Megan Guetzkow, as mother and natural guardian of E.I., a minor, et al., Respondents,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-2075

Megan Guetzkow, as mother and natural guardian of E.I., a minor, et al.,
Respondents,

vs.

Brian John Irgens,
Appellant.

Filed August 17, 2020
Affirmed
Reyes, Judge

Wright County District Court
File No. 86-CV-18-2938

Thomas E. Kiernan, Kiern an Personal Injury At torneys, PA , Buffalo, Minnesota (for
respondents)

John G. Westrick, Savage-Westrick, PLLP, Bloomington, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Johnson, Judge; and Larkin,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
In this appeal from judgment against appellant for tort claims arising out of sexual
conduct against two minors, appellant argues that (1) the district court lacked personal
jurisdiction; (2) insufficient evidence supports the district court’s punitive -damages
awards; (3) the Double Jeopardy Clauses of the U.S. and Minnesota Constitutions prohibit

2
the awards; (4) the awards violate the Excessive Fines Clauses of the U.S. and Minnesota
Constitutions; and (5) the award amounts violate his due-process rights. We affirm.
FACTS
Appellant Brian John Irgens pleaded guilty to first-degree criminal sexual conduct,
in violation of Minn. Stat. § 609.342, subd. 1(g) (2014), for digitally penetrating his then-
15-year-old stepdaughter, respondent M.G. Irgens is serving a 144-month sentence in the
Moose Lake correctional facility for the offense. M.G. and her mother, respondent Megan
Guetzkow, brought this civil action on behalf of M.G. and respondent E.I., who is the
biological daughter of Guetzkow and Irgens. Guetzkow alleged that Irgens committed
battery against M.G. and E.I. (count I); intentional infliction of emotional distress against
M.G. and E.I. (count II); intrusion upon seclusion as to M.G. (count III); and public
disclosure of private facts about M.G. (count IV). Guetzkow also asserted a claim for
punitive damages.
Following a court trial , which included testimony from M.G., Guetzkow, a child
psychologist, a forensic analyst , and a CornerHouse interviewer, the district court found
Irgens liable on counts I and III for his conduct from December 2014 to February 2015. In
addition to the conduct underlying his criminal offense against M.G., the district court
found that Irgens surreptitiously placed a camera in the family’s shared bathroom to
capture, record, and store images of M.G. undressing. It found that appellant began coming
into M.G.’s room at night and would touch her genitals and that she on one occasion
forcibly kicked him off her bed as he attempted to climb onto the bed. It also found that

3
he had touched E.I’s genitals on multiple occasions while in her room. E.I. was six years
old at the time.
The district court awarded compensatory damages of $116,621.15 to M.G. and
$175,000 to E .I. It also awarded punitive damages of $150,000 to M.G. for battery ,
$100,000 to M.G. for intrusion upon seclusion , and $300,000 to E.I. for battery. Irgens
filed posttrial motions for dismissal, judgment as a matter of law, and a new trial based on
the same issues he raises on appeal. The district c ourt denied his motion s. This appeal
follows.
D E C I S I O N
Irgens argues that (1) the district court lacked personal jurisdiction over him ;
(2) insufficient evidence supports its punitive-damages awards; (3) the Double Jeopardy
Clauses prohibit the awards; (4) the award amounts violate the Excessive Fines C lauses;
and (5) the award amounts violate his due-process rights. We address his arguments in
turn.
I. The district court properly determined that it had personal jurisdiction over
Irgens.

Irgens argues that the judgment against him is void because, although he received
personal service, the Moose Lake correctional facility warden did not, which Minn. R. Civ.
P. 4.03(a) requires. We are not persuaded.
We review service of process de novo. Cox v. Mid-Minn. Mut. Ins. Co., 909 N.W.2d
540, 547 (Minn. 2018). We review the district court’s findings of fact for clear error and
will set them aside only if we have the “definite and firm conviction” that the district court

