Wat Lao Sirithammaram, Inc., et al., Respondents,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0199

Wat Lao Sirithammaram, Inc., et al.,
Respondents,

vs.

Mark Vinath Saythong, et al.,
Appellants.

Filed February 1, 2021
Affirmed
Florey, Judge

Washington County District Court
File No. 82-CV-18-1280

Kay Nord Hunt, Lommen Abdo, PA, Minneapolis, Minnesota; and

Jeffrey K. Priest, Priest Law Firm, Eagan, Minnesota (for respondents)

Mark A. Olson, Olson Law Office, Burnsville, Minnesota (for appellants)

Considered and decided by Florey, Presiding Judge; Segal, Chief Judge; and Ross,
Judge.
NONPRECEDENTIAL OPINION
FLOREY, Judge
On appeal arising from a dispute over control of a religious nonprofit corporation ,
appellants assert that the district court erred by (1) denying their motion for a continuance
of trial following a change in counsel; (2) making a number of erroneous findings of fact
and conclusions of law following a bench trial; (3) failing to consider additional defenses

2
raised in pleadings and other proceedings; and (4) denying their posttrial motions.
Appellants also assert that respondents’ claims are barred by the doctrines of res judicata,
collateral estoppel, actual and apparent authority, and laches. We affirm.
FACTS
Wat Lao Sirithamaram (Wat Lao or the corporation), originally named Lao Temple
& Vipassana Center for Minnesota, operates a s a Buddhist temple. Three original
incorporators formed Wat Lao as a nonprofit corporation in August 2010: respondent
Christina Vilay, respondent Thongdee Pongmalee, and Syfong Kongkeo. 1 Appellants are
members of the temple congregation who claim to be the legitimate board of directors of
Wat Lao. Respondents’ position (and the determination made by the district court), is that
respondents—not appellants—are the duly authorized directors.
Wat Lao’s original articles of incorporation are a one-page form document that lists
only the three incorporators’ names and contact information as well as the name of the
registered agent; there are no provisions providing for voting members or a board of
directors. These original articles were filed with the Secretary of State. In December 2011,
Vilay attempted to amend these articles with additional provisions (the first amended
articles) providing for the corporation’s charitable and religious purpose in order to mee t
the Internal Revenue Code tax -exemption requirements. In the years following this first
attempted amendment, appellants have filed other versions of amended articles with the
Secretary of State aimed at changing the name s of the corporation, original incorporators,

1 Syfong Kongkeo died in 2015 before this litigation commenced. Christina Vilay and
Thongdee Pongmalee are the two surviving incorporators of Wat Lao.

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and registered agent, as well as adding provisions regarding selection and composition of
the board of directors.
On April 20, 2014 , a m eeting took place at the temple with approximately 30
members of the congregation and was held primarily in Laotian.2 Of the three
incorporators, only Vilay attended. 3 After his purported “election” as “Chairman,”
Thamavong purported to appoint eight other individuals to form what appellants contend
to be the first and still legitimate board of directors of Wat Lao. 4 Another election was
held at the temple by appellants on July 30, 2017 for “Management Chairman.” Vilay and
Pongmalee attended the gathering but did not vote at this event; they were served with no-
trespass notices shortly thereafter. An eviction action between respondents and appellants
ensued in the fall of 2017 regarding access to and possession of the temple.
At the same time as the eviction action, another lawsuit arose between the parties.
In this separate civil action, respondents sought an injunction against appellants and raised
similar issues to those in the current matter regarding corporate governance and the rightful
board of directors. As part of this suit, respondents submitted a copy of the first amended
articles of incorpora tion from 2011 as the articles they believed at the time were
controlling. On February 8, 2018, the district court in that action declined to rule on the

2 Prior to this meeting, the parties agree there was no board of directors for the corporation.
3 Appellants maintain that the first board of directors for Wat Lao was elected at this
meeting. At trial, Vilay testified that she speaks limited Laotian and did not know a board
of directors was supposedly being “elected” at this meeting. Vilay believed th e meeting
was being held for the purpose of planning an upcoming Buddhist festival.
4 Vilay maintains that she never appointed Thamavong or gave him authority to appoint
any directors.

