Ronald J. Bardine, 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This opinion is nonprecedential except as provided by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
A20-0949

Ronald J. Bardine,
Respondent,

vs.

Diana M. Petersen, et al.,
Appellants.

Filed May 3, 2021
Affirmed; motion granted in part
Jesson, Judge

Sherburne County District Court
File No. 71-CV-16-1378

Patrick B. Moore, Joslin & Moore Law Offices, P.A., Cambridge, Minnesota; and

Gary W. Strootman, Stro otman Law Offices, P.L.L.C ., New Hope, Minnesota (for
respondent)

Michael C. Mahoney, Barbara J. Lefky, Ma honey Lefky LLC, Wayzata, Minnesota (for
appellants)

Considered and decided by Reyes, Presiding Judge; Wo rke, Judge; and
Jesson, Judge.
NONPRECEDENTIAL OPINION
JESSON, Judge
After working together in the securities industry for nearly two years, the business
relationship between appellant Diana Petersen and respondent Ronald Bardine soured.
Bardine, who was Petersen’s supervisor, b ecame concerned when he discovered that

2
Petersen gave clients unappro ved investing documents and ha d clients sign blank forms.
When a compliance investigation—prompted by allegations that Petersen had signed her
husband’s name on a check—rev ealed that Petersen had viol ated company policies, she
was dismissed.
Bardine subsequently sued Petersen, and a jury found that she was liable to Bardine
for breach of contract and breac h of the covenant of good fa ith and fair dealing. In a
separate proceeding, the jury later awarded Ba rdine attorney fees. Petersen appeals.
Because the jury could find in favor of Ba rdine on his breach-of-contract claims, the
compliance testimony at issue was not expert, a nd the determination of attorney fees was
properly submitted to the jury with adequate instruction, we affirm.
FACTS
1
Appellant Diana Petersen and respondent Ronald Bardine, both employed in the
securities industry, went into business together in 2013. At the time, Petersen had her own
practice, but was considering retirement. Bardine, who worked with Raymond James
Financial Services Inc. (Raymond James), want ed to expand his prac tice. Believing that
each had something to offer th e other, Bardine and Petersen entered into a business
relationship. They agreed that Petersen wo uld be an independent contractor and work
under Bardine’s supervision as a registered representative of Raymond James.

1 The following is a summary of facts established at trial viewed in the light most favorable
to the verdict. Navarre v. S. Wash. Cty. Sch., 652 N.W.2d 9, 21 (Minn. 2002).

3
Three contracts defined the scop e of the parties’ relationship. 2 The first, an
independent contractor agreement, establis hed that Bardine would oversee Petersen’s
securities work, which she w ould provide as an independent contractor—not an
employee—of Raymond James. The independent contractor agreement was valid for six
months, at which time the parties could rene gotiate and renew the agreement. If the
independent contractor agreement was not rene wed, it would expire at the end of the six-
month period.
The second contract was a purchase of pr actice agreement (purchase agreement) to
facilitate Petersen’s eventual retirement. Under the purchas e agreement, Petersen would
transfer her securities practi ce to Bardine by January 1, 201 8. Included in the purchase
agreement was a merger clause, purporting to “supersede any and all other oral or written
agreements prior to the date of execution of this Agreement.”
The third contract was a financial a dvisor agreement between Petersen and
Raymond James. The financial advisor agre ement established that Petersen was being
retained by Bardine as a registered repres entative of Raymond James to buy and sell
securities. Although Petersen was not a Raymond James employee, she was required to
“adhere to all applicable laws, rules, regulati ons and interpretations of local, state, and
federal Regulatory Authorities.” The contract introduced as an exhibit at trial was signed
by Petersen and Bardine, but not by a Raymond James representative.3

2 Petersen and Bardine also executed a sublease agreement in which Bardine leased office
space from Petersen. Neither party disputes that contract on appeal.
3 We note, however, that anothe r copy of the agreement in th e record on appeal includes
the signature of a Raymond James representativ e. And in its order on Petersen’s motion

