment by any person of any fraud, false pretense, false promise, misrepresentation,
misleading statement or deceptive practice, with the intent that others rely thereon . . . is
enjoinable.” Minn. Stat. § 325F.69, subd. 1 (2018). While section 325F .69 is generally
enforced by the attorney general or a county attorney, respondents invoked the private
attorney general statute, which allows a person injured under the Act to “bring a civil action
and recover damages, together with costs and disbursement s, including costs of
investigation and reasonable attorney’s fees, and receive other equitable relief as
determined by the court.” Minn. Stat. § 8.31, subds. 1, 3a (2018).

6
Appellants assert that applying the Consumer Fraud Act to attorne ys would violate
the separation of powers doctrine. Specifically, they argue that the Minnesota Supreme
Court and the Office of Lawyers Professional Responsibility are the only entities with the
power to regulate attorney conduct, and to allow either “the attorney general or any county
attorney to obtain an injunction against a party who violates the [Act]” would give the
executive branch “the power to regulate the practice of law,” which “goes against the
Separation of Powers doctrine.”
But appellants’ argument is moot. The mootness doctrine “requires that we decide
only actual controversies and avoid advisory opinions.” In re McCaskill, 603 N.W.2d 326,
327 (Minn. 1999). The jury found that appellants had violated the Consumer Fraud Act
and the distr ict court awarded respondents damages, but the district court denied
respondents’ motion to enjoin appellants from further violating the Act. Because
appellants’ argument was limited to asserting that a district court’s imposition of an
injunction would violate the separation of powers, and the district court specifically denied
respondents’ motion to impose an injunction, appellants’ separation of powers argument is
moot and we decline to address it.1
Appellants next argue that there was no causal con nection between their allegedly
fraudulent statements and respondents’ claimed injuries. This is based on their assertion
that the only deceptive practices identified by respondents were that appellants guaranteed

1 Because of the limited scope of appellants’ argument before the district court and on
appeal, and because there is no district court ruling for our review, we do not address the
broader question of whether an attorney’s legal services are the type of service covered by
the Consumer Fraud Act.

7
respondents an outcome in their cases and guaranteed it within a specific time frame. But
appellants frame the question too narrowly. The real issue was appellants’ representation
that respondents would be eligible for an I -601A provisional waiver by virtue of their
children being United States citizens while in actuality respondents did not qualif y for the
provisional waiver. There is support in the record for the idea that each respondent hired
appellants under the belief that appellants could secure residency for respondents through
this provis ional waiver. But the form itself does not designate children as qualifying
relatives supporting a provisional waiver, and there was testimony from an expert witness
that respondents did not otherwise qualify for this waiver. Therefore, we reject appellants’
causation argument.
And finally, appellants argue that the district court erred by allowing respondents to
introduce hearsay evidence relating to the claim under the Consumer Fraud Act. We
review evidentiary rulings for an abuse of discretion. State v. Taylor, 910 N.W.2d 60, 67
(Minn. App. 2018), review denied (Minn. June 19, 2018).
During the meetings between appellants and respondents, each respondent had a
daughter translate at least portions of the conversations from English to Spanish.
Appellants, respondents, and respondents’ daughters all testified at trial about those
conversations. Appellants object to respondents’ testimonies about what their daughters
translated to them on the basis that they constitute hearsay. But binding precedent holds
that the testimony of what a person heard through their interpreter is not hearsay. Miller v.
Lathrop, 52 N.W. 274, 274 (Minn. 1892). And appellants cite to no authority that supports
their position.

8
ii. Malpractice
Appellants argue that the district court erred in denying their motion for JMOL on
respondents’ malpractice claim, asserting that respondents’ expert witness did not establish
an applicable standard of care at trial. 2 In attorney-malpractice cases, expert testimony is
typically “required to establish a standard of care applicable to an attorney whose conduct
is alleged to have been negligent, and further to establish whether the conduct deviated
from that standard.” Guzick v. Kimball , 869 N.W.2d 42, 49 (Minn. 2015) (quotation
omitted). Here, the expert witness’s testimony established standards of care for many
aspects of appellants’ work with respondents and demonstrated that appellants had violated
those standards of care. Notably, the expert witness testified that he reviewed the contracts
of all three respondents and none of them qualified for residency through these forms and
that appellants had breached the standard of care by accepting payment for those services.3
Based upon this record, we conclude that appellants’ malpractice arguments fail.