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substance of the parties’ requests, dismissing the case without prejudice. As part of this
dismissal, the district court concluded that there was a “fundamental and irreconcilable
conflict between [Wat Lao’s] Articles of Incorporation, which provide that there are no
voting Members, and [Wat Lao’s] Bylaws, which provide that Directors are chosen by the
Members[.]”
As a result of this prior lawsuit, it was discovered that the first amended articles of
incorporation were never filed with the Secretary of State and thus were not legally
effective. On February 21, 2018, Vilay and Pongmalee filed amended and restated articles
of incorporation with the Secretary of State (second amended articles). These second
amended articles provided that Vilay and Pongmalee would act as directors until a board
of directors was elected by the incorporators. Several days l ater, Vilay and Pongmalee
signed a corporate resolution appointing what they contend to be the corporation’s first
board of directors and adopting its first set of bylaws.5
Appellants filed thi s lawsuit in March 2018 seeking a declaratory judgment on
which articles of incorporation were valid and a determination of the legitimate board of
directors and governing bylaws. On June 5, 2019, appellants’ then -attorney, Christopher
Paul, filed a not ice of withdrawal. On June 17 , appellants requested a two -month
continuance of trial to which respondents objected. Two days later, the district court denied
appellants’ request for a continuance.

5 This newly appointed Board consisted of Vilay, Pongmalee, and attorney James Hewson.

5
Appellants subsequently retained a new attorney, Mark Anderson, and a two -day
bench trial was held in mid-July. Prior to trial, the district court took judicial notice of the
two prior cases between the parties. The record was held open for posttrial submissions
and closed on August 2. Anderson filed a notice of withdrawal on October 28.
Ultimately, the district c ourt found that as of February 8, 2018, Wat Lao had no
directors or voting members under its valid article s of incorporation—the one-page 2010
Articles—nor did it have bylaws before that time. The court further found that Vilay lacked
the actual and apparent authority to elect Thamavong to a board position at the April 2014
meeting and that the two incorporators’ attendance at the July 2017 election did not ratify
appellants’ claim to be the legitimate directors of the corporation. The court concluded
that Vilay and Pongmalee, as Wat Lao’s two surviving incorporators, had the authority
under Minn. Stat. § 317A.133, subd. 1, to amend Wat Lao’s articles and designate
themselves as directors until they appointed a board and that their February 2018 corporate
resolution properly established the corporation’s first board of directors and bylaws.
After retaining another new attorney, Mark Olson, appellants moved for amended
findings or a new trial. The district court denied the posttrial motions. This appeal follows.
DECISION
I. The district court did not abuse its discretion in denying appellants’ request
for a continuance of trial.

Appellants challenge the district court’s denial of their request for a continuance,
arguing that they “were forced to try their case with only two-weeks[’] time to prepare with
an attorney who had no prior knowledge of the case or the parties” and that this lack of

6
preparation and familiarity resulted in their trial attorney doing a suboptimal job litigating
the case, which included failing to make a number of evidentiary objections and conceding
key defenses prior to trial.6
In its order, the district court outlined the sequence of events leading to appellants’
request for a continuance and the reasoning behind the denial of their motion:
This matter has been set for trial on the week of July 15, 2019.
[Appellants] Saythong and Khouanchao’s letter [received by
the district court on June 17, 2019] requests that trial be
continued for 60 days beca use they are no longer represented
by counsel. They have provided practically no information as
to why that is the case. Their letter merely states: “Attorney
Christopher Paul is no longer our attorney due to irreconcilable
differences in how to handle t his matter going forward to trial
and in trial.” The record reflects that Mr. Paul filed a notice of
withdrawal on June 5, 2019.