4
Petersen and Bardine worked together in their established capacities for nearly two
years. But in the fall of 2015, Bardine became concerned that Petersen was not complying
with Raymond James policies. He knew that she had given clients blank forms to sign and
had shown clients unverified i nvesting reports. And in la te October 2015, a coworker
reported Petersen to the compliance department for signing her husband’s name on a check.
The Raymond James compliance department s ubsequently sent a team of compliance
officers to investigate the alle gations. During the investiga tion, the officers interviewed
Petersen, Bardine, and others, and reviewed documents and emails relating to Petersen’s
work. The officers discovered that, in addition to the issues Bardine identified, Petersen
had been saving client passwords and corresponding with clients via an email address not
affiliated with Raymond James. Based on the results of th e investigation, Bardine and
Raymond James terminated their agreements with Petersen.
When Bardine received a bill from Raymon d James for the investigation, he asked
Petersen for reimbursement. She refused. Ba rdine sued, alleging claims of breach of
contract, negligence, breach of the covenant of good faith and fair dealing, and unjust
enrichment. Petersen countersued for breach of contract, conversion, civil theft, breach of
fiduciary duty, and unjust enrichment. She ba sed these claims on assertions that Bardine
failed to pay Petersen an agreed-upon co mmission, wrongfully accused Petersen of
violating Raymond James company policies, and failed to pay Petersen for her client list.4

for a new trial the district court stated that “there was evidence ad duced at trial that a
representative of Raymond James did sign the contract.”
4 Additionally, Petersen filed a Financial Industry Regulatory Authority (FINRA)
arbitration action against Raymond James fo r defamation, tortious interference with

5
Petersen also moved for the determination of attorney f ees pursuant to the purchase
agreement by the jury in a separate proceeding, which the district court granted.
Prior to trial, Bardine pr ovided his witness list to Petersen. Included were three
compliance officers who had conducted the inve stigation into Petersen’s work. Bardine
listed the officers as nonexpert witnesses w hose testimony would “pertain to [Raymond
James] and FINRA [Financial Industry Regulatory Author ity] compliance and
investigation into activities of Ms. Petersen.” At trial, the officers testified to their
individual recollections of what occurred duri ng the investigation, th ough at times their
testimony also included statements about Raymond James company policies and federal
regulations and how they related to Petersen’s conduct. Petersen objected to this testimony,
arguing that the officers were acting as expert witnesses. The district court overruled the
objections and allowed the officers to “tes tify concerning Raymond James policies and
[their] findings as a fact witness of [t he] audit, [their] conversations, [their]
communications with various individuals, but that [their] testimony was not to extend to
matters pertaining to or [their ] opinion of [their] fi ndings as they related to the law or
regulations specifically from FINRA.”
At the close of Bardine’s case-in-chief, Petersen moved for judgment as a matter of
law, but the district court denied the motion, explaining that because the nature of the
relationship between Bardine and Petersen was disputed and was at the heart of Bardine’s

contract, tortious interference with prospec tive economic advantage, aiding and abetting,
and intentional and negligent infliction of emotional distress. The arbitration panel
awarded Petersen $360,000.

6
claims, “the jury could differ on each of thes e counts.” At the close of trial, Petersen
renewed her motion for judgment as a matter of law, but the district court again denied the
motion.
The jury found that Petersen breached th e independent contractor agreement and the
financial advisor agreement, as well as the c ovenant of good faith an d fair dealing under
the purchase agreement. For those breaches, the jury awarded Bard ine $175,000. With
regard to the remaining claims , the jury determined that Pe tersen had not breached the
purchase agreement or acted negligently and had not proven her counterclaims.
Following the jury’s verdict, and pursuant to Petersen’s earlier motion, the district
court submitted the question of attorney fees to the jury in a separate proceeding. The court
instructed the jury to “only award the amount that reasonably compensates the Plaintiff for
the costs incurred by the Plaintiff in proceeding with the lawsuit against Defendants and in
defending against the lawsuit brought against him by the Defendants.” The court also
reminded the jury not to include any attorney fe es already awarded as part of its previous
verdict. The jury awarded Bardine an additional $64,757.17. Adopting the jury’s findings,
the district court entered judgment in favor of Bardine in the amount of $239,757.17.
Petersen then moved for a new trial, ar guing that the verdict was unsupported by
evidence because neither the independent contractor agr eement nor the financial advisor
agreement were valid contracts, and as such , could not be breached. And because the
contracts were not valid, Petersen asserted that Bardine could not have an independent
action for breach of the covenant of good faith and fair dealing. Petersen also claimed that
the district court improperly allowed the jury to determine attorney fees and failed to

