Joseph Roach, et al., Appellants,

This opinion is nonprecedential except as provided by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
A20-0739

Joseph Roach, et al.,
Appellants,

vs.

County of Becker,
Defendant,

Thomas Alinder, et al.,
Respondents,

Gary Heitkamp Construction, Inc., et al.,
Respondents.

Filed February 1, 2021
Reversed and remanded
Smith, Tracy M., Judge

Becker County District Court
File No. 03-C5-05-000667

Denis E. Grande, Zachary P. Armstrong, DeWitt LLP, Minneapolis, Minnesota (for
appellants)

Steven F. Lamb, Vogel Law Firm, Fargo, North Dakota (for respondents Thomas and
Sandra Alinder)

Michael J. Morley, Victoria A. Thoreson, Morley Law Firm, Ltd., Grand Forks, North
Dakota (for respondents Gary Heitkamp and Gary Heitkamp Contstruction, Inc.)

Considered and decided by Smith, Tracy M., Presiding Judge; Hooten, Judge; and
Frisch, Judge.

2
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
Appellants Joseph and Jennifer Roach challenge the district court’s order stopping
the accrual of postjudgment interest on a ju dgment for damages owed to them by
respondents Thomas and Sandra Alinder, Gary Heitkamp Construction, Inc., and Gary
Heitkamp. We reverse and remand.
FACTS
The facts and procedural history of this case are recited at length in previous
opinions by this court. 1 In brief, the Roaches and Alinders own adjacent shoreline
properties in Becker County. Initially, the Alinders’ property was at a lower elevation than
the Roaches’ property. In 2003, the Alinders obtained a permit to build a new house on
their property and contracted with Heitkamp to build the house. Construction activities
included adding fill to the Alinders’ prop erty, which elevated it above neighboring
properties and caused water to run off onto the Roaches’ property.
Following years of litigation against the county and respondents, including multiple
appeals to this court, the Roaches eventually obtained a restoration order directing
respondents to remove enough “net fill” to restore the Alinders’ property to its
preconstruction elevation. The Roaches also secured the right to go to trial on their claims

1 Roach v. County of Becker , No. A19-2083, 2020 WL 4281003 (Minn. App. July 27,
2020), review granted (Minn. Oct. 20, 2020) (Roach IV); Roach v. County of Becker, No.
A16-0915, 2017 WL 1316117 (M inn. App. Apr. 10, 2017) ( Roach III); Roach v. County
of Becker , No. A12-0132, 2012 WL 6097133 (Minn. App. Dec. 10, 2012) ( Roach II ),
review denied (Minn. Feb. 19, 2013); In re Decision of Beck er Cty. Zoning Adm’r , No.
A07-1580, 2008 WL 4224508 (Minn. App. Sept. 16, 2008) (Roach I).

3
against respondents for any damages rema ining following implementation of the
restoration order.
The damages claims were set for a jury trial. Before trial, the district court dismissed
the county as a party based on its discretionary immunity. The trial was then held in April
2019, and the jury awarded the Roaches $560,000 in damages, including $300,000 in future
damages. The jury apportioned the absent-par ty county 20% of the fault and divided the
remaining fault equally between Heitkamp and the Alinders.
Respondents brought a posttr ial motion for a new trial, based on various grounds
related to the amount of damages. Meanwh ile, the Roaches brought a posttrial motion
seeking attorney fees under the Minnesota Watershed Law, 2 preverdict interest, leave to
amend the complaint to add a claim for punitive damages, and judgment as a matter of law
(JMOL) eliminating any apportionment of liability to the county.
With respect to the Roaches’ posttrial motion, the district court awarded some, but
not all, of the preverdict interest that they sought and denied their requests for attorney
fees, the opportunity to seek punitive damages, and JMOL regarding the county’s liability.
The district court conditionally granted resp ondents’ motion for a new trial pending the
Roaches’ acceptance of a remittitur agreement. The district court’s order remitted the
award of future damages fro m $300,000 to $0. The Roaches petitioned this court for
discretionary review of the district court’ s order, which we denied. The Roaches then