2 Appellants also appear to argue that even if a standard of care had been established, no
causation was shown between the breach of the standard of care and the injury to the
respondents. But appellants do not cite to any law for this argument, so it is forfeited. See
State v. Bursch, 905 N.W.2d 884, 889 (Minn. App. 2017) (“Arguments are forfeited if they
are presented in a summary and conclusory form, do not cite to applicable law, and fail to
analyze the law when claiming that errors of law occurred.”). And the argument would
fail on its merits anyway because appellants’ breach of the standard of care caused
respondents to pay for services that were useless to them.
3 Appellants also argue that the district court erred by concluding that the damages awarded
by the jury for malpractice were not excessive. A new trial may be granted if a party is
awarded “[e]xcessive or insufficient damages, appearing to have been given under the
influence of passion or prejudice.” Minn. R. Civ. P. 59.01(e). Appellant s forfeited this
argument by not citing to any law in support of it. See Bursch, 905 N.W.2d at 889. But it
fails on its merits anyway because there is nothing in the record to indicate that the jury
awarded damages under the influence of passion or prejudice.

9
iii. Emotional Distress Damages
Appellants challenge the district court’s denial of their JMOL motion on
respondents’ claim for emotional -distress damages. They first argue that these damages
were not available to respondents because ther e was no evidence of willful, wanton, or
malicious conduct on their part. Emotional -distress damages are available in attorney
malpractice cases when there is “a direct violation of the plaintiff’s rights by willful,
wanton or malicious conduct; mere negligence is not sufficient.” Lickteig v. Alderson, 556
N.W.2d 557, 562 (Minn. 1996). The jury found appellants liabl e under the Consumer
Fraud Act—i.e., appellants were found to have defrauded clients —and that finding was
supported by testimony that appell ants took respondents’ money despite it being obvious
that they would not qualify for the provisional waiver. This is sufficient support in the
record to affirm the district court’s conclusion that appellants’ conduct was “willful,
wanton or malicious.”
Second, appellants argue that respondents were required to provide medical
evidence to support their claims for emotional -distress damages. In Navarre v. South
Washington Cty. Schools, the Minnesota Supreme Court held that medical testimony is not
required in order to substantiate claims for emotional -distress damages so long as the
plaintiffs are able to “prove that emotional injury occurred under circumstances tending to
guarantee its genuineness.” 652 N.W.2d 9, 30 (Minn. 2002) (quotation omitted).
Appellants contend that the district court erred in relying upon Navarre in denying
their JMOL motion on emotional -distress damages. They argue that their case is
distinguishable because “Navarre occurred in the context where there was a violation of a

10
statutory right, the Minnesota Government Data Practices Act.” But this distinction is
irrelevant. In Navarre, the Minnesota Government Data Practices Act was significant to
the supreme court’s analysis in deciding whether emotional -distress damages were
available. Id. But that Act was not relevant to the discussion of what proof is necessary
in order to recover emotional-distress damages. Id. And the supreme court was clear that
medical testimony is not necessary. Id. Appellants’ arguments about emotion al-distress
damages fail.
Based upon these arguments, we conclude that appellants have failed to show that
the district court erred in denying their motion for JMOL. After reviewing the record, and
viewing the evidence in the light most favorable to resp ondents, we conclude that there
was a sufficient evidentiary basis for a reasonable jury to find for respondents on their
Consumer Fraud Act, malpractice, and emotional-distress-damages claims.
II. Motion for a New Trial
Appellants challenge the district court’s denial of their motion for a new trial based
on respondents’ misconduct and the denial of their motions on respondents’ breach-of-
contract claims. “We review a district court’s decision to grant or deny a new trial for an
abuse of discretion.” Christie v. Estate of Christie , 911 N.W.2d 833, 838 (Minn. 2018).
“A district court may grant a new trial for ‘[e]rrors of law occurring at the trial’ or when
‘[t]he verdict . . . is not justified by the evidence, or is contrary to law.’” Id. (quoting Minn.
R. Civ. P. 59.01).

