A19-0006

This opinion will be unpublished and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
A18-1602
A19-0006

AllenMax Construction, LLC, et al.,
Respondents,

vs.

The Wright Group, LLC, a Colorado limited liability company, et al.,
Appellants.

Filed September 23, 2019
Affirmed in part, reversed in part, and remanded
Smith, Tracy M., Judge

St. Louis County District Court
File No. 69DU-CV-16-2126

Adina R. Bergstrom, Dana L. Joha nsen, Sauro & Bergstrom, PLLC, Oakdale, Minnesota
(for respondents)

William D. Paul, William Paul Law Office, Duluth, Minnesota (for appellants)

Considered and decided by Reyes, Presiding Judge; Smith, Tracy M., Judge; and
Florey, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
In these consolidated appeals, appellants, a property owner an d its general
contractor, assert entitlement to judgment as a matter of law o r a new trial in their

2
commercial dispute with responden ts, two subcontractors. We aff irm in part, reverse in
part, and remand.
FACTS
A p p e l l a n t M o r e x P r o p e r t i e s L L C h i r e d a p p e l l a n t T h e W r i g h t G r o up LLC as a
general contractor to build a hot el on Morex’s property in Dulu th. Wright, in turn, hired
respondent AllenMax Commercial to serve as project manager of the construction. Wright
hired another entity, respondent AllenMax Construction, to provide framing services.
Original contracts and payments
Wright’s contract with AllenMax Commercial was signed in June 2014. Under the
contract, AllenMax Commercial wa s t o b e p a i d a t o t a l o f $ 2 0 0 , 0 00 for project
management. The contract price was to be paid on a percent-comp lete basis. AllenMax
Commercial had to submit payment applications for the work it p erformed, and the
applications had to be approved by Wright before payment occurr ed. AllenMax
Commercial submitted monthly payment applications. For each month’s work, AllenMax
Commercial earned $18,000 but requested $16,200, taking into ac count a ten-percent
“retainage” or “retention,” which, pursuant to the contract, was to be withheld temporarily
for future exigencies. It is undisputed that AllenMax Commercia l submitted payment
applications for eight months’ work, from June 2014 to January 2015, and was paid
$129,600 in total.
Wright’s contract with AllenMax Construction was signed in Sep tember 2014.
Under the contract, AllenMax Construction was to be paid a total of $400,000 for framing
services. AllenMax Construction was compensated for its work in a similar manner to

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AllenMax Commercial. AllenMax C onstruction submitted a payment application to
Wright for each month’s work: $111,600 for September; $102,600 for October; $123,377
for November; $27,000 for December; and $27,245 for January. The amounts all reflected
the ten-percent retainage, and it is undisputed that all but th e January application—
$364,577 in total—were approved and paid.
Change orders terminating contracts
In January 2015, before comple tion of the project, Wright and the AllenMax entities
agreed to terminate their contr acts, apparently because key emp loyees at the AllenMax
entities were leaving. The parties entered into “change orders” to terminate the contracts.
The AllenMax Commercial change order, signed on January 30, 2015, reduced the contract
price from $200,000 to $162,000 to account for the early termin ation. The AllenMax
Construction change order, signed on February 4, 2015, accounted for the early termination
by deducting $15,000 from the original contract price of $400,0 00. But there had been
previous charge orders that increased the price of the contract . The final change order
included other deductions and additions resulting in a final contract price of $433,094. Both
change orders contained the following statement:
This change is to incorpora te all extra work that is
known or should have been known through Change Order Date
above.

Signing below will terminate your contract with The
Wright Group, LLC effective immediately. All outstanding
work will be deducted from your remaining contract and
retention held until all outstanding issues are resolved, final
lien waivers are received from all subcontractor/suppliers and
verification of all union dues paid.

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Following the change orders, AllenMax Commercial and AllenMax Construction
ceased work on the project. Neither was paid more than the amou nts noted above—
$129,600 and $364,577, respectively.
RMS’s mechanic’s lien
In March 2015, Morex, the devel oper, learned that a mechanic’s lien had been filed
against its hotel by Road Machin ery and Supplies (RMS). The lie n amount was about
$42,000. RMS was the company fro m which AllenMax Construction h ad rented a crane
when AllenMax Construction was working on the project. The crane-rental expenses were
included in AllenMax Construction’s contract price, and RMS sen t its bills to AllenMax
Construction. AllenMax Construction and Morex communicated about the payment owed
to RMS, and the parties disputed whether Morex had already paid AllenMax Construction
for RMS’s services under previous payment applications. In late 2015, RMS brought a
mechanic’s lien action against A llenMax Construction, Morex, an d others. AllenMax
Construction settled with RMS, paying RMS $57,154.57. Morex did not contribute to the
settlement award.
The lawsuit
In May 2016, the AllenMax en tities sued Wright for breach of contract, principally
seeking to recover the unpaid portions of the contract prices under the change orders.
Wright asserted three counterclaims against the AllenMax entiti es: breach of
contract, negligent construction, and civil theft. Wright’s first two counterclaims related to
alleged shortcomings in AllenMax Construction’s performance of its contractual duties and
construction services. Wright’s civil-theft counterclaim was to recover costs it incurred