2 Minn. Stat. § 103D.545 (2018).

4
accepted the remittitur, and, on October 28, 2019, the district court entered final judgment
in their favor for $514,885.77—including costs and disbursements and preverdict interest.3
On December 27, 2019, the Roaches file d an appeal from the final judgment,
challenging the district court’ s rulings on their posttrial motion. 4 Roach IV , 2020 WL
4281003, at *1. Respondents did not appeal the judgment against them. As to the Roaches’
appeal, respondents argued th at, by accepting the remittitur agreement, the Roaches had
waived their right to appeal any issue in the case. Id. at 2. We disagreed and addressed the
Roaches’ claims. We concluded that the district court erred in its calculation of preverdict
interest and its determination that the Minne sota Watershed Law does not allow for the
recovery of reasonable attorney fees, but ot herwise affirmed the district court’s order. Id.
at *3-4, 6-7. We remanded the case to the dist rict court to address the preverdict-interest
and attorney-fees issues. Id. at *3-4, *6-7.5
As noted above, the district court entere d its final judgment on October 28, 2019.
At that time, postjudgment interest began to accrue under Minn. St at. § 549.09, subd. 2
(2018). In the first weeks of November 2019—before the Roaches filed their appeal from
the judgment—respondents communicated w ith the Roaches regarding paying the

3 The judgment includes the award of damages, as well as preverdict interest in the amount
of $227,511.57 and costs and disbursements in the amount of $74,574.20.

4 Appellants also challenged the district cour t’s denial of a motion they brought against
respondents for civil contempt. Roach IV, 2020 WL 4281003, at *2.

5 On October 20, 2020, the Minnesota Suprem e Court granted review of our decision on
the issues of whether appellants’ acceptance of a remittitur constituted a waiver of all issues
and whether appellants may recover attorney fees under the Minnesota Watershed Law.

5
judgment. Respondents indicated their desire to pay the judgment in full and made clear
that, once they did, they were entitled to a full satisfaction that would preclude the Roaches
from appealing any issue in the case. The Roac hes rejected respondents’ offer to pay the
judgment if it meant forgoing their right to appeal.
Respondents then filed a motion to depos it the amount of the Roaches’ judgment
against them, including interest, with the district court pursuant to Minn. R. Civ. P. 67.01.
In their motion, respondents as ked the district court to accept deposit of the funds and to
halt the accrual of postjudgment interest. The di strict court granted respondents’ motion.
The district court’s order permitted respon dents to deposit the funds and ordered that
postjudgment interest ceased accruing as of th e date that the Roaches filed their appeal
(December 27, 2019), pending a decision from th is court. The order also rejected the
Roaches’ request to deliver the funds absent a full satisfaction of judgment from them.
Respondents deposited the funds with the district court in May 2020.
The Roaches appeal.
DECISION
The Roaches argue that the district cour t erred as a matter of law in halting the
accrual of postjudgment interest under Minn. Stat. § 549.09 (2 018) because the
$514,885.77 judgment has not been paid . Respondents 6 counter that the district court
appropriately stopped the accrua l of postjudgment interest because (1) under the statute,

6 The Alinder and Heitkamp respondents filed separate briefs and di d not make identical
arguments. For simplicity’s sake, however, we combine their arguments for our analysis
and generally attribute them to “respondents.”

6
postjudgment interest does not accrue if an obligation is not “readily ascertainable” and the
district court properly concluded that the obligation in this case is not ascertainable because
the Roaches appealed from the judgment; (2) interest stops accruing under the statute when
a judgment obligor tenders an offer to pay in exchange for a fu ll satisfaction, which
respondents did here; or (3) because the depos it of funds with a district court pursuant to
Minn. R. Civ. P. 67.02 stops the accrual of postjudgment interest. We address each
argument in turn.
I. Even if an obligation must be “ascer tainable” under the postjudgment-interest
statute, it is ascertainable here.

