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STATE OF MINNESOTA

IN SUPREME COURT

A19-2083

Court of Appeals Anderson, J.
Took no part, Chutich, J.
Joseph Roach, et al.,

Respondents,

vs. Filed: July 21, 2021
Office of Appellate Courts
County of Becker,

Defendant,

Thomas Alinder, et al.,

Appellants,

and

Gary Heitkamp Construction, Inc., et al.,

Appellants.

________________________

Denis E. Grande, Zachary P. Armstrong, DeWitt LLP, Minneapolis, Minnesota, for
respondents.

Steven F. Lamb, Vogel Law Firm, Fargo, North Dakota, for appellants Thomas Alinder, et
al.

Michael J. Morley, Victoria A. Thoreson, Morley Law Firm, Grand Forks, North Dakota,
for appellants Gary Heitkamp Construction, Inc., et al.

________________________

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S Y L L A B U S
1. Acceptance of a remittitur in lieu of a new trial does not bar an appeal that
raises issues separate and distinct from the remittitur order.
2. A violation of a watershed district rule asserted as part of a tort claim but that
is neither pleaded as, nor held to be, a basis for the claim does not suffice for an award of
attorney fees under Minn. Stat. § 103D.545, subd. 3 (2020).
Affirmed in part and reversed in part.
O P I N I O N
ANDERSON, Justice.
This dispute involves the violation of a Pelican River Watershed District rule during
the construction of a home on lakeside property owned by appellants Thomas and Sandra
Alinder, which resulted in damage to property owned by their neighbors, respondents
Joseph and Jennifer Roach. Appellants Gary Heitkamp and Gary Heitkamp Construction,
Inc. (collectively Heitkamp) built the Alinder home.
The Roaches brought nuisance, negligence per se, and trespass claims against the
Alinders and Heitkamp . After years of litigation, a jury trial was held to address certain
unresolved issues, primarily damages. The jury awarded the Roaches damages, includi ng
$300,000 in future damages. The Roaches moved for attorney fees, which the district court
denied based on the conclusion that the watershed statute under which fees were sought,
Minn. Stat. § 103D.545, subd. 3 (2020), did not apply. In response to posttrial motions by
the Alinders and Heitkamp, the district court also conditionally ordered a new trial unless
the Roaches accepted a remittitur of the future damages award to zero.
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The Roaches accepted the remittitur on future damages, then appealed several issues
to the court of appeals, including the denial of attorney fees. The Alinders and Heitkamp
argued that the Roaches’ acceptance of the remittitur bar red the appeal. The court of
appeals determined that the Roaches’ appeal was not barred by acceptance of the remittitur
and held that the Roaches could seek attorney fees under Minn. Stat. § 103D.545, subd. 3.
We agree with the conclusion that the Roaches are permitted to appeal issues separate and
distinct from the subject of the remittitur order, but we conclude that attorney fees are not
authorized under the statute. We therefore affirm in part and reverse in part the decision
of the court of appeals.
FACTS
The Roaches own property on the shoreline of Lake Melissa in Becker County. The
Alinders own adjacent property, also on the shoreline of Lake Melissa, directly south of
the Roaches’ property. In 2003, the Alinders applied to Becker County for a permit to
construct a home on their property and hired Gary Heitkamp Construction, Inc. for the
project. In 2004, the Roaches filed a zoning complaint with Becker County, asserting that
fill was improperly added to the Alinders’ property during construction, raising the
elevation of the property and increasing water runoff to neighboring properties. No permit
to add fill was obtained, in violation of Becker County zoning ordinances and Pelican River
Watershed District rules.
In 2005, during ongoing zoning proceedings, the Roaches began litigation against
Becker County, the Alinders, and Heitkamp. This litigation has a lengthy procedural
history that includes multiple appeals to the court of appeals and a significant volume of
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motion practice.1 We include only those facts that are directly relevant to the issues before
us. In the litigation, the Roaches sought declaratory relief, petitioning for a writ of
mandamus directing Becker County to enforce the zoning ordinance s by compelling the
Alinders to remove the added fill; they also sought damages from Becker County for a
claim of inverse condemnation. The Roaches brought nuisance, negligence per se, and
trespass claims against the Alinders and Heitkamp.
In 2015, the district court bifurcated the matter and held a bench trial on the
declaratory relief claim. The court found that the Alinders failed to obtain the required
permits from Becker County and from the Pelican River Watershed District for the
placement and movement of fill on their property during the construction of the home. The
court ordered Becker County to enforce its zoning ordinance with the consultation and
participation of the Pelican River Watershed District. The court required certain restoration
work on the Alinders’ property but concluded that the Alinders were not required to remove
the completed home.
In 2017, the district court partially granted a motion for summary judgment brought
by the Roaches. The court held that the Roaches had sufficiently proven the elements of
nuisance and negligence per se against the Alinders.
In 2019, the remaining issues, including damages, were addressed at a jury trial—
the events that followed paved the way for this appeal. The jury awarded the Roaches