The court went on to conclude, “The only reason that Saythong and Khouanchao have
provided to support their request for a con tinuance is insufficient, under Rule 105. They
have not provided any other reason that might warrant granting a continuance in this case.”
We review the district court’s denial of a motion for a continuance for an abuse of
discretion. Dunham v. Roer , 708 N.W.2d 552, 572 (Minn. App. 2006), review denied
(Minn. Mar. 28, 2006). The general test is whether a denial “prejudices the outcome of the
trial.” Chahla v. City of St. Paul , 507 N.W.2d 29, 32 (Minn. App. 1993), review denied
(Minn. Jan. 20, 1994). As the district court correctly observed, appellants did not have an

6 To the extent that appellants attempt to raise an ineffective -assistance-of-counsel
argument, we observe that such a claim is generally not available to an unsuccessful civil
litigant. See Glick v. Henderson, 855 F.2d 536, 541 (8th Cir. 1988) (“[Appellant]’s remedy
for any ineffective assistance of counsel is a suit against his attorney for malpractice, not a
new trial—the same remedy he would be entitled to in a civil case with private counsel.”).

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automatic right to a continuance upon the withdrawal of their attorney. See Minn. R. Gen.
Pract. 105 (“Withdrawal of counsel does not create any right to continuance of any
scheduled trial or hearing.” ).7 Under the facts presented here, the district court did not
abuse its discretion by denying appellants’ motion for a continuance. These facts include
that the case had been pending for over a year, trial had already been postponed once in
March 2019, the new trial date was over one month away at the time of counsel’s
withdrawal, and respondents adamantly opposed the proposed continuance and articulated
the prejudice further delay would cause them. The district court appropriately exerci sed
its discretion in weighing the burden on the opposing party and the continuity of litigation
against the scant explanation offered by appellants that they were finding it “difficult” to
retain another attorney in “such a short time.”
II. Appellants’ vari ous challenges to the district court’s finding s of facts and
conclusions of law are without merit.

Referring to what they describe as “Rule 52 Duties,” appellants appear to argue that
the district court failed in its fact-finding responsibilities by neglecting to address
arguments raised by appellants in their initial pleadings during the current litigation as well
as in prior related lawsuits. Appellants also seem to challenge a number of specific findings
and conclusions made by the district court regarding the validity of governing articles and
related corporate actions taken by respondents concerning the appointment of a board of
directors.

7 The advisory-committee comment clarifies that “ withdrawal or substitution of counsel
may be part of a set of circumstances justifying the exercise of the court’s discretion to
grant a continuance.” Minn. R. Gen. Pract. 105 1997 comm. cmt.

8
On appeal following a bench trial, we will not set aside the district court’s findings
unless they are cle arly erroneous. Minn. R. Civ. P. 52.01. In applying Rule 52.01, “we
view the record in the light most favorable to the judgment of the district court.” Rogers
v. Moore, 603 N.W.2d 650, 656 (Minn. 1999). “Findings of fact are clearly erroneous only
if the reviewing court is left with the definite and firm conviction that a mistake has been
made.” Fletcher v. St. Paul Pioneer Press , 589 N.W.2d 96, 101 (Minn. 1999) (quotation
omitted). And we will not disturb the district court’s findings if there is rea sonable
evidence to support those findings. Rogers, 603 N.W.2d at 656.
A. Pleadings and defenses not raised at trial

Appellants contend that the district court erred in its “Rule 52 duties” by failing to
consider arguments and issues, including possible defenses, that were not raised at trial but
that appeared at the pleading and summary-judgment stages of litigation, as well as in other
past lawsuits between the parties. This argument is without merit. “[I]t is not the obligation
of this court to research and construct the legal arguments open to parties, especially when
they are represented by counsel.” United States v. McLee , 436 F.3d 751, 760 (7th Cir.
2006) (quotation omitted). Appellants are bound by the theories upon which the case was
tried, and this court will not consider matters not argued and considered by the trial court.
See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (explaining that this court may only
consider issues that the record shows were presented to and considered by the district court,
and a party may not obtain review by raising the same general issue under a different
theory). At the close of trial, the district court instructed the parties to submit letter briefs
as final arguments, and in their six-page written submission, appellants articulated a limited

9
set of what they believed to be dispositive issues for the district court’s consideration of
this matter. The district court did not err by considering only the issues raised by the parties
at trial and in posttrial briefing.
B. February 2018 amended articles and corporate resolution

