Penelope Isleman, et al., Appellants,

This opinion will be unpublished and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
A20-0092

Penelope Isleman, et al.,
Appellants,

vs.

Public Storage,
Respondent.

Filed November 23, 2020
Affirmed
Florey, Judge

Anoka County District Court
File No. 02-CV-17-1095

Edward F. Rooney, Minneapolis, Minnesota (for appellants)

Jesse H. Kibort, Abraham S. Kaplan, Parker, Daniels, Kibort, LLC, Minneapolis,
Minnesota (for respondent)

Considered and decided by Florey, Presiding Judge; Segal, Chief Judge; and
Hooten, Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
This appeal arises from a lawsuit brought against respondent Public Storage for
breach of contract, conversion, civil theft, consumer fraud, and violation of the Minnesota
Liens on Personal Property in Self -Service Storage Act , Minn. Stat. §§ 514.970 -.979
(2018), after the sale of appellants’ stored property following delinquent rental payments.

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Because the district court did not abuse its discretion in denying appellants leave to amend
their complaint or motion to add a claim for punitive damages, and also did not err in
granting respondent summary judgment on a ppellants’ conversion and civil -theft claims,
we affirm.
FACTS
Appellant Penelope Isleman rented a storage locker from respondent Public Storage
beginning in January 2012 at respondent’s Spring Lake Park self -storage facility. As part
of the rental process, Penelope Isleman entered into a written Lease/Rental Agreement (the
Agreement) with respondent and listed her current address on that document, which at the
time was in Columbia Heights, Minnesota. Penelope Isleman maintains she never
reviewed the terms of the Agreement because the storage facility employee encouraged her
not to read it prior to signing.
The Agreement contained the following relevant provisions:
Paragraph 3(b) states:
Owner shall not be liable to Occupant or anyone else for the
removal or sale of personal property which is owned by
someone other than occupant, or upon which a prior lien has
attached, unless Occupant had notified Owner that personal
property in Occupant’s space was not Occupant’s personal
property. Occupant agrees to notify Owner, in writing, of any
personal property stored in Occupant’s space which is not the
sole personal property of Occupant and of the name of any
person who has an interest in the personal property. Notice by
Occupant to Owner shall not mean that Owner has agreed that
Occupant may store property owned by anyone other than
Occupant in the premises.

Paragraph 5 states:

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Occupant shall store only personal property that belongs to
Occupant. Because the value of the personal property may be
difficult or impossible to ascertain, Occupant agrees that
under no circumstances will the total value of all personal
property stored in the Premises, exceed or be deemed to
exceed $5,000. Occupant acknowledges and agrees that the
Premises and the Property are not suitable for the storage
of heirlooms or precious, invaluable or irreplaceable
property such as, bu t not limited to, books, records,
writings, contracts, documents, personalized or other
DVDs or videos, works of art, objects for which no
immediate resale market exists, objects which are claimed
to have special or emotional value and records or receipts
relating to the stored goods.

Paragraph 13(a) states:
In the event Occupant shall change Occupant’s physical
address or email address, or alternate name and address as set
forth on this Lease/Rental Agreement, Occupant shall give
Owner written notice of such change signed by Occupant and
specifying Occupant’s current physical address or email
address and alternate name, address and telephone number,
within ten (10) days of the change; such notice to be mailed to
owner by first class mail with proof of mai ling. Changes of
addresses or telephone numbers cannot be effected
telephonically or through the listing of such information on
return envelopes or checks.

Paragraph 16 states:
With the exception of posted rules and regulations as noted
in paragraph 14, there are no representations, warranties,
or agreements by or between the parties which are not fully
set forth herein and no representative of Owner or Owner's
Agents is authorized to make any representations,
warranties, or agreements other than as expressly set forth
herein and, further, with the exception of any subsequent
notice from Owner to Occupant of adjustments as provided
in paragraph 2 above, this Lease/Rental Agreement may
only be amended in a writing signed by the parties.