5
from being entangled in RMS’s mechanic’s lien action. By stipul ation, Morex was then
joined as a defendant and asserted the same counterclaims against the AllenMax entities as
did Wright.
The AllenMax entities then amende d their complaint to add a cla im of unjust
enrichment against Morex.
In October 2017, the district court granted the AllenMax entities’ motion to exclude
appellants’ evidence of construc tion defects as a sanction for Morex and Wright’s
spoliation of evidence. Based on that evidentiary ruling, the d istrict court granted partial
summary judgment in favor of the AllenMax entities on (1) appel lants’ counterclaim for
negligent construction and (2) appellants’ counterclaim for breach of contract to the extent
it was based on defective construction.
On February 15, 2018, several weeks before trial, the AllenMax entities filed nine
motions in limine. They sought to exclude, based on relevancy under Minn. R. Evid. 401,
402, and 403, the following:
1. . . . [A]ll evidence related to alleged defects
regardless of its intended purpose;
2. . . . [A]ll evidence related to Defendants’ claims that
they paid Plaintiffs a [sic] for a higher % of work than Plaintiffs
allegedly completed;
3. . . . [A]ll evidence and argument of Defendant
Wright’s damages;
4. . . . Defendant Morex is precluded from arguing that
it has a right to recover under the AllenMax Contracts with
Defendant Wright;
5. . . . [A]ll evidence pertaining to any amounts
Defendants allegedly paid to finish the Project;
6. . . . [A]ll expert testimony on lost income or any
other topic requiring an expert opinion;

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7. . . . [A]ll evidence and argument pertaining to
consequential damages, including lost income;
8. . . . [A]ll evidence and ar gument that AllenMax
Construction committed civil thef t by representing that RMS
was going to receive a net of $70,721 in payments in the
Subcontractor Requests for Payments or by submitting change
orders;
9. . . . [A]ll evidence regarding Defendants’ civil theft
damages . . . .

Wright and Morex did not resp ond to the motions in writing but did orally contest the
motions at a pretrial hearing in February 2018. The district court granted all of the motions
in limine except for the fifth, seventh, and ninth, on which it reserved ruling.
On March 6, the first day of trial, the AllenMax entities move d for judgment as a
matter of law (JMOL). They sought JMOL in their favor on appellants’ counterclaims for
breach of contract and civil theft. AllenMax Commercial also sought JMOL in its favor on
its breach-of-contract claim again st Wright. After hearing argu ments, the district court
granted the respondents’ motion for JMOL in its entirety. Speci fically, the district court
granted JMOL in favor of the AllenMax entities on Wright’s and Morex’s counterclaims
for breach of contract and civil theft, and it granted JMOL in favor of AllenMax
Commercial on its breach-of-contra ct claim against Wright, awar ding AllenMax
Commercial $32,700 in damages. Thereafter, the claims remaining f o r t r i a l w e r e
(1) AllenMax Construction’s breach -of-contract claim against Wr ight and (2) AllenMax
Construction’s unjust-enrichment claim against Morex.
Following a trial on those two claims, the jury found in favor of AllenMax
Construction on both, awarding AllenMax Construction $68,517.53 against Wright for
breach of contract and $21,067.79 agai nst Morex for unjust enri chment. Appellants

7
brought post-trial motions for JMO L and/or a new trial. The dis trict court denied the
motions.
Wright and Morex appeal.
D E C I S I O N
I. The district court did not abuse its discretion by granting respondents’ motions
in limine.

Appellants challenge the distric t court’s decisions granting th e AllenMax entities’
motions in limine. “The admission of evidence rests within the broad discretion of the
[district] court and its ruling will not be disturbed unless it is based on an erroneous view
of the law or constitutes an abuse of discretion.” Kroning v. State Farm Auto. Ins. Co., 567
N.W.2d 42, 45-46 (Minn. 1997) ( quotation omitted). “In the abse nce of some indication
that the [district] court exercised its discretion arbitrarily, capriciously, or contrary to legal
usage, the appellate court is bound by the result.” Id. at 46.
A. The district court did not err by considering the motions in limine.

First, appellants argue that the district court erred by even considering the AllenMax
entities’ motions in limine because the motions as a whole func tioned as a motion for
summary judgment. Appellants rely on Hebrink v. Farm Bureau Life Ins. Co., 664 N.W.2d
414, 418-20 (Minn. App. 2003). In Hebrink, a policyholder brought a breach-of-contract
claim against his disability insurer after being denied coverag e for an injury. 664 N.W.2d
at 417. The breach-of-contract claim depended on whether the po licyholder had been
“totally disabled.” Id. “Total disability” meant that a policyholder had been under the care
of a physician for at least 90 days. Id. But the fact of “total disability” was not at the