7
provide the jury with proper instructions on how to aw ard damages. The district court
denied the motion.
Petersen appeals. 5
DECISION
Petersen argues that the district court e rred by denying her motions for judgment as
a matter of law and abused its discretion by denying her motion for a new trial. She also
contends that the district court abused its discretion by admitting “expert” testimony from
Bardine’s fact witnesses, erred by submitting the question of attorney fees to the jury, and
provided improper instructions to the jury. Because Petersen’s arguments about the district
court’s denial of her motions rely on the same underlying assertions—that the independent
contractor agreement and the financial advisor agreement are not valid—we address those
claims together. We then move to Petersen ’s challenge to the co urt’s admission of the
compliance officers’ testimony before concl uding with Petersen’s arguments concerning
the jury—whether the question of attorney fees was improperly submitted to the jury, and
whether they received adequate instruction to calculate the appropriate damages.

5 Petersen also moves this court to strike Bardine’s addendum and portions of his appellate
brief. Petersen claims that Bardine’s addendum includes exhibits not admitted at trial and
that portions of his brief are unsupported by citations to the record or based on the exhibits
not in the record. Bardine concedes that poi nts 2, 5, 17, and 24 of his brief should be
stricken or changed. But as to the remaining errors, Bardine provided adequate citation in
his reply and corrected any errors asserted by Petersen. As such, we grant in part Petersen’s
motion to strike with regard to points 2, 5, 17, and 24 of Bardine’s brief.

8
I. Because both the independent contract or agreement and the financial advisor
agreement were legally enforc eable as to Bardine, th e district court neither
erred by denying Petersen’s motions for judgment as a matter of law nor
abused its discretion by denying her motion for a new trial.

Petersen assigns error to the district cour t’s denial of her motions for judgment as a
matter of law and her motion for a new trial. The crux of her argument is that the
independent contractor agreem ent and the financial advisor agreement are invalid as a
matter of law. As such, Petersen asserts that there was insufficient evidence to support the
jury’s verdict. We first address whether th e district court erred in denying Petersen’s
motions for judgment as a matter of law befo re considering whether the court abused its
discretion in denying her motion for a new trial.
Motions for Judgment as a Matter of Law
Petersen claims that no reasonable jury could have found in Bardine’s favor based
on the evidence submitted at tr ial. According to Peters en, because the independent
contractor agreement expired in April 2014, any alleged breach in the fall of 2015 was a
legal impossibility. Petersen also claims that because the financial advisor agreement was
between herself and Raymond James—and Ra ymond James did not sign the contract—
Bardine cannot enforce the agreement. As a result, she asserts, the district court erred by
denying her motion for judgment.
A party seeking judgment as a matter of law must show that “there is no legally
sufficient evidentiary basis for a reasonable jury” to find in favor of the opposing party.
Minn. R. Civ. P. 50.01(a). We review a district court’s ruling on a motion for judgment as
a matter of law de novo, viewing the evidence in the light most favorable to the nonmoving

9
party. In re Estate of Butler, 803 N.W.2d 393, 399 (Minn. 2011). In this case, we consider
whether the evidence admitted at trial formed a legally sufficient basis for the jury to find
in Bardine’s favor on the breach-of-contract claims.
To ground our de novo review of the dist rict court’s ruling, we first identify the
elements of a breach-of-contract claim. Id. To prove that a cont ract has been breached,
the plaintiff must show that (1) a contr act was formed; (2) plaintiff performed any
conditions of the contract; and (3) defendant breached the contract. Park Nicollet
Clinic v. Hamann, 808 N.W.2d 828, 833 (Minn. 2011 ). Because Petersen’s arguments
only concern the first and third elements, they are the focus of our review.
We first consider the independent contract or agreement, which the parties agree was
validly formed. Where the parties disagree is the moment at which the contract was
terminated. The termination date of the contract determines whether Bardine could prove
the third element of a breach-of-contract claim: that Petersen breached the contract in the
fall of 2015. Petersen argues that the agreement was terminated when the six-month period
ended, and was therefore not in effect in 2015. Bardine claims that the agreement
continued until he terminated the contract in October 2015.
To identify the duration of the contract , we first look to the language of the
agreement and determine the intent of the parties. Caldas v. Affordable Granite & Stone,
Inc., 820 N.W.2d 826, 832 (Minn. 2012). Included in the agreement is a term-of-contract
clause, which establishes that the agreement “shall be effective for six months from date
of signing, at which time it may be rene gotiated by both parties and renewed for an
additional year or be considered terminated.” There is no di spute that the parties did not