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In 2013, while continuing to rent the storage locker, Penelope Isleman moved to
Grand Rapids. During this period, she placed into the storage unit some property belonging
to her mother, appellant Margaret Isleman. According to Penelope Isleman, she stored her
mother’s belongings in the same unit she was already renting based on the recommendation
of a local storage-facility employee.
On October 22, 2013, Penelope Isleman called the Spring Lake Park faci lity and
asked that her mother ( Margaret Isleman), “take over the unit. ” During this call, a local
employee spoke to both appellants. Over the phone, the employee confirmed the monthly
rate and payment deadlines for Penelope Isleman’s unit with Margaret Isleman, who agreed
that she would “take over the payments.” According to Margaret Isleman, the employee
told her she would “be treated exactly the same” as her daughter (Penelope Isleman) .
Margaret Isleman began making the monthly rental payments for Penelope Isleman’s
storage locker. Margaret Isleman never reviewed the A greement or signed a new
lease/rental agreement with respondent.
Throughout 2013 and 2014, Penelope Isleman made several in -person attempts at
the Spring Lake Park facility to change the old address that was on file to her new address.
During her final in -person visit to the facility in October 2014, Penelope Isleman also
attempted to provide Margaret Isleman’s current address as an “alternate contact.” No
formal written notice of an address change as specified in t he Agreement was sent to
respondent. During the period that she made payments, Margaret Isleman never received
any mail from respondent, including notices of rent increases on the storage unit.

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Throughout 2014, respondent continued to send notices to Pe nelope Isleman at the
old address, and these notices were repeatedly returned as undeliverable. Many of these
returned notices included the forwarding address with Penelope Isleman’s current address.
Respondent did not update the address it had on file based on the returned mail, consistent
with its company policy at the time. Rental payments on the unit became delinquent , and
a public auction was initially scheduled for March 2015. This sale was postponed after
respondent received a $160.00 check cover ing a portion of the unpaid rent that was due;
the auction was eventually cancelled when the rental balance was made current at the end
of the month. Rental payments on the unit became delinquent again in Ap ril and a public
auction was scheduled for the end of May. Respondent sent Penelope Isleman a Notice of
Enforcement of Owner’s Lien-Notice of Sale at the old address, which was again returned,
and later a Balance Due Letter at the same undeliverable address. The contents of the
storage unit were sold at auction on May 27, 2015.
Appellants filed suit against respondent, alleg ing (1) breach of contract;
(2) conversion; (3) civil theft; (4) violation of the Minnesota Liens on Personal Property in
Self-Service Storage Act (Liens Storage Act); and (5) violation of the Minnesota Uniform
Deceptive Trade Practices Act. In September 2017, following respondent’s rule 12 motion,
the district court dismissed appellants’ consumer-fraud claim for violation of the Deceptive
Trade Practice Act (consumer-fraud claim). In May 2018, the court denied appellants’
subsequent motion to replead their consumer -fraud claim with particularity, concluding
that the prior dismissal had been with prejudice pursuant to Minn. R. Civ. Pro. 42.02(c).

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Following discovery, respondent moved for summary judgment on all claims
brought by Margaret Isleman and on Penelope Isleman’s conversion and civil-theft claims.
Appellants moved for partial summary judgment on the issue of liability on their claims
for conversion, civil theft, and violation of the Liens Storage Act. Appellants also moved
for leave to amend their complaint to seek punitive damages. The district court denied
appellants’ motion to amend their complaint to a dd a claim for punitive damages and
granted respondent’s motion f or summary judgment on all claims filed by Margaret
Isleman and on Penelope Isleman’s claims for conversion and civil theft. The district court
also granted Penelope Isleman summary judgment on the issue of liability on her claim that
respondent violated the Liens Storage Act . Finally, the court determined that, under the
Agreement, Penelope Isleman had agreed that she would not keep personal property in the
storage unit that had a value exceeding $5,000.00; accordingly, damages on her remaining
claims for breach of contract and violation of the Liens Storage A ct would be limited to
$5,000.1 This appeal follows.
D E C I S I O N
I. Denial of motion to replead consumer-fraud claim
Appellants argue that the district court erred by denying their motion to amend their
complaint to replead their consumer -fraud claim with the requisite particularity . “Under
Minn. R. Civ. P. 15.01, the decision by a trial court to deny a motion to amend a pleading
may be reversed only if the trial court abused its discretion.” Copeland v. Hubbard Broad.,

1 Prior to briefing submissions for this appeal, appellants voluntarily dismissed the
remaining breach-of-contract and lien-foreclosure claims.