The district court concluded, and resp ondents urge, that Minn. Stat. § 549.09
requires that an obligation be “ascertainable” before postjudgment interest accrues and that
the judgment in this case ceased to be ascertainable once the Roaches appealed because the
appeal introduced a contingency placing the amount owed in question. The question of
what section 549.09 requires is an issue of statutory interpretation that we review de novo.
See State v. Thonesavanh, 904 N.W.2d 432, 435 (Minn. 2017). And the question of whether
the judgment in this case was ascertainable is likewise reviewed de novo because the facts
on that issue are not in dispute. See In re Collier, 726 N.W.2d 799, 803 (Minn. 2007).
Section 549.09, subdivisi on 2, provides as follows regarding the accrual of
postjudgment interest: “During each calendar year, interest shall accrue on the unpaid
balance of the judgment or award from the time that it is entered or made until it is paid
. . . .” Although the statute does not state that the amount of damages must be “readily
ascertainable” before an obligation arises, see Eide v. State Farm Mut. Auto. Ins. , 492

7
N.W.2d 549, 556 (Minn. App. 1992), respondents argue that that common-law principle
applies to statutory postjudgment interest. This principle is founded on the idea that “one
who cannot ascertain the amount of damages fo r which he might be held liable cannot be
expected to tender payment and thereb y stop the running of interest.” Potter v. Hartzell
Propeller, Inc., 189 N.W.2d 499, 518 (Minn. 1971).
The Roaches counter that there is nothing in the plain language of the statute that
requires damages to be “readily ascertaina ble.” They also cite our language in Hogenson
v. Hogenson, stating that “there is no requirement under section 549.09 that the damages
be readily ascertainable.” 852 N.W.2d 266, 272 (Minn. App. 2014) (quotation omitted).
We need not decide whether or to wh at extent the common-law principle of
ascertainability applies to the award of postjudgment interest under section 549.09 because,
based on the undisputed facts in this case, the judgment was ascertainable. It is true that, at
the time the district court issued its order, we had not yet decided the Roaches’ appeal of
the denial of their posttrial motion. See Roach IV, 2020 WL 4281003 at *1. However, the
only uncertainty introduced by the Roaches’ appeal was whether the respondents were
going to owe the Roaches more than the $514,885.77 judgment. In replying to the Roaches’
appeal, respondents argued that the Roaches’ acceptance of the remittitur agreement barred
the Roaches’ appeal—respondents did not seek to have the remittitur agreement vitiated
and a new trial ordered or otherwise seek a reduction in the amount of the judgment. As
the Heitkamp respondents’ counsel acknowledged at oral argument in the present appeal,
the only possible outcom e when the issues in Roach IV are ultimately decided by the
supreme court is either that the Roaches w ill be entitled only to the present judgment or

8
that their judgment will increas e, with the award of additiona l preverdict interest and the
possible award of attorney fees.
Respondents rely on Reinhardt v. Milwaukee Mut. Ins. Co. to argue that the
judgment was uncertain. 524 N. W.2d 531 (Minn. App. 1994), review denied (Minn.
Feb. 14, 1995). Their reliance is misplaced. Reinhardt succe ssfully sued his insurer for
underinsured-motorist benefits after winning a tort judgment against another driver for
injuries sustained in a car crash. The releva nt issue on appeal wa s when postjudgment
interest on Reinhardt’s judgment against th e insurer started accruing—Reinhardt argued
that it began accruing on the date of the judgment in the underlying tort action. Id. at 535.
We concluded that it did not because, while the tort action conclusively established the
amount of Reinhardt’s tort damages, the underinsured-motorist calculation—which
depended on a number of factors—was not made in that action. Id. at 535-36. This case is
different. Here, the judgment entered by the district court on October 28, 2019, explicitly
set forth the division of liability between the respondents and the amount of damages that
each party owed. That the Roaches appealed the final judgment did not make damages any
less ascertainable.
“Post-verdict and post-judgment interest . . . is compensation for the loss of use of
money as a result of the nonpayment of a li quidated sum, for which liability has already
been determined, not compensation for the injury giving rise to liability.” Lienhard v. State,
431 N.W.2d 861, 865 (Minn. 1988); cf. McCormack v. Hankscraft Co., 161 N.W.2d 523,
524 (Minn. 1968) (observing that post-verdict interest is not “simply a penalty but is rather
payment of a reasonable sum for the loss of the use of money to which plaintiff has been