10
renew the agreement at the end of the six-mont h period. By the term s of the agreement,
because the parties failed to renew the cont ract formally, it expi red six months after
signing, in April 2014. But our analysis does not end here.
Minnesota appellate courts have held th at where the parties continue to perform
under the terms of an expired contract—or under modified terms as agreed to by the
parties—a new contract may be formed. Fischer v. Pinske , 243 N.W.2d 733, 734
(Minn. 1976); Bolander v. Bolander , 703 N.W.2d 529, 54 2 (Minn. App. 2005), review
dismissed (Minn. Nov. 15, 2005). In Fischer, the parties entered into a sales representation
contract that included the option to renew th e agreement after a six-month trial period.
243 N.W.2d at 734. The supreme court held that although the parties did not renew the
contract in writing, because “both parties by their conduct continued to honor these terms
throughout the course of their dealings for several years ” the parties had waived any
argument about the written renewal clau se in the original contract. Id. at 735 (emphasis
added). We applied the same standard in Bolander, where the parties continued their
employment relationship—with no change in the conditions of employment—past the end
date of the employment contract. 703 N.W.2d at 538. In reaching our decision, we stated
that parties to an expired contract “may th ereafter enter into a new contract by
conduct . . . or otherwise, and they may adop t the provisions of their former contract or
agree to modify them.” Id. at 542.
Bardine and Petersen’s actions in this case are similar to those of the defendants in
Fischer and Bolander. Bardine and Petersen performed under the terms of the original
contract for the six-month period as plan ned. But when the agreement expired in

11
April 2014, the two continued to perform under the terms of the agreement. Petersen offers
no support for her claim that the parties’ conduct changed after April 2014. 6 An d o ur
review of the record does not reveal any other evidence to suggest that the parties stopped
working under the terms of the original agr eement. In short, a lthough the original
agreement was only intended to be in place for six months, we conclude that Bardine’s and
Petersen’s continued performance under the terms of the agreement extended the contract
until October 2015.
Because the parties continued to pe rform under the independent contractor
agreement until Bardine terminated the agreement in Octobe r 2015, Bardine’s breach-of-
contract claim is not invalid as a matter of law. As such, there was sufficient evidence for
a jury to conclude that Bardine had proven his breach-of-contract claim with regard to the
independent contractor agreement. The distri ct court did not err by denying Petersen’s
motion for judgment as a matter of law.7

6 Petersen disputes whether the parties performed under the terms of the contract, claiming
that she only received an 80% commission, ra ther than the 90% ag reed upon in the
independent contractor agreement. But, if true, this furthe r supports the conclusion that
the parties did not alter their conduct after the agreement expired in April 2014.
7 Petersen urges us to apply Camelot LLC v. AMC ShowPlace Theaters, Inc., 665 F.3d 1008
(8th Cir. 2012), Minneapolis Cablesystems v. City of Minneapolis , 299 N.W.2d 121
(Minn. 1980), and Tri State Grease & Tallow Co. v. BJB, LLC , No. A10-1560,
2011 WL 2518954, at *1 (Minn. App. June 27, 2011), and to conclude that the agreement
was not renewed or extended because there was no renegotiation of the contract. But
Camelot LLC involved the renewal of a lease and Minneapolis Cablesystems involved the
initial formation of a contract. Camelot LLC, 665 F.3d at 1009; Minneapolis Cablesystems,
299 N.W.2d at 121. Neither case considered the precise issue here: the continuation of an
existing contract. And Tri State Grease & Tallow Co. is a nonprecedential decision, which
is not persuasive. 2011 WL 2518954, at *1; see also Minn. R. Civ. App. P. 136.01,
subd. 1(c).