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Inc., 526 N.W.2d 402, 405 (Minn. App. 1995). A party can “amend a pleading once as a
matter of course at any time before a responsive pleading is served.” Minn. R. Civ. P.
15.01. Rule 15.01 also provides that “[o]therwise a p arty may amend a pleading only by
leave of the court or by written consent of the adverse party; and leave shall be freely given
when justice so requires.”
In its order dated September 21, 2017, the district court dismissed appellants’
consumer-fraud claim for failure to meet the particularity requirements of Minn. R. Civ. P.
9(b). The court’s order did not state whether the dismissal was with or without prejudice.
In December, appellants moved to amend their co mplaint to replead the consumer -fraud
claim along with the submission of a proposed second amended complaint. In May 2018,
the district court denied appellants’ motion to amend, stating that the previous dismissal of
their claim had been “with prejudice.” In denying appellants’ motion, the court noted that
under Minn. R. Civ. P. 41.02(c), a dismissal is with prejudice and on the merits unless
otherwise specified, and in its prior order , the court “did not give [appellants] leave to
attempt to cure th e deficiencies in [the consumer -fraud claim] to avoid dismissal of the
claim.” Accordingly, the court concluded that appellants’ claim had been dismissed with
prejudice in the prior order and could not be revived in a second amended complaint.
Appellants contend that the district court erroneou sly relied on Minn. R. Civ. P.
41.02(c) to rule that the earlier dismissal of their claim had been “ a dismissal with
prejudice.” Appellants argue that the district court improperly invoked Rule 41.02 at the
“outset of a lawsuit” as the basis for holding that the prior dismissal had been with prejudice
because Rule 41 is intended, when viewed in chronological order of the Rules of Civil

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Procedure as a whole and read in the context of the preceding subsections, to be used only
later in litigation, after a case has reached the trial stage. Appellant s also emphasize that
their claim’s dismissal was “due to a pleading deficiency only” rather than based on a
failure to prosecute, and therefore was incongruent with the primary purpose of a Rule 41
dismissal.
A dismissal under Rule 41.02 is discretionary. Scherer v. Hanson, 270 N.W.2d 23,
24 (Minn. 1978) (per curiam). Accordingly, we will reverse such a dismissal “only when
the [district] court abused its discretion.” Bonhiver v. Fugelso, Porter, Si mich &
Whiteman, Inc. , 3 55 N.W.2d 138, 144 (Minn. 1984) . In a ddressing the effect of
involuntary dismissals, Minnesota Rule of Civil Procedure 41.02(c) states:
Unless the court specifies otherwise in its order, a dismissal
pursuant to this rule and any dismissal not provided for in this
rule or in Rule 41.01 , other than a dismissal for lack of
jurisdiction, for forum non conveniens, or for failure to join a
party indispensable pursuant to Rule 19, operates as an
adjudication upon the merits.

Here, the district court dismissed appellants’ consumer -fraud claim for failure to
meet the heightened particularity requirements of Rule 9. This reason for dismissal is not
one of the listed exceptions in Rule 41.02(c); accordingly, because the court did not
otherwise specify that it was dismissing appellants’ claim without prejudice, under the plain
language of Rule 41.02(c), the prior dismissal operated as “an adjudication on the merits.”
Appellants’ argument urging this court to limit the application of Rule 41.02(c) to
dismissals only at the trial stage of litigation is not founded in the plain language of the
rule. Because there had been a prior adjudication on the merits of this claim, the district

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court did not abuse its discretion in denying appellants’ leave to amend their complaint to
replead it.
While this prior adjudication and subsequent dismissal based on the plain language
of Rule 41 is sufficient to uphold the district court’s decision, we also observe that an
amendment would have been futile since appellants, as private plaintiffs, failed to plead
the public-benefit requirement necessary under Minn. Stat. § 8.31 to sue for violations of
the Consumer Fraud Act . Appellants alleged only a one -on-one transaction and failed to
plead a cause of action that falls within the scope of the private attorney general s tatute.
See Engstrom v. Whitebirch, Inc., 931 N.W.2d 786, 790 n.5 (Minn. 2019) (“In addition to
proving injury from the violations, plaintiffs who bring claims under the private attorney
general statute must also “demonstrate that their cause of action benefits the public.”)
Thus, the futility of appellant’s proposed claim also warrants the district court’s denial of
their motion to amend. See Doe 76C v. Archdiocese of St. Paul , 817 N.W.2d 150, 163
(Minn. 2012) (stating that an appellate court need not adopt a district court’s reasoning and
may enter judgment on any appropriate legal grounds).
Finally, while a ppellants contend that they moved to replead the consumer -fraud
claim “early on in the case, and well withi n the existing discovery pe riod,” as the district
court observed, their motion to amend was not promptly brought. Appellants could have
moved to amend their complaint at the sa me time respondent brought its r ule 12 motion
challenging the consumer-fraud claim for failure to meet the particularity requirements of
rule 9. Instead, appellants waited until after the district court had fully considered this issue
and ruled to dismiss their claim; only then electing to file another motion seeking to replead