11
i. Misconduct
Appellants argue that the district court erred in denying their motion for a new trial
based on the misconduct of respondents’ attorney. “The decision to grant a new trial based
on claimed attorney misconduct rests wholl y within the district court’s discretion.” Lake
Superior Ctr. Auth. v. Hammel, 715 N.W.2d 458, 479 (Minn. App. 2006) , review denied
(Minn. Aug. 23, 2006). “The paramount consideration in determining whether a new trial
is required in cases alleging misconduct is whether prejudice occurred . . . such that it
affected the outcome of the case.” Id. (citation omitted).
Appellants argue that the district court erred in denying their motion for a new trial
because one of respondents’ witnesses violated a pre-trial order. Specifically, they refer to
the district court’s order excluding evidence of past professional discipline. At trial, one
of respondents’ witnesses testified about a case that she had with appellants and stated,
“We received that letter in the mail that his license was --.” Appellants assert that even
though the witness never said that the license of one of the appellants was suspended, her
testimony “and the momentary but stunning silence that followed undoubtedly biased the
jury against Appellants.”
Appellants assert that the jury became biased against them because of this comment.
But they provide no further evidence of or argument for prejudice, which must be shown
in order to be granted a new trial. And, even if we were to assume that this testimony was
a violation of the district court’s pre-trial order, then it would be the district court that was
in the best position to determine whether the testimony prejudiced appellants. See id. (“The

12
district court judge is best positioned to determine whether an attorney’s misconduct has
tainted the jury’s verdict.”).
Appellants also argue that the district court erred by not granting them a Schwartz
hearing on juror misconduct. 4 “The decision of whether to grant a Schwartz hearing is
within the district court’s discretion.” Blatz v. Allina Health System, 622 N.W.2d 376, 393
(Minn. App. 2001), review denied (Minn. May 16, 2001). Juror misconduct “may not be
raised for the first time on a motion for a new trial.” Tupper v. Dirks , 193 N.W.2d 800,
801 (Minn. 1972). And that is precisely what appellants did here. Accordingly, this
argument is procedurally barred. But even if it were not, it would fail on its merits because
the “misconduct” that appellants refer to were innocuous social media posts from one of
the jurors made about jury duty generally prior to being sworn in as a juror for the trial.5
We conclude that appellants’ misconduct arguments fail.

4 In a Schwartz hearing, the district court is able to inquire into whether improper
considerations affected the jury’s verdict. See Schwartz v. Minneapolis Suburban Bus Co.,
104 N.W.2d 301, 303 (Minn. 1960).
5 Appellants make two additional arguments that are forfeited for lack of legal support. See
Bursch, 905 N.W.2d at 889. First, they argue that respondents used confidential attorney-
client information while impeaching appellants’ expert witness. Even if this argument
were not forfeited, it would fail because appellants do not explain how they were prejudiced
by this misconduct, or that the prejudice was so great that it affected the outcome of the
case. See Hammel, 715 N.W.2d at 479. Second, appellants assert that the district court
erred by excluding evidence of the bad relationship between appellants and respondents’
counsel. Even if it were not forfeited, this argument would fail because the district court
did not abuse its discretion in determining that this evidence was irrelevant, and that even
if it were relevant, its relevance would be substantially outweighed by its prejudicial value.
See Minn. R. Evid. 403.

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ii. Breach of contract
Appellants argue that the district court erred in denying their motions for a new trial
and for JMOL on respondents’ breach-of-contract claims. They first argue that the district
court erred by concl uding that the damages awarded on respondents’ breach -of-contract
claims were not excessive. “A district court may grant a new trial because of excessive
damages that appear to have been given under the influence of passion or prejudice or are
not justified by the evidence.” Willis, 790 N.W.2d at 187. But a new trial may not be
awarded solely on speculation as to the possibility of prejudice. Vadnais v. Am. Family
Mut. Ins. Co., 243 N.W.2d 45, 49 (Minn. 1976). Appellants provide no real argument that
the damages were given under influence of passion or prejudice. They simply state that
the award does not take into account other legal services that were rendered. But it is not
clear why this would prove that the award was excessive.
Appellants also argue that the district court erred in declining to give jury
instructions on superseding causes and the duty of good faith and fair dealing. A district
court has broad discretion in determining what jury instructions to use. Christie, 911
N.W.2d at 838. An appellate court “will not reverse where jury instructions overall fairly
and correctly state the applicable law.” Id. (quotation omitted). But a new trial should be
granted “if the jury instruction was erroneous and such error was prejudicial . . . or if the
instruction was erroneous and its effect cannot be determined.” Id. (quotation omitted).
Appellants assert that respondents’ breach of contract excused their performance
and was a superseding cause to their own breach of contract.