12
In the alternative, Peters en asserts that the independ ent contractor agreement was
terminated when the purchase agreement was signed twenty days later. Petersen relies on
the purchase agreement’s merger clause, which purportedly supersedes “any and all other
oral or written agreements” made prior. We are not persuaded. In W.R. Millar Co. v. UCM
Corp., we held that a contract fo r the sale of cassette reco rders was not superseded by a
subsequent contract establishing a sales representative relationship between the same
parties, despite the inclusion of a merger clause in the latter. 419 N.W.2d 852, 854 (Minn.
App. 1988). We reasoned that because the contracts involved diffe rent dealings and
established distinct responsibilities, the seco nd contract di d not supersede the first. Id.
Furthermore, we noted that the contracts were executed only one month apart, and
concluded that if the parties intended the in itial contract to fall under the second, “the
integration clause would have expressly included it.” Id.
The same is true here. The purchase agreement and the inde pendent contractor
agreement concern distinct transactions betw een Bardine and Peters en—the sale of her
business and the independent-contractor relationship between the parties. Each agreement
created different duties for the parties. An d the purchase agreement was signed only 20
days after the independent contractor agreement. We conclude that the purchase agreement
did not terminate the independent contractor agreement by integration.
Having addressed Petersen’s argument that the independent contractor agreement
expired prior to her terminati on in November 2015, we turn to her assertions that the
financial advisor agreement was invalid and th at Bardine could not en force the contract.
According to Petersen, the financial adviso r agreement was invalid because it was not

13
signed by a Raymond James representative. Because of this, she claims, Bardine could not
prove the first element of hi s breach-of-contract claim: that a contract was formed.
Petersen also asserts that b ecause Bardine was not a party to the agreement, he could not
enforce its terms. We consider each argument in turn.
A contract, although unsigned, may still be enforceable if the parties have agreed to
and acted in conform ity with its terms. 8 Poser v. Abel , 510 N.W.2d 224, 228 (Minn.
App. 1994), review denied (Minn. Feb. 24, 1994). Here, it is undisputed that Petersen and
Raymond James adhered to the terms of the c ontract from the time of its execution to
Petersen’s termination. Petersen worked as an independent contractor of Raymond James
and the company provided Petersen with the necessary tools and assistance to buy and sell
securities. Despite Petersen’s claims otherw ise, we conclude that the financial advisor
agreement was validly formed.
This leads us to Petersen’s second argument—that Bardine cannot enforce the
financial advisor agreement because he is not a party to the contract. Generally, a person
who is not a party to a contract has no rights under the contract. Caldas,
820 N.W.2d at 833. But a third party may enfo rce a contract if he or she is an intended
beneficiary. Id. A third party is an intended benefi ciary if recognizing the rights of the

8 We further note that the reco rd contradicts Petersen’s clai m that the financial advisor
agreement was never signed by a Raymond James representativ e. Although the copy of
the agreement admitted into evidence did not incl ude a signature fro m Raymond James,
the district court noted that “there was evidence adduced at trial that a representative of
Raymond James did sign the contract.” And the copy of the agreement provided to us on
appeal does include a signature from a Raymond James representative. But the absence or
presence of a signature does not change our analysis.

14
third party is “appropriate,” or in line with the purpose of th e contract, and either (1) the
parties intended to benefit th e third party by performing u nder the contract; or (2) one
party’s performance under the contract satisfies a duty owed to the third party that would
otherwise be owed by the other party to the contract. Cretex Cos. v. Const. Leaders ,
342 N.W.2d 135, 138-39 (Minn. 1984).
Here, the financial advisor agreement st ates that it is “by and between” Raymond
James and Petersen. But Bardine is named as the “associate” who had retained Petersen’s
services, and his signature is on the final page of the agreement. At trial Bardine testified
that in signing the agreement, he understood that a “burden” was placed upon him to adhere
to the terms of the contract. And Bardine did in fact perform under the terms of the
agreement until it was terminated in fall 2015. In spite of th e fact that Bardine was not
identified as a party in the beginning of the agreement, because he agreed to and performed
in accordance with the agreement, we concl ude that he can enforce the contract. Poser,
510 N.W.2d at 228.9
In sum, neither the independent contr actor agreement nor the financial advisor
agreement were invalid as a matter of law. The independent contractor agreement,
although it expired by its terms in April 2014, was extended by the parties’ conduct until

9 Even if Bardine was not a party to the agreement he was still an intended beneficiary and
can enforce the agreement. Cretex, 342 N.W.2d at 138-39. Classifying Bardine as an
intended beneficiary would be appropriate because the agreement explicitly names Bardine
as an associate for whose benefit Petersen would be allowed to operate as an independent
contractor of Raymond Jame s. And by Raymond James a nd Petersen performing their
duties under the agreement, Ba rdine would receive the benef it of a portion of Petersen’s
net commissions.