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their dismissed claim with a proposed newly amended complaint. This delay in appellants’
motion serves as yet another basis to support the district court’s decision.
II. Summary judgment on conversion and civil-theft claims
Summary judgment is appropriate if the moving party shows there is no genuine
issue of material fact and is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.01.
This court reviews a district court’s summary -judgment decision de novo, assessing
whether any genuine issues of material fact exist and whether the district court misapplied
the law. Melrose Gates, LLC v. Moua, 875 N.W.2d 814, 819 (Minn. 2016). The reviewing
court views the evidence in the light most favorable to the nonmoving party and resolves
doubts regarding the existence of material facts in that party’s favor. Senogles v. Carlson,
902 N.W.2d 38, 42 (Minn. 2017).
A. Penelope Isleman’s claims

The district court determined that Penelope Isleman could not bring contract and
tort claims arising from the same incident, as double recovery is generally not permitted
and the “independent duty” exception was inapplicable based on the nat ure of the
conversion and civil -theft claims. The court determined that n o independent duty was
owed to Penelope Isleman and that the only duty respondent owed h er arose from the
parties’ contractual relationship. Since this contractual claim was the “gravamen of the
complaint,” the court concluded that Penelope Isleman could not recover under her
conversion and civil -theft claims and was limited to possible recovery on her breach -of-
contract claim.

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In general, a plaintiff may pursue “two legal remedies for the same wrongful
conduct,” but there can be no double recovery. Wirig v. Kinney Shoe Corp., 461 N.W.2d
374, 379 (Minn. 1990). However, under the independent-duty rule, “when a plaintiff seeks
to recover damages for an alleged breach of contract [s]he is limited to damages flowing
only from such breach except in exceptional cases where the defendant’s breach of contract
constitutes or is accompanied by an in dependent tort.” Wild v. Rarig , 234 N.W.2d 775,
789 (Minn. 1975). “An independent tort may accompany a breach of contract when the
defendant has a legal duty to the plaintiff arising separately from any duty imposed in the
contract.” Toyota-Lift of Minnesota, Inc. v. Am. Warehouse Sys., LLC , 868 N.W.2d 689,
696 (Minn. App. 2015), aff’d, (886 N.W.2d 208 (Minn. 2016).
Appellants argue that the district court erred in its application of the independent
duty rule because “the gravamen” of their complain t was a tort—rather than a breach -of-
contract claim—since “Penelope Isleman lost her property because Public Storage violated
duties imposed by law [i.e. notice requirements imposed by the Liens Storage Act ], not
duties imposed by the Lease.” Citing Francis v. W. Union Tel. Co. , 59 N.W. 1078, 1080
(Minn. 1895), r espondent argues that “the foundati on” of Penelope Isleman’s civil -theft
and conversion claims arise from the lease agreement she entered into with Public Storage,
and thus the limits regarding damages for a breach-of-contract claim were properly applied
by the district court. Respondent emphasizes that the related statutory provisions in the
Liens Storage Act still stem from the parties’ contractual relationship and thus do not create
an independent duty upon which a separate tort claim can be based.

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In Francis, the supreme court evaluated the nature of an action —whether it was
founded in tort or contract law —involving an undelivered telegraph message and
allegations that this failed transmission by the telegraph company caused plaintiff mental
anguish. Id. In concluding the action was founded in contract law, the court observed:
This action is not one of tort, but on contract; its gist and
gravamen being the breach of the contract, the duties and
obligations growing out of which are regulated by the statute,
which itself becomes a part of it. The best test of this is the
fact tha t such an action could not be maintained without
pleading and proving the contract.