14
For an intervening cause to be considered a superseding cause,
the intervening cause must satisfy four elements: 1) its harmful
effects must have occurred after the original negligence; 2) it
must not have been brought about by the origina l negligence;
3) it must have actively worked to bring about a result which
would not otherwise have followed from the original
negligence; and 4) it must not have been reasonably
foreseeable by the original wrongdoer.
Can. by Landy v. McCarthy, 567 N.W.2d 496, 507 (Minn. 1997). But superseding cause
is a tort-law and criminal-law principle, not a contract-law principle. See, e.g., id. at 506–
07 (discussing superseding cause in the context of a tort claim); State v. Smith, 819 N.W.2d
724, 729 (Minn. App. 2012) (discussing superseding cause in the context of a criminal
case), aff’d, 835 N.W.2d 1 (Minn. 2013). Therefore, it does not apply to respondents’
breach-of-contract claims. Moreover, to the extent that appellants in tended to argue for a
superseding-cause instruction more broadly, and not just on the breach-of-contract claims,
respondents’ termination of appellants as counsel does not satisfy th e superseding-cause
test anyway. There was testimony at trial that appell ants entered into a contract with
respondents for services that were useless. It is logical that respondents would terminate
appellants as counsel upon learning that the services they were paying for would not benefit
them in the way they expected. Thus, elements two and four of the superseding-cause test
are not met, and there was no reason to instruct the jury on superseding causes.
“Under Minnesota law, every contract includes an implied covenant of good faith
and fair dealing requiring that one par ty not unjustifiably hinder the other party’s
performance of the contract.” In re Hennepin C ty. 1986 Recycling Bond Litigation , 540
N.W.2d 494, 502 (Minn. 1995) (quotation omitted). But, there was testimony that the

15
contracts entered into between the par ties were for services that would not benefit the
respondents. And as the district court explained, respondents’ “failure to pay the full
contract price was irrelevant to [appellants’] inability to perform because [appellants]
knowingly entered into an ag reement which it was impossible for them to perform.” We
agree with this reasoning, so we conclude that the district court did not abuse its discretion
with regard to jury instructions.
We also conclude that the district court did not abuse its discret ion in denying
appellants’ motion for a new trial on the basis of misconduct. Similarly, we agree with the
district court’s ruling on appellants’ motion for JMOL or a new trial on respondents’
breach-of-contract claims.
III. Necessary Witness
Appellants argue that the district court erred by disqualifying Jason Nielson , an
attorney at Igbanugo Law Partners, from acting as trial counsel because he was a necessary
witness. Under Minn. R. Prof. Conduct 3.7, a lawyer is barred “from acting as an advocate
in cases where the lawyer is likely to be a necessary witness.” Woodruff v. State , 608
N.W.2d 881, 887 (Minn. 2000). But it is not enough that the attorney will be called as a
witness; the attorney’s testimony must be necessary. Humphrey on Behalf of State v.
McLaren, 402 N.W.2d 535, 541 (Minn. 1987). If the evidence that the attorney is going to
testify can be produced some other way, then “it may be that the attorney is not necessary
as a witness.” Id. In other words, “If the lawyer’s testimony is merely cumulative, or quite
peripheral, or already contained in a document admissible as an exhibit, ordinarily the
lawyer is not a necessary witness and need not recuse as trial counsel.” Id. We review a

