Vickie M. Jones, Respondent,

This opinion is nonprecedential except as provided by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
A20-0873

Vickie M. Jones,
Respondent,

vs.

Michael Dan Smilanich, et al.,
Appellants,

Twin Cities Dental Center, P.A.,
Respondent on related appeal.

Filed May 3, 2021
Affirmed
Bryan, Judge

Hennepin County District Court
File No. 27-CV-18-9098

Mark G. Ohnstad, Dewitt LLP, Minneapolis, Minnesota (for respondent)

Katherine A. McBride, Nicole L. Brand, Kate C. Baker, Meagher & Geer, P.L.L.P.,
Minneapolis, Minnesota (for appellant and respondent on related appeal Twin Cities Dental
Center, P.A.)

Considered and decided by Bratvold, Presiding Judge; Bjorkman, Judge; and Bryan,
Judge.
NONPRECEDENTIAL OPINION
BRYAN, Judge
In this appeal following a trial of respon dent’s dental negligence and fraud claims,
appellants challenge the denial of their moti on for judgment as a matter of law (JMOL),

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arguing that fraud is not an actionable claim and that damages for fraud are limited to out-
of-pocket, economic losses. By notice of related appeal, respondent challenges the denial
of her motion to enter judgment jointly against appellants and respondent on related appeal,
arguing that the parties stipulated that respondent on related appeal was vicariously liable
for appellants’ fraudulent statements. We affirm the judgment because Minnesota law
allows claims for fraud against medical provi ders, the jury instructions did not limit
damages to out-of-pocket, economic losses, and the district court’s denial of respondent’s
request to amend the judgment was not against logic or the facts.
FACTS
Respondent Vickie M. Jone s sued appellants Dr. Mich ael Dan Smilanich, D.D.S.,
Michael D. Smilanich, D.D.S ., Ltd., Smilanich Smile Desi gn (together Smilanich), and
respondent on related appeal Twin Cities Dental Center, P.A. (TCDC) for negligence and
fraud relating to the dental treatm ent that she received over th e course of several years.
The parties proceeded to trial, and the jury found that Smilanich was not negligent but did
commit fraud. The jury awarded Jones $100 ,000 in damages resulting from Smilanich’s
fraudulent statements, and the district c ourt entered judgment against Smilanich.
Smilanich made a posttrial motion for JMOL, and Jones made a posttrial request to amend
the judgment. The district court denied the parties’ posttrial requests, and both Jones and
Smilanich appeal. Given the issues raised, we address the evidence presented, the parties’
discussion regarding TCDC’s vicarious liability, and the ju ry instructions regarding
damages.

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Evidence Presented
The evidence presented at trial established the following facts. In 2011, Jones met
with Smilanich to discuss possible dental reconstructive work. At the time, Jones had eight
upper teeth remaining. Jones and Smilanich discussed a treatment plan in which Smilanich
would remove the eight upper teeth, place five dental implants in her upper jaw, and make
an upper plate or bridge that would be anchored by the dental implants. In mid-2013, Jones
started this course of treatment with Smilanich. An oral surgeon extracted her upper teeth
and inserted dental implants. Later, Sm ilanich placed a temporary bridge over the
implants. The temporary bridge was to be replaced once a permanen t bridge was made.
This temporary bridge did not fit correctly and Smilanich had to place a second temporary
bridge. It took several months for Jones to undergo and heal from these initial procedures.
In February 2014, Jones was cleared to proceed with the next portion of the treatment.
On March 13, 2014, Jones had an appointment with Smilanich to make impressions
for the permanent bridge, which was to be placed two-to-four weeks after this appointment.
Prior to this appointment, a friend of Jones told her that Smilanich was losing his practice.
Jones testified that her friend reported that “they’re going to close the doors on him,” “he’s
filing for bankruptcy,” and “his business was in jeopardy.” Jones was concerned and asked
Smilanich whether he wa s in jeopardy of losing his practic e. When confronted with her
concerns on March 13, 2014, Sm ilanich made the following stat ements to Jones: (1) this
was not true; (2) he was not losing his business; (3) his personal problems were nothing to
worry about; and (4) his personal problems w ould not affect his business or delay the
completion of her dental treatment. Jones paid Smilanich the remaining amount of $8,000

