Cambria Company LLC, Appellant,

This opinion will be unpublished and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
A18-1978

Cambria Company LLC,
Appellant,

vs.

M&M Creative Laminants Inc.
d/b/a M&M Creative Laminates Inc.,
Respondent.

Filed August 5, 2019
Appeal dismissed; motion denied
Slieter, Judge

Le Sueur County District Court
File No. 40-CV-17-662

Susan E. Tegt, Andrew D. Moran, Larkin Hoffman Daly & Lindgren, Ltd., Minneapolis,
Minnesota; and

David F. Herr, Erica A. Holzer, Maslon LLP, Minneapolis, Minnesota (for appellant)

Matthew J. Schaap, Brian J. Wisdorf, Dougherty, Molenda, Solfest, Hills & Bauer P.A.,
Apple Valley, Minnesota; and

Leland P. Schermer ( pro hac vice ), Leland Schermer & Associates, P.C., Pittsburgh,
Pennsylvania (for respondent)

Considered and decided by Slieter, Presiding Judge; Halbrooks, Judge; and Reyes,
Judge.

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U N P U B L I S H E D O P I N I O N
SLIETER, Judge
Appellant Cambria Company LLC, a Minnesota business, and respondent M&M
Creative Laminants Inc., a Pennsylvania business, came before the district court related to
a collection action filed by Cambria and counterclaims raised by M&M. Cambria moved
to dismiss, pursuant to Minn. R. Civ. P. 12.02(e) , three of M&M’s counterclaims , which
included a claim under the Minnesota Franchise Act (MFA), Minn. Stat. §§ 80C.01-.30
(2018). Cambria asserted M&M could not obtain relief pursuant to the MFA as a purported
non-Minnesota franchisee. The district court denied Cambria’s motion to dismiss.
Subsequently, the district court certified two questions as important and doubtful: (1)
whether the MFA applies to non -Minnesota franchisees , and (2) whether the part ies’
contractual choice-of-law provision changes the answer to the first question. Cambria also
filed a motion to strike M&M’s brief and addendum that was referred to this panel.
This litigation will not end if we answer the questions certified and the answer will
not have statewide impact. Therefore, t he certified questions are not important and
doubtful, and the motion to strike is moot. We dismiss the appeal and deny the motion to
strike.

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FACTS1
M&M is a family -owned business in Pittsburgh, Pennsylvania , providing
professional kitchen and bath designs and construction services. In 2008, Camb ria’s
regional representative approached M&M about becoming a primary franchisee for
Cambria in the Pittsburgh region. Cambria allegedly represented to M&M that if M&M
acted as Cambria’s franchisee for the region, Cambria would not offer its products for sale
in “Big Box” stores. On or about May 15, 2009, t he parties executed a business-partner
agreement (BPA), which included a provision that disputes between the parties would be
addressed in Le Sueur County, Minnesota, and that Minnesota law would apply to the
contract. Cambria and M&M engaged in their business relationship for eight years.
On or about May 2, 2017, Cambria, through its district manager and general
manager, informed M&M it would be terminating the BPA immediately, and Cambria
would no l onger sell its products to M&M. Cambria provided no ex planation for its
termination.
Subsequently, the parties commenced lawsuits in different jurisdictions. These
actions were eventually consolidated into one action in Le Sueur County. Cambria filed a
collection action, and M&M filed counterclaims asserting: (1) breach -of-franchise
agreement, (2) breach of contract , (3) unjust enrichment, (4) intentional interference with
contractual relations, (5) unfair competition, and (6) a claim for declaratory judgment.

1 Because this matter comes before the court following a motion to dismiss, the facts
alleged in the counterclaim are accepted as true. Hall v. State, 908 N.W.2d 345, 349 n.1
(Minn. 2018).

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Cambria moved to dismiss for failure to state a claim upon which relief can be
granted pursuant to Minn. R. Civ. P. 12.02(e). Cambria sought dismissal of M&M’s
counterclaims of breach-of-franchise agreement, unfair competition, and declaratory
judgment. The district court denied Cambria’s motion to dismiss in its entirety. In the
district court’s order denying Cambria’s motion to dismiss, the district court addressed
application of the MFA related to the breach -of-franchise-agreement claim. The d istrict
court reasoned that M&M, as a non-Minnesota franchisee, was not protected by the MFA
but that the parties’ Minnesota choice-of-law contractual provision allowed M&M to assert
the counterclaim. Then the district court went on to apply the MFA becau se the “facts
presented by Cambria and M&M” supported the finding that the parties’ agreement
constituted a franchise agreement. Because the parties’ agreement constituted a franchise,
the district court determined the wrongful -termination provision pursu ant to Minn. Stat.
§ 80C.14, subd. 3(a), may apply based on “factual conclusions to be determined by the trier
of fact when all the evidence has been duly presented.”
Cambria moved to certify questions as important and doubtful for appellate review
pursuant to Minn. R. Civ. App. P. 103.03(i) and to stay discovery pending the answer to
these questions. M&M opposed certification and staying discovery. Following a hearing,
the district court granted Cambria’s motion to certify the following questions:
1. May a non-Minnesota resident claiming to be a
franchisee invoke the provisions of the Minnesota Franchise
Act where its only connection with Minnesota is the location
of the purported franchisor?

