Ruth Crosby, 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This opinion will be unpublished and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
A19-0511

Ruth Crosby,
Appellant,

vs.

Champagne D’Argent Rabbit Federation,
Respondent.

Filed May 26, 2020
Affirmed
Rodenberg, Judge

Dakota County District Court
File No. 19HA-CV-18-1832

Bruce Tyler Wick (pro hac vice), Westlake, Ohio (for appellant)

Jeffrey D. Metcalf, Matthew J. Schaap, Dougherty, Molenda, Solfest, Hills & Bauer P.A.,
Apple Valley, Minnesota (for respondent)

Considered and decided by Smith, Tracy M., Presiding Judge; Rodenberg, Judge;
and Peterson, Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Ruth Crosby appeals from th e district court’s summary judgment
dismissing her claims against respondent Champagne D’Argent Rabbit Federation and
denying her motions for relief from the judgment and to amend her complaint to add claims
not previously pleaded. We affirm.
FACTS
Respondent is a Minnesota nonprofit organization that encourages and promotes the
breeding of Champagne D’Argent rabbits. Respondent received unusually large numbers
of membership applications in August 2015 and April 2016. After an investigation,
respondent concluded that ap pellant—who had been a member of respondent for several
years—and appellant’s parents were responsible for the aberrant influx of applications. As
a result, respondent’s executive committee voted to suspe nd appellant’s membership for
one year. Respondent informed appellant by letter that her membership was suspended
and that she would be allowed to reapply for membership after the one-year suspension.
Appellant did not reapply for membership . She sued respondent. Appellant’s
complaint identified no specific legal theory on which respondent was claimed to be liable
but claimed generally that respondent did no t follow “Minnesota law” when it suspended
her membership. Appellant clarified during discovery that her legal claim was that
respondent did not comply with the requirements in the Minnesota Nonprofit Corporation
Act (MNCA), Minn. Stat. §§ 317A.001-.909 (2018). Specifically, she alleged a violation

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of Minn. Stat. § 317A.411, which provides th at a nonprofit corporation may not expel,
suspend, or terminate a member ’s membership except by “a procedure that is fair and
reasonable and is carried out in good faith.”
After discovery closed, respondent moved for summary judgment. In her response
to respondent’s dispositive motion, appellant argued for the first time that she had a right
to bring a wrongful-expulsion claim under Minn esota’s private attorney general statute,
Minn. Stat. § 8.31, subd. 3a (2018). She furt her argued, also for th e first time, that she
“should be allowed to proceed on the alternativ e theories of breach of contract and/or
common law claim for wrongful expulsion” because respondent “violated its own
constitution and common law when it suspended [appellant].” Respo ndent objected to
appellant’s newly raised clai ms, argued that these claims should not be considered, and
argued that it was entitled to summary judgmen t on the claimed viola tion of Minn. Stat.
§ 317A.411, the only claim that appellant had timely asserted.
The district court granted summary judgme nt in respondent’s favor. Concerning
appellant’s claim under the MNCA, the district court concluded that appellant failed to join
the statutorily required number of plainti ffs in her action and that her MNCA claim
therefore failed as a matter of law. The di strict court also concluded that appellant
“improperly” presented her claim under the private attorney general statute. Judgment was
entered, dismissing appellant’s complaint with prejudice.
On March 12, 2019, appellant filed a “no tice of motion and motion for relief from
judgment.” Approximately two weeks later, appellant filed a notice of appeal from the