Francis, 59 N.W. at 1080. In line with this guidance, the “gist and gravamen” of Penelope
Isleman’s tort claims arise from the lease agreement and the alleged violation o f that
contract by respondent. Id.; see also Swanson v. First Nat. Bank of Barnum , 239 N.W.
900, 901 (Minn. 1931) (citing Francis decision with approval and stating that “t he action
is one for breach of contract [because] . . . [w]ithout all eging and prov ing the
agreement . . . no recovery could be had”). The legal duty respondent owed to appellant,
which formed the basis of her conversion and civil -theft claims, did not arise separately
from the Agreement. Thus, the district court did not err as a matte r of law in dismissing
Penelope Isleman’s conversion and civil-theft claims.
Appellants also take issue with certain factual determinations made by the district
court in its summary -judgment order—namely that (1) Penelope Isleman agreed that she
would not keep property in the storage unit exceeding $5,000 and (2) Penelope and
Margaret Isleman both acknowledged that they “never sent a written notice to [Public
Storage] containing [Margaret Isleman’s] address.”

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Appellants do not explain how either of these facts, if reasonably in dispute, would
be material to the district court’s summary -judgment dismissal of Penelope Isleman’s
conversation or civil -theft claims. Moreover, the Agreement explicitly states that the
property kept in the rental unit cannot exceed $5,000. There is no genuine issue of material
fact that the agreed -upon limit of any damages claim was $5,000 and that the agreement
could not be varied by a telephone conversation with a local employee.
As to the district court’s determination that appellants acknowledged that they never
“sent a written notice” of Margaret Isleman’s address to respondent, appellants point to
their testimony that they provided an employee with “a writing” that contained updated
contact information during an in -person visit to the Spring Lake Park facility in October
2014. However, the “writing” that appellants claim to have provided in -person with the
new address, although technically in writing, did not comply with the written -notice
requirements outlined in the lease agreement. Appellants do not contend that this writing
satisfied the written -notice requiremen t; rather they argue that because Public Storage
received the new address in several formats, including in writing during an in-person store
visit, respondent should have updated its records accordingly , and this is what appellants
believed would happen. However, appellants’ version of events is not contrary to the
district court’s determination that it was undisputed that no written notice of an address
change was “sent”, e.g., mailed, as required under the lease agreement. Since the record
indicates that there was no genuine issue of material fact that no written notice was sent ,
the district court did not err in dismissing Penelope Isleman’s conversion and civil-theft
claims on this additional ground raised by appellants.

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B. Margaret Isleman’s claims

Appellants first argue that the district court improperly “treat[ed] as not credible
Penelope Isleman’s testimony that in May 2013 Public Storage’s employee n ot only
authorized, but encouraged, Penelope Isleman to store Margaret Isleman’s property in [the
unit] rented by Penelope Isleman.” In response to this point, respondent argues that the
district court considered this testimony but correctly determined that no reasonable person
would conclude Penelope Isleman’s telephone request to the local store employee would
modify the written rental contract with Public Storage. Respondent emphasizes that the
Agreement explicitly states that it can only be modified i n writing, and that no agents are
authorized to make any other agreements or modifications.
Appellants also argue that the district court misconstrued the willfulness
requirement of conversion in dismissing Margaret Isleman’s claim. Appellants contend
that willful interference “simply means an act that is intentional rather than accidental” and
that Public Storage certainly intended to take control of all the property in the storage locker
as part of the lien-foreclosure sale. Appellants contend that respondent should be liable to
“anyone who had an interest in property in the unit ,” even if it was unaware of those
interests at the time of the forecl osure sale, reasoning that “[c] onversion done innocently
or in ignorance is nonetheless conversion.”
In granting summary judgment on the conversion claim, t he district court
determined as a matter of law that respondent did not “willfully” interfere with Margaret
Isleman’s property because she was not authorized under the rental agreement to store her
personal property in the storage locker. The court also determined that respondent did not