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2. Does a contractual provision providing that the parties
are bound by Minnesota law change the answer to the first
question?
The district court denied Cambria’s request to stay discovery, and the appellate record
indicates a number of discovery disputes between the parties , including: an emergency
motion to compel C ambria to participate in discovery, a motion to quash a subpoena and
obtain a protective order, and a motion to compel M&M to respond to discovery requests.
D E C I S I O N
I. The questions certified by the district court are not “important and doubtful.”
Pursuant to Minn. R. Civ. App. P. 103.03(i), an appeal may be taken from a district
court’s certification of questions that present as “important and doubtful” after an order
that denies a motion to dismiss for failure to state a claim upon which relief can be granted,
Minn. R. Civ. P. 12.02(e), or an order that denies a motion for summary judgment, Minn.
R. Civ. P. 56.01. Certification “should be used sparingly, and only where intermediate
appeal may avoid protracted or expensive litigation.” Jostens, Inc. v. Federated Mut. Ins.
Co., 612 N.W.2d 878, 884 n.2 (Minn. 2000) (quotation omitted). “‘The certification
process is not a substitute for the normal appellate process nor a method for securing
advisory opinions.’” Doe 175 ex rel. Doe 175 v. Columbia Heights Sch. Dist., 842 N.W.2d
38, 44 (Minn. App. 2014) (quoting Jacka v. Coca-Cola Bottling Co., 580 N.W.2d 27, 30
(Minn. 1998)).
“We independently review whether a question is important and doubtful.” Siewert
v. N. States Power Co. , 757 N.W.2d 909, 914 (Min n. App. 2008), aff’d, 793 N.W.2d 272
(Minn. 2011); see also Emme v. C.O.M.B., Inc. , 418 N.W.2d 176, 180 -81 (Minn. 1988)

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(applying de novo review to determine whether a question is important and doubtful). This
court may decline to reach the merits that the certified questions pose if it concludes that
the questions are not important and doubtful. See Proprietors Ins. Co. v. Cohen , 451
N.W.2d 904, 906 (Minn. App. 1990) (dismissing appeal , holding that “[t ]he question
presented [was] neither important nor doubtful, and certification was inappropriate”).
“A question is doubtful only if there is no controlling precedent.” In re Welfare of
Child of L.M.L., 730 N.W.2d 316, 319 (Minn. App. 2007) (quotation omit ted). “Even if
the question is one of first impression, there must be substantial ground for difference of
opinion before certification is appropriate.” Proprietors Ins. Co., 451 N.W.2d at 906. The
mere fact a question is vexing does not constitute a ba sis for certification. Emme, 418
N.W.2d at 179.
A. Doubtful
We recognize that the issue of whether the MFA applies to non -Minnesota
franchisees appears to be a question without controlling precedent. The supreme court in
Martin Inv’rs, Inc. v. Vander Bie recognized the legislature’s intent in adopting the MFA
was to protect franchisees in Minnesota. 269 N.W.2d 868, 872 (Minn. 1978) (“Chapter
80C was adopted in 1973 as remedial legislation designed to protect potential franchisees
within Minnesota from unfai r contracts and other prevalent and previously unregulated
abuses in a growing national franchise industry.”) . We are bound by the supreme court’s
decision in Martin Inv’rs, Inc. See State v. M.L.A. , 785 N.W.2d 763, 767 (Minn. App.
2010) (“The district c ourt, like this court, is bound by supreme court precedent and the
published opinions of the court of appeals . . . .”), review denied (Minn. Sept. 21, 2010).

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However, Martin Inv’rs, Inc., does not address the issue now raised by the parties on the
scope of the MFA. Therefore, the question does appear to be doubtful. Even so, and as
noted above, our analysis must also consider whether the question is important.
B. Important
Even though a certified question may be doubtful, for this court to exercise its
jurisdiction pursuant to Minn. R. Civ. App. P. 103.03(i), the certified question must be
important as well. Whether a question is important depends on balancing a number of
factors. Jostens, Inc., 612 N.W.2d at 884. “A question is increasingly important if: (1) it
will have statewide impact, (2) it is likely to be reversed, (3) it will terminate lengthy
proceedings, and (4) the harm inflicted on the parties by a wrong ruling by the district court
is substantial.” Id. “Conversely, the question is decrea singly important if: (1) it is likely
to be affirmed, (2) it is likely that trial will moot the issue, (3) reversal of the question will
not terminate the action, and (4) reversal of the question will not relieve the parties of any
significant burden.” Id. The factors for importance do not warrant equal consideration,
and courts should place significant weight on whether reversal may terminate the
proceedings. Id. However, “[t]he fact that reversal will not terminate the proceedings is
not in and of itself determinative of whether the question is ‘important.’” Id.
[I]f reversal will not terminate the proceedings, we will require
that a district court, in certifying the question, make specific
findings as to how the interlocutory appeal will materially
advance the ultimate termination of litigation and avoid
protracted or expensive litigation. . . . [I]f the questions are
otherwise properly certified, we will remand for such findings.
However, such remand is only necessary if the questions also
meet the “doubtful” prong . . . .