8
forefront of the dispute—the answer filed by the insurer “did not assert that appellant failed
to establish he was ‘totally disabled.’” Id. A week before the trial began, the insurer filed a
motion in limine requesting that the district court “bar[] the plaintiff from submitting any
testimony relating to ‘total disability’ . . . because it is undisputed that plaintiff was not
under the care of [a] physici an [for] more than 90 days [.]” Id. at 417-18 (alterations in
original). The district court granted the motion in limine and ultimately granted, sua sponte,
summary judgment in favor of the insurer. Id. at 417. This court reversed and remanded
based partly on the following r easoning: “Because [the insurer’ s] motion in limine
functioned as a motion for summary judgment, compliance with [p rocedural rules for
summary judgment motions] was required.” Id. at 419. The insurer’s motion in limine did
not follow the procedural rules for summary judgment motions. Id.
Appellants argue that, as in Hebrink, respondents’ motions in limine as a whole
were the functional equivalent of a motion for summary judgment . This argument is
unconvincing. In Hebrink, this court, in determining th at the motion in limine “was
tantamount to a motion for summary judgment,” looked to the pur pose of a motion in
limine. Id. at 418. “The purpose of a motion in limine is to prevent ‘inje ction into trial of
matters which are irrelevant, inadmissible and prejudicial.’” Id. (quoting Black’s Law
Dictionary 1013 (6th ed. 1991)). The motion in limine in Hebrink did not serve this purpose
because
there [was] no reference in . . . the motion . . . or the
memorandum in support of the motion to any rules of evidence
or other authority that would make the evidence regarding
“total disability” inadmissible. Nor did [the insurer] argue that
the evidence would be irrelevant or prejudicial. Instead, the gist

9
of [the insurer’s] motion was that the evidence regarding “total
disability” should be excluded because appellant could not
prove that he met the policy c ondition by relying on evidence
then in the record.

Id. In other words, in Hebrink, this court focused on the lack of invocation of the
evidentiary rules in the motion in limine, rather than the effect that the motion happens to
achieve.1
Appellants do not dispute that the AllenMax entities’ motions in limine all referred
to relevant evidentiary rules. T hus, at least on the face of th e motions, Hebrink does not
apply. Appellants’ citation to Hebrink, standing by itself, cannot show that all of the
motions in limine were disguised motions for summary judgment and that the district court
erred by considering them.
B. Granting the fourth motion in limine was not reversible error.
But appellants present specific arguments why one of the motio ns in limine—the
fourth—was actually a motion for summary judgment. The fourth motion in limine sought
exclusion of evidence regarding Morex’s rights under the contra cts between Wright and
the AllenMax entities on the groun d that Morex was not a party to the contracts between
Wright and the AllenMax entitie s. That motion did not explicitl y argue that the evidence
would be prejudicial or irreleva nt; instead, it argued that the evidence must be excluded

1 As respondents note, two unpublished opinions of this court st rongly affirm this
proposition. See Heng v. Heng , No. A12-1322, 2013 WL 1395589, at *4 (Minn. App.
Apr. 8, 2013) (“That the effect of the district court’s order g ranting the motion was to
eliminate son’s cause of action does not convert the motion in limine into a summary
judgment motion.”), review denied (Minn. July 16, 2013); Legacy Rest., Inc. v. Minn.
Nights, Inc., No. A11-1730, 2012 WL 3023397, at *5-6 (Minn. App. July 23, 2012) (“But,
in Hebrink, this court focused on the nature of the motion, not the effect.”).

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because Morex’s breach-of-contract claim failed as a matter of law. Thus, the gist of the
argument made by the motion was that the AllenMax entities were entitled to summary
judgment on Morex’s counterclaim and that evidence related to t hat claim was therefore
subject to exclusion on the grounds that it was irrelevant. In order to decide the evidentiary
issue the motion presented, the district court first had to dec ide whether the AllenMax
entities were entitled to summary j udgment on Morex’s breach-of -contract claim. Under
Hebrink, the district court should not have considered this motion. 664 N.W.2d at 419.
However, Hebrink also recognized that a district court’s improper consideration of
a motion in limine that is, functionally, a motion for summary judgment, does not require
automatic reversal. Id. Because district courts may grant summary judgment sua sponte, a
functional grant of summary judgment on a motion in limine is n ot reversible error when
sua sponte summary judgment would be appropriate. Id. A district court may “grant
summary judgment, sua sponte, when (a) no genuine issues of material fact remain, (b) one
of the parties deserves judgment as a matter of law, and (c) the absence of a formal motion
creates no prejudice to the party against whom summary judgment is granted.” Id. The
nonmoving party also must have “ a meaningful opportunity to opp ose” summary
judgment. Id.
The first issue is whether there were any genuine issues of mat erial fact. Id. There
is no dispute that Morex was not a party to the contract. Thus, Morex could only bring a
breach-of-contract claim if it was an intended beneficiary of t he contract. Hickman v.
SAFECO Ins. Co. of Am., 695 N.W.2d 365, 369 (Minn. 2005) (“Generally, a stranger to a
contract does not have rights under the contract, but an except ion exists if a third party is