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for the treatment. If she had known the truth about his financial difficulties, she would not
have paid him the remaining balance.
At the time that Smilanich made these re presentations, he had been experiencing
financial difficulties for two years and was deep ly in debt. Smilanich was in default on
two mortgages on his practice, and a receiver had been appointed for his dental practice
since the fall of 2013. Prior to his representations to Jones, the bank had foreclosed on the
mortgages, and on March 4, 2014, more than a week before making the statements in
question to Jones, Smilanich received a notice of the impendi ng sheriff’s sale of his
foreclosed practice, schedule d for March 25, 2014. Within two weeks of making these
statements, Smilanich stopped practicing dentistry, was lo cked out of his Wisconsin
practice, and the bank seized his patient records. Ultimately, the bank sold his practice to
a new entity in April 2014. Smilanich entered substance abuse treatment and did not
resume dentistry until he began working at TCDC in late August or early September 2014.
Following her March 2014 appointment, Jones attempted to make future
appointments. They were all cancelled and she was unable to contact Smilanich. Jones
kept calling, several times a week through the summer of 2014, but never received an
answer or any information about what had happened. Jones finally received a letter from
Smilanich in September 2014 informing her that he had resumed practicing at TCDC.
Jones immediately made an appointment to resume her treatment for the installation of the
permanent bridge. Her treatment was further delayed when some of her appointments were
cancelled because Smilanich had not paid a dental assistant. Smilanich finally put the
permanent bridge in place on November 6, 2015. In the time between the placement of the

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second temporary bridge in 2013 and the placement of the pe rmanent bridge in 2015, the
second temporary bridge broke, cracked, and fell out on multiple occasions.
Jones presented expert testimony that the temporary bridges a nd dental treatment
fell below the accepted standard of care. In addition, Jones presented testimony that
Smilanich failed to meet the standard of care by abandoning her care with no explanation
or warning. Jones was also dissatisfied with the permanent bridge. She visited two other
dental providers who concluded that the permanent bridge did not fit the implants and she
would need a new permanent br idge. Jones offered expert testimony that the permanent
bridge caused bleeding gums, malocclusion, and bone loss.
Smilanich also testified and presented ex pert testimony regarding the standard of
care and his treatment of Jones. This expe rt acknowledged that permanently abandoning
a patient is below the standard of care, and Sm ilanich agreed that he had a duty to notify
Jones of his whereabouts when he discontinue d his practice in March 2014. The expert,
however, concluded that Smilanich’s treatm ent only temporarily lapsed and that the
permanent bridge was not defe ctive. Smilanich also deni ed ever providing any false
representations to Jones.
A. Stipulation and Jury Questions Regarding TCDC’s Vicarious Liability
The parties and the district court discussed the contents of the court’s draft special
verdict form during a conference on June 7, 2019. Counsel for Smilanich and TCDC
requested that the district court remove th e following question: “D id Dr. Smilanich act
negligently while treating Ms. Jones at Twin Cities Dental Center in Hopkins, Minnesota?”
Counsel expressed a concern that an answer to that question could conflict with a different

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question: “Was Dr. Smilanich negligent in his care and treatment of Ms. Jones?” During
the ensuing exchange, the parties reached an understa nding that there was no longer a
conflict between the interests of Smilanich and the interests of TCDC:
DEFENSE COUNSEL: Yes, so as I was thinking about
that this morning, my concern is that on page 1 of the verdict
form, we asked was Dr. Smilan ich negligent and then the
causal question.
THE COURT: Right.
DEFENSE COUNSEL: Then if you go to question
number 6 where we ask whether he was negligent while he was
treating at the TCDC, my concern is this: If the jury were to
answer question number 1, Was Dr. Smilanich negligent in his
care and treatment of Ms. Jones, and they say no, then if your
answer to question number 1 is yes, then they don’t answer
question number 2. But if they go to the back and they
happened to say the answer to question number 6 is yes, then
we’re going to have inconsiste nt verdicts, and it’s going to
be—it’s just going to be—well, it’s going to be
inconsistent. . . .