15
Bardine terminated the contract in October 2015. And the financial advisor agreement was
validly formed and enforceable by Bardine as to Petersen. As such, there is a legally
sufficient evidentiary basis for a reasonable ju ry to find for Bard ine on his breach-of-
contract claims. Minn. R. Civ. P. 50.01(a ). The district court appropriately denied
Petersen’s motions for judgment as a matter of law.10
Motion for New Trial
Next, we consider Petersen’s argument that the district court erroneously denied her
motion for a new trial. As with her claim that the motions for judgment as a matter of law
were denied erroneously, Petersen relies on her assertion that neither the independent
contractor agreement nor the financial advi sor agreement were valid to support her
argument. Although Petersen urges us to employ a de novo standard of review, when
reviewing a district court’s denial of a mo tion for a new trial, we apply an abuse-of-
discretion standard. Christie v. Estate of Christie, 911 N.W.2d 833, 838 (Minn. 2018).
A district court may grant a new trial if it determines that there was some error of
law, misconduct by the parties, jurors, or co urt during the proceedings, or that the verdict

10 Petersen further argues that Bardine could not bring claims for both breach of contract
and breach of the covenant of good faith and fair dealing because the latter is not an
independent cause of action. But in In re Hennepin Cty. 1986 Recycling Bond Litig., the
supreme court held that while parties may not recover under both claims, they may still
assert both claims. 540 N.W.2d 494, 503 (Minn. 1995). Here, the jury awarded damages
for breach of contract under the independent contractor agreement and the financial advisor
agreement, but not the purchase agreement. Consistent with that decision, the jury only
awarded damages for breach of the covenant of good faith and fair dealing with regard to
the purchase agreement, not the independent contractor agreement or the financial advisor
agreement. As such, Bardin e did not recover damages under both claims on any of the
contracts. The district cour t did not err by denying Peters en’s motion for judgment as a
matter of law on this issue.

16
is unsupported by the evid ence or is contrary to law. Mi nn. R. Civ. P. 59.01. Petersen
alleges that there was insuffici ent evidence to support the jury ’s verdict, relying on her
claims that the independent contractor agreement and the financial advisor agreement were
invalid. But as we addressed above, both contracts were not invalid as a matter of law and
there was sufficient evidence fo r the jury to find in favor of Bardine on the breach-of-
contract claims.
In sum, because the contracts were not in valid as a matter of law, the verdict is
supported by the evidence. Id. (g). And Petersen did not assert, nor did our review of the
record reveal, any clear errors of law, irre gularities in the proceedings, or misconduct by
the parties, jurors, or the court. Id. (a)-(b), (f). The district court did not abuse its discretion
by denying Petersen’s motion for a new trial.11
II. The district court did not abuse its di scretion by admitting testimony from the
compliance officers.

Petersen also assigns error to the district court’s admission of the compliance
officers’ testimony at trial. She argues that although the officers were not identified by
Bardine as experts, the officers nonethele ss provided “expert” testimony with regard to
Raymond James company policies and federal financial regulations. We review a district
court’s evidentiary rulings for an abuse of discretion. Kroning v. State Farm Auto. Ins.

11 Petersen also argues that the financial advi sor agreement, if valid , must be interpreted
under Florida law and enforced in Florida in accordance with the terms of the agreement’s
forum-selection clause. But Petersen did no t raise this issue until she moved for a new
trial—after the jury delivered its verdict. By failing to timely assert her forum-selection-
clause argument, Petersen forfeited that claim. State v. Beaulieu, 859 N.W.2d 275, 278-79
(Minn. 2015).