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district court’s summary judgment dismissi ng her complaint. Then, two days later,
appellant moved the district court to amend her complaint after judgment “to add [a] claim
for punitive damages and for other purposes.” After questioning juri sdiction, this court
stayed the appeal until the district court ruled on the pending motions. After a hearing, the
district court denied appellant ’s motions. We dissolved the stay and ordered that this
appeal proceed.
D E C I S I O N
The district court did not err by granting summary judgment.
Summary judgment is appropriate “if the movant shows that there is no genuine
issue as to any material fact and the movant is entitled to judgment as a matter of law.”
Minn. R. Civ. P. 56.01. A district court’s grant of summary judgment is reviewed de novo.
Montemayor v. Sebright Prods., Inc., 898 N.W.2d 623, 628 (Minn. 2017). When reviewing
a district court’s summary judgment decision, “we determine whether the district court
properly applied the law and whether there are genuine issues of material fact that preclude
summary judgment.” Riverview Muir Doran, LLC v. JADT Dev. Grp., LLC, 790 N.W.2d
167, 170 (Minn. 2010). In conducting this re view, “[w]e view the ev idence in the light
most favorable to the party against whom summary judgment was granted.” Dukowitz v.
Hannon Sec. Servs., 841 N.W.2d 147, 150 (Minn. 2014).

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We first address appellant’s argument that the district court erred when it “declined
to recognize” her claims for breach of contract and viol ation of her common law rights. 1
Appellant did not assert claims for breach of contract or violation of common law in her
complaint. She asserted thos e claims for the first time in her opposition to respondent’s
motion for summary judgment.
A party is bound by her pleadings and a district court need not consider claims raised
for the first time in a memorandum in opposition to summary judgment. See Rios v.
Jennie-O Turkey Store, Inc. , 793 N.W.2d 309, 317-18 (Minn. App. 2011) (holding that
district court did not err by declining to consider claim not asserted in complaint); Roberge
v. Cambridge Coop. Creamery Co. , 67 N.W.2d 400, 403 (Min n. 1954) (“Clearly relief
cannot be based on issues th at are neither pleaded nor vol untarily litigated.”) (footnote
omitted). Appellant did not mo ve the district court at or before the su mmary-judgment
hearing to amend her complaint or to extend the discovery period to develop facts that
might support amendment of the pleadings. The district court did not err when it declined
to consider claims that appellant had not pleaded.
We next address appellant’s argument that the district court erred by granting
summary judgment on her MNCA claim.2 The MNCA governs the creation and operation

1 Appellant does not challenge the district court’s conclusion concerning the application of
the private attorney general statute. We th erefore do not consider the district court’s
resolution of that issue.

2 We recognize that appellant did not specific ally identify the MNCA (or any other legal
basis for relief) in her complaint. But because the district court resolved this issue and the
parties argue it on appeal, we review it.

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of nonprofit corporations in Minnesota. It contains provisions related to members and
membership. Minn. Stat. §§ 317A.401-.467. Relevant here, “[a] member may not be
expelled or suspended, and a membership ma y not be terminated or suspended except
pursuant to a procedure that is fair and reasonable and is carried out in good faith.” Minn.
Stat. § 317A.411, subd. 1. Aggrieved members may assert a statutory cause of action for
a nonprofit corporation’s violation of chapter 317A:
If a corporation or an officer or director of the corporation
violates this chapter, a court in this state, in an action brought
by at least 50 members with voting rights or ten percent of the
members with voting right s, whichever is less , or by the
attorney general, may grant eq uitable relief it considers just
and reasonable in the circumstances and award expenses,
including attorney fees and disbursements, to the members.
Minn. Stat. § 317A.467 (emphasis added).
This court considered a situation fa ctually similar to this case in Jensen v. Duluth
Area YMCA, 688 N.W.2d 574 (Minn. App. 2004). In Jensen, the plaintiff sued the YMCA
under Minn. Stat. § 317A.467, alleging that the YMCA suspended his membership in
violation of Minn. Stat. § 317A .411. 688 N.W.2d at 576-77. The district court granted
summary judgment to the YMCA because it was undisputed that the plaintiff was the only
YMCA member listed in the lawsuit, meaning that the action was not “brought by at least
50 members with voting rights or ten percent of the members with voting rights, whichever
is less.” Id. at 577. We affirmed. Id. at 579.
Appellant conceded in district court that her action required at least 17 of
respondent’s members with voting rights to be joined as plaintiffs in order to comply with