. . . .

THE COURT: Well, that woul d be inconsistent. And
do you have a solution to propose?
DEFENSE COUNSEL: Well, so my thought is to just
eliminate question number 6 and ask the agency question. So
you have the negligence causation and then agency.
THE COURT: Oh, if you want number 6 out, I’m not
going to make it stay in, but I th ought you wanted 6 in so that
if they found negligence in his care and treatment while he was
on his own but not in his care and treatment when he was at
TCDC, then that would separate the two out from each other.
But if you don’t want it, I don’t think [plaintiff’s counsel]
would object to that being removed.
PLAINTIFF COUNSEL: No, th at’s a good solution to
my other concern.
THE COURT: So if you want me to take 6 out, if that’s
the defense request, I will do that for you.

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DEFENSE COUNSEL: Well, that’s my concern is that
we’d have an inconsistency there that would be irreconcilable,
so I think 6 should come out.
THE COURT: Okay.
DEFENSE COUNSEL: Otherwise, the other alternative
would be to have the same questions 1, 2, 3, 4, and 5—
THE COURT: Again after 6.
DEFENSE COUNSEL: —again after 6, yeah.
THE COURT: And we can do it that way if you want.
It’s really up to you. But if it doesn’t really matter to you to
distinguish between the two, I mean, you’re here representing
both.
DEFENSE COUNSEL: I know, it doesn’t really matter
at this point.
THE COURT: And impliedly representing that there
isn’t a conflict at this point between the two.
DEFENSE COUNSEL: No, right. There was a time
when that mattered, I don’t belie ve that exists anymore, so I
would ask that that be withdrawn.

On the special verdict form, the jury was asked what the district court and the parties
referred to as “the agency question,” but this question only related to the negligence claim:
“In treating Ms. Jones at Twin Cities Dental Center in Hopkins, Minnesota, was Dr.
Smilanich acting as an agent of Twin Cities Dental Center?” The special verdict form did
not contain a similar question related to the fr aud claim, and because the jury determined
that Smilanich was not negligent in his care of Jones, the jury did not answer the agency
question related to that claim.
Jones made a posttrial request to hold TC DC vicariously liable on the fraud claim,
arguing that the exchange constituted a stipul ation that TCDC was vicariously liable for
both negligence and fraud committed by Smilanich. The district court determined that the
jury did not make a finding as to TCDC’s vicarious liability, and therefore the district court
had no authority to hold TCDC vicariously liable.

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B. Jury Instructions Regarding Damages
The district court instructed the jury that the damages for both negligence and fraud
included economic and noneconomic damages as well as past and future expenses, not just
out-of-pocket expenses. For example, the dist rict court gave the following instruction
under the heading “Deciding damages for fraud and misrepresentation:”
In deciding damages, decide the amount of money that will
fairly and adequately compensa te Ms. Jones for the damages
directly caused by relying on Dr. Smilanich’s
misrepresentation.

Damages for fraud or misrepresentation are limited to
1. The difference between the actual value of the
property received and the price paid for it, and
2. Any other damages that we re directly caused by
relying on the fraud or misrepresentation.

In addition, the district court instructed the jury regarding compensatory damages,
telling the jury to include dama ges for past and future harm (including pain, disability,
embarrassment, and emotional distress), and health care expenses for both question 7
(regarding damages for negligence) and question 15 (regarding damages for fraud):
Deciding the amount of damages
In answering Question Nos. 7 and 15, you are to decide the
amount of money that will fairly and adequately compensate
Ms. Jones for her past and future harm.

Items to Include
Past damages for bodily and mental harm
Items to include for past damages for bodily and mental harm:
1. Pain
2. Disability
3. Embarrassment
4. Emotional distress
Ms. Jones has experienced up to the time of your verdict.

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It is difficult to put an exact value on these items that are not
necessarily decided on a daily or hourly basis.
Factors to consider
You should consider:
l. The type, extent, and severity of the injuries
2. How painful the injuries were
3. The treatment and pain involved in that
treatment
4. The length of time the injury or harm lasted
5. Any other factors you think are relevant.

