Big-D Construction Midwest, 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This opinion will be unpublished and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
A19-1764

Big-D Construction Midwest, LLC,
Appellant,

vs.

JL Schwieters Construction, Inc.,
Respondent,

vs.

Chicago Flameproof & Wood Specialties Corp.,
Respondent.

Filed September 8, 2020
Affirmed
Reilly, Judge

Hennepin County District Court
File No. 27-CV-16-16766

Bradley D. Fisher, Brian D. Steffes, Fisher Bren & Sheridan, LLP, Minneapolis,
Minnesota; and

Ben Patrick, Gordon Rees Scully Mansukhani, San Francisco, California (for appellant)

Ernest F. Peake, James M. Jorissen, Stacey L. Drentlaw, Patrick J. Lindmark, Taft
Stettinius & Hollister LLP, Minneapolis, Minnesota (for respondent JL Schwieters
Construction, Inc.)

James J. Hartnett, Rachel A. Osdoba, Faegre Drinker Biddle & Reath LLP, Minneapolis,
Minnesota (for respondent Chicago Flameproof & Wood Specialties Corp.)

Considered and decided by Larkin, Presiding Judge; Reilly, Judge; and Jesson,
Judge.

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U N P U B L I S H E D O P I N I O N
REILLY, Judge
This appeal follows a jury trial on construction-defect claims brought by appellant-
general-contractor against respondent -carpentry-subcontractor and subcontractor’s third -
party claims against respondent-materials-supplier. Appellant argues that the district court
erred by denying appellant’s posttrial motion for judgment as a matter of law on its
contractual-indemnity claims, and abused its discretion by awarding attorney fees and costs
to respondent-subcontractor as the prevailing party. We affirm.
FACTS
Appellant Big-D Construction Midwest LLC (Big -D) is a general contractor with
its principal place of business in Minneapolis, Minnesota. Respondent/third-party plaintiff
JL Schwieters Construction Inc. ( JLS) is a carpentry contractor in Hugo, Minnesota.
Respondent/third-party defendant Chicago Flameproof & Wood Specialties Corp. (CFP)
is an Illinois-based supplier that manufactures and distributes treated lumber products.
In 2015 and 2016, Big-D entered into contracts to serve as the general contractor on
two separately-owned, mixed-use building complexes in the Minneapolis area, one at 3118
Lake Street (the 3118 Project) and the other at 1700 Minnetonka Boulevard (the 1700
Project or, together, the projects). Big -D subc ontracted with JLS for the wood -frame
construction of the buildings. JLS agreed to provide “all supervision, labor and equipment”
required for the construction projects, and to perform its work in accordance with the plans
and specifications for each project. Big -D agreed to pay JLS $2,636,335 for the 3118
Project, and $2,252,450 for the 1700 Project.

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JLS subcontracted with CFP to supply specialized fire -retardant treated lumber,
known as FRT lumber, for the exterior wall panels of buildings. The Minnesota Building
Code requires that wood -framed ex terior walls, such as those used in the projects, be
constructed with FRT lumber. Industry practice also stipulates that once an architect has
stamped and approved a proposal specifying certain materials, only those approved
materials may be used on the c onstruction project. The subcontracts required JLS to
procure FRT lumber from one of the approved manufacturers for that product. JLS
submitted a proposal to Big-D and the architect, identifying three brand-name types of FRT
lumber for the projects. Big -D and the architect approved JLS’s proposal to use one of
these three types of FRT lumber on the construction projects.
JLS believed that it ordered a specific bran d of FRT lumber from CFP. But CFP
instead delivered a generic brand of FRT lumber to JLS. This generic lumber was not one
of the three FRT lumber brands preapproved by Big -D or the architect. CFP shipped the
generic FRT lumber to JLS, which JLS used to manufacture the wood-frame panels for the
exterior walls of the projects. JLS prefabricated the wood -frame panels at its shop and
began installing these panels on the projects in the spring of 2015.
Big-D agreed, under the construction contracts, to ensure that the materials installed
in the projects and its subcontractors’ work complied with the contract documents and the
Minnesota Building Code. The contracts obligated Big-D to arrange for a special
inspection at JLS’s shop to verify that it s work conformed to approved construction
documents and referenced standards. But Big-D did not arrange for a special inspection at
JLS’s shop. In June 2016, city officials learned that JLS installed uncertified lumber in the