Appellants’ primary challenge appears to center around the district court’s finding
that the second amended articles were the corporation’s valid articles and that the
corresponding corporate resolutions, adopted by respondents shortly thereafter, created the
corporation’s first set of bylaws and board of directors.8
In regard to the corporation’s original articles of incorporation and the first amended
articles, the district court found:
Because the articles of incorporation previously submitted [in
the prior civil case] were never filed with the Secretary of State,
from August 2010 (when the corporation was formed) to
February 2018 (when Judge Miles issued her order) Wat Lao’s
governing documents consisted entirely of the one -page form
which contains no more than the bare minimum required under
Minnesota law: the name of the corporation, the registered
address and agent, and the names and addresses of the
incorporators.

8 We note that a ppellants’ reasonable -time ar gument regarding the two surviving
incorporators’ delay in appointing a board of directors appears to be an iteration of their
challenge to the district court’s finding that the second amended articles and the
corresponding corporate resolution s established Wat Lao’s first board and governing
bylaws. Likewise, appellants’ collateral estoppel, res judicata, and la ches arguments also
seem to challenge the district court’s findings regarding which amended articles were valid
and when a legitimate board of dir ectors for the corporation was actually established.
Because appellants did not raise any of these arguments to the district court at trial, we
shall not review them now. See Thiele, 425 N.W.2d at 582.

10
The district court went on to observe that the original articles of incorporation—a one-page
form document —did not name any directors or voting members and that “there is no
evidence to suggest that anyone other than the three incorporators was authorized to act on
behalf of the corporation prior to February 2018.” Citing Minn. Stat. § 317A.133, subd.
1,9 the district court further found that Vilay and Pongmalee, as the two surviving
incorporators, had the authority to amend the articles of incorporation in February 2018:
The evidence presented at trial shows that there were no
directors named in the original articles, no directors had been
elected prior to February 2018, and that there were no members
with voting rights . No evidence was presented at trial that
would change any of these facts. Pursuant to Minnesota
statutes, therefore, the Court concludes that Vilay and
Pongmalee had the authority to amend and restate the articles
of incorporation in February 2018.

Relying next on Minn. Stat. § 317A. 171,10 the district court concluded that on February
25, 2018, Wat Lao’s first board of directors was elected, and its first bylaws were adopted
by written resolution of Vilay and Pongmalee, as the two surviving and majority of the
three original incorporators. The court further determined that “The true and correct
Articles of Incorporation are the Amended and Restated Articles of Incorporation of Wat
Lao Sirithamaram filed with the Minnesota Secretary of State on February 21, 2018.”

9 Minn. Stat. § 317A.133, subd. 1 (2018), provides: “ A majority of incorporators may
amend the articles by written action if no directors are named in the original articles, if no
directors have been elected, and if there are no members with voting rights.”
10 Minn. Stat. § 317A. l71, subd. 1 (2018), provides: “If the first board is not named in the
articles, the incorporators may elect the first board or may act as directors with the powers,
rights, duties, and liabilities of directors, until directors are elected. Upon the election and
qualification of the first director, the power of the incorporat or or incorporators
terminates.”

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In rejecting appellants’ version of amended articles, the district court concluded:
[Appellants’] competing Restated Articles of Incorporation
filed with the Secretary of State on March 21, 2018 and
amended on April 10, 2018 are invalid based upon
[appellants’] lack of authority to adopt Restated Articles of
Incorporation.

Likewise, in addressing appellants’ contention that the legitimate board of directors was
previously elected at the April 2014 meeting, the district court concluded that:
Christina Vila y did not have the power or authority under
Minn. Stat. § 317A.l71 (without the consent and approval of
either Kongkeo or Pongmalee) to elect or appoint Onsa
Thamavong as a director or chairman of the board, or give
Onsa Thamavong authority to appoint other directors.

