Capacity Wireless, LLC, Appellant,

This opinion is nonprecedential except as provided by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
A20-1266

Capacity Wireless, LLC,
Appellant,

vs.

Board of Regents of the University of Minnesota,
Respondent.

Filed June 1, 2021
Affirmed
Worke, Judge

Hennepin County District Court
File No. 27-CV-18-9683

Arthur G. Boylan, Norman H. Pentelovitch, Philip J. Kaplan, Anthony Ostlund Baer &
Louwagie P.A., Minneapolis, Minnesota (for appellant)

Peter C. Magnuson, Courtney N. Baga, Faegre Drinker Biddle & Reath LLP, Minneapolis,
Minnesota; and

Douglas R. Peterson, General Counsel, Timothy J. Pramas, Senior Associate General
Counsel, University of Minnesota, Minneapolis, Minnesota (for respondent)

Considered and decided by Worke, Presiding Judge; Johnson, Judge; and Gaïtas,
Judge.
NONPRECEDENTIAL OPINION
WORKE, Judge
After a jury trial in this contract action, appellant argues that the district court erred
by granting partial summary judgment on appellant’s damages claim based on out -of-
2
pocket expenses. Appellant also argues that the district court made several erroneous
rulings at trial. We affirm.
FACTS
Respondent Board of Regents of the University of Minnesota (the university) was
interested in deploying a distributed antennae system (DAS) network on campus. A DAS
network allows wireless carriers (such as AT&T, T- Mobile and Verizon) to provide more
reliable service. Thus, the university issued a request for proposals (RFP) for bids to the
DAS network. The university’s primary goals were to have the DAS network provide
coverage in underground areas and that it be built at no cost to the university.
A DAS network can be an attractive project for the entity that builds it because, after
the network is deployed, the entity may then charge carriers to use it and earn a profit.
Appellant Capacity Wireless LLC (Capacity), in conjunction with several other entities,
including Lemcon USA Corporation (Lemcon) and Premise Concepts, responded to the
RFP. According to the proposal, Capacity is an asset-holding company and an affiliate of
Lemcon. The proposal describes Lemcon as a “Prime Contractor” and Premise Concepts
as a “local RF Consultant” that had recently been acquired by Lemcon. In September 2016,
the university chose Capacity to deploy the DAS network.
Lawrence Rosenfeld, part-owner of Capacity, had a strategy to leverage the carriers’
desire to have greater wireless coverage for the upcoming 2018 Super Bowl in Minneapolis
to persuade them to fund the underground portions of the DAS network. Rosenfeld
eventually represented to the university that Capacity could not effectively negotiate with
3
carriers until he had a signed contract with the university. Consequently, the university
entered into a Memorandum of Understanding (MOU) with Capacity.
The MOU was primarily a nonbinding, preliminary agreement, with some
exceptions. The MOU indicated that the parties were negotiating a binding Master License
Agreement (MLA) that would allow Capacity to construct and operate a DAS network on
campus. The MOU did not require the parties to enter into an MLA. One of the few
binding provisions of the MOU was a provision that granted Capacity the “exclusive right”
to negotiate with carriers regarding the DAS network and the placement of
communications equipment on campus. The same provision also indicated that Capacity
would be the “sole point of contact” with carriers. If the parties did not enter into a binding
MLA, the MOU would expire in January 2019.
Capacity alleged that it spent nearly one year and almost $1 million negotiating with
carriers and designing a DAS network for the university. Rosenfeld explained at his
deposition that several entities had conducted tests and done other preliminary work to
design a DAS network for the university.
1 Notably, however, Rosenfeld testified that
entities other than Capacity (specifically, Lemcon and Premise Concepts) had directly paid
for that work. Rosenfeld also acknowledged that Capacity did not have any bank accounts.
By October 2017, the parties had not reached an agreement on an MLA. On
October 16, the university sent a letter to Rosenfeld indicating that it was terminating
negotiations with Capacity regarding the DAS network. The letter stated that the university