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projects. City officials ordered Big -D to stop all work on the exterior framing of the
projects. In August 2016, Big-D issued a stop-work order, directing JLS to remove all of
the generic FRT lumber and replace it with preapproved FRT lumber at no cost to Big -D.
The parties agreed that Big-D would pay JLS the amount due and owing under the original
subcontracts, and that JLS would pay for labor and materials related to removing and
replacing the lumber. JLS completed the removal and replacement process at a cost of
$2,107,944.06 on the 3118 Project, and $350,524.73 on the 1700 Project.
In November 2016, Big-D initiated a civil action against JLS alleging two counts of
contractual indemnity and two counts of breach of contract, and claim ed $6.6 million in
delay damages. JLS filed an answer generally denying Big -D’s claims and asserting a
breach-of-contract counterclaim against Big -D for $2.5 million , asserting that (1) Big -D
failed to pay JLS the full amounts owed on the subcontract, and (2) for costs incurred in
removing and replacing the FRT lumber. JLS impleaded CFP as a third -party defendant
and asserted third-party claims against CFP for common-law indemnity and contribution,
if Big-D obtained judgment against JLS.1
Before trial, JLS filed a motion in limine to preclude Big -D from introducing
evidence of the indemnity provision s at trial on the ground that the provisions were
unenforceable under Minnesota law. At the motion hearing, Big -D noted that the
enforceability of the indemnity clauses was a question of law and could be addressed after
trial. Big-D agreed not to introduce evidence about the indemnity provisions at trial. The

1 CFP notes on appeal that, while it settled its differences with JLS before trial, it remains
exposed to potential indemnity obligations to JLS.

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district court granted JLS’s in limine motion and ruled that “Indemnity will be addressed
after the trial. If circumstances change, [Big-D] may request permission from the Court to
address it during the trial.” Big-D did not request permission to address its indemnity
claims at trial.
The district court conducted a ten -day jury trial. At the close of testimony, the
district court reviewed the proposed jury instructions and special verdict form with counsel.
Big-D did not object to the jury instructions or the special verdict form. The special verdict
form included questions relate d to Big -D’s claims against JLS, asking: (1) whether JLS
breached its subcontract with Big -D for the 3118 Project and 1700 Project; (2) whether
JLS’s breach caused damage to Big-D; and (3) what amount of money would fairly and
adequately compensate Big-D for its damages. The parties did not ask the district court to
instruct the jury on the issue of JLS’s indemnity obligations to Big-D.
After six hours of deliberation, the jury returned its verdict , finding that: (1) JLS
breached the subcontracts with Big -D; (2) Big -D suffered damages as a result of the
breaches; and (3) Big-D was entitled to damages of $0, presumably because it should have
discovered JLS’s failures by facilitating a special inspection .2 The jury awarded JLS
$506,614.76 on its breach-of-contract counterclaim, which included $284,892.86 for the
3118 Project and $221,721.90 for the 1700 Project.

2 Because the jury determined that Big-D was not entitled to monetary damages, it did not
reach the question of whether JLS was entitled to indemnity from CFP on JLS’s third-party
claim.

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Following trial, Big-D moved for judgment as a matter of law on its contractual-
indemnity claims .3 Big-D argued that JLS was obligated under the subcontracts to
indemnify Big -D for any and all damages arising out of JLS’s breach, “regardless of
whether any other party engaged in any other wrongful act or omission that contributed to
those damages.” Big-D sought indemnity damages of nearly $6.6 million —the same
damages it sought under its breach-of-contract claims. The district court denied the motion
and determined that “[t]he indemnity clauses in the subcontracts f or [the projects] are
valid.” But despite its determination that the indemnity clauses were valid, it denied Big-
D’s motion because there were no damages to indemnify. Specifically, the district court
noted that Big-D was not entitled to contractual indemnity because the jury d id not award
any damages to Big -D on its breach -of-contract claims and “there are no damages to
indemnify.”
After trial, JLS moved for its attorney fees and costs under the subcontracts. The
subcontracts contained a fee-shifting provision stating that, “In the event of a dispute, the
prevailing party shall be entitled to recover from the other party all reasonable attorney
fees, expert fees, costs and expenses incurred, including statutory interest.” The district
court determined that JLS was entitled to recover its attorney fees and costs as the
prevailing party and appointed a special master to evaluate the request. The special master
recommended an award to JLS of $800,020.25 in attorney fees and $119,519.99 in costs
and disbursements. Big-D objected to the special master’s recommended award on the

3 Big-D also moved for judgment as a matter of law on its breach-of-contract claims. The
district court denied the motion; Big-D does not challenge this determination on appeal.