9
entitled since the time the verdict was rende red”). Regardless of the outcome of the
supreme court’s review of Roach IV, respondents will owe the Ro aches, at the least, the
amount of the October 28, 2019 judgment. The amount of money that the Roaches have
lost the use of is therefore known.
II. Because respondents’ attempts to pa y the judgment were conditional, the
Roaches were never “paid” damages and thus postjudgment interest continued
accruing.

Respondents argue that, even if their ob ligation was ascertainab le, they in fact
“paid” the obligation, halting the accrual of postjudgment interest under Minn. Stat.
§ 549.09, subd. 2, because they made a valid tender of payment to the Roaches shortly after
judgment was entered.
Again, the statute provides that pos tjudgment interest acc rues from the time
judgment is entered “until it is paid.” Minn. Stat. § 549.09 , subd. 2. Appellate courts
construe “nontechnical words and phrases according to their plain and ordinary meanings”
and “look to dictionary de finitions to determine the plain meanings of words.” Larson v.
Nw. Mut. Life Ins. Co., 855 N.W.2d 293, 301 (Minn. 2014). The legal-dictionary definition
of “pay” is “[t]o give (money) to someone be cause one has been ordered by a court to do
so.” Black’s Law Dictionary 1309 (10th ed. 2014). Respondents have not given any funds
to the Roaches.
Respondents argue, however, that a tende r to pay constitutes payment under the
statute and that they tendered payment. Appella nt counters that any offer by respondents
was conditional and thus was not a valid tend er to pay. Assuming a judgment “is paid”

10
under section 549.09 by a valid tender to pay, we turn to whether such a tender was made
here.7
In email correspondence between the parties’ counsel in November 2019, Alinders’
counsel indicated that the A linders wished to pay their portion of the judgment. The
Roaches’ counsel provided respondents’ counsel the amount of damages each respondent
owed and the firm’s Tax Identification Number (TIN) to facilitate the deposit of damages.
The communication between counsel broke down , though, when the Roaches made clear
that they “will only provide a partial satisfaction on the judgment in order to preserve their
right to appeal the judgment.”
Minnesota caselaw holds that a tender is an unconditional offer of payment. See,
e.g., Balder v. Haley , 441 N.W.2d 539, 542 (Minn. App. 1989), review denied (Minn.
July 27, 1989) (stating that th e “essential characteristic of a tender is the unconditional
nature of the offer to pay”). Respondents’ offer of payment here depended on a full
satisfaction of judgment that would have fore closed the Roaches’ right to appeal the
judgment. As the Heitkamp respondents candi dly acknowledge in their brief, “[q]uite
frankly, Heitkamp Respondents do not dis pute that had Appellants executed a full
satisfaction of judgment, Appellants would waive their appellate rights.”

7 Much of respondents’ argument on this i ssue appears to relitigate whether the Roaches
could appeal notwithstanding the remittitur ag reement—they argue that the Roaches had
no substantive rights to appeal and therefore the offer to pay in November 2019 was proper
tender. This court held in Roach IV that accepting the remittitur agreement did not foreclose
the Roaches’ entire right to appeal. See Roach IV, 2020 WL 4281003 at *3. That decision
remains binding under the law- of-the-case doctrine and rende rs respondents’ argument
moot. See Peterson v. BASF Corp. , 675 N.W.2d 57, 65 (Minn. 2004) (citations and
quotations omitted), vacated on other grounds, 544 U.S. 1012, 125 S. Ct. 1968 (2005).