1 See In re Decision of Becker Cnty. Zoning Adm’r, No. A07-1580, 2008 WL 4224508
(Minn. App. Sept. 16, 2008); Roach v. Cou nty of Becker, No. A12-0132, 2012 WL
6097133 (Minn. App. Dec. 10, 2012), rev. denied (Minn. Feb. 19, 2013); Roach v. County
of Becker, No. A16-0915, 2017 WL 1316117 (Minn. App. Apr. 10, 2017).
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$564,800 in damages, including $300,000 for future damages. Following the trial, the
Roaches moved for attorney fees under a statute that permits fees to be awarded in a dispute
that arises from or is related to a rule made by a watershed district; the Roaches also moved
for costs and disbursements and preverdict interest. In separate motions, the Alinders and
Heitkamp challenged the jury’s future damages award and requested a remittitur of those
damages or, in the alternative, a new trial. The Roaches moved for judgment as a matter
of law as to their right to preverdict and postverdict interest.
In an order addressing the various posttrial motions, the district court denied the
Roaches’ motion for attorney fees on the basis that the statute under which the Roaches
sought fees, Minn. Stat. § 103D.545, subd. 3, “is not intended to apply to a situation like
this case” because a watershed district was never a party and “it would be a stretch” to say
that this dispute was related to a rule made by a watershed district. The court granted in
part the Roaches’ motion for costs and disbursements, reducing as unreasonable the
charges from one expert. The court also granted in part the Roaches’ motion for preverdict
interest but determined that the period of accrual should end in 2015 when the court
bifurcated the proceedings.
The district court also conditionally granted the motions for a new trial brought by
Heitkamp and the Alinders on the ground that the Roaches failed to prove future damages
to a reasonable certainty. The court ordered a “new trial on the issue of damages” unless
the Roaches “accept[ed] a remittitur of the future damages award from $300,000 to $0.00
and of costs and disbursements from $93,213.08 to $74,574.20.” The court calculated the
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final award as $514,885.77, not including postjudgment interest.2 If the Roache s did not
accept the remittitur, the court would order a new trial “on all issues” because the court
could not determine whether the future damages award was attributed to the co mpleted
house or to the lake lot.
The Roaches petitioned the court of appeals for discretionary review of the district
court’s order conditionally granting a new trial unless the remittitur was accepted, which
the court of appeals denied. Roach v. County of Becker, No. A19-1445, Order at 4 (Minn.
App. filed Oct. 8, 2019). The Roaches ultimately accepted the remittitur, and the district
court filed an amended and final order for judgment. The order specified that the final
award for the Roaches was $514,885.77, which included costs and disbursements as well
as preverdict interest.3 The order also repeated that no attorney fees were awarded to any
party.

2 The court provided the following breakdown of damages, costs, disbursements, and
preverdict interest:
• Damage to Lake Lot ($10,000 * 80%): $8,000.00
• Damage to Cabin ($200,000 * 80%): $160,000.00
• Nuisance Damages: ($50,000 * 80%): $40,000.00
• Trespass Damages (against Heitkamp): $4,800.00
• Costs and Disbursements: $74,574.20
• Preverdict Interest: $227,511.57
The jury had attributed 20 percent fault to Becker County, thus the Alinders and Heitkamp
were jointly liable for 80 percent of the damages resulting from claims asserted against all
three defendants.