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the requirements of Minn. Stat. § 317A.467. It is undisputed that appellant is the only
member of respondent identified as a plaintiff in this case. Accordingly, there is no genuine
dispute concerning whether appellant satisf ied the requirements for bringing an action
under Minn. Stat. § 317A.467. She did not. The district court correctly granted summary
judgment to respondent.
Still, appellant argues that the district court “ignored law and evidence” showing
that respondent violated the MNCA by te rminating her membersh ip by less than a
unanimous vote of the board of directors, an alleged violation of Minn. Stat. § 317A.239.
But even if everything appellant alleges is tr ue, her failure to join the required number of
members as plaintiffs precluded the district court from granting relief under Minn. Stat
§ 317A.239.
In sum, appellant identified only one th eory of entitlement to relief before
respondent moved for summary judgment, the district court properly declined to consider
appellant’s late-noticed claims , and appellant failed to follow the statutory requirements
for bringing the only claim for relief that she timely pleaded. The district court did not err
by granting summary judgment dismissing plaintiff’s complaint with prejudice.
The district court made no legal error and acted within its discretion when it denied
appellant’s untimely motion to amend her complaint.
After the district court dismissed her complaint by summary judgment, appellant
moved the district court for leave to amend he r complaint. Respondent argues that the
district court did not abuse its discretion by denying appellant l eave to amend because
appellant moved under the wrong rule of civil procedure, respondent did not consent to the

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amendment, respondent objected to the attempt to amend, and appellant failed to serve
respondent with her motion to amend.
Appellant’s motion, by its terms, was to amend her complaint “to conform pleadings
to proof” under Minn. R. Civ. P. 15.02. Under the rule:
When issues not raised by the pleadings are tried by express or
implied consent of the parties, they shall be treated in all
respects as if they had been ra ised in the pleadings. Such
amendment of the pleadings as may be necessary to cause them
to conform to the evidence and to raise these issues may be
made upon motion of any part y at any time, even after
judgment . . . .
We review a district court’s denial of a motion to amend a complaint for an abuse of
discretion. See Harry N. Ray, Ltd. v. First Nat. Bank of Pine City , 410 N.W.2d 850, 856
(Minn. App. 1987).
To amend pleadings under rule 15.02, the claims sought to be added must have been
“litigated by either express or implied consent.” Septran, Inc. v. Indep. Sch. Dist. No. 271,
555 N.W.2d 915, 919 (Minn. App. 1996) (quotation omitted). A claim is not expressly or
impliedly consented to or litigated if the party opposing amendmen t timely objects to
litigation of the claim. Harry N. Ray, 410 N.W.2d at 856 (citing Roberge, 67 N.W.2d at
404). Appellant first asserted her common-law breach-of-contract claims and her claimed
authority to proceed under the private atto rney general statute in her opposition to
respondent’s motion for summary judgment. Respondent immediately objected in its reply
memorandum. Respondent continued to object to the attempted addition of these claims
in opposition to appellant’s motion to amend. Respondent did not expressly or impliedly

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consent to or litigate these clai ms. Instead, at every availa ble opportunity, it objected to
appellant’s attempts to argue that her comp laint should survive summary judgment based
on legal claims not included in her complaint. The district court clearly acted within its
discretion in declining to allow appellant’s proposed amendment under rule 15.02.3
After the entry of judgment, appellant moved to amend her complaint to add a claim
for punitive damages under Minn. Stat. §§ 549.191 and 549.20 (2018). To be granted leave
to amend, appellant was required to show by clear and convincing evidence that respondent
acted with a “deliberate disregard for the rights or safety of others.” Minn. Stat. § 549.20,
subd. 1(a).
The district court did not determine whether appellant made the required prima facie
showing because it found that appellant failed to serve her motion to amend on respondent.
The record does not reflect whether appellant properly served respondent. But even if she
did, the district court did not abuse its disc retion by denying appellant’s motion to amend
her complaint. See Basich v. Bd. of Pensions of Evangelical Lutheran Church in Am., 493
N.W.2d 293, 295-96 (Minn. App. 1992) (concluding district court did not abuse discretion
by denying appellant’s post-judgment motion to vacate summary judgment and amend