11
Respondents argue, though, that their insistence on a full satisfaction did not make
their offer to pay conditional. They rely mainly on the Maryland case of Cochran v. Griffith
Energy Serv., Inc. , 993 A.2d 153 (Md. Ct. Spec. App. 2010). In Cochran, the Court of
Special Appeals of Maryland held, in part, th at tender was valid ev en though the obligee
refused payment out of fear that it would foreclose its ability to appeal. Id. at 170. But,
even if Cochran were persuasive regarding Minnesota law, see Swanson v. Swanson, 856
N.W.2d 705, 708 (Minn. App. 2014) (stating that, in the absence of Minnesota caselaw on
point, “this court may also look for guidance from foreign jurisdictions that have addressed
the issue”), the case is distinguishable. The Cochran court based part of its analysis on the
obligors’ silence when presented with an of fer of payment. 993 A. 2d at 169. The court
concluded that, by remaining silent and later filing an appeal in the case, the obligees were
seeking to “reap an unfair benefit by using the acquiescence rule as a shield to evade
payment during the pendency of an appeal and later claim entitlement to post-judgment
interest at the expense of a debtor-defendant who was attempting to pay the judgment.” Id.
at 170.
But the Roaches did not remain silent in the face of re spondents’ attempts to pay
damages. In response to the Alinders’ offe r to pay damages, the Roaches provided the
firm’s TIN, broke down the amount of dama ges owed by each party, and informed both
respondents that “any acceptan ce of payment by the Roache s in no way releases the
Roaches’ right to appeal the judgment . . . . The Roaches specifically reserve those rights
and intend to continue prosecution of their appeal.” Instead of responding with silence, the
Roaches intended “to treat counsel fairly by notifying [them] of the status of the case.” Id.

12
at 169 (citing Chesapeake Bay Distrib. Co. v. Buck Distrib. Co., 481 A.2d 1156, 1159 (Md.
Ct. Spec. App. 1984)). The emails between the parties suggest that all parties sought to
facilitate payment, and that these talks e nded when respondents insisted on a full
satisfaction of the judgment. Rather than spring an appeal on respondents like the obligees
in Cochran, the Roaches made their intent to appeal clear from the beginning.
Respondents also cite to other non-Mi nnesota cases to argue that conditioning
payment on an absolute waiver of a right to appeal is still proper tender. In Montano v. City
of South Gate , the California Court of Appeals held that the defendant had properly
tendered damages even though the offer was subject to a full satisfaction clause that would
have foreclosed the plaintiffs’ ability to move for a new trial. 91 Cal. Rptr. 523, 525 (Cal.
Ct. App. 1970). In Heath v. L.E. Schwartz & Sons, Inc ., the Georgia Court of Appeals
concluded that an offer to pay a personal-injury judgment in exchange for a full satisfaction
was a valid tender even though it would have foreclosed the plaintiff’s ability to appeal the
judgment. 416 S.E.2d 113, 115 (Ga. Ct. App. 1992).
We find these cases unpersuasive. Both Montano and Heath involve a plaintiff
seeking a new trial, whereas here the Roaches’ appeal is more specific—their appeal relates
only to the division of liability , attorney fees, and punitive damages. Thus, the judgment
amount in this case will remain owing irrespec tive of the Roaches’ success on appeal. In
Balder, this court determined that “tender ‘is not effectual as such if it be coupled with
such conditions that the acceptance of it, as tendered, will involve an admission by the
party accepting it that no more is due.’” Balder, 441 N.W.2d at 542 (quoting Moore v.