3 Although the record is not entirely clear about the nature of an apparent clerical
error, after correcting the error, the final award to the Roaches was $504,449.11.
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The Roaches appealed from the final judgment, challenging the district court’s
rulings on attorney fees, preverdict interest, and several other issues not relevant to the
matters before us. The court of appeals affirmed in part and reversed in part. Roach v.
County of Becker, No. A19-2083, 2020 WL 4281003, at *1 (Minn. App. July 27, 2020).
The court of appeals first concluded that the appeal was proper despite acceptance of the
remittitur because the record contained “no evidence that the Roaches intentionally
relinquished any known right to appeal” and “the [district court’s] order did not specify
that acceptance of the remittitur” would operate as a waiver of their right to appeal other
issues. Id. at *3. The court of appeals next held that the district court erred by limiting the
time period for accrual of the Roaches’ preverdict interest because there was no basis in
Minnesota law to support a reduction in the accrual timeframe. Id. at *4. Finally, as is
relevant here, the court of appeals held that section 103D.545, subdivision 3, authorized
attorney fees in this case because “the statute broadly and unambiguously” allows fees in
any civil case that “has a connection, association, or logical relationship” to a watershed
rule and “[t]his civil action relates to a watershed-district rule.” Id. at *6‒7. The court of
appeals remanded for a determination by the district court of whether attorney fees are
appropriate under the circumstances here. Id. at *7.
Heitkamp and the Alinders subsequently sought review in separate petitions. We
granted review of two issues.
ANALYSIS
The first issue presented by this appeal is whether the Roaches could appeal after
accepting the district court’s remittitur in lieu of a new trial. The second issue presented is
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whether the court of appeals correctly concluded that Minn. Stat. § 103D.545, subd. 3,
authorizes attorney fees here.
I.
We first address whether the Roaches could pursue an appeal after accepting the
remittitur that reduced the future damages award to zero. The appeal challenged numerous
orders of the district court, including the reduction in the period of accrual for preverdict
interest and the denial of attorney fees.
Remittitur is relief ordered by a district court after determining that a jury award
was excessive. See Daly v. McFarland, 812 N.W.2d 113, 127 (Minn. 2012). The objective
of remittitur “ ‘is to avoid the delay and expense of an appeal or a new trial.’ ” Jangula v.
Klocek, 170 N.W.2d 587, 593 (Minn. 1969) (quoting Plesko v. City of Milwaukee, 120
N.W.2d 130, 135 (Wis. 1963)). The use of remittitur is well established in Minnesota. See
Podgorski v. Kerwin, 179 N.W. 679, 680 (Minn. 1920). Under the common law, a
plaintiff’s acceptance of a remittitur generally bars the plaintiff from challenging the
reduced award on appeal. Jangula, 170 N.W.2d at 592; see also Donovan v. Penn Shipping
Co., 429 U.S. 648, 649 (1977) (“A line of decisions stretching back to 1889 has firmly
established that a plaintiff cannot appeal the propriety of a remittitur order to which he has
agreed.”).
We have acknowledged that, although a plaintiff cannot challenge a reduced award
on appeal once it has been accepted in district court, an exception to the general rule exists.
See Jangula, 170 N.W.2d at 588. A plaintiff may challenge the propriety of a remittitur on
a proper cross-appeal when the defendant initiates the appeal. Id. at 593‒94. Therefore,
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accepting a remittitur binds the plaintiff to that relief unless the defendant first appeals and
the plaintiff cross-appeals to challenge the reduced damages. Thus, because the Alinders
and Heitkamp did not initiate an appeal here, the Jangula rule does not apply to the
Roaches’ appeal.
We have not previously considered whether acceptance of a remittitur prevents a
plaintiff from making a direct appeal from a final judgment with respect to issues unrelated
to the remittitur. “This court has the power to recognize and abolish common law
doctrines.” Larson v. Wasemiller, 738 N.W.2d 300, 303 (Minn. 2007).
A.
The Alinders and Heitkamp urge us to hold that the common law rule—acceptance
of a remittitur precludes a plaintiff from challenging the reduced award on appeal— bars a
plaintiff from appealing all issues following acceptance of the remittitur unless the
defendant first appeals, which would trigger the Jangula exception. They also argue that
this broad rule barring all appeals by a plaintiff after acceptance of a remittitur is necessary
to foster judicial economy and finality in litigation.
The Roaches contend that they waived their right to appeal only the reduction of
future damages but not their right to appeal other issues. They encourage us to adopt what
is known as the separate and distinct rule, which allows appeals on issues that are separate
and distinct from the subject of the remittitur. The Roaches claim that the issues of
preverdict interest and attorney fees are separate and distinct from the subject of the
remittitur and, therefore, are appealable despite acceptance of the remittitur. T hey argue
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that the separate and distinct rule promotes judicial economy by resolving issues on appeal
that would not be addressed by a second trial, even if a remittitur is rejected.
The Alinders and Heitkamp counter, arguing that, even if we adopt the separate and
distinct rule, the appeal here was still not proper because the attorney fees and preverdict
interest determinations were bound up in the damages award and thus not separate and
distinct from the subject of the remittitur. In other words, they contend that accepting the
remittitur bound the Roaches to the total amount awarded in the district court’s order and
that the attorney fees and preverdict interest determinations cannot be severed from that
total because the district court specifically noted that those awards—or lack thereof, in the
case of attorney fees— were addressed in the post-trial order. The Alinders and Heitkamp
contend that allowing parts of a judgment to be separated from the remitted judgment
would create uncertainty and inconsistency, thus threatening judicial economy.
“We often look to case law from other states for guidance when our own
jurisprudence is lacking,” and we also look to federal law when it is helpful. Gordon v.
Microsoft Corp., 645 N.W.2d 393, 402 n.9 (Minn. 2002 ). A number of courts, both state
and federal, have applied the separate and distinct rule.4 Further, we know of no court that

4 See Templeton Feed & Grain v. Ralston Purina Co., 446 P.2d 152, 156‒57 (Cal.
1968) (in bank); Cohen v. Yale-New Haven Hosp., 800 A.2d 499, 502‒06 (Conn. 2002);
Kornegay v. Aspen Asset Grp., LLC , 693 S.E.2d 723, 741‒42 (N.C. Ct. App. 2010); Call
Carl, Inc. v. BP Oil Corp., 554 F.2d 623, 626‒27 (4th Cir. 1977); Lanier v. Sallas , 777
F.2d 321, 325 (5th Cir. 1985); Denholm v. Houghton Mifflin Co., 912 F.2d 357, 359‒60
(9th Cir. 1990); Utah Foam Prods. Co. v. Upjohn Co., 154 F.3d 1212, 1216 (10th Cir.
1998); Aaro, Inc. v. Daewoo Int’l (Am.) Corp., 755 F.2d 1398, 1401 (11th Cir. 1985).