Past damages for health care expenses
Past damages for health care expenses may include:
l. Medical supplies
2. Health care services of every kind necessary for
treatment up to the time of your verdict.

Future damages for bodily and mental harm
Future damages for bodily and mental harm may include:
l. Pain
2. Disability
3. Embarrassment
4. Emotional distress
Ms. Jones is reasonably certain to experience in the future.
It is difficult to put an exact value on these items that are not
necessarily decided on a daily or hourly basis.
Factors to consider
You should consider:
1. The type, extent, and severity of the injuries
2. How painful the injuries are
3. The treatment and pain involved in that
treatment
4. The length of time the injury or harm is likely
to last
5. Any other factors you think are relevant.

Future damages for health care expenses
Future damages for health care expenses may include:
1. Medical supplies
2. Health care services of every kind reasonably certain
to be necessary for treatment in the future.

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Neither party objected to these instructions, and neither party assigned error to these
instructions in a posttrial motion. Althou gh Smilanich moved for JMOL regarding the
damages award, arguing that the evidence presented was not sufficient to justify the award,
the motion did not mention these instructions or assert that the jury instructions regarding
damages were erroneous.
DECISION
We first address Smilanich’s arguments th at fraud is not an ac tionable claim and
that the damages awarded by the jury exceed the limitations for fraud damages. Then, we
discuss Jones’s challenge to the denial of her request to amend the judgment.1
I. Patients’ Fraud Claims Against Medical Providers
Smilanich argues that Minnesota law prev ents Jones from suing him for fraud.
Instead, Smilanich believes that Jones can only bring claims for negligent nondisclosure.
Under this view of the law, Smilanich argues that Jones improperly pleaded her negligent
nondisclosure claim as a fraud claim, and that the district court erred in denying his motion
for JMOL. We are not persuaded by Smilanich’s statement of the law.
Smilanich argues that the law does not recognize a claim for fraud in this case. This
argument raises a question of law, which we review de novo. Kedrowski v. Lycoming
Engines, 933 N.W.2d 45, 54-55 (Minn. 2019). Smilanich relies primarily on two cases for
his argument that Jones is precluded from suing for fraud: D.A.B. v. Brown, 570 N.W.2d

1 Jones also argues that the district court erred by permitting Smilanich’s expert witness to
testify. Jones requests relief regarding this alleged error onl y if we grant a new trial on
some other basis. For the reasons set forth be low, we affirm the decisions of the district
court and the jury, and therefore, we need not address this remaining issue.

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168 (Minn. App. 1997), and Paulos v. Johnson , 597 N.W.2d 316 (M inn. App. 1999),
review denied (Minn. Sept. 28, 1999). Neither case supports Smilanich’s proposed legal
rule.
In D.A.B., medical patients sued a doctor for failing to disclose that he was receiving
kickback payments for medication that he had prescribed to the patients. 570 N.W.2d at
169. The patients alleged breach of fiduciary duty, conspiracy to breach a fiduciary duty,
and fraud. Id. at 170. The claims were dismissed as time-barred, and the patients appealed
that determination. Id. On appeal, this court determined that the claims were subject to
the two-year statute of limitations that applied to medical-negligence claims and not subject
to the six-year statute of limitations that applied to fraud claims. Id. at 171. This court
noted that “despite counsel’s creative characterizations and foreign support, this case is a
malpractice action” because the “doctor’s duty to disclose the kickback scheme presents a
classic informed consent issue.” Id.; see also Cornfeldt v. Tongen, 262 N.W.2d 684, 699
(Minn. 1977) (noting a doctor’s duty to inform patients of treatment risks).
D.A.B. does not support Smilanich’s prop osition because the decision does not
preclude fraud claims against medical provide rs. It addressed the specific kickback
allegations in that case, and did not articulate a new rule of law precluding fraud claims in
other cases. In addition, this co urt characterized the omission in D.A.B. as a “classic
informed consent issue” because the omission undermined the patients’ informed consent
to take the medication prescribed. D.A.B., 570 N.W.2d at 171. In contrast, the statements
made by Smilanich in this case concern the solvency of his business practice, the magnitude