17
Co., 567 N.W.2d 42, 45-46 (Minn. 1997). Unless there is evidence that the district court
erroneously applied the law or did not base its decision on facts in the record, we will not
reverse its decision. Id.
To determine whether the district court a bused its discretion we first consider the
scope of witness testimony at trial. Witnesse s provide either lay or expert testimony.
Minn. R. Evid. 701, 702. A lay witness provides testimony in the form of opinions or
inferences that are not based on scientific, te chnical, or other specialized knowledge.
Minn. R. Evid. 701. An expert witness, on the other hand, provides testimony based on
his or her specialized “knowled ge, skill, experience, training, or education,” which must
be shown to have foundational reliability. Minn. R. Evid. 702.
Here, Bardine called the compliance officers to testify to their personal knowledge
of the compliance investigation and Petersen’s actions. Each officer had been involved in
the investigation by interviewing Bardine, Petersen, and others, inspecting Petersen’s files
and correspondence with clients, and reviewing Petersen’s compliance record. At trial, the
officers’ testimony consisted almost exclusiv ely of their first-hand accounts of what
occurred during the investigation. The officers’ recollection of such personal knowledge
lies squarely within the definition of lay witness testimony. Minn. R. Evid. 701.
And when the officers testified to Ra ymond James policies or federal financial
regulations, they did so within the scope of the investigation into Petersen’s conduct. The
purpose of those statements was not to provide expert opinion on those policies and
regulations, but to explain why Petersen wa s being investigated and why she had been

18
discharged. As such, the district court did not abuse its disc retion by admitting the
compliance officers’ testimony at trial.
III. The district court did not err by submi tting attorney fees and costs to the jury
and did not abuse its discretion when providing instructions to the jury.

Petersen claims that the district c ourt erred both by subm itting the question of
attorney fees to the jury and by failing to provide adequate instructions on how to calculate
the award. Because Petersen’s challenge to the submission of attorney fees to the jury
involves the district court’s application of the law, we review the district court’s actions on
that issue de novo. Harlow v. State Dep’t of Human Servs. , 883 N.W.2d 561, 568
(Minn. 2016). And we review the court’s jury instructions for an abuse of discretion.
Hilligoss v. Cargill, Inc., 649 N.W.2d 142, 147 (Minn. 2002).
Attorney Fees
Although Petersen admits that she moved to have attorney fees determined by the
jury, she nonetheless assigns error to the district court doing so. Petersen argues that she
requested that the jury determine attorney fees only under the purchase agreement, which
required that Bardine be the “p revailing party” in order to recover. Because Bardine did
not prevail on his breach-of-contract claim with regard to the purchase agreement, Petersen
claims it was error for the court to allow Bardine to recover under the indemnification
clause of the independent contractor agreement—a different contract and a different theory
of recovery.
We begin our de novo review by determining when attorney fees may be submitted
to a jury. Where the recovery of attorney fees is based on an indemnification agreement

19
between the parties, the issue may be submitted to a jury. United Prairie Bank-Mountain
Lake v. Haugen Nutrition & Equip., LLC, 813 N.W.2d 49, 55, 57 (Minn. 2012) (“[A] claim
for a monetary payment under a contractual i ndemnity provision is a legal claim with an
attendant right to a jury trial under Article I, Section 4 of the Minnesota Constitution.”). In
this case, Bardine’s claim for attorney fees was based upon the indemnification clause in
the independent contractor agreement. As such, the attorney fees could be properly
determined by the jury. Id. But because Petersen claims that the indemnification clause
does not contemplate attorney fees, we must also look to the language of the agreement to
determine whether attorney fees are recoverable.
The independent contractor agreement incl uded an indemnifica tion clause stating
that Petersen “indemnifies and agrees to defend and hold harmless” Bardine against “all
claims, actions, costs, damages and losses incurred by or assessed against” him as a result
of Petersen’s breach of the contract. (Em phasis added.) Although the clause does not
explicitly list attorney fees, the right to indemnity “has been consistently held to include
reasonable attorney’s fees.” Koehnle v. M.W. Ettinger, Inc., 353 N.W.2d 612, 616 (Minn.
App. 1984). And our review of the contract reveals no indication that the clause excludes
attorney fees. We conclude that the indemnif ication clause in the independent contractor
agreement allows for the recovery of attorney fees.
In sum, the indemnification clause doe s not preclude Bardine from recovering
attorney fees due to Petersen’s breach of the independent contractor agreement. Because
claims for attorney fees based upon indemnification clauses may be determined by the jury,