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considered the separate and distinct rule and rejected that rule entirely.5 Of the jurisdictions
that have considered the separate and distinct rule, all have determined that there are some
matters that a plaintiff can appeal directly despite acceptance of a remittitur. The difference
among courts is how the category of appealable issues is defined. 6
For the reasons that follow, we adopt the separate and distinct rule. We find two
decisions particularly instructive in our decision to do so. In Templeton Feed & Grain v.
Ralston Purina Co., the California Supreme Court held that the plaintiff’s consent to a
remittitur did not preclude an appeal from the judgment on a severable issue. 446 P.2d
152, 156‒57 (Cal. 1968) (in bank). The plaintiff challenged the trial court’s refusal to
instruct the jury on exemplary damages. Id. at 153. The court determined that it could not
assume that the plaintiff, “in agreeing to the remittitur, also acquiesced in the trial court’s
separate and distinct denial of [the] plaintiff’s right to recover punitive damages.” Id. at
158. The court concluded that correction of the error urged by the plaintiff—the failure to
instruct on exemplary damages—“would not itself necessitate the re opening of the entire
judgment” and could, therefore, be appealed by the plaintiff despite accept ance of the
remittur. Id. at 157.

5 A few jurisdictions that have addressed the rule have not e xpressly adopted or
rejected it; rather, these jurisdictions determined that it did not apply to the dispute before
the court. See Deans v. E. Me. Med. Ctr., 454 A.2d 835, 837 (Me. 1983); Kneas v. Hecht
Co., 262 A.2d 518, 520‒21 (Md. 1970).

6 See, e.g., Templeton, 446 P.2d at 157 (concluding that the issue could be appealed
because it would not “necessitate the reopening of the entire judgment”); Cohen, 800 A.2d
at 504‒05 (concluding that issues were not separate and distinct because there was evidence
in common between them and they could result in overlapping verdicts).
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The adoption of the separate and distinct rule by the Connecticut Supreme Court in
Cohen v. Yale-New Haven Hospital also provides useful guidance. 800 A.2d 499, 502‒06
(Conn. 2002). In Cohen, the plaintiff challenged on appeal the trial court’s decision not to
charge the jury on a particular causation question as well as the court’s decision to set aside
the verdict on one specific issue. Id. at 502. After the trial, the court ordered a remittitur
of the jury’s damages award, which the plaintiff accepted. Id. On appeal, the supreme
court considered whether acceptance of the remittitur barred the plaintiff from appealing
the court’s decision on these two particular issues. Id. at 503. The court noted that appeals
on issues “separate or distinct from the issue on which a plaintiff has accepted a remittitur”
were not precluded. Id. at 504. But the court determined that the issues on appeal were
not separable because the appeal sought to obtain additional compensatory damages for the
same cause of action and of the same type as the damages that were the subject of the
remittitur; thus, allowing an appeal could result in overlapping verdicts because there was
evidence in common to the issue on which remittitur was accepted and the issues plaintiff
sought to appeal. Id. at 504‒05.
In addition to these decisions, we also consider the overall objective of remittitur,
which is to “avoid the delay and expense of an appeal or a new trial” when the district court
determines that a jury’s award is excessive. Jangula, 170 N.W.2d at 593 (quoting Plesko,
120 N.W.2d at 135). In other words, remitti tur allows the district court to correct jury
error. See Podgorski, 179 N.W. at 680 (explaining that remitt itur is not an encroachment
on the province of the jury but merely corrects an error).
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Considering the purpose of remittitur and the notion that it serves merely as error
correction, it makes sense that accepting a remittitur should necessarily bar appeals only
on damages awarded by the jury. Allowing remittitur to bind plaintiffs to decisions
completely separate from a jury’s award expands remittitur beyond its intended objective—
a necessary correction to a mistaken jury decision—and insulates erroneous district court
decisions from any review on appeal. Additionally, we find persuasive the Roaches’
argument that the separate and distinct rule fosters judicial economy because, without it,
the Roaches would have to reject the remittitur and undergo a new trial on damages before
they could appeal the district court’s posttrial rulings that would be unaffected by that
second trial.7
Because the separate and distinct rule allows an appeal on issues that are unrelated
to a remittitur, it is consistent with sound appellate practice and promotes judicial economy.
We therefore adopt that rule.
B.
The Alinders and Heitkamp contend that, even under the separate and distinct rule,
the issues of attorney fees and preverdict interest are not separate and distinct appealable
issues in this case. We disagree.