4
made a mistake. See Rasmussen v. Two Harbors Fish Co., 832 N.W.2d 790, 797 (Minn.
2013) (quotation omitted).
As an initial ma tter, Guetzkow argues that Irgens waived his defense of lack of
personal jurisdiction based on improper service by not moving to dismiss the action. Irgens
raised this defense in his June 4, 2018 answer, but he did not file a motion to dismiss at
that time. He raised the defense again on July 30, 2018, in his response to Guetzkow’s
motion to attach his property. Following the August 28, 2018 motion hearing, the district
court addressed and rejected his argument, concluding that Guetzkow properly served him.
Irgens then filed a posttrial motion to dismiss based on lack of jurisdiction more than one
year later, which the district court denied.
A defendant must assert the defense of insufficient service of process in an answer
or a motion to dismiss. Minn. R. Civ. P. 12.08(a). A defendant who asserts the defense in
an answer but does not bring a motion to dismiss does not waive the defense by merely
participating in the litigation and responding to the merits of the case unless he
“affirmatively invokes the court’s power to determine the merits of all or part of a claim”
before giving the district court an opportunity to rule on his defense. Patterson v. W u
Family Corp., 608 N.W.2d 863, 869 (Minn. 2000) ; see also Juelich v. Yamazaki Mazak
Optonics Corp., 670 N.W.2d 11, 16 (Minn. App. 2003), aff’d, 682 N.W.2d 565 (Minn.
2004).
Here, although Irgens did not move to dismiss due to improper service of process
until his posttrial motions, he raised the defense twice in the first two months of the case ,
thereby providing the district court with “an opportunity to rule on [his] defense” in its first

5
order. See Patterson, 608 N.W.2d at 869 . He therefore did not waive this defense .
Moreover, because both parties were on notice of this issue and the district court addressed
it, we will consider whether Irgens received proper service of process.
A party must serve a summons, as relevant here, “[u]pon an individual by delivering
a copy to the individual personally ” and , “[i]f the individual is confined to a state
institution, by serving also the chief executive officer at the institution.” Minn. R. Civ. P.
4.03(a) (emphasis added). The chief executive officer (CEO) of a prison is its warden. See
State ex rel. Turnbladh v. Dist. Court , 107 N.W.2d 307, 309 (Minn. 1960) . We strictly
construe compliance with rule 4.03. See Jaeger v. Palladium Holdings, LLC, 884 N.W.2d
601, 609 (Minn. 2016) . However, “[a]n individual [can] appoint[] an agent to receive
service of a summons.” Allstate Ins. Co. v. Allen, 590 N.W.2d 820, 822 (Minn. App. 1999).
And a corporation may designate an agent who has implied or express authority to accept
service. Amdahl v. Stonewa ll Ins. Co., 484 N.W.2d 811, 814 (Minn. App. 1992) , review
denied (Minn. July 16, 1992).
Irgens argues that Guetzkow has not shown that she served the warden, as opposed
to a designee, which he argues neither Minn. R. Civ. P. 4.03 nor any statute authori zes.
The district court found that Irgens received personal service and that the warden received
service through a designee. The record includes a certificate of personal service from the
Carlton County Sheriff’s Office that supports this finding . It also contains an affidavit
from the Moose Lake correctional-facility associate warden stating that it received,
processed, and recorded the summons and complaint in accordance with standard practice
for accepting service on behalf of the warden.

6
Irgens does not dispute that he received personal service, as rule 4.03(a) requires, or
that the associate warden who accepted service is an agent of the warden. Further, while
the rule provides that the CEO of a state institution in which a defendant is confined “also”
be served, the rule does not clearly mandate personal service on the official or prohibit an
agent from accepting service on behalf of the official .1 Irgens cannot identify any case
supporting his interpretation. Because Guetzkow personally served Irgens and an agent of
the warden, service of process was effective.
II. The district court did not abuse its discretion by determining that sufficient
evidence supports its awards of punitive damages.

Irgens argues that the evidence does not support the punitive-damages awards based
on the factors in Minn. Stat. § 549.20, subd. 3 (2018). We disagree.
We review a district court’s award of punitive damages for an abuse of discretion.
Marston v. Minn eapolis Clinic of Psychiatry & Neurology, Ltd. , 329 N.W.2 d 306, 312
(Minn. 1982). Determining the amount of a punitive -damages award “ rests almost
exclusively” with the factfinder, and we will disturb the award only when it “is so excessive
as to be deemed unreasonable.” See Hammersten v. Reiling, 115 N.W.2d 259, 266 (Minn.
1962). We review whether the award is reasonable based on the factors in section 549.20,

1 In an early case regarding a statute with similar language requiring personal service on a
defendant and, “[i]f the defendant [has] a resident guardian . . . to such guardian also,” the
Minnesota Supreme Court concluded that the failure to serve a defendant’s guardian did
not render the judgment void. See Schultz v. Oldenburg, 277 N.W. 918, 922 (Minn. 1938)
(emphasis added) (quoting Mason’s Minn. Stat § 9228 (1927) ). It co ncluded that the
statute was directory, not mandatory. Id. at 923. A “[v]iolation of a directory statute does
not result in the invalidity of the action taken” under the statute. Sullivan v. Credit River
Twp., 217 N.W.2d 502, 507 (Minn. 1974).