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deprive Margaret Isleman of her property interest —rather Penelope Isleman deprived
Margaret Isleman of this interest by placing her mother’s property in the storage locker and
failing to make the required written notification to Public Storage regarding the additional
property that was to be stored in the rental unit.
Conversion occurs when a person “willfully interferes with the personal property of
another without lawful justification depriving the lawful possessor of use and possession.”
Williamson v. Prasciunas, 661 N.W.2d 645, 649 (Minn. App. 2003) (quotations omitted).
“The elements of common law conversion are: (1) plaintiff holds a property interest; and
(2) de fendant deprives plaintiff of that interest.” Id. Based on the record, the willful
interference and deprivation-of-interest elements were lacking since (1) Public Storage was
enforcing a valid lien foreclosure under the terms of its lease agreement with Penelope
Isleman; (2) Margaret Isleman’s property was being improperly stored in the unit without
the required written notification; and (3) Public Storage was unaware that Margaret
Isleman’s property was in the unit at the time of the foreclosure sale.
As to Margaret Isleman’s civil-theft claim, the district court found that she could
not establish that Public Storage “ stole” her property under the ordinary meaning of the
word—that respondent took it “wrongfully and surreptitiously . . . for the purpose of
keeping it and/or using it.” The court went on to state that “Margaret Isleman cannot
establish that [Public Storage] took her personal property for the purpose of keeping it
and/or using it. Rather, [Public Storage] was enforcing its contract with [ Penelope
Isleman].”

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Appellants (1) take issue with the district court’s discussion of the primary intention
of Minn. Stat. § 604.14 as providing “a recovery if merchandise or other property is stolen
from a retail store ;” (2) remark that the court’s defi nition of steal was “dubious ;” and
(3) challenge the court’s statement that “[Margaret I sleman] cannot establish that [Public
Storage] took her personal property for the purpose of keeping it and/or using it. Rather,
[Public Storage] was enforcing its con tract with [Penelope Isleman].” Appellants further
argue that “Public Storage was not enforcing a contractual right to take and sell the
property, as it had no such right” because it failed to comply with the Liens Storage Act.
Under Minn. Stat. § 604.14, subd. 1 (2018), “A person who steals personal property
from another is civilly liable to the owner of the property for its value when stolen plus
punitive damages of either $50 or up to 100 percent of its value when stolen, whichever is
greater.” This court has interpreted “steal” to mean “that a person wrongfully and
surreptitiously takes another person’ s property for the purpose of keeping it or using it.”
TCI Bus. Capital, Inc. v. Five Star Am. Die Casting, LLC , 890 N.W.2d 423, 431 (Minn.
App. 2017); see also Staffing Specifix, Inc. v. TempWorks Mgmt. Servs., Inc., 896 N.W.2d
115, 126 (Minn. App. 2017), aff’d, 913 N.W.2d 687 (Minn. 2018) (citing TCI with
approval and again applying the same d efinition of steal to the civil -theft statute). “This
definition makes clear that for a person to steal something, there must be some initial
wrongful act in taking possession of the property.” Staffing Specifix, Inc., 896 N.W.2d at
126.
Here, the summary-judgment record, viewed in the light most favorable to
appellants, could not support a finding that Public Storage, in believing it had complied

17
with the requirements of the Liens on Storage Act , including mailing and publishing the
required foreclosure notices, “ surreptitiously” took Margaret Isleman’s property for the
purpose of keeping it or using it. This is sufficient grounds to uphold the district court’s
grant of summary judgment. Further we observe that there is no genuine issue of material
fact that respondent also took possession of the contents of the storage locker without the
requisite “initial wrongful act ” because, as the district court observed, Margaret Isleman
voluntarily placed her property in the rental locker, and all property in that unit was subject
to a valid lien by Public Storage. Margaret Isleman voluntarily remained unaware of the
Agreement her daughter had entered into with Public Storage and the obligations arising
from that c ontract, including the specific written-notice and contact -information
requirements. Because the undisputed facts do not show that respondent wrongfully took
the contents of the storage unit initially, the district court did not err as a matter of law in
granting summary judgment on the civil -theft claim. See Staffing Specifix, Inc ., 896
N.W.2d at 126.
III. Denial of motion for punitive damages
This court reviews an order denying a motion to amend a complaint to add punitive
damages for an abuse of discretion. Bjerke v. Johnson, 727 N.W.2d 183, 196 (Minn. App.
2007), aff’d, 742 N.W.2d 660 (Minn. 2007). When moving to add a claim for punitive
damages, “the moving party must present prima facie evidence that clearly and
convincingly shows the defendant’s ‘deliberate disregard’ for the safety of others.” Id.
(quoting Minn. Sta t. § 549.20 , subd. 1(a) (2006)). “Deliberate disregard” means the
defendant “has knowledge of facts or intentionally disregards facts that create a high