7 The Eleventh Circuit, addressing facts similar to those before us in this case,
explained that rejecting the separate and distinct rule would cause a district court’s order
on legal determinations to be “appealable by the plaintiffs only after a new trial on the
damages issue, despite the fact that neither party contests the court’s resolution of the
damages issue. Such a result would be illogical and a waste of judicial resources.” Aaro,
Inc., 755 F.2d at 1401 n.6.
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Although jurisdictions that have adopted this rule do not have a uniform definition
of what issues are “separate and distinct,”8 we conclude that the issues of attorney fees and
preverdict interest are separate and distinct from the remittitur on future damages under
any definition and that we need not expressly define the contours of the separate and
distinct rule in this appeal. It is enough to say that a legal determination made by the district
court and never presented to, or considered by, the jury is an issue that is separate and
distinct from a remittitur.
Here, the issues of attorney fees and preverdict interest were addressed by the
district court in its order on posttrial motions and were never considered by the jury. The
district court made legal determinations based solely on its understanding of the law. Put
another way, the jury never considered whether Minn. Stat. § 103D.545, subd. 3,
authorized attorney fees here or whether the Roaches were entitled to preverdict interest
and for what time period. Further, the jury’s findings of fact were unrelated to, and
irrelevant for, the court’s determination of these issues.9

8 Other state courts that have adopted the rule consider issues to be separate and
distinct when those issues do not have evidence in common, when review of one issue does
not require reopening the entire judgment, or when review of one issue would not result in
overlapping verdicts. See Cohen, 800 A.2d at 504‒05; Templeton Feed & Grain, 446 P.2d
at 157.

9 The Alinders’ and Heitkamp’s reliance on the Tenth Circuit’s decision in Alley v.
Gubser Development Co., 785 F.2d 849 (10th Cir. 1986) , is unpersuasive because that
decision is inapposite to the issues presented here. The question in that case was whether
accepting a remittitur “under protest” preserved the right to appeal any issues whatsoever.
Id. at 857. Thus, while the Tenth Circuit concluded that the plaintiff could not appeal the
district court’s denial of attorney fees (or the remittitur of punitive damages), the court did
not contemplate whether attorney fees would be a separate and distinct issue because the
court did not consider the separate and distinct rule. The court was simply presented with
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Therefore, we conclude that, at the very least, the legal issues determined by the
district court are separate and distinct issues from the remittitur of the jury’s future damages
award. Thus, the Roaches’ appeal of the district court’s rulings on attorney fees and
preverdict interest is pr oper despite their acceptance of the remittitur, and we affirm the
court of appeals’ decision on this issue.
II.
We turn next to whether the court of appeals erred by holding that attorney fees
were authorized in this case under Minn. Stat. § 103D.545, subd. 3, a provision governing
watershed districts. We conclude that it did so.
Statutory interpretation is a question of law, which we review de novo. Am. Tower,
L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn. 2001).10 Section 103D.545, subdivision
3, provides: “In any civil action arising from or related to a rule, order, or stipulation
agreement made or a permit issued or denied by the managers under this chapter, the court
may award the prevailing party reasonable attorney fees and costs.” 11 Section 103D.545
as a whole addresses enforcement, and subdivisions 1 and 2 provide for particular kinds of
criminal and civil enforcement methods. Minn. Stat. § 103D.545.

the question of whether accepting a remittitur “under protest” could preserve the right to
appeal—a question that is irrelevant to our resolution of the issues before us.

10 The Alinders and Heitkamp contend that the standard of review is an abuse of
discretion. However, the issue presented here is whether the statutory language allows
attorney fees in the first instance. This is purely a legal determination that calls for de novo
review.

11 “Managers” is defined as “the board of managers of a watershed district.” Minn.
Stat. § 103D.011, subd. 15 (2020).
16
Under Minnesota’s common law, attorney fees are not allowed in ordinary civil
actions. In re Silicone Implant Ins. Coverage Litig., 667 N.W.2d 405, 422 (Minn. 2003).
Rather, attorney fees are allowed only when permitted by a specific contract or when
authorized by statute. Barr/Nelson, Inc. v. Tonto’s, Inc., 336 N.W.2d 46, 53 (Minn. 1983);
State v. Dist. Ct. of St. Louis Cnty., 152 N.W. 838, 840 (Minn. 1915). “[S]tatutes are
presumed not to alter or modify the common law” unless the intention to abrogate the
common law is provided by express wording or necessary implication. Agassiz & Odessa
Mut. Fire Ins. Co. v. Magnusson, 136 N.W.2d 861, 868 (Minn. 1965) ; Ly v. Nystrom, 615
N.W.2d 302, 314 (Minn. 2000). Statutes, therefore, must be construed in harmony with
existing principles of common law. In re Estate of Washburn, 20 N.W. 324, 326 (Minn.
1884). Thus, “[w]e decline to construe legislative intent to abrogate the common law with
regard to [an] attorney fees provision in the absence of a clear purpose to do so.” Ly, 615
N.W.2d at 314.
The Alinders and Heitkamp argue that the Roaches may not seek attorney fees under
Minn. Stat. § 103D.545, subd. 3, because the Roaches’ civil action was based in tort and
did not arise from or relate to a watershed district rule for the purposes of subdivision 3.
Further, they contend that the statute applies only when a watershed district is a party to
the litigation. They argue that applying the statute to disputes involving solely private
parties “would open the floodgates” to allow attorney fees in all manner of disputes
between neighbors.
The Roaches contend that the court of appeals properly concluded that Minn. Stat.
§ 103D.545, subd. 3, applies here because the plain language of the statute requires only
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that a civil action be “related to” a watershed district rule. They specifically point to our
broad interpretation of “relat[ed] to” in Phone Recovery Services, LLC v. Qwest Corp., 919
N.W.2d 315 (Minn. 2018), and 500, LLC v. City of Minneapolis, 837 N.W.2d 287 (Minn.
2013). They argue that they asserted, from the very beginning of the litigation, that the
Alinders and Heitkamp were negligent per se 12 by failing to obtain the necessary permits
before adding fill to the Alinders’ property, in violation of Pelican River Watershed District
rules; thus, they contend, the dispute is related to a watershed district rule. The Roaches
also note that nothing in the text of the statute requires that a watershed district be a party
to the litigation for the statute to apply.
A.
The question before us is, in the context of both the enforcement statute and the
common law principles surrounding attorney fees, what it means for an action to arise from
or relate to a violation of a watershed district rule under section 103D.545, subdivision 3.
We have not previously interpreted Minn. Stat. § 103D.545, subd. 3.
The purpose of statutory interpretation is to ascertain the intention of the
Legislature. Minn. Stat. § 645.16 (2020). When interpreting a statute, we give words and
phrases their ordinary meaning. Minn. Stat. § 645.08(1) (2020). We also read a statute as
a whole and, where possible, construe it “to give effect to all its provisions.” Minn. Stat.
§ 645.16. When a statute is susceptible to more than one reasonable interpretation, it is