7
subdivision 3. See Estate of Hartz v. Nelson , 437 N.W.2d 749, 755 (Minn. App. 1989),
review denied (Minn. July 12, 1989).
As relevant here, the factors in section 549.20, subdivision 3 , include (a) the
seriousness of the hazard to the public from the defendant’s misconduct; (b) “the duration
of the misconduct and any concealment of it;” (c) “the degree of the defendant’s awareness
of the hazard and of its excessiveness;” (d) “the attitude and conduct of the defendant upon
discovery of the misconduct ;” (e) “the financial condition of the defendant ;” and (f) “the
total effect of other punishment likely to be imposed upon the defendant as a result of the
misconduct.”2
A. Hazard to the public

Irgens argues that the record contains no evidence that he presents a hazard to the
public because he committed the sexual abuse within his home, against family members.
But Irgens does not show how members of his family are not members of the public. And
he does not show how the district court’s finding s that he could sexually assault future
children and that any sexual acts “committed against children are o f immense concern to
the public ” are clearly erroneous. We recently explained the “widespread social and
economic impact” of child sexual abuse, which makes it clear that intrafamilial child abuse
reaches beyond the family. See State v. Madden, 910 N.W.2d 744, 748 (Minn. App. 2018),
review denied (Minn. June 19, 2018). Likewise, Estate of Hartz , to which Irgens cites,

2 The district court also made findings on a factor regarding the profitability of the
misconduct to the defendant, finding it is not profitable, and Irgens does not challenge this
factor.

8
does not support his position, as we concluded there that an attorney did not present a
“danger of repetition” of legal malpractice because he was suspended from practice and
had not applied for readmission in the more than ten years since the misconduct. See 437
N.W.2d at 751-52, 756. Irgens also argues that a finding that he will act against others in
the same manner violates Minn. R. Evid. 404(b), and that, even if he poses a risk to the
public, the state has the remedy of committing him under Minn. Stat. ch. 253B (2018). We
have reviewed these arguments, and they lack merit. This factor favors the awards.
B. Duration and concealment of misconduct

Irgens acknowledges that this factor supports an award of punitive damages but
argues that it does not support the total amount awarded. Irgens’s reliance on Estate of
Hartz in support of his argument is again misguided. Estate of Hartz involved a punitive-
damages award of $700,000 for four instances of attorney misconduct, only one instance
of which the tortfeasor took “some initial effort to conceal.” 437 N.W.2d at 756. The
record here supports the district court’s findings that Irgens actively concealed his sexual
conduct against both children and his recording of M.G. , whic h occurred over three
months. This factor supports the awards.
C. Irgens’s awareness of the hazard

Irgens argues that the district court’s finding that he was aware of the hazard is
clearly erroneous because a “hazard” requires a risk or danger to the public , which does
not include his “misconduct.” Because Irgens provides no legal analysis or citation for his
contention, he forfeits this issue. See Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919 n.1

9
(Minn. App. 1994). Moreover, as discussed above, his conduct posed a danger to the
public. This factor supports the awards.
D. Irgens’s attitude and conduct upon discovery of misconduct

Irgens argues that, although the district co urt did not clearly err in finding that he
has consistently denied wrongdoing, it failed to recognize his guilty plea in the criminal
proceedings. He also concedes that this finding supports awards of punitive damages, but
not in the amount s awarded. Whi le Irgens did plead guilty, he did so only to an offense
against M.G., not E.I. This factor supports the awards.
E. Irgens’s financial condition

The district court found that, although Irgens is currently incarcerated, he is the sole
heir to his fathe r’s es tate, which includes real -estate properties, and that he is “by all
accounts, able-bodied and retains the ability to fully participate in the workforce once he
is released from confinement.”
Irgens argues that these findings are clearly erroneous because t hey are not based
on any evidence about his financial condition, which Guetzkow had the burden to prove,
citing to Johnson v. Ramsey County , 424 N.W.2d 800, 807 (Minn. App. 1988), review
denied (Minn. Aug. 24, 1988) . He further argues that the district court impermissibly
speculated about his employment prospects after his incarceration, particularly in light of
the employment difficulties felons and convicted sex offenders face. We disagree for three
reasons.
First, evidence of his financial condition is not an essential element that Guetzkow
had to prove under Minn. Stat. § 549.20 (2018). See Nugent v. Kerr, 543 N.W.2d 688, 691