11
an intended beneficiary of the contract.”). On the first day of trial, Morex objected to the
district court’s order granting the fourth motion in limine, arguing that Morex was a third-
party beneficiary of the contract. The district court rejected that argument because Morex
had not previously asserted the theory that it was an intended third-party beneficiary. The
district court likened Morex’s argument to amendment of pleadin gs and stated that “it’s
too late” for Morex to advance a new theory of relief.
Morex argues that it asserted fro m the outset that it was an in tended third-party
beneficiary. Morex points, first, to the parties’ stipulation to join Morex as a defendant; in
it, the parties agreed “that in the interest of judicial econom y and efficiency Morex . . .
should be joined as a party to this case so that its claims for damages may be litigated and
resolved in this case.” Morex po ints, next, to a statement cont ained in its answer to the
complaint: “Morex . . . was a beneficiary of the contracts between [the AllenMax entities]
and . . . Wright.”
But the facts that Morex assert ed claims for damages against the AllenMax entities
and that Morex would benefit from the AllenMax entities’ contracts do not necessarily give
Morex any rights under the contract. To assert a contractual right to the AllenMax entities’
performance without signing contracts with them, Morex must be an “intended
beneficiary” of the AllenMax entities’ contracts. Hickman 695 N.W.2d at 369.
Unless otherwise agreed between promisor and promisee, a
beneficiary of a promise is an intended beneficiary if
recognition of a right to performance in the beneficiary is
appropriate to effectuate the intention of the parties and either
(a) the performance of the promise will satisfy an
obligation of the promisee to pay money to the beneficiary . . . ;
or

12
(b) the circumstances indicate that the promisee intends
to give the beneficiary the benefit of the promised performance
. . . .

Id. (quoting Restatement (Second) of Contracts § 302 (1979)).
Morex tries to lay claim to th e AllenMax entities’ promises und er their contracts;
the “promisee” of those promises was Wright. Because the AllenMax entities’ performance
of their promises had nothing to do with satisfying “an obligation of [Wright] to pay money
to [Morex],” provision (a) of the Restatement (Second) of Contracts § 302 does not apply.
Restatement (Second) of Contracts § 302. Therefore, the only material issues were whether
making Morex an intended third- party beneficiary was “appropria te to effectuate the
intention of the parties” and whether “the circumstances indica te that [Wright] intend[ed]
to give [Morex] the benefit of [the AllenMax entities’] perform ance,” satisfying
provision (b). Id. But Morex did not bring forth these issues at the district court. As a result,
there was no genuine factual dispute that Morex had no rights u nder the contract between
Wright and the AllenMax entities.
The second issue is whether the AllenMax entities were entitled to judgment as a
matter of law. Hebrink, 664 N.W.2d at 419. Because there was no genuine factual dispute
that Morex lacked rights under th e construction contracts, the AllenMax entities were
entitled to judgment as a matter of law. See Caldas v. Affordable Granite & Stone, Inc. ,
820 N.W.2d 826, 835 (Minn. 2012) (affirming summary judgment on a breach-of-contract
claim against non-parties to the contract that failed to establ ish that they were intended
third-party beneficiaries of the contract).

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The third issue is whether Morex was prejudiced by the absence of a formal motion
for summary judgment. Hebrink, 664 N.W.2d at 419. While Morex asserts that the
procedural impropriety of the motion in limine denied it an opp ortunity to respond, the
claim is only a bare assertion of prejudice. Morex does not exp lain how it would have
responded differently to a formal motion for summary judgment. Nor does Morex claim
that a formal motion would have allowed it to identify evidence creating a genuine issue
of material fact. Because appellants bear the burden of showing error on appeal, we will
not assume that Morex was prejudiced in the absence of any show ing. See Waters v.
Fiebelkorn, 13 N.W.2d 461, 464-65 (Minn. 1944) (“[O]n appeal error is nev er presumed.
It must be made to appear affirmatively before there can be rev ersal . . . [and] the burden
of showing error rests upon the one who relies upon it.”).
T h e f i n a l i s s u e i s w h e t h e r M o r e x h a d a “ m e a n i n g f u l o p p o r t u n i t y to oppose”
summary judgment. Hebrink, 664 N.W.2d at 419. In Hebrink, this court concluded that an
appellant lacked a meaningful op portunity to oppose the motion because nothing in the
record indicated that the appellant knew he would need to addre ss a “potential summary-
judgment motion” on the day of trial. Id. at 419-20. This court distinguished that situation
from a case where the parties had 18 days to submit briefs on the issue of the validity of a
contract. Here, the AllenMax entities’ motions in limine were s ubmitted 12 days before a
pretrial hearing on those motions was held.
While 12 days is a relatively short period of time, we believe that Morex was not
denied a meaningful opportunity to oppose summary judgment. Mor ex filed no written
opposition to the motions. Nor, at the hearing on the motions, did it argue for additional