12 “A per se negligence rule substitutes a statutory standard of care for the ordinary
prudent person standard of care, such that a violation of a statute (or an ordinance or
regulation adopted under statutory authority) is conclusive evidence of duty and breach.”
Gradjelick v. Hance, 646 N.W.2d 225, 231 n.3 (Minn. 2002).
18
ambiguous. Amaral v. Saint Cloud Hosp., 598 N.W.2d 379, 384 (Minn. 1999). When a
statute is ambiguous, we may look to the canons of construction to determine its meaning.
State v. Hayes, 826 N.W.2d 799, 804 (Minn. 2013). To ascertain the meaning of an
ambiguous statute, we may consider various factors relevant to legislative intent, including
the object to be obtained, the consequences of a particular interpretation, and the
contemporaneous legislative history. Minn. Stat. § 645.16.
We have previously interpreted the phrase “relating to” in 500 LLC v. City of
Minneapolis, 837 N.W.2d 287, 291 (Minn. 2013). We concluded that, as used in the statute
at issue in that case, the phrase was unambiguous and meant to have a “connection,
association, or logical relationship.” Id. (citing Morales v. Trans World Airlines, Inc., 504
U.S. 374, 383 (1992)). The Roaches rely on this previous interpretation to argue that
section 103D.545, subdivision 3, unambiguously authorizes attorney fees here. Though
we agree that this is the only reasonable interpretation of the same phrase as used in the
statute at issue in 500 LLC, we note that the phrase as used in section 103D.545, subdivision
3, must be read in context, not in isolation.
To determine whether subdivision 3 unambiguously expresses a clear intent to
abrogate the common law rule on attorney fees or necessarily implies such abrogation, we
look to section 103D.545 as a whole. See Minn. Stat. § 645.16. Section 103D.545 is an
enforcement provision. Subdivision 2 of the section specifically provides the methods of
enforcement for all of chapter 103D. The subdivision reads: “A provision of this chapter,
a rule, order, or stipulation agreement made or a permit issued by the managers under this
chapter may be enforced by criminal prosecution, injunction, action to compel
19
performance, restoration, abatement, and other appropriate action.” Minn. Stat.
§ 103D.545, subd. 2. Thus, reading subdivision 3 within section 103D.545 as a whole, the
authorization of attorney fees in subdivision 3 could be reasonably interpreted to be limited
to the enforcement methods provided in subdivision 2 —an injunction, action to compel
performance, restoration, abatement, and other appropriate action.
We conclude that, because subdivision 3 is susceptible to more than one reasonable
interpretation, it is ambiguous. The first reasonable interpretation is the one urged by the
Roaches: that attorney fees are authorized in any civil action with any connection,
association, or logical relationship to a watershed district rule. A second reasonable
interpretation is that the attorney fees authorized by subdivision 3 apply only to those types
of civil enforcement actions outlined in the rest of section 103D.545.
Having determined that the statute is ambiguous, we turn to the canons of
construction to understand the intent of the Legislature behind the attorney fees provision.
Minn. Stat. § 645.16; see also State v. Riggs, 865 N.W.2d 679, 682 n.3 (Minn. 2015)
(noting that the canons of construction are considered after a statute is determined to be
ambiguous). A number of canons of construction are particularly useful in determining the
legislative intent here.
We start by considering “the consequences of a particular interpretation.” See Minn.
Stat. § 645.16(6). T he broad interpretation urged by the Roaches results in a significant
departure from the common law rule that ordinarily prohibits attorney fees . The
consequences of that interpretation—that attorney fees are authorized in any civil action
with any connection to a watershed district rule—are significant. This interpretation would
20
authorize attorney fees in a wide variety of private party disputes that are only tangentially
connected to a watershed district rule. This result is contrary to our common law approach
that attorney fees are generally not awarded to successful litigants and parties must pay
their own attorney fees. See Ly , 615 N.W. 2d at 314 (construing a statutory attorney fees
provision narrowly because there was no clear intent to substantially alter the fundamental
common law principle that each party bears its own fees).
We also consider “the contemporaneous legislative history” of the amendment that
added subdivision 3 to section 103D.545. See Minn. Stat. § 645.16(7). When the
Legislature added subdivision 3 in 1992, it also added a provision to section 103D.537.
Act of Apr. 17, 1992, ch. 466, § 7, 1992 Minn. Laws 306, 308. The subject of section
103D.537 is appeals of rules, permit decisions, and orders of watershed districts. Minn.
Stat. § 103D.537 (2020). At the same time that the Legislature added the attorney fees
provision to section 103D.545, it also added, to section 103D.537, the following text:
“Except as provided in section 103D.535, an interested party may appeal a rule, permit
decision, or order made by the managers by a declaratory judgment action brought under
chapter 555 or by appeal” to the Board of Water and Soil Resources. Act of Apr. 17, 1992,
ch. 466, § 7, 1992 Minn. Laws 306, 308 (emphasis added) (codified as amended at Minn.
Stat. § 103D.537(a) (2020). This amendment to section 103D.537 was focused on
particular methods by which private parties could challenge actions of watershed districts.
As far as our interpretation of section 103D.545, subdivision 3, is concerned, this
other simultaneous amendment provides insight into the Legislature’s focus at the time it
enacted the legislation containing both amendments. The attorney fees amendment was,
21
itself, concerned with rules, orders, stipulation agreements, and decisions to issue or deny
permits made by watershed districts. See Act of Apr. 17, 1992, ch. 466, § 7, 1992 Minn.
Laws 306, 308. Collectively, these amendments indicate that the Legislature was
concerned with ensuring a mechanism through which private parties could challenge
watershed district actions. This supports the second reasonable interpretation of
subdivision 3: that the attorney fees authorized by subdivision 3 were intended to apply
only to cases seeking to enforce or challenge watershed district actions, such as the actions
outlined by subdivision 2 of section 103D.545.
Finally, when interpreting an ambiguous statute, we also construe that statute as a
whole. Minn. Stat. § 645.16. Section 10 3D.545 has always addressed enforcement
through criminal prosecution and civil actions, and the Legislature chose to place the
attorney fees provision within this section when it enacted subdivision 3 in 1992. Act of
Apr. 17, 1992, ch. 466, § 7, 1992 Minn. Laws 306, 308.
Given these considerations, we conclude that the second interpretation of
subdivision 3—that subdivision 3 applies only to those types of civil actions seeking to
enforce or challenge watershed district actions—is the more reasonable interpretation . To
conclude otherwise would be contrary to our longstanding common law rule and our
requirement that the intent of the Legislature to abrogate a common law rule must be clear
and express or necessarily implied.
22
The Legislature is customarily clear about authorizing awards of attorney fees to
successful litigants,13 and section 103D.545, subdivision 3, is not a clear authorization of
awards of attorney fees to private parties ; nor does it necessarily imply such a result.
Without clearer indication from the Legislature, we cannot conclude that subdivision 3 was
intended to authorize attorney fees in any civil action with any connection to a watershed
rule. Such a finding would substantially alter our common law rule without any clear
indication that the Legislature intended such a broad and significant modification. See
Magnusson, 136 N.W.2d at 868.