1 According to expert trial testimony, this sort of preliminary work was necessary to
effectively negotiate with carriers.
4
did not believe that any of Capacity’s proposals met the university’s objectives because
they did not provide sufficient revenue2 or cellular coverage. Rosenfeld attempted to meet
with the university to discuss the negotiations. But on October 17, Bernard Gulachek, the
university’s chief information officer, wrote Rosenfeld an email indicating that he would
not attend a meeting because there were “no circumstances” that would change the
university’s position.
The university notified the carriers that had been negotiating with Capacity that the
university would no longer be negotiating an MLA with Capacity. Gulachek’s subordinate
employee then decided to research Capacity and discovered that Rosenfeld had been a
defendant in a Massachusetts lawsuit and was found liable for defrauding and deceiving
his business partners.
Gulachek sent a letter to Rosenfeld on October 30 indicating that the university
planned to work directly with the carriers to install temporary coverage for the Super Bowl.
Gulachek wrote that the university had “significant concerns” about Capacity and had
“gathered and received information that confirms the [u]niversity’s decision to not do
business with [Capacity].” Thereafter, the university worked with carriers to reach
agreements on cellular coverage. The carriers made one-time payments to the university
totaling $52,300 relating to the coverage. No DAS system was ever installed on campus.
Capacity sued the university, alleging that the university breached the MOU by
violating Capacity’s exclusive right to negotiate with carriers and breached the implied

2 A portion of the profits made by charging carriers to use the DAS network would have
been allocated to the university.
5
covenant of good faith and fair dealing by terminating its negotiations with Capacity in bad
faith.3
The university eventually moved for summary judgment on several issues, including
the issue as to whether Capacity incurred “out-of-pocket” expenses —i.e., the nearly $1
million that Capacity allegedly spent negotiating and designing the DAS network. Citing
Rosenfeld’s testimony that entities other than Capacity paid those costs and that Capacity
did not have a bank account, the university argued that there was no evidence that Capacity
incurred any expenses. The district court interpreted Capacity’s claim for these expenses
to be a form of reliance damages, concluded that there were no genuine issues of material
fact on the issue, and granted partial summary judgment in favor of the university.
The case proceeded to a jury trial. Consistent with its partial-summary-judgment
ruling, the district court granted the university’s motions to (1) exclude Capacity’s
proposed expert witness testimony regarding out-of-pocket expenses , and (2) instruct the
jury that it was not permitted to award damages for Capacity’s alleged out-of-pocket
expenses. The district court also granted the university’s motions to introduce evidence of
its own knowledge of the Massachusetts lawsuit and to cross-examine Rosenfeld regarding
the lawsuit under Minn. R. Evid. 608(b).
The jury found that the university breached the MOU and caused damages to
Capacity as a result of the breach. The jury also found that the university breached the
implied covenant of good faith and fair dealing with respect to the MOU, but that the

3 Capacity also brought an unjust-enrichment claim. The district court dismissed that claim
at summary judgment. It is not at issue in this appeal.
6
university did not cause any damage to Capacity by that breach. The jury found that
Capacity suffered $52,300 in damages. The district court entered judgment consistent with
the jury’s award.
Capacity moved for a new trial on damages, arguing that the district court erred by
granting summary judgment and in its evidentiary rulings and jury instructions. The
district court denied the motion. This appeal followed.
DECISION
Capacity argues that the district court erred by granting summary judgment on the
issue of Capacity’s claimed out-of-pocket losses and abused its discretion by denying
Capacity’s motion for a new trial based on erroneous evidentiary rulings and jury
instructions. We address Capacity’s arguments regarding summary judgment before
turning to the district court’s evidentiary rulings and jury instructions.
Summary judgment