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Id. “[A] great deal of importance should be placed on whether reversal of the question will
terminate the proceedings. This is consistent with the general policy against piecemeal
litigation, . . . .” Id. (footnote omitted).
1. Answering the certified questions will not terminate lengthy
proceedings.

We begin with the fact that addressing the certified questions will not terminate the
litigation in this matter. As the district court reasoned in its order certifying questions to
this court, answering these questions “would merely change the law to be applied to the
case” and “[a]t best, it will clarify the proper law to be applied and eliminate re -trial if the
incorrect law was originally applied.” Both parties concede that, even if we answered the
certified questions in favor of Cambria disallowing M&M’s MFA counterclaim to proceed,
the parties have nine outstanding claims for trial related to the parties’ business relationship
over the last eight years. Although Cambria asserts that resolution of the MFA claim would
precipitate resolution of the remaining matters, the basis for that claim is unclear. Cambria
appears to rely on issues of M&M identifying $83 million in possible damages related to
the MFA claim as the basis for delaying resolution of this case. However, M&M notes the
damages related to the MFA counterclaim will be the same damages raised on the
alternative breach-of-contract counterclaim. The only damages not recoverable if the MFA
claim is dismissed are reasonable attorney fees that m ight be awarded pursuant to Minn.
Stat. § 80C.17, subd. 3. Because answering the certified questions will not terminate the
litigation, this factor weighs heavily against the questions being properly certified.

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2. Likelihood of the district court’s decis ion being affirmed or
reversed.

Whether a question should be certified includes consideration of the district court’s
decision being affirmed or reversed. Without reaching the merits of the underlying appeal,
on its face, we cannot plainly determine the likelihood of affirming or reversing the district
court’s decision.
3. It is possible the issue may be mooted by trial.
An additional factor for consideration on importance is whether the appeal may be
mooted during the trial. Both parties acknowledge this matter may be mooted by particular
fact-finding related to whether M&M ’s business relationship with Cambria qualified as a
franchise pursuant to the MFA. See Minn. Stat. § 80C.01, subd. 4(a) (defining franchise
for application under the MFA). If the fact-finder determines that M&M fails to meet the
definition of a franchise to implicate the MFA, then the answer to the certified questions
would merely constitute an advisory o pinion—contrary to the purpose of certified
questions. See Doe 175, 842 N.W.2d at 44. This factor also weighs against considering
the questions being properly certified.
4. The record lacks support to find that this is an issue of statewide
impact.

A question, however, may also present an issue of statewide impact that supports
certification. See Hall v. State , 890 N.W.2d 728, 733 (Minn. App. 2017) (recognizing,
among other grounds, that $606 million in abandoned property controlled by the state for
a class of at least tens of thousands of members had a statewide impact) , rev’d on other
grounds, 908 N.W.2d 345 (Minn. 2018). The parties acknowledge the record lacks any

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support that answering these certified questions has statewide impact. Although the district
court’s order references that “[t]here are hundreds, if not thousands, of Minnesota
businesses that have developed ambiguous partnerships that could potentially be within the
penumbra of the Minnesota Franchise Act, but not being conducted as s uch,” the record
does not include any information to support this finding.
Although this court is cognizant of the district court’s desire to ensure the correct
legal standard applies to this case going forward, we must also consider the need to avoid
piecemeal litigation posed by answering certified questions that do not terminate the action.
These certified questions focus solely on the MFA counterclaim presented by M&M .
Therefore, even if the court answered the questions, the parties would still be litigating the
collection action raised by Cambria and M&M’s other counterclaims. Accordingly, we
conclude the certified questions are not important, and the appeal must be dismissed.
Proprietors Ins. Co., 451 N.W.2d at 906.
II. Cambria’s motion to strike M& M’s brief is denied because the appeal is
dismissed.

Cambria requests this court strike M&M’s brief and addendum for noncompliance
with the Minnesota Rules of Civil Appellate Procedure and order M&M to refile and
comply with the appellate rules of procedu re. Because we do not reach the merits of the
appeal, the motion to dismiss is denied as moot.
Appeal dismissed; motion denied.