13 See, e.g., Minn. Stat. §§ 8.31, subd. 3(a) (“In addition to the remedies otherwise
provided by law, any person injured by a violation of any of the laws referred to in
subdivision 1 may bring a civil action and recover damages, together with costs and
disbursements, including costs of investigation and reasonable attorney’s fees . . . .”
(emphasis added)), 117.045 (“ Upon successfully bringing an action compelling an
acquiring authority to initiate eminent domain proceedings relating to a person’s real
property which was omitted from any current or completed eminent domain proceeding,
such person shall be entitled to petition the court for reimbursement for reasonable costs
and expenses, including reasonable attorney . . . fees . . . .” (emphasis added)), 524.3–720
(“Any personal representative or person nominated as personal representative who defends
or prosecutes any proceeding in good faith, whether successful or not, or any interested
person who successfully opposes the allowance of a will, is entitled to receive from the
estate necessary expenses and disbursements including reasonable attorneys’ fees
incurred.” (emphasis added)), (2020); see also 27 Michael K. Steenson, J. David Prince &
Shane A. Anderson Minnesota Practice—Products Liability Law § 13.23 (2020‒2021 ed.)
(“The general American common law rule is that the costs of litigation are borne by the
parties that incur them and a prevailing party to litigation is not ordinarily entitled to
recover her costs as part of, or in addition to, her other damages.”); 23 Ronald I.
Meshbesher & James B. Sheehy, Minnesota Practice —Trial Handbook for Minnesota
Lawyers § 43:7 (2020‒2021 ed.) (“Attorney’s fees as costs are not recoverable unless there
is a specific contract permitting their payment or a statute authorizing such recovery.”).