14
time in which to respond. At the same time, however, Morex’s counsel’s arguments at that
hearing addressed its assertion that the motions in limine were functionally motions for
summary judgment. Thus, Morex was familiar with the motions in limine and had time to
compose arguments against them. Thus, unlike the appellant in Hebrink who was surprised
on the day of trial by a motion challenging a previously uncont ested issue, Morex had
notice of what it had to show. Cf. id. Y e t M o r e x n e v e r s o u g h t m o r e t i m e t o m a r s h a l
evidence or file a response opposing a motion that it believed to be a motion for summary
judgment. Nor did Morex argue that it was a third-party intended beneficiary until after the
court ruled against it on the fourth motion in limine. Morex had a meaningful opportunity
to oppose the motion, even if it did not fully take advantage of that opportunity.
Because the district court could have granted summary judgment sua sponte on
Morex’s breach-of-contract counterclaim, Morex was not prejudic ed by the absence of a
formal motion, and Morex had a meaningful opportunity to oppose the motions, the district
court’s grant of the improper fourth motion in limine does not require reversal. See
Hebrink, 664 N.W.2d at 419.
C. Granting the ninth motion in limine was not an abuse of discretion.
Appellants also challenge the district court’s grant of the ni nth motion in limine.
The ninth motion in limine sought exclusion of all evidence reg arding Morex’s alleged
civil-theft damages. The district court originally reserved ruling on that motion. But, on the
first day of trial, the district court implicitly granted the m otion when it granted JMOL in
favor of AllenMax Construction on the civil-theft counterclaim, apparently based on an
absence of evidence supporting the claim. Appellants’ claim for civil-theft damages was

15
based on alleged costs and attorney fees it incurred in connect ion with responding to
RMS’s mechanic’s lien, although the lien was eventually satisfi ed by AllenMax
Construction. The AllenMax entities argue that appellants’ evidence of civil-theft damages
was not disclosed before trial and therefore was properly excluded. Appellants counter that
they disclosed evidence of thos e damages by claiming approximat ely $7,500 in attorney
fees in an interrogatory answer and by disclosing, on an unidentified date, an invoice.
Appellants bear the burden of showing error. See Waters, 13 N.W.2d at 464-65.
Despite several citations by appellants in their brief, our rev iew of the record reveals no
instance—either during the pretrial hearing on the motions in limine or during the parties’
arguments on the first day of trial—in which appellants responded to the AllenMax entities’
assertion of nondisclosure by demonstrating to the district court that appellants had, in fact,
disclosed evidence of damages through an invoice or other evide nce. On this record,
appellant has failed to demonstrate that the district court abused its discretion by granting
the motion to exclude evidence of civil-theft damages.
II. The district court did not abuse its discretion by denying appellants’ motion
for a new trial.

Appellants challenge the district court’s denial of their motion for a new trial. Minn.
R. Civ. P. 59.01 permits a district court to grant a new trial when an irregularity in the
proceedings deprives the moving party of a fair trial. Minn. R. Civ. P. 59.01(a). Appellate
courts “review a district court’s decision to grant or deny a n ew trial for an abuse of
discretion.” Christie v. Estate of Christie, 911 N.W.2d 833, 838 (Minn. 2018).

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A. Motions in limine
Appellants argue that the district court’s consideration of res pondents’ motions in
limine was an irregularity that entitled them to a new trial be cause the motions were
actually disguised motions for summary judgment. Because, as we explain in Section I.A
above, the district court did not abuse its discretion by consi dering respondents’ motions
in limine, appellants’ new-trial argument on this basis fails.
B. Grant of JMOL to respo ndents at start of trial
Appellants also argue that the district court engaged in anothe r irregularity by
granting JMOL in favor of AllenM ax entities on several claims a t the start of trial. The
district court granted JMOL in favor of the AllenMax entities on appellants’ counterclaims
for breach of contract and civil theft and in favor of AllenMax Commercial on its breach-
of-contract claim against Wright.
As an initial matter, appellants, in their brief, challenge the grant of JMOL on these
claims as a basis for a new trial. But, because JMOL was grante d on these claims at the
start of trial, they were not tried to the jury, and appellants make no argument why the grant
of JMOL would require a new trial on the claims that were actually tried to the jury.
But, if their brief is read more generously, appellants are arg uing that the grants of
JMOL should be reversed and those claims should be tried (not re-tried). They assert that
the grant of JMOL was premature, citing Minn. R. Civ. P. 50.01. Rule 50.01 provides:
If during a trial by jury a party has been fully heard on an issue
and there is no legally sufficient evidentiary basis for a
reasonable jury to find for that party on that issue, the court . . .
may grant a motion for judgment as a matter of law against that
party.

17

Minn. R. Civ. P. 50.01(a) (emphasis added). The district court granted respondents’
motions for JMOL on the first day of trial, before the jury was impaneled. Thus, appellants
argue, respondents’ motions for J MOL were granted before appell ants had been “fully
heard” at trial. Respondents counter that appellants were fully heard and that JMOL was
procedurally appropriate.
Even if the district court violated rule 50.01 by prematurely g ranting JMOL,
appellants still must show that they were prejudiced by the error. See Minn. R. Civ. P. 61
(requiring harmless error to be ignored); Plate v. St. Mary’s Help of Christians Church ,
520 N.W.2d 17, 20 (Minn. App. 1994) (holding that the district court’s “unusual handling
of the directed verdict motion” does not warrant reversal because the nonmoving party “has
not shown any prejudice from the procedure”), review denied (Minn. Oct. 14, 1994).
Appellants make no such showing. The grant of respondents’ moti ons was largely based
on their successful motions in limine. Because appellants fail to show that the rulings on
the motions in limine were reversible error, as explained in Se ction I above, they also fail
to show prejudice from the alleged violation of Rule 50.01—being “fully heard” would not
have enabled them to introduce excluded evidence. Minn. R. Civ. P. 50.01(a).
III. The district court did not err in denying Morex JMOL on it s civil-theft
counterclaim against AllenMax Construction.