Capacity argues that the district court erred by granting partial summary judgment.
“We review the grant of summary judgment de novo to determine whether there are
genuine issues of material fact and whether the district court erred in its application of the
law.” Montemayor v. Sebright Prods., Inc., 898 N.W.2d 623, 628 (Minn. 2017) (quotation
omitted). A district court must grant summary judgment if the “movant shows that there
is no genuine issue as to any material fact and the movant is entitled to judgment as a matter
of law.” Minn. R. Civ. P. 56.01. The moving party has the burden to “demonstrate no
genuine issue of material fact exists.” Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988).
7
If the moving party meets that burden, the burden then shifts to the nonmoving party to
produce facts that “raise a genuine issue” of material fact. Id.
In reviewing a grant of summary judgment, “[w]e view the evidence in the light
most favorable to the party against whom summary judgment was granted.” STAR Ctrs.,
Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn. 2002). We resolve all
doubts and factual inferences against the moving party. Montemayor, 898 N.W.2d at 628.
Summary judgment is “inappropriate when reasonable persons might draw different
conclusions from the evidence presented.” Id. (quotation omitted).
Here, the district court granted summary judgment regarding a specific measure of
damages— Capacity’s out-of-pocket expenses incurred in relation to the DAS project under
the MOU and in anticipation of a possible MLA. Generally, the amount of damages is a
question of fact to be submitted to the jury, not determined at summary judgment. Alsides
v. Brown Inst., Ltd., 592 N.W.2d 468, 475 (Minn. App. 1999). To survive summary
judgment regarding damages, a plaintiff need only show a “reasonable basis for
approximating loss.” Jensen v. Duluth Area YMCA, 688 N.W.2d 574, 579 (Minn. App.
2004); see also Logan v. Norwest Bank Minn., N.A., 603 N.W.2d 659, 663 (Minn. App.
1999) (stating that summary judgment is inappropriate when the facts “support a viable
theory of damages that naturally and necessarily” result from the defendant’s breach of
contract). Still, the party opposing summary judgment “may not establish genuine issues
of material fact by relying upon unverified and conclusory allegations, or postulated
evidence that might be developed at trial, or metaphysical doubt about the facts.” Dyrdal
v. Golden Nuggets, Inc., 689 N.W.2d 779, 783 (Minn. 2004). Thus, in this case, to survive
8
summary judgment, Capacity was required to identify a “viable theory of damages” and
evidence that established a fact issue regarding whether it actually sustained those
damages. See id.; Logan, 603 N.W.2d at 663.
After the university made a showing that there was no genuine issue of material fact
that Capacity incurred no expenses related to the DAS project, the burden shifted to
Capacity to identify evidence in the record that established a material fact that would
preclude summary judgment. 4 See Hagen, 947 N.W.2d at 850-51 (describing summary
judgment burdens). The nonmoving party’s burden to preclude summary judgment is to
identify “specific facts showing that there is a genuine issue for trial.” DLH, Inc. v. Russ ,
566 N.W.2d 60, 69 (Minn. 1997) (quotation omitted). If the nonmoving party fails to make
such a showing, the district court may enter summary judgment, if appropriate. Id. In
reviewing whether the district court erred in granting summary judgment, we are not
required to consider facts in the record that the nonmoving party did not identify to the
district court. Geraci v. Eckankar, 526 N.W.2d 391, 398 (Minn. App. 1995), review denied
(Minn. Mar. 14, 1995); see also Beecroft v. Deutsche Bank Nat’l Tr. Co., 798 N.W.2d 78,