23
B.
Having determined that subdivision 3 does not authorize attorney fees in any civil
action with any connection to a watershed district rule, but, rather, that attorney fees
incurred only in civil actions seeking to enforce or challenge watershed district actions are
authorized, we consider whether the action brought by the Roaches comes within the scope
of the attorney fees provision.
The Roaches did not challenge a watershed district action. Therefore, the attorney
fees provision applies only if they sought to enforce a watershed district rule, order,
stipulation agreement, or permit in their litigation against the Alinders and Heitkamp.
Subdivision 2 of section 103D.545 specifically mentions the follo wing civil methods of
enforcing the provisions of chapter 103D: injunction, action to compel performance,
restoration, abatement, and other appropriate action.
In their complaint, the Roaches pleaded a violation of Pelican River Watershed
District Rule 4.10, which requires permits for any “alterations to land, impervious surface,
or vegetation in Shore or Bluff Impact Zones, or on steep slopes in a Shoreland Zone.”
Pelican River Watershed District, Rule 4.10 (2003). 14 The Roaches did not assert that the
failure to obtain the necessary permits before adding fill to the Alinders’ property was a
basis for their negligence per se cause of action or any of the other causes of action asserted
against the Alinders and Heitkamp.

14 “Alterations to land” is defined as “grading, excavation, fill or movement of soil or
vegetative material.” Pelican River Watershed District, Section 3.0. The district court
found that fill was placed on the Alinders’ property within a Shore Impact Zone.

24
In their motion for partial summary judgment, the Roaches again noted the violation
of Pelican River Watershed District Rule 4.10. The argument that they were entitled to
summary judgment, however, focused entirely on the violation of the Becker County
zoning ordinances. In particular, the section of the memorandum supporting their motion
as to the nuisance and negligence per se counts was titled “The Zoning Violation of the
Alinder Defendants Supports a Finding of Nuisance and Negligence per Se.”
When the district court decided the Roaches’ motion, 15 it concluded that the
Roaches had sufficiently proven their negligence per se claim against the Alinders and
cited violations of Becker County zoning ordinances as the basis for this determination. 16
The watershed district rule was not mentioned anywhere in the summary judgment order.
After the Roaches filed their posttrial motion for attorney fees under Minn. Stat.
§ 103D.545, subd. 3, the district court described the only function of the watershed district
rule as having “clarified” that the Alinders were negligent per se.
It is clear from their own pleadings and motions, as well as from the rulings of the
district court, that the Roaches’ objective was to force Becker County to enforce its zoning
ordinance and to obtain compensation from the Alinders and Heitkamp for the alleged tort
violations. None of those tort actions were based on violation of a watershed district rule.
All of the Roaches’ claims centered on violations of Becker County zoning ordinances.

15 The court stayed the motion, as well as Becker County’s motion for summary
judgment, pending the conclusion of the 2015 bench trial.

16 Based on the increased runoff to the Roach es’ property, which resulted from the
increased elevation of the Alinder property, the court also found that the Roaches had
sufficiently proven the nuisance claim against the Alinders.
25
Therefore, this dispute did not “aris[e] from or relate[] to” a watershed district rule under
subdivision 3.
It is also relevant that the Roaches could have brought the same ca uses of action
against the Alinders and Heitkamp absent the watershed district rules entirely. Although
representatives from the Pelican River Watershed District inspected the property as part of
the court-ordered restoration process, none of the Roaches’ claims relied on the existence
of the watershed rule. Further, the outcome on the merits of the Roaches’ claims would
not change if Rule 4.10 did not exist.
Although the district court commented that violation of the watershed rule
“clarified” that the Alinders and Heitkamp were negligent per se, “clarify” is not the
standard provided by the Legislature in subdivision 3. In light of our discussion above, we
conclude that “arising from or related to” requires a watershed district rule to do more than
clarify what is otherwise established by regulations entirely separate from the watershed
district rule. We decline to decide whether it is ever appropriate to award attorney fees to
a private party litigant under Minn. Stat. § 103D.545, subd . 3, and hold only that it is not
appropriate here. A stray assertion of a violation of a watershed district rule simply is not
sufficient to meet the “arising from or related to” requirement of the statute.
We conclude that this action does not arise from or relate to a watershed district rule
as required by Minn. Stat. § 103D.545, subd. 3 and, therefore, reverse the decision of the
court of appeals as to this issue.

26
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals’ holding
that the Roaches’ appeal on attorney fees and preverdict interest was not barred by their
acceptance of the remittitur and reverse the decision of the court of appeals holding that
Minn. Stat. § 103D.545, subd. 3, authorized attorney fees in this case.17
Affirmed in part and reversed in part.

CHUTICH, J., took no part in the consideration or decision of this case.

17 Neither party challenged the holdings of the court of appeals as to the other issues
raised in the appeal and addressed by that court, including the preverdict interest issue.
Thus, those issues are not before us, and the remand directed by the court of appeals to
recalculate preverdict interest is unaffected by our decision.