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we discern no error in the district court’s submission of attorney fees to the jury under this
theory.
Still, Petersen claims that she had no notice of Bardine’s intent to seek attorney fees
under the indemnification clause in the indepe ndent contractor agreement. We note that
when the district court bifur cated the trial and attorney fe es decision, the court did not—
and could not have—known which party would prevail on which claims. And Bardine, in
his initial complaint, explicitly asked for an award of his attorney fees. Further, Petersen,
as a party to the independent contractor agreement, certainly had knowledge of that clause
and could have expected Bardine to argue for attorney fees under that provision.12 We are
not persuaded by Peters en’s argument. The district court did not e rr by submitting the
question of attorney fees to the jury.
Jury Instructions
Petersen further argues that the district court erred when it failed to instruct the jury
to consider the degree of success on recovera ble reasonable attorney fees. We will not
reverse a district court’s decision on these grounds unless the court abused its discretion
when providing the ju ry instructions. Hilligoss, 649 N.W.2d at 147. Instructions that
“overall fairly and correctly state the applicable law” are not grounds for reversal. Id.

12 Petersen also tries to persuade us that because Bardine was not the “prevailing party”
with respect to the breach of the purchase ag reement, he cannot recover under that claim
and the district court erred by submitting the question of attorney fees to the jury. But we
need not reach this issue because the district court could properly submit the determination
of attorney fees to the jury under the indemnification clause of the independent contractor
agreement.

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Generally, attorney fees are not recoverable unless there is either a specific contract
or statute authorizing recovery. Fownes v. Hubbard Broad., Inc. , 246 N.W.2d 700, 702
(Minn. 1976). The contractual indemnifi cation clause included in the independent
contractor agreement here is the kind of specific contractual authority that allows recovery
of reasonable attorney fees. Koehnle, 353 N.W.2d at 616. Comparing the applicable law
to the district court’s instructions, we determine that the instructions “fairly and correctly”
stated the law. Hilligoss, 649 N.W.2d at 147.
When the jury reconvened to determine attorney fees, th e district court instructed
the jury to award only the “amount that reasonably compensa tes [Bardine] for the costs
incurred by [Bardine] in proceeding with the la wsuit against [Petersen] and in defending
against the lawsuit brought ag ainst him by [Petersen].” These instructions “fairly and
correctly” state the law. Id. As such, we discern no abuse of discretion in the district
court’s jury instructions. The court acted within its broad discretion by instructing the jury
to award only the amount that reasonably co mpensated Bardine for Petersen’s breach of
the independent contractor agreement and the financial advisor agreement.
Still, Petersen argues that it is a “univers ally recognized princi ple” to instruct the
jury to consider the degree of success on rec overing attorney fees. But she provides no
legal support for this claim. She also asse rts that the jury’s award was unreasonable and
was a consequence of the district court’s failu re to provide adequate instruction. We
disagree. Bardine had asked the jury to award him over $200,000, which included both his
own legal fees and those of Raymond James. But the jury only awarded Bardine

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$64,757.17. This was less than the amount Bardine identified as his “internal” costs for
litigating this case.
In sum, the district court neither erred by submitting the question of attorney fees to
the jury nor abused its discretion in its instructions to the jury. The indemnification clause
in the independent contractor agreement allo ws Bardine to recover attorney fees for
Petersen’s breach. And the cour t correctly stated the law when it instructed the jury to
award only those costs Bardine incurred litiga ting his claims as a result of Petersen’s
breach.
Considering this appeal as a whole, we discern no abuse of discretion or error by
the district court. The jury instructions correctly stated the law. The submission of attorney
fees to the jury was not e rror, because Bardine could rec over under the indemnification
clause in the independent contractor agreem ent. And because th e compliance officers
testified as fact witnesses, the district cour t did not abuse its disc retion in admitting their
testimony. Finally, the court di d not err in denying Petersen’s motions for judgment as a
matter of law or her motion for a new trial b ecause the independent contractor agreement
and the financial advisor agreement were not invalid as a matter of law, and the jury could
find in favor of Bardine.
Affirmed; motion granted in part.