Morex argues that the district court erred in denying its postt rial motion for JMOL
under Minn. R. Civ. P. 50.02 on its civil-theft counterclaim ag ainst AllenMax
Construction. Here, Morex argues not that JMOL on the civil-the f t c l a i m i n f a v o r o f

18
AllenMax was erroneous and the claim should be tried, but rather that Morex was, in fact,
entitled to JMOL.
Appellate courts “apply de novo review to the district court’s denial of a Rule 50
motion.” Bahr v. Boise Cascade Corp., 766 N.W.2d 910, 919 (Minn. 2009). “Viewing the
evidence in a light most favorable to the nonmoving party, this court makes an independent
determination of whether there is sufficient evidence to presen t an issue of fact for the
jury.” Jerry’s Enters., Inc. v. Larkin , Hoffman, Daly & Lindgren, Ltd. , 711 N.W.2d 811,
816 (Minn. 2006). A motion for JMOL should be granted
only in those unequivocal cases where (1) in the light of the
evidence as a whole, it would clearly be the duty of the trial
court to set aside a contrary verdict as being manifestly against
the entire evidence, or where (2) it would be contrary to the law
applicable to the case.

Id. (quotation omitted).
Morex claimed civil theft under Minn. Stat. § 514.02 (2018). That statute authorizes
civil actions for damages. Minn. Stat. § 514.02, subd. 1a. As d iscussed in Section I.C
above, the district court excluded all evidence of civil-theft damages. With no evidence of
damages, Morex’s assertion that it was entitled to JMOL on the claim is without merit.
I V . T h e d i s t r i c t c o u r t d i d n o t e r r i n d e n y i n g W r i g h t ’ s m o t i o n for JMOL on
AllenMax Construction’s breach-o f-contract claim but did err in d e n y i n g
M o r e x ’ s m o t i o n f o r J M O L o n A l l e n M a x C o n s t r u c t i o n ’ s u n j u s t - e n r i chment
claim.

Two claims were tried to the ju ry: (1) AllenMax Construction’s breach-of-contract
claim against Wright and (2) Allen Max Construction’s unjust-en richment claim against
Morex. The jury found in favor of AllenMax Construction on the breach-of-contract claim

19
against Wright and awarded damages of $68,517.53. It also found in favor of AllenMax
Construction on the unjust-enrich ment claim against Morex and a warded damages of
$21,067.79. Appellants challenge t he district court’s denial of their posttrial motions for
JMOL on those claims.
A. AllenMax Construction’s breac h-of-contract claim against Wright

AllenMax Construction’s breach -of-contract claim was based on the contention that
it was entitled to $433,094 under the final change order but wa s paid only $364,577. In
other words, AllenMax Constructi on alleged that Wright breached the contract by not
paying the difference—$68,517.
JMOL should only be granted when it is unequivocal that the evi dence cannot
support a verdict against the mo vi n g pa r t y or w he n a ve r di c t a gainst the moving party
would be contrary to law. Jerry’s Enters., 711 N.W.2d at 816. “The construction and effect
of a contract is . . . a question of law unless the contract is ambiguous.” Denelsbeck v. Wells
Fargo & Co., 666 N.W.2d 339, 346 (Minn. 2003). “[W]hether a contract is am biguous is
a question of law, but the interpretation of an ambiguous contract is a question of fact for
the jury.” Id. (citation omitted). Wright advances three arguments for why it was entitled
to JMOL on AllenMax Construction’s claim.
First, Wright argues that, as a matter of law, it did not have to pay AllenMax
Construction the $68,517 because “it was specifically agreed in the [change order] that ‘all
outstanding work will be deducted from [AllenMax Construction’s ] remaining contract’”
and “replacement subcontractors were needed to be hired and pai d . . . to complete the
project.” In essence, Wright’s argument is that the change order did not require Wright to

20
pay more than $364,577 to AllenMax Construction, because the change order allowed for
the deduction of the cost of “all outstanding work” and there w as no dispute that Wright
hired subcontractors to complete the project.
We reject Wright’s argument. There are two plausible interpretations of the phrase
“all outstanding work” as used in the change order. The first i nterpretation is that phrase
means all work left to reach the point at which the parties exp ected, after the change in
circumstances that led to the c hange order, that AllenMax Const ruction would stop
working. Under this interpretati on, the $15,000 deduction repre sented the dollar amount
that the parties negotiated as representing the value of the work that AllenMax Construction
would leave uncompleted. Thus, th is interpretation required Wri ght to pay AllenMax
Construction a total of $433,094, regardless of how much it cost to complete the project.
The second interpretation is that the parties intended “all outstanding work” to refer
to all work left to complete the framing of the hotel. Under this interpretation, the $15,000
deduction from the contract price was purely a penalty, a deduction that was in addition to
an unspecified deduction to be based on Wright’s additional costs to complete the framing.
The jury heard testimony that the parties intended the change order to establish the
final amount Wright owed to AllenMax Construction, regardless o f what Wright had to
pay a successor subcontractor to finish the project. Thus, Wrig ht was not entitled to
judgment as a matter of law on AllenMax Construction’s breach-o f-contract claim based
on the language of the change order because the jury could reasonably have concluded that
Wright breached the contract by paying AllenMax only $364,577. See Jerry’s Enters., 711