18
probability of injury to the rights or safety of others” and “deliberately proceeds to act”
either “in conscious or intentional disregard of the high degree of probability of injury” or
“with indifference to the high probability of injury.” Minn. Stat. § 549.20, subd. 1(b). The
movant must present “admissible, probative, and competent evidence” of these factors. In
re 3M Bair Hugger Litig. , 924 N.W.2d 16, 24 (Minn. App. 2019), review denied (Minn.
Mar. 27, 2019). Evidence that merely “raise[s] questions” as to the actor’s culpability is
insufficient. Id.
After noting that appellants’ only remaining claims were for breach of contract and
violation of the Liens Storage Act, the district court observed that punitive damages are not
permitted for breach-of-contract claims and that the Lien s Storage Act has no provision
providing for punitive damages. The court concluded that, even if punitive damages were
permitted for such claims, the prima facie evidence established respondent’s conduct was
at most negligent, not “malicious” or “done in deliberate disregard of the rights of others”
as Minnesota’s punitive-damages statute requires. See Minn. Stat 549.20, subd. 1(a).
Appellants argue that the evidence established a prima facie case that respondent
showed “deliberate disregard” for their right s by (1) repeatedly mailing important notices
to an outdated address despite notification from the Postal S ervice of a new mailing
address; (2) having a company policy of sending all notices to customers with the postal
notice of “return service requested” so that mail could not be forwarded by the Postal
Service and instead had to be returned as undeliverable; and (3) proceeding with the lien-
foreclosure auction even after respondent received a payment of $128.40 for the rental unit.
Appellants contend that Public Storage’s failure to send statutorily required notices to its

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occupant’s last-known address was a clear violation of the Liens Storage Act and that this
practice was exacerbated by respondent’s “deliberate” corporate policy of sending out
these notices with “return service requested” so that they could not be automatically mailed
to an occupant’s updated address.
Respondent emphasizes that the Liens Storage Act was changed in 2014, and the
recent amendments changed the mail ed-notice requirements. Under the prior version of
the Act, Public Storage was only required to send notices to the address listed on the rental
agreement. Respondent argues that, at the time of the foreclosure proceedings, it did not
believe that the Act’s 2014 amended mailed-notice requirements applied to this case
because Penelope Isleman’s lease agreement had been entered into two years prior to the
new law and respondent interpreted the “extended after” language in the statute as not
encompassing prior rental agreement with indefinitely continued leases, such as Penelope
Isleman’s month-to-month lease. Respondent maintains that, because this interpretation of
the law was a “reasonable understanding,” its failure to comply with the amended mailed-
notice requirements cannot be seen as a deliberate disregard of appellants’ rights.
As respondent points out, the overdue balance on the storage locker exceeded the
$128.40 payment that was received in the spring of 2015 and, under the terms of the
Agreement, Public Storage was e ntitled to foreclose on the unit based on the delinquent
payments. We see no error in the district court’s conclusion that respondent did not present
evidence establishing a prima facie case that respondent maliciously or deliberately
disregarded appellants’ rights by enforcing its contractual remedy of foreclosing on its lien
after the unit’s occupant had defaulted on rental payments.

20
Moreover, based on the primary conduct at issue here —failure to send foreclosure
notices to Penelope Isleman’s last known address rather than the address listed on the rental
agreement—the district court reasonably determined that respondent’s conduct did not rise
to the level of deliberate disregard required by Minn. Stat § 549.20, subd. 1(a). As the
district court observed, respondent did send out the statutorily required notices, albeit to an
outdated address. While respondent’s understanding of its legal obligation under the new
law may have been erroneous and in violation of the Liens Storage Act, the district c ourt
did not abuse its discretion in concluding that such conduct failed to demonstrate a
deliberate disregard for appellants’ rights, and thus proper ly denied appellants’ motion to
amend the complaint to add a claim for punitive damages.
Affirmed.