7
ground that JLS was not the prevailing party. The district court rejected Big-D’s argument,
adopted the special master’s recommendations in full, and entered judgment in JLS’s favor
for $800,020.25 for attorney fees and $119,519.99 for costs and disbursements.
This appeal follows.
D E C I S I O N
I. The district court did not err by denying Big-D’s posttrial motion for judgment
as a matter of law on its contractual-indemnity claims.
a. Big-D forfeited appellate review of this issue.
Big-D argues that the district court erred by denying its posttrial motion for
judgment on its contractual -indemnity claims against JLS. Big-D specifically challenges
the district court’s jury instructions on the grounds that the jury was not asked to determine
indemnity damages and was not instructed on the standard for an indemnity award. “The
district court has broad discretion in determining jury instructions and we will not reverse
in the absence of abuse of discretion.” Hilligoss v. Cargill, Inc ., 649 N.W.2d 142, 147
(Minn. 2002). The district court also has “broad discretion in framing special verdict
questions.” Lake Superior Ctr. Auth. v. Hammel, Green & Abrahamson, Inc., 715 N.W.2d
458, 480 (Minn. App. 2006) (citations omitted), review denied (Minn. Aug. 23, 2006).
The subcontracts between Big-D and JLS contained a “Duty to I ndemnify, Defend
and Hold Harmless” provision, under which JLS agreed to indemnify Big-D “from any and
all claims . . . of every kind and nature whatsoever” related to the construction subcontracts.
Big-D argues that JLS has to indemnify Big-D against all damages arising from JLS’s acts
or omissions, even if any of Big-D’s acts contributed to those damages. Thus, Big-D argues

8
that its errors—such as not conducting a special investigation—did not absolve JLS of its
obligation to indemnify Big-D from damages otherwise attributable to JLS’s breach. “[A]n
action based on an indemnity agreement is for the recovery of money based upon the
promise to pay and is therefore triable by a jury. If fact issues exist with respect to the
indemnity agreement, they are for the jury.” United Prairie Bank -Mountain Lake v.
Haugen Nutrition & Equip., LLC , 813 N. W.2d 49, 55 (Minn. 2012) (quotation omitted);
see also Minn. R. Civ. P. 49.01(a) (requiring party demand su bmission of fact issue to
jury).
Big-D stated in its posttrial motion that the underlying factual basis for its indemnity
claims was identical to the factual basis for its breach -of-contract claims. During the
posttrial hearing, the district court inquired, “if [the court] had decided the enforceability
question before trial and ruled in your favor and we had a jury trial on damages, your case,
your factual case, would be the same. ” Big-D’s counsel responded, “Correct.” And Big-
D did not request jury instructions or special -verdict-form questions about its claims for
indemnity damages. After the parties finished presenting their cases, the district court met
with counsel to review the proposed jury instructions and the special verdict form. Big-D
did not object to the jury instructions , nor did it object to the lack of questions related to
indemnity damages. The district court presented the stipulated instructions and special -
verdict-form questions to the jury.
The failure to request a jury instruction constitutes forfeiture of the issue on appeal.
Germann v. F.L. Smithe Mach. Co ., 381 N.W.2d 503, 509-10 (Minn. App. 1986) (stating
that when party does not request jury instruction and neither jury instructions nor special -

9
verdict form include issue, appel late court may not consider it), aff’d, 395 N.W.2d 922
(Minn. 1986); see also Murphy v. City of Minneapolis, 292 N.W.2d 751, 755 (Minn. 1980)
(concluding that party’s failure to object to jury instructions at trial waives right to appeal
issue). Similarly, “a failure to object to a special verdict form prior to its submission to the
jury constitutes a waiver of a party’s right to object on appeal.” Kath v. Burlington N.
Railroad Co., 441 N.W.2d 569, 572 (Minn . App. 1989) (citation omitted), review denied
(Minn. July 27, 1989); see also H Window Co. v. Cascade Wood Prods., 596 N.W.2d 271,
274 (Minn. App. 1999) (stating that “a party who fails to object to a special verdict form
before its submission to the jury, waives any later objection”), review denied (Minn. Aug.
17, 1999).
Here, it is uncontroverted that Big -D did not request jury instructions or spec ial-
verdict-form questions related to its contractual-indemnity claims. Thus, the district court
did not instruct the jury on JLS’s indemnity obligations to Big-D, or on indemnity damages.
The special verdict form included no questions related to the indemnification provisions of
the subcontracts between Big -D and JLS . Because Big -D failed to object to the jury
instructions and special verdict form, we consider this issue forfeited.
We determine, further, that Big-D failed to preserve this issue for appeal. Generally,
we will not consider matters not argued to, or considered by, the district court. Thiele v.
Stich, 425 N.W.2d 580, 582 (Minn. 1988). A party may neither raise a new issue on appeal
nor “obtain review by raising the same general issue liti gated below but under a different
theory.” Id.; see also Crowley v. Meyer, 897 N.W.2d 288, 293 (Minn. 2017). A party must
object to jury instructions at trial to preserve its objection. Minn. R. Civ. P. 51.04(a).