21
N.W.2d at 816 (explaining that J MOL is appropriate only when th e verdict is manifestly
contrary to the evidence or the law).
Second, Wright argues that its obligation to pay AllenMax Cons truction was not
triggered because a condition pr ecedent did not occur. The orig inal contract between
Wright and AllenMax Construction included the following provision:
[I]t is mutually agreed that it shall be an express condition
precedent to any obligation owin g by [Wright] to [AllenMax
Construction] to pay for any work, including changed, extra or
additional work performed o r claimed by [AllenMax
Construction] under this [contract], that [Wright] actually
received payment on account thereof from [Morex].

Wright argues that Morex’s bank records conclusively establish the nonoccurrence of the
condition precedent. Morex’s bank records list disbursements made from June 2014 to July
2015, identify who the payees are, and provide a short description about each disbursement.
Although Morex paid more than en ough money to Wright around the time of the change
order, the disbursements all seem to have been designated for uses other than compensating
AllenMax Construction. But the bank records’ descriptions of the purposes of the payments
are not perfectly clear, and the jury could reasonably have con cluded that the condition
precedent was met.
Third, Wright argues that AllenM ax Construction waived its claim for payment by
signing a final-lien-waiver-and-release form on February 4, 201 5. The lien waiver and
release reads:
With reference to construction of the [hotel] . . . , the
undersigned . . . for value received, acknowledges that it has
been paid $433,094 (cumulative dollars to date) for all labor,
services, equipment, and materials provided or transported . . .

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through January 2015 . . . , and hereby fully and
UNCONDITIONALLY waives and releases any and all . . .
claim for payment it now has or asserts, or may have or assert
. . . .

Wright argues that the language of the lien waiver and release conclusively proves that
AllenMax Construction waived its breach-of-contract claim. But there was evidence in the
record suggesting that the waiver was not valid. Under Engstrom v. Farmers & Bankers
Life Ins. Co. , waiver “is a voluntary relinquishment of a known right. Both intent and
knowledge . . . are essential elements.” 41 N.W.2d 422, 424 (Mi nn. 1950) (citations
omitted). And, in this case, the owner of AllenMax Construction testified that his intent in
signing the waiver was to receive the promised payment, not to actually waive his claim to
the agreed-upon contract price. He testified: “You have to sign it to get paid, so I signed it
so we’d get our funds.”
Therefore, the issue is whether the language of the waiver, as a matter of law, trumps
the owner’s own stated intention. In the realm of contracts, th e supreme court has
“consistently stated that when a contractual provision is clear and unambiguous, courts
should not rewrite, modify, or limit its effect by a strained construction.” Valspar Refinish,
Inc. v. Gaylord’s, Inc., 764 N.W.2d 359, 364-65 (Minn. 2009). But waiver is not a contract;
it has its roots in equity. See 28 Am. Jur. 2d Estoppel and Waiver § 183 (2019) (“Waiver
is an equitable doctrine invoked to further the interests of ju stice . . . .”). It is unclear
whether, or to what extent, the rules of contract construction should apply to waiver. In any
event, Wright does not cite any legal authority on this issue, and it fails to conclusively
show that there was a valid waiver.

23
AllenMax Construction’s breach-o f-contract claim was properly presented to the
jury. The district court did not err by denying Wright’s motion for JMOL.
B. AllenMax Constructi on’s unjust-enrichment claim against Morex

Morex argues that it should have prevailed, as a matter of law , on AllenMax
Construction’s claim of unjust enrichment. “Unjust enrichment is an equitable doctrine that
allows a plaintiff to recover a be nefit conferred upon a defend ant when retention of the
benefit is not legally justifiable.” Caldas, 820 N.W.2d at 838. “To establish an unjust
enrichment claim, the claimant must show that the defendant has knowingly received or
obtained something of value for which the defendant in equity and good conscience should
pay.” Id. (quotation omitted).
At trial, AllenMax Construction’s owner testified that RMS’s se rvices were
accounted for in AllenMax Construc tion’s contract with Wright a nd that AllenMax
Construction was responsible for paying RMS. The owner testifie d, however, that
AllenMax Construction was unable to pay a balance remaining to RMS of $42,135.58
because appellants had not paid A llenMax Construction what it w as owed under the
contract. Morex denied responsi bility, contending that, accordi ng to AllenMax
Construction’s previous payment a pplications, Morex had already paid AllenMax
Construction for RMS’s services.
AllenMax Construction’s owner te stified that, when he was in di scussions with
Morex about RMS’s outstanding balance, Morex offered to split t he RMS bill but later
refused to do so. After RMS brou ght the mechanic’s lien action, AllenMax Construction
paid $57,154.57 to RMS in settlem ent of the claim. Although the owner testified that the