16
district court’s decision to disqualify an attorney for an abuse of discretion. State ex rel.
Swanson v. 3M Co., 845 N.W.2d 808, 816 (Minn. 2014).
Appellants merely argue that “there was nothing that Mr. Nielson testified to that
Mr. Igbanugo could not.” This argument is conclusory. It does not explain what Nielson
testified to or why it would have been sufficient to have Igbanugo provide this testimony
instead of Nielson. In disqualifying Nielson from acting as trial counsel, the district court
found that Nielson was “set to testify to matters for which only he [could] provide
testimony,” making him a necessary witness. In coming to this decision, the district court
specifically relied on emails contained in th e record between Nielson and the daughter of
one of the respondents in which Nielson gave the daughter advice that respondents asserted
was wrong. Appellants do not address the district court’s reasoning or explain to us why
it was incorrect. 6 Accordingly, we cannot find that the district court abused its discretion.7
IV. Respondents’ Motions for Amended Findings and Attorney Fees
Respondents, as cross -appellants, make two arguments for relief under the
Consumer Fraud Act. First, they argue that the district court erred by denying their request

6 Moreover, appellants previously appealed the district court’s order disqualifying
Igbanugo and Nielson from acting as trial counsel, and a special term panel from our court
dismissed the appeal as untimely in an order opinion, so it would appear that they are barred
from raising this issue. Cedillo v. Igbanugo, No. A17-1428 (Minn. App. Oct. 3, 2017).
7 Appellants also argue that the jury verdict was “manifestly and palpably contrary to the
evidence.” This argument is forfeited because it was made without legal citations or
references to facts in the record. See Bursch, 905 N.W.2d at 889. But it also fails on its
merits because there was ample evidence supporting the jury’s verdict , as we have
discussed.

17
for injunctive relief. Second, they argue that the district court erred in denying their motion
for attorney fees. Both arguments fail for the same reason.
In its order on respondents’ motion for attorney fees, the district court explained that
it was denying the motion because respondents’ lawsuit against appellants did not serve
the public interest. This reasoning was anchored in a case that held “that the Private AG
Statute applies only to those claimants who demonstrate that their cause of action benefits
the public.” Ly v. Nystrom, 615 N.W.2d 302, 314 (Minn. 2000). The district court in this
case read Ly to mean that “the Private AG Statute allows parties to recover their attorney’s
fees only when they step into the shoes of the Attorney General to protect the generalized
interests of Minnesota consumers.”8
In a thorough analysis, the district court reasoned that respondents failed to show
that their lawsuit served to benefit the public, but only pertained to their private claims for
compensation. As noted by the court, this was not a fraud that was perpetuated on the
general public, as was alleged in Collins v. Minn. Sch. of Bus., Inc., 655 N.W.2d 320, 329–

8 This requirement—that the respondents had to show that they were bringing the lawsuit
to protect the generalized interests of Minnesota consumers —was only presented to and
addressed by the district court in relation to respondents’ post-trial motion for attorney fees
and an injunction. Because this requirement was not otherwise raised by either party or
addressed by the district court relative to appellants’ motions for JMOL and a new trial, we
only review it in the context that it was presented and ruled upon, i.e., respondents’ motions
for attorney fees and an injunction. See Annis v. Annis, 84 N.W.2d 256, 261 (Minn. 1957)
(“[L]itigants are bound [ on appeal] by the theory or theories, however erroneous or
improvident, upon which the action was actually tried below.”); see also Roby v. State, 547
N.W.2d 354, 357 (Minn. 1996) (holding that an appellate court generally will not consider
matters not argued to and considered by the district court).

18
330 (Minn. 2003). In Collins, 18 students alleged that Minnesota School of Business
misrepresented the nature of its program and brought an action under the Consumer Fraud
Act. Id. at 322. In support of their claim that these misrepresentations harmed the general
public, they showed that the school off ered its program to the general public th rough
misleading television advertisements and was licensed by a state agency which required
the agency’s approval to alter its curriculum. Id. at 322–23.
Unlike the factual situation in Collins, there was no showi ng here that appellants
made generalized misleading claims to the public at large. Although there were three
respondents in this case who were harmed , there is no evidence that appellants harmed
others by their conduct. Based upon this record, the distri ct court was correct in denying
respondents’ motions for attorney fees and an injunction because they failed to meet their
burden of proof in showing that their action under the Consumer Fraud Act was for the
benefit of the general public.
Affirmed.