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Further, “matters such as . . . jury instructions are subject to appellate review only if there
has been a motion for a new trial in which such matters have been assigned as error.”
Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn. 1986); see also County of Hennepin v.
Bhakta, 922 N.W.2d 194, 198 (Minn. 2019) (noting that a new -trial motion provides the
district court with an opportunity to remedy errors or more fully develop the record).
JLS filed a n in limine motion to prohibit Big -D from introducing evidence of the
indemnity provisions at trial. Big-D noted that the enforceability of the indemnity clauses
was a question of law for the court and could be presented to the bench after trial. The
district court ruled that “Indemnity will be addressed after the tria l. If circumstances
change, [Big-D] may request permission from the Court to address it during the trial.” At
trial, Big-D did not request permission to address or prove anything related to its indemnity
claims. Big-D did not offer, or seek to offer, any separate proof or instructions re lated to
indemnity damages.
The record establishes that the district court afforded Big-D the opportunity to raise
the indemnity issue during trial if circumstances changed. Before trial the district court
determined that indemnity “might be another issue that comes up in . . . the verdict form
or the instructions.” The district court reasoned tha t while indemnity wa s “a legal
question,” it also had “some evidentiary aspects to it and evidence to argue.” Thus, the
district court did not preclude Big-D from eliciting testimony or proposing jury instructions
related to the measure of indemnity damages , if circumstances changed during trial . See,
e.g., State v. Word, 755 N.W.2d 776, 783 (Minn. App. 2008) (recognizing that “evidentiary

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objections should be renewed at trial when an in limine or other evidentiary ruling is not
definitive but rather provisional or unclear”).
Because Big -D failed to exercise its opportunity to propose jury instructions or
special-verdict-form questions related to indemnity damages, failed to object to the jury
instructions prepared by the district court and parties, and failed to seek relief from the
district court in a new-trial motion, we determine that Big-D did not preserve the issue for
appeal.
b. Big-D is not entitled to a new trial under the plain-error standard of review.
While we determine that Big-D forfeited this issue because it failed to object to the
jury instructions, we determine, further, that Big-D cannot prove it is entitled to a new trial
under a plain-error analysis. “A party who objects to an instruction or the failure to give
an instruction must do so on the record, stating distinctly the matter objected to and the
grounds of the objection.” Minn. R. Civ. P. 51.03(a). To preserve an assignment of error
for a failure to give a requested instruction, a party must request the instruction in writing
and object on the record before the district court delivers jury instructions. Minn. R. Civ.
P. 51.04(a)(2). Even if a party fails to preserve an issue, we may review the failure to give
an instruction for plain error. Minn. R. Civ. P. 51.04(b). A reviewing court applies “the
plain-error test of rule 51.04(b) to a civil case in which a party sought a new trial based on
an allegedly erroneous instruction to which it did not object.” Poppler v. Wright Hennepin
Coop. Elec. Ass’n, 834 N.W.2d 527, 550 (Minn. App. 2013) (citing Frazier v. Burlington
N. Santa Fe Corp ., 811 N.W.2d 618, 626 (Minn. 2012)) , aff’d, 845 N.W.2d 168 (Minn.
2014). We also review an unobjected-to special verdict form “to determine whether there