10
(Minn. App. 1996), review dismissed (Minn. July 10, 1996). Second, Irgens’s reliance on
Johnson, which we decided before Nugent, is misguided because we explicitly declined in
Johnson to address the issue of who bore the burden of showing a defendant’s financial
condition in an action for punitiv e damages. 424 N.W.2d at 807 .3 Third, as in Johnson,
the record contains evidence of Irgens’s financial condition. The record shows that two of
the real-estate properties that he is expected to receive from his father’s estate each have a
taxable market value of more than $200,000 , one of which is Irgens’s homestead. While
Irgens supports his contention that felons and sex offenders face employment difficulties
generally, he does not point to anything in the record that makes the district court’s finding
that he will be able to work after his incarceration so speculative as to be clearly erroneous.
The district court properly considered this factor.
F. Total effect of other punishment

Irgens argues that the district court failed to consider the total effect of its awards
against him, even though it explained why it made each award.
The total effect of punishment includes consideration of “ compensatory and
punitive damage awards to the plaintiff and other similarly situated persons, and the
severity of any criminal penalty to which the defendant may be subject .” Minn. Stat.
§ 549.20, subd. 3. Here, the district court considered the total compensatory damages for

3 In Johnson, we affirmed the district court’s remittitur of a punitive-damages award from
$300,000 to $50,000 after it received information that the jury had not heard about the
defendant’s salary. 424 N.W.2d at 80 6-07. We concluded that the district court acted
within its discretion by scrutinizing the award based on the defendant’s ability to pay. Id.
at 808.

11
M.G. and E.I. of $291,621.15 as well as Irgens’s incarceration for one instance of sexual
abuse against M.G., and it specifically found that the compensatory-damages awards “do
not foreclose an award of punitive damages.” Irgens’s reliance on caselaw that encourages
district courts to consider damages from other lawsuits is inapplicable because he does not
identify any lawsuits against him that the district court failed to consider . See Indep. Sch.
Dist. No. 622 v. Keene Corp. , 495 N.W.2d 244, 254 (Minn. App. 1993), rev’d in part on
other grounds, 511 N.W.2d 728 (Minn. 1994). The district court properly considered this
factor.
G. Reasonableness of awards in light of factors

Irgens argues that the amounts of the punitive-damages awards are “unsupported”
because of the compensatory -damages awards, the lack of evidence about his financial
condition, the duration and concealment of his misconduct, his guilty plea in the criminal
proceedings, and his 144 -month sentence, which lessens the need for the punitive and
deterrent role of punitive damages. As discussed above, the district court considered these
factors, and the record supports its findings on each of them.
Finally, Irgens argues that punitive damages are not required to inform the public of
the wrongfulness of his acts because the wrongfulness of intrafamilial sexual abuse is clear.
While Irgens cites to caselaw and a statute stating that child sexual abuse is illegal, he
provides no legal authority for his apparent contention that the clearer the wrongfulness of
an act, the less need there is for punitive damages to punish and deter its commission. On
the contrary, punitive damages serve to punish and deter “according to the gravity of the
act.” Father A v. Moran , 469 N.W.2d 503, 507 (Minn. App. 1991) (emphasis added).

12
Irgens concedes that “ the reprehensibility of [his] acts is self -evident,” and our caselaw
recognizes the severe gravity of child sexual abuse. See, e.g., Madden, 910 N.W.2d at 748.
Considering these factors, the district court did not abuse its discretion by awarding M.G.
$250,000 and E.I. $300,000 in punitive damages.
III. The Double Jeopardy Clauses of the U. S. and Minnesota Constitutions do not
prohibit the punitive-damages awards against Irgens.

Irgens argues that the punitiv e-damages awards against him violate the Double
Jeopardy Clauses of the U.S. and Minnesota Constitutions , relying on United States v.
Halper for much of his double -jeopardy analysis. 490 U.S. 435, 109 S. Ct. 1892 (1989),
abrogated by Hudson v. United States , 522 U.S. 93, 118 S. Ct. 488 (1997). But Halper
stated that “[t]he protections of the Double Jeopardy Clause are not triggered by litigation
between private parties.” Id. at 451, 109 S. Ct. at 1903 (emphasis added). The Minnesota
Supreme Court has reaffirmed the same. See Rew v. Bergstrom, 845 N.W.2d 764, 795-96
(Minn. 2014). Because the current action is between private parties, it does not trigger the
Double Jeopardy Clauses.
IV. The punitive-damages awards do not violate the Excessive Fines Clauses of the
U.S. and Minnesota Constitutions.