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of his debt, and the effects of his personal pr oblems. They do not re late to the risks of
consenting to the general treatment here: receiving dental implants and a permanent bridge.
Paulos is also inapplicable to the claims at issue before us. In Paulos, a patient sued
his doctor for negligent nondiscl osure. 597 N.W.2d at 318. The district court dismissed
the lawsuit with prejudice, and this court affirmed. Id. The patient later filed a second
lawsuit against the doctor regarding the previously dismissed conduct, this time styled as
a fraud claim. Id. The district court granted summary judgment in favor of the doctor, and
the patient appealed. Id. On appeal, this court determ ined that the second lawsuit was
barred by res judicata, noting that “[a] change in legal theory cannot be used to avoid res
judicata.” Id. at 319. We conclude that Paulos does not support Smilanich’s proposition.
Contrary to Smilanich’s argument, this court did not conclude in Paulos that medical
providers are immune from fraud claims or that patients cannot sue for fraud. Instead,
Paulos merely applied the principles of res judicata.
Moreover, unlike the patient in Paulos who alleged the same facts in both the
nondisclosure and fraud suits, Jones brought a negligence claim primarily regarding the
standard of care for placing temporary and permanent bridges and a fraud claim primarily
regarding representations of financial solv ency. The two claims do not depend on many
shared factual allegations. We further note th at to the extent there could have been any
factual overlap in the allegations, the jury distinguished between the two claims, and
Smilanich’s own arguments to the district court distinguished the misrepresentations from
Jones’s course of treatment. For example, Smilanich’s attorney told the jury in her opening
statement that “all these issues that are personal, financial, has nothing, nothing to do with

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the dental care he provided.” Similarly, in her closing argument, she said that “Smilanich’s
financial life, his personal life, his abilities as a business owner or perhaps his inabilities
. . . has nothing to do with th e care in this case.” In his pretrial motions, Smilanich made
this distinction even more clearly, stating that his financial difficulties were not relevant to
the malpractice claims because th ey did not relate to the course of treatment in this case.
The distinct factual bases for th e two claims in this case render Paulos inapplicable. We
cannot, as Smilanich urges, interpret Paulos as precluding distinct claims that would not
satisfy the principles of res judicata.
We therefore conclude that on this record, the district court did not err in denying
Smilanich’s motion for JMOL.
II. Future Losses and Noneconomi c Damages for Fraud Claims
Smilanich argues that Jones is barred from recovering the damages related to her
fraud claim because, as a matter of law, fraud damages cannot exceed out-of-pocket
expenses and cannot include noneconomic damages. After reviewing the proceedings, we
affirm the jury’s award of damages.
The jury instructions in this case directed the jury to include more than economic,
out-of-pocket expenses when cal culating the damages availabl e for fraud in question 15.
Specifically, the district court di rected the jury to consider past and future health care
expenses as well as past and future “bodily and mental harm.” In addition, the district court
included the following four components of harm in its instructions regarding damages: past
and future pain, disability, em barrassment, and emotional di stress. Smilanich did not
object to the inclusion of future health ca re expenses or the components of bodily and

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mental harm.2 Nor did Smilanich assign error to th e damages instructions in his posttrial
motion for JMOL. Without a more clear indication of erro r, we decline to reinterpret the
arguments below to include a challenge to th e jury instructions. Therefore, we must
consider the instructions given as the applicable law. See Wolner v. Mahaska Indus. Inc.,
325 N.W.2d 39, 42 (Minn. 1982) (concluding th at “where a party makes no objections to
jury instructions before the jury retires . . . the instructions are the law of the case”);
Jacoboski v. Prax, 187 N.W.2d 125, 129 (Minn. 1971) (listing cases and reiterating that
the jury instructions become the law of th e case “[w]here no exceptions are taken to
instructions to the jury and claimed error in such instructions is not assigned as grounds for
new trial”); Coenen v. Buckman Bldg. Corp., 153 N.W.2d 329, 334 (Minn. 1967) (noting
that unobjected-to jury instructions become the law of the case).
Finally, we also observe that Smilanich does not argue on appeal that the evidence
presented regarding noneconomic losses cannot support the amount of the award. In light