Overall, we conclude that t he record offers ample support for the district court’s
findings. As respondents well summarized:
[U]nder Minn. Stat. § 317A.171, the only majority vote that
could have elected Thamavong to the position of direct or
would have been a majority vote by the incorporators.
[Appellants] do not contest that two of the three incorporators
did not attend or otherwise participate in the April 2014
meeting. [Respondent] Vilay did not have the power or
authority under Minn. Stat. § 317A.171—without the consent
and approval of either incorporator Kongkeo or incorporator
[respondent] Pongmalee—to elect or appoint Thamavong as a
director or chairman of the board or give Thamavong authority
to appoint other directors. As the tr ial court then succinctly
concluded: “Whether or not the individuals at the meeting
voted or affirmed Mr. Thamavong’s as a director is of no
consequence. The corporation did not have members as of
April 20, 2014, and there was no authority for the individ uals
attending the meeting to vote for a director or chairman of the
board.”

We further observe that appellants have not pointed to any evidence presented at trial that
actually undermines the district court’s conclusions regarding which articles control and

12
which board of directors was validly appointed. Indeed, appellants admit that Vilay’s trial
testimony supports the district court’s findings, and conflicting testimony or evidence does
not make a factual finding clearly erroneous. See Rogers, 603 N.W.2d at 656 (noting that
appellate courts view the record in the light most favorable to the district court’s judgment
and its decision should not be reversed merely because the reviewing court might view the
evidence differently); Fletcher, 589 N.W.2d at 101 (“It is not the province of this court to
reconcile conflicting evidence.”). We defer to the district court’s opportunity t o evaluate
witness credibility and based on the record here, the district court did not clearly err by
finding that the second amended articles were valid and that the subsequent written
resolution created Wat Lao ’s first board of directors and governing set of bylaws. See
Minn. R. Civ. P. 52.01 (“Findings of fact, whether based on oral or documentary evidence,
shall not be se t aside unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of the witnesses.”)
C. Vilay’s actual and apparent authority

Appellants also seem to challenge the district court’s determination that Vilay had
neither the actual or apparent authority to elect a director to the board at the April 2014
temple meeting where appellants maintain a board of directors was elected. In response to
appellants’ claim that they relied upon Vilay’s apparent authority at the meeting to elect
Onsa Thamavong to the position of director and chairman of the Board, the district court
concluded:
Christina Vilay did not exercise any apparent authority at the
meeting on April 20, 2014. As an incorporator, Ms. Vilay was
a principal and not an agent. There is no evidence that either

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of the other two incorporators held Ms. Vilay out to be their
agent. There is also no evidence that Ms. Vilay represented to
any third parties that she had the authority of either of the other
two incorporators to elect directors.

In response to these findings, a ppellants appear to suggest that Vilay had the actual
authority to elect directors to the Board because she was a principal, not an agent, for the
corporation. Appellants also seem to be making the conclusory argument that Vilay had
apparent authority to appoint directors based on the “representation made with Wat Lao’s
authority” and thus is estopped from denying her authority in this lawsuit.
An agent can bind his or her principal if the agent has actual or apparent authority.
Duluth Herald & News Tribune v. Plymouth Optical Co. , 176 N.W.2d 552, 555 (Minn.
1970). “A pparent authority is that authority which a principal holds an agent out as
possessing, or knowingly permits an agent to assume.” Foley v. Allard, 427 N.W.2d 647,
652 (Minn. 1988).
The principal must have held the agent out as having authority,
or must have knowingly permitted the agent to act on its behalf;
furthermore, the party dealing with the agent must have actual
knowledge that the agent was held out by the principal as
having such authority or had been permitted by the principal to
act on its behalf; and the proof of the agent’s authority must be
found in the conduct of the principal, not the agent.

Id. Here, the district court credited Vilay’s testimony regarding the April 2014 meeting—
that she did not understand an election was taking place, that she did not appoint
Thamavong to the position of director or chairman, that she did not have authority from
either of the other two incorporators to appoint a board of directors, and that she did not

14
make any representations at the meeting that she had such authority. We see no clear error
with the district court’s no-actual-or-apparent-authority findings regarding Vilay.
D. Ratification of the April 20, 2014 “Elections”