Irgens argues that the punitive -damages awards are unconstitutionally excessive
given his financial con dition and his incarceration. The Supreme Court has said
definitively that the Excessive Fines Clause of the U.S. Constitution does not apply to
private actions for punitive damages. See Browning-Ferris Indus. of Vt ., Inc. v. Kelco
Disposal, Inc. , 492 U.S. 257, 27 4-75, 109 S. Ct. 2909, 2920 (1989). The text of the
Excessive Fines Clause of the Minnesota Constitution is identical, and it likewise does not

13
extend to private actions for puni tive damages. See Wilson v. Comm’r of Revenue , 656
N.W.2d 547, 553 (Minn. 2003) (stating decisions of United States Supreme Court have
inherent persuasive force when interpreting identical clauses of state constitution and
describing that Excessive Fines Clause limits “the government’s power to extract
payments” (emphasis added) (quoting Austin v. United States, 509 U.S. 602, 609-10, 113
S. Ct. 2801, 2805 (1993))). The punitive-damages awards do not implicate, and therefore
do not violate, the Excessive Fines Clauses.
V. The amounts of the punitive -damages awards do not violate Irgens ’s due -
process rights.

Irgens argues that the punitive -damages awards are exce ssive in light of the
statutory-maximum fine for his offense, the lack of a record about his financial condition,
and his incarceration. He also argues that the awards are a du e-process violation because
they breach his plea bargain. We are not persuaded.
We review de novo a claim of a due-process violation. State v. Beecroft , 813
N.W.2d 814, 836 (Minn. 2012). The Due Process Clause of the Fourteenth Amendment
prohibits a state from imposing punishments on a tortfeasor that are “grossly
disproportional to the gravity of [the] defendant[’s] offenses.” Cooper Indus., Inc. v.
Leatherman Tool Grp., Inc. , 532 U.S. 424, 434, 121 S. Ct. 1678, 1684 (2001) (quotation
omitted). We consider three criteria in assessing whether a punitiv e-damages award
violates due process under the U.S. Constitution: “(1) the degree or reprehensibility of the
defendant’s misconduct, (2) the disparity between the harm (or potential harm) suffered by
the plaintiff and the punitive damages award, and (3) the difference between the punitive

14
damages awarded by the [factfinder] and the civil penalties authorized or imposed in
comparable cases.” Id. at 440, 121 S. Ct. at 1687.
Irgens’s arguments relate primarily to the third element. See id. He again argues
that the amounts of the punitive -damages awards far exceed his ability to pay. He notes
that the maximum fine in Minn. Stat. § 609.342, subd. 2 (2014), is $40,000 and argues that
“no statute warned him he could have almost $500,000 in punitive damages imposed,
unrelated to the harm or injury he caused. ” He argues that the state achieved its interests
of punishment and deterrence through the criminal prosecution against him and his
resulting incarceration.
But t he Su preme Court has upheld punitive -damages awards much higher than
Irgens’s in relation to maximum fines for the conduct and other damages awards. For
example, in Pac. Mut. Life Ins. Co. v. Haslip, the Supreme Court upheld an award of more
than $800,000 in punitive damages, which it stated i s “more than 4 times the amount of
compensatory damages, is more than 200 times the out -of-pocket expenses of
respondent . . . and, of course, is much in excess of the fine that could be impos ed [under
the relevant statutes].” 499 U.S. 1, 23, 111 S. Ct. 1032, 1046 (1991). It concluded that the
award “did not lack objective criteria.” Id. The award in Haslip was approximately 13
times greater than the maximum fine for felonies. See id.; Ala. Code § 13A–5–11 (capping
fine for “Class A” felonies at $60,000). In TXO Prod. Corp. v. All. Res. Corp., the Supreme
Court upheld a punitive-damages award of $10 million, which was more than 500 times
greater than the jury’s award of actual damages. 509 U.S. 443, 453, 113 S. Ct. 2711, 2718

15
(1993). The Supreme Court concluded that the award was not “so grossly excessive” as to
violate due process. Id. at 462, 113 S. Ct. at 2722-23 (quotation omitted).
The punitive -damages award for M.G. is approximately six times the statutory
maximum fine, and the award for E.I. is approximately seven times the maximum fine.
M.G.’s punitive-damages award is approximately 2.1 times higher than her compensatory-
damages award, and E.I.’s is approximately 1.7 tim es higher than her compensatory -
damages award. These amounts are well within the Supreme Court’s guidelines. Further,
as discussed earlier, Irgens points to no authority, and we can find none, that prohibits
punitive damages for private parties due to the defendant also being subject to crimin al
prosecution. The punitive-damages awards did not violate Irgens’s due-process rights.
Finally, Irgens argues in a footnote that the punitive -damages awards constitute a
breach of his plea agreement, which fixed the terms of his punishment. But as Irgens
himself states, a plea agreement is between a criminal defenda nt and the government.
Respondents were not parties to Irgens’s plea agreement. Irgens’s plea agreement therefore
does not prevent these civil judgments.
Affirmed.