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is an error of fundamental law or controlling principle.” Estate of Hartz v. Nelson , 437
N.W.2d 749, 752 (Minn. App. 1989), review denied (Minn. July 12, 1989).
“Under the plain -error test, an appellate court reviews an assertion of error to
determine (1) whether there is an error, (2) whether the error is plain, and (3) whether the
error affects a party’s substantial rights.” Poppler, 834 N.W.2d at 551 (citations omitted).
If an appellant fails to object to the district court’s jury instructions, we review for plain
error. Id. If these requirements are satisfied, we consider “whether correction of the error
is necessary to ensure fairness and the integrity of the judicial proceedings.” Id. Even so,
“[f]ailure to satisfy any of the prongs of the plain-error test dooms the claim.” Frazier, 811
N.W.2d at 626.
Big-D’s substantial rights were not affected. “[A]n error affects substantial rights
where there is a reasonable likelihood that the absence of the error would have had a
significant effect on the jury’s verdict.” Poppler, 834 N.W.2d at 553. “In a civil case, a
plain error may affect substantial rights if the error has a significant effect on the amount
of damages awarded by the jury.” Id. Here, the jury determined that Big-D was not entitled
to any money damages. And the record does not show that the jury would have awarded
any more damages if the indemnity issues had been presented. Big-D has not satisfied its
burden of establishing that the result of the trial would have been different if Big -D had
presented factual evidence of its damages under an indemnity theory of recovery. See id.
(noting that party asserting error bears burden of persuasion that district court’s plain error
affected party’s substantial rights). Because Big -D’s substantial rights were not affected,

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we do not address the remaining plain -error factors. Big -D is not enti tled to a new trial
under the plain-error test.4
II. The district court did not abuse its discretion by awarding JLS its attorney fees
and costs.
Big-D challenge s the district court’s attorney -fee award. We review the district
court’s award for an abuse of di scretion. Carlson v. SALA Architects, Inc ., 732 N.W.2d
324, 331 (Minn. App. 2007), review denied (Minn. Aug. 21, 2007). Appellate courts also
“generally review a district court’s award of costs and disbursements for an abuse of
discretion.” Dukowitz v. Hannon Sec. Servs ., 841 N.W.2d 147, 155 (Minn. 2014). A
district court abuses its discretion when its decision is “against logic and facts on the
record.” Posey v. Fossen, 707 N.W.2d 712, 714 (Minn. App. 2006). The party challenging
the district court’s exercise of discretion bears the burden of proof. Id.
Big-D argues that JLS is not entitled to its attorney fees and costs because it is not
a “prevailing party.” We disagree. “In determining who qualifies as the prevailing party
in an action, the general result should be considered, and inquiry made as to who has, in
the view of the law, succeeded in the action.” Elsenpeter v. St. Michael Mall, Inc ., 794
N.W.2d 667, 673 (Minn. App. 2011) (citation omitted). “The prevailing party in any action

4 JLS also argues that Big -D’s new-trial motion is unwarranted by the record, is contrary
to public policy, and is unenforceable under Minnesota law. Because we determine that
Big-D forfeited these issues and cannot prevail under the plain-error test, we do not reach
the alternative arguments. Nor did JLS file a n otice of related appeal regarding the
enforceability of the contractual-indemnification provision. Thus, that issue is not before
us in this appeal.

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is one in whose favor the decision or verdict is rendered and judgment entered.” Id. “We
review a district court’s determination of a prevailing party for an abuse of discretion.” Id.
The record support s the district court’s determination that JLS was the prevailing
party because JLS succeeded in the action and the jury returned a verdict in JLS’s favor on
its breach -of-contract counterclaim. Following a ten -day j ury trial, the jury awarded
Big-D $0 on its breach-of-contract claims and awarded JLS $506,614.76 on its breach-of-
contract counterclaim. JLS sought attorney fees and costs under the fee-shifting provisions
of the subcontracts, which stated, “In the event of a dispute, the prevailing party shal l be
entitled to recover from the other party all reasonable attorney fees, expert fees, costs and
expenses incurred, including statutory interest.” The district court determined that “[u]nder
any reasonable interpretation of ‘prevailing,’ [JLS] prevailed.”
The district court appointed a special master to evaluate the reasonableness of the
amount request ed. The special master reasoned that “JLS prevailed completely on the
claim by Big-D and prevailed substantially on their counterclaim” and that “JLS’s request
for attorney fees after the adjustments is fair and reasonable, considering the difficulty of
issues, the amount of money in controversy, and the results of the jury verdict.” The special
master recommended an award of $800,020.25 in attorney fees and $119,519. 99 in costs
and disbursements.
The district court adopted the special master’s recommendations in full, and
determined that JLS was the prevailing party and therefore entitle d to attorney fees and
costs under the subcontracts. The district court awarded JLS $800,020.25 in attorney fees

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and $119,519.99 in costs and disbursements against Big-D. Because we discern no abuse
of discretion in this decision, we affirm.
Affirmed.