2 In fraud cases, the general rule is that fraud damages should be measured by the plaintiff’s
out-of-pocket losses. B.F. Goodrich Co. v. Mesabi Tire Co., 430 N.W.2d 180, 182 (Minn.
1988). However, that general rule does not a pply where “application of that rule would
leave plaintiff’s loss uncompensated and would not restore plaintiff to its former position.”
Id. at 183. This court has previously applied this exception to noneconomic damages. See,
e.g., Brooks v. Doherty, Rumble & Butler , 481 N.W.2d 120, 128-29 (Minn. App. 1992)
(affirming fraud damages in excess of out-o f-pocket economic expenses and including
amounts related to “the disgrace of borrowing money,” “the strain on appellant, his wife
and their two small children,” and “the anger and depression he experienced”), review
denied (Minn. Apr. 29, 1992). Given the unobjected -to jury instructions in this case and
because Smilanich did not assign error to those instructions in his motion for JMOL, we
need not address whether those instructions fairly and correctly stated the applicable law.
See Christie v. Estate of Christie, 911 N.W.2d 833, 838 (Minn. 2018) (“The district court
has broad discretion in determin ing jury instructions, and we will not reverse where jury
instructions overall fairly and correctly state the applicable law.” (quotation omitted)).

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of these observations, we disagree with Smilanich’s argument a nd affirm the jury’s
damages award.
III. Dispute Regarding Existence of Vicarious Liability Stipulation
By notice of related appeal, Jones argues that the district court erred when it denied
her request to amend the judgment. Specifically, Jones believes that the parties stipulated
to TCDC’s vicarious liability and that the judgment should be entered against both
Smilanich and TCDC. We review decisions re garding motions to amend for an abuse of
discretion. In re Guardianship of Guaman , 879 N.W.2d 668, 672 (Minn. App. 2016);
Zaffke v. Wallestad , 642 N.W.2d 757, 759 (Minn. App. 2002). Because the denial of
Jones’s request was not against logic or the facts in these proceedings, we affirm the district
court’s decision.
During the conference on June 7, 2019, the parties discu ssed the potential
inconsistency that could arise in the verdic t if the jury was asked generally whether
Smilanich was negligent in his care of Jone s and more specifically, whether Smilanich
acted negligently while at TCDC. As part of this discussi on, the district court noted that
both Smilanich and TCDC had the same counsel, “impliedly representing that there isn’t a
conflict at this point between the two.” In response, the defense attorney confirmed that
while “[t]here was a time when that matte red,” no conflict of interest between the
defendants “exists anymore.” Jones argues that this discussion equates to a stipulation of
TCDC’s vicarious liability for the actions of Sm ilanich. The district court disagreed, and
denied the request.

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We conclude that the district court did not abuse its discretion for three reasons.
First, the discussions during the conference on June 7, 2019, related entirely to the
negligence claim and did not at all discuss or mention the fraud claim. Second, the
statements made by the attorneys during the conference do not amount to a stipulation of
liability or agency regarding ne gligence or fraud. At no point during the discussion did
counsel for Smilanich and TCDC concede or state that TCDC would be vicariously liable
for the actions of Smilanich. A stipulation of vicarious liability requires more clear
language that is absent from the record of the proceedings in this case. Such a stipulation
also conflicts with the special verdict form, which—despite the discussion at the
conference—required the jury to determin e TCDC’s vicarious liability had it found
Smilanich liable for negligence. The agency question rema ined, indicating that TCDC
contested liability. Third, absent a stipulation, Jones’s request requires this court to make
findings of liability, wh ich we cannot do. See Kucera v. Kucera, 146 N.W.2d 181, 183
(Minn. 1966) (“It is not within the province of [appellate courts] to determine issues of fact
on appeal.”).
For these reasons, we conclude that the di strict court did not abuse its discretion
when it denied Jones’s request to add TCDC to the judgment.
Affirmed.