13
Norman, 53 N.W. 809, 810 (Minn. 1892)). In this case, respondents’ offer demanded such
an admission, and it was therefore not a valid tender.
Respondents also argue that, because a re mittitur agreement is an agreement, the
caselaw regarding interest on settlement agreements is instructive, and they rely on Glodek
v. Rowinski, 390 N.W.2d 477, 481 (M inn. App. 1986), review denied (Minn. Sept. 24,
1986), to justify the halting of postjudgment interest. There, we held that, because a party
challenged the settlement that they agreed to , the party had no right to interest on the
settlement amount. Id. at 482. But Glodek does not apply here for two reasons. First, that
case relates to prejudgment— not postjudgment—interest. Id. at 480. Second, and more
critically, Glodek relates to the enforcem ent of an independent stock sale and partnership
buy-out agreement. Id. at 479. While the Roaches did agree to accept a remittitur
agreement, they are appealing the district court’s final judgment, which is distinct from the
remittitur agreement. It may be true that a party who frustrates an agreement cannot accrue
interest on that agreement, but the Roaches did not frustrate an agreement by appealing the
final judgment.
In sum, on the undisputed facts of this case, respondents did not make a tender here.
III. Deposit of the funds pursuan t to Minn. R. Civ. P. 67 did not stop the accrual of
postjudgment interest when withdrawal of the funds was conditioned on a
waiver of claims.

Finally, respondents’ argue that their deposit of funds under Minn. R. Civ. P. 67.01
halts the accrual of postjudgment interest.
We review the interpretation of court rules de novo. See Gams v. Houghton , 884
N.W.2d 611, 616 (Minn. 2016). Rule 67.01 provides that, “[i]n an action in which any part

14
of the relief sought is a judgment for a sum of money . . . a party, upon notice to every other
party, and by leave of court, may deposit with the court all or any part of such money or
thing.” Nothing in the rule addresses the implications, if any, of a deposit of funds on the
accrual of postjudgment interest under section 549.09. The parties have cited no Minnesota
case holding that a deposit unde r Minn. R. Civ. P. 67 halts the accrual of postjudgment
interest.
Respondents argue that decisions from federal and other states’ courts hold that the
deposit of funds under their similarly word ed rules stops the accrual of postjudgment
interest and that the same principle should apply under Minnesota’s similarly-worded rule.
But none of the federal or state cases cite d by respondents in their briefing involved
situations where the withdrawal of funds wa s conditioned on an abso lute waiver of all
related claims. See, e.g., United States ex rel. Garrett v. Midwest Constr. Co ., 619 F.2d
349, 353-54 (5th Cir. 1980) (recognizing that, while a deposit with the court could halt the
accrual of postjudgment interest, interest st ops only when the obl igor offers payment
“without attempting to impose conditions on its acceptance”); Shaver Transp. Co. v.
Chamberlain, 399 F.2d 893, 895 (9th Cir. 1968) (holding that the withdrawal of a deposit
of damages—which halted the running of inte rest under Fed. R. Civ. P. 67—“cannot be
regarded as an accord and satisfaction of the entire claim”); Coors Brewing Co. v. City of
Golden, 411 P.3d 767, 770 (Colo. App. 2013) (“It is our under standing that this money
remains in the court’s registry, and that the manufacturer ma y withdraw it at any time.”).
Coors Brewing Co. also suggests that the obligee must be able to access the deposited funds
for postjudgment interest to stop accruing. 411 P.3d at 781 (concluding that a deposit with

15
the court under Colo. R. Civ. P. 67(a) tolls the accrual of po stjudgment interest when the
obligee can access the funds).
Here, the district court accepted the deposit of funds and conditioned its withdrawal
on a full waiver of all the Roaches’ claims. For the same reasons discussed in the preceding
section, this condition results in the deposit not being a paym ent or valid tender to pay
under Minn. Stat. § 549.09, subd. 2, in the circumstances of this case. Postjudgment interest
therefore did not stop accruing when the distri ct court accepted resp ondents’ deposit of
funds under rule 67.
We therefore reverse the district court’s order regarding cessation of the accrual of
postjudgment interest and remand the case for further proceedings.
Reversed and remanded.