3 Had appellant moved to amend her complaint before the summary judgment hearing, the
district court would have ha d the opportunity to consider the arguments now made on
appeal in a procedural postu re that might have resulte d in a different outcome. See
Gunnufson v. Onan Corp. , 450 N.W.2d 179, 182 (Minn. Ap p. 1990) (reversing district
court’s denial of motion to amend complain t to add new claim because the motion “was
timely and [the opposing party] provided no evidence that it w ould be prejudiced by the
amendment”). But the motion to amend was not made at that point, and appellant’s motion
under rule 15.02 was, for the reasons disc ussed, inappropriate for the post-summary-
judgment situation.

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complaint). Appellant’s motion and supporting affidavits summarily assert that respondent
conducted “mass expulsions” of members becaus e of their relationships to appellant and
appellant’s parents. Appellant presented the district court with no facts showing that any
such “mass expulsions” were improper or illegal. The bald allegation of such expulsions
falls well short of establishi ng a prima-facie showing that respondent acted with a
“deliberate disregard for the rights or safety of others.” See In re 3M Bair Hugger Litig. ,
924 N.W.2d 16, 24 (Minn. App. 2019) (affirming district court’s conclusion that appellants
failed to establish prima facie case where their “arguments lacked any support, much less
clear and convincing evidence”), review denied (Minn. Mar. 27, 2019).
The district court acted within its discreti on when it denied ap pellant’s motion for
relief from judgment.
Finally, appellant argues that the district court erred by denying her motion for relief
from judgment under Minn. R. Civ. P. 60.02. We review the denial of a motion for relief
from judgment for an abuse of discretion. 4 Cole v. Wutzke, 884 N.W.2d 634, 637 (Minn.
2016).

4 The district court construed appellant’s moti on as one for reconsideration and denied it
as improperly brought. Appellant does not argue that this was error. Because we review
either a motion under rule 60.02 or a request for reconsideration for an abuse of discretion,
the district court’s treatment of the purported rule 60.02 motion as one for reconsideration
is ultimately of no relevance to our resolution of the issue on appeal. See Lee v. Lee, 749
N.W.2d 51, 62 (Minn. App. 2008) (“It is within the district court’s discretion to rule on a
motion despite [movant]’s late filings.”), aff’d in part and rev’d in part on other grounds,
775 N.W.2d 631 (Minn. 2009).

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Appellant’s rule 60.02 motion alleged that th e district court legally erred when it
granted summary judgment in respondent’s favor. Legal error is not a basis upon which a
district court may grant relief fr om a judgment under rule 60.02. See Minn. R. Civ. P.
60.02; see also Reid v. Strodtman, 631 N.W.2d 414, 420 (Minn. App. 2001) (“Rule 60.02
is intended to correct mistake or inadvertence of a party and does not allow for correction
of judicial error.”). But even if it were, as discussed above, the district court did not err in
its legal conclusions . The district court properly appl ied the law and acted within its
discretion in all respects.5
Affirmed.

5 We also note that appellant does not cite any legal authority in support of her position on
appeal, arguably rendering her argument forfeited. See Scheffler v. City of Anoka , 890
N.W.2d 437, 451 (Minn. App. 2017) (“An assignment of error on mere assertion,
unsupported by argument or au thority, is forfeited and need not be considered unless
prejudicial error is obvious on mere inspection.”) (citing Schoepke v. Alexander Smith &
Sons Carpet Co. , 187 N.W.2d 133, 135 (Minn. 1971)), review denied (Minn. Apr. 26,
2017). In the interest of fa irness and completeness, we have not considered appellant’s
arguments on appeal as forfeited.