Appellants also appear to briefly challenge the district court’s finding that Vilay and
Pongmalee, as the two surviving incorporators, did not later ratify appellants’ election to
the board of directors. In regards to the ratification issue, the district court concluded:
[Appellants] also claim that Vilay’s and Pongmalee’s
attendance at the election held on July 30, 2017 ratifies their
claim to title as directors. The election held on July 30, 2017,
was not associated with the election of directors or even
officers of the corporation. The election was to determine a
manager for the temp le. Ms. Vilay attended the event
specifically to protest the election, and Pongmalee (as the
religious leader of the temple) welcomed the congregation as
they arrived at the temple. Neither Vilay nor Pongmalee voted
or otherwise sanctioned the event. It is evident that
[appellants] were aware that Vilay and Pongmalee opposed the
event, because [appellants] had no trespass notices prepared for
both of them that were dated prior to the event. [Appellants]
did not give Pongmalee notice that an election was going to be
held until the same day that it occurred. The evidence does not
support [appellants’] claim that either of the two surviving
incorporators supported or otherwise ratified their title as
directors of the corporation.

As respondents appropriately summed up, “[t]he trial court explained in detail why there
was no such ratification. . . . And there is no legal support that Vilay, as one incorporator,
could ratify [appellants’] actions that they govern Wat Lao. ” Because we agree that the
district court’s findings are supported by the evidence presented at trial, there is no clear
error in the district court’s lack-of-ratification determination.

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III. The district court did not err in denying appellants’ posttrial motions.
Appellants also appear to take issue with the district court’s order denying their
posttrial motions. We observe that the only issue appellants appear to specifically address
is their motion for amended findings.11 The district court may “amend its findings or make
additional findings, and may amend the judgment accordingly” upon motion of a party.
Minn. R. Civ. P. 52.02. “When considering a motion for amended findings, a district court
must apply the evidence as submitted during the trial of the case and may neither go outside
the record, nor consider new evidence.” Zander v. Zander, 720 N.W.2d 360, 364 (Minn.
App. 2006) (quotation omitted), review denied (Minn. Nov. 14, 2006). We review denials
of such posttrial motions for an abuse of discretion. Id.
In denying appellants’ motion for amended facts, the district court concluded:
[Appellants’] motion for amended findings fails because
[appellants] have not demonstrated that the Court’s findings
are unsupported by the record. Strikingly, [appellants] have
not acknowledged any of the testimony that was offered at trial.
Their current attorney, Mr. Olson, was not present for any
portion of the trial, and he has never ordered a transcript. As a
result, [appellants’] motion for amended findings is based
entirely on various pleadi ngs, affidavits, and other documents
filed in this case, and in other cases involving the same parties.
([Appellants’] argument ignores, for instance, the testimony of
Mark Saythong and Chanda Kouanchao, which undermined
the arguments that their previous[] lawyer, Mr. Anderson, was
attempting to make on their behalf.) Selectively picking and
choosing among the evidence in this fashion cannot
demonstrate that the Court’s findings are unsupported by the

11 As part of their posttrial motions, appellants also moved for a new trial . However, this
issue was not briefed and thus is not considered. See State v. Modern Recycling, Inc., 558
N.W.2d 770, 772 (Minn. App. 1997) (“An assignment of error based on mere assertion and
not supported by any argument or authorities in appellant’s brief is waived and will not be
considered on appeal unless prejudicial error is obvious on mere inspection.”).

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record. . . . Because [appellants] have failed to addr ess all of
the evidence contained in the record, their motion for amended
findings must be denied. [Appellants’] motion for amended
findings also fails for many of the same reasons previously
discussed in [the prior section of the denying motion for new
trial]. See Grigsby, 648 N.W.2d at 726 (issues first raised in a
post-trial motion are untimely).

Appellants claim that the district court failed to consider defenses raised in their
answer and “at other stages of the proceedings.” Appellants contend that the district court
erred by considering only facts and arguments raised during trial, even though appellants
attempted to bring new issues and defenses to the court’s attention in their posttrial
motions. As part of this argument, a ppellants seem to maintain that the district court had
a duty to consider all facts, issues, and arguments raised at any point throughout litigation.
As previously noted, the district court did not have a duty to look beyond what was
presented by the parties at trial. And based on the record before us, the district court did
not abuse its discretion by denying appellants’ posttrial motion for amended findings.
Affirmed.