24
ultimate payment to RMS exceeded the original balance owing by about $15,000, he
disclaimed any request for the difference and repeatedly stated that, in this action, he was
seeking only the amount remaining on his contract with Wright—$68,517.53.
In closing argument, AllenMax Construction asked the jury to return a verdict in the
amount of $68,517.53. It suggested that the jury split that amount in the special verdict by
awarding $47,517.53 for Wright’s breach of contract and $21,000 for Morex’s unjust
enrichment, which was based on “the amount that [Morex] agreed to split with regards to
the RMS bills.” The jury returned a verdict that, as AllenMax r equested, awarded exactly
half of the remaining RMS balan ce—$21,067.79—against Morex for unjust enrichment.
But the jury also awarded the full $68,517.53 against Wright for breach of contract.
Morex moved for JMOL on the unjust-enrichment claim, which the district court
denied, concluding that sufficient evidence at trial supported the unjust-enrichment verdict.
The district court wrote, “While [Morex] alleges the only basis for the claim was the crane
rental charges, there was additional testimony and evidence pre sented by which the jury
could have used to base its award .” The district court cited te stimony regarding work
performed by AllenMax Construction “for the benefit of [appellants].”
On appeal, AllenMax Construction does not assert that it was no t responsible for
paying RMS. Instead, it argues that it is “untrue” that its cla im for unjust enrichment was
based “solely on an argument” that Morex “still owed AllenMax C onstruction for crane
rental.” It cites AllenMax Construction’s framing work, rental of equipment, and material
and labor costs for doing “everything from erecting framing to shoveling snow” as
alternative evidentiary bases for its unjust-enrichment claim.

25
We conclude that the jury’s verdict on unjust enrichment is ma nifestly contrary to
the evidence. The jury awarded AllenMax Construction the sum of $68,517.53 for breach
of contract by Wright. That number is the difference between th e contract price and what
AllenMax Construction was paid. On top of that, the jury awarded AllenMax Construction
$21,067.79 from Morex for unjust e nrichment. In other words, de spite AllenMax
Construction’s argument to the j ury that it should split the $6 8,517 between Wright and
Morex, the jury did not do so. AllenMax Construction now justif ies the $21,067.79 for
unjust enrichment based on evidence showing that AllenMax Construction performed work
that resulted in a “beautiful hotel,” but the contract with Wright already accounted for that
work and the jury awarded full contract damages. We see no othe r record evidence that
justifies finding that Morex wa s unjustly enriched in the amoun t of $21,067.79. We
therefore reverse the district court’s denial of Morex’s motion for JMOL on AllenMax
Construction’s claim for unjust enrichment and remand for entry of judgment in Morex’s
favor.
V. The district court did not abu se its discretion by presiding over the case.

“Minn. R. Civ. P. 63.03 provides that a party must file its no tice to remove a judge
before the judge first presides in an action, unless the party makes an affirmative showing
of the judge’s prejudice or implied or actual bias.” Matson v. Matson , 638 N.W.2d 462,
469 (Minn. App. 2002). We review a decision to deny a motion to recuse for bias for an
abuse of discretion. See Durell v. Mayo Found., 429 N.W.2d 704, 705 (Minn. App. 1988)
(“Whether to honor a request f or removal based on allegations o f actual prejudice is a
matter for the trial court’s discretion.”), review denied (Minn. Nov. 16, 1988).

26
Immediately before trial, and we ll after the judge had first pr esided in the action,
appellants’ attorney twice orally moved the district court for the judge’s recusal based on
bias. The district court entertained the oral motions and, afte r giving appellants time to
submit a supporting affidavit, denied them. Appellants argue that the district court abused
its discretion.
Each motion was made in response to a ruling adverse to appella nts. Adverse
rulings, especially those that are not shown to be erroneous, cannot constitute prejudice or
bias. Olson v. Olson, 392 N.W.2d 338, 341 (Minn. App. 1986). Appellants’ attorney a lso
cited as evidence of bias that the judge had told him earlier, “I know you hate me.” This
comment was part of the following comments by the district court:
I know you hate me, okay, I get that, but I don’t feel the same
way about you. I—it is not that important. Any of our personal
stuff, whatever it is, you think I hate you just because I rule
against you does not—it’s not personal. It’s based on the law.
It’s based on the case . . . . I’ve read everything over and over
and over and I’m going to tell you straight up, motions in
limine, I was generous. I was generous.

The district court made these c omments after appellants’ counse l vehemently opposed a
ruling, to assure appellants’ counsel that the rulings were not based on any personal animus.
The context and full content of the comments did not demonstrat e bias, they dispelled it.
Because appellants failed to affi rmatively show prejudice or bi as, denial of their motions
for recusal was not an abuse of discretion.
Affirmed in part, reversed in part, and remanded.