4 Capacity asserts that the university failed to meet its initial burden to demonstrate that no
genuine issue of material fact existed because the university only demonstrated that
Capacity did not pay any of the costs for the preliminary DAS work (as opposed to
incurring those costs). We understand the distinction but are not persuaded. The university
sufficiently identified evidence in the record that showed that Capacity did not actually pay
the expenses, and therefore did not suffer any out-of-pocket losses. Capacity could have
avoided summary judgment if it then identified evidence in the record that showed that fact
issues remained over whether Capacity was ultimately liable for those other entities’
expenses. Accepting, for argument’s sake, Capacity’s assertion that the university
misrepresented the record at the summary- judgment stage, Capacity should have clarified
that misrepresentation to the district court.
9
82 (Minn. App. 2011) (“[T]o oppose a motion for summary judgment successfully, a party
is required to extract specific, admissible facts from the record that demonstrate that a
genuine issue of material fact exists.” (quotation omitted)), review denied (Minn. Jul. 19,
2011).
Capacity did not genuinely dispute that it did not incur direct expenses and does not
dispute that premise on appeal. Instead, t o oppose summary judgment on its alleged out-
of-pocket expenses, Capacity only identified John Beck’s expert report, which concluded
that Capacity incurred $871,838 in out-of-pocket expenses related to the project. Capacity
also asserted that it, “ as Lemcon’s affiliate and as the communications asset holding
company for Lemcon,” was the proper party to recover expenses attendant to the DAS
project. Elsewhere in its summary-judgment memorandum, Capacity cited (1) an email in
which Rosenfeld stated that “[w]e have spent already more than $1 million to get this far
and continue every day to put more at risk just to keep this project alive with the carriers,”
and (2) an excerpt from another expert’s report indicating that “Capacity/Lemcon
undertook substantial work” related to the design of the DAS network. 5 On appeal,
Capacity refines its argument—contending that a genuine fact issue existed regarding

5 On appeal, Capacity argues that other portions of Rosenfeld’s deposition testimony
support its assertion that Capacity incurred the expenses paid by the other entities because
it was ultimately liable to them for those costs. Capacity asserts that this evidence
establishes that Capacity had agreed to pay the costs. But Capacity failed to identify those
specific facts in the summary-judgment proceedings. We do not consider the facts and
evidence that Capacity failed to identify to the district court. See Geraci, 526 N.W.2d at
398; see also Beecroft, 798 N.W.2d at 82.
10
whether Capacity agreed or otherwise became obligated to repay the direct payments of
other entities.
But even viewing the evidence that Capacity identified to the district court in a light
most favorable to Capacity, we cannot conclude that this evidence established a genuine
issue of material fact regarding whether Capacity incurred an obligation to reimburse other
entities for their expenses related to the DAS project. Based on his review of the pleadings,
deposition testimony, business records, and his own independent research, Beck opined
that Capacity incurred $871,838 in out- of-pocket expenses. But Beck’s report does not
explain what entity paid the costs identified and how Capacity became obligated to pay
those expenses. Instead, the report appears to make a conclusory assumption that Capacity
is ultimately responsible for the expenses.
6
The other evidence that Capacity cites adds little support for its position. The
excerpt from another expert’s report stating that “Capacity/Lemcon” performed work on
the project does not establish that Capacity was obligated to reimburse Lemcon’s payments
relating to work on the project. And Rosenfeld’s email indicating that “we” had spent more
than $1 million on the DAS project is similarly unilluminating. In short, Capacity
responded to the university’s motion for summary judgment regarding claimed out-of-

6 We reject the university’s argument that it is improper to consider Beck’s expert report
at summary judgment because the university did not contest the admissibility of Beck’s
report for purposes of summary judgment, and the supreme court has considered u nsworn
expert reports in similar circumstances. See Montemayor, 898 N.W.2d at 627, 632-33, 640
(considering whether an unsworn expert’s report, submitted as an exhibit to an attorney’s
affidavit, established a genuine issue of material fact when opposing party did not argue to
district court that the report was inadmissible).
11
pocket expenses by identifying vague evidence establishing that money had been spent on
the project, but no explanation of how Capacity was ultimately responsible for the
expenses. Capacity failed to meet its burden at summary judgment to extract specific facts
establishing that a genuine fact issue existed regarding whether it incurred out-of-pocket
expenses. See Beecroft, 798 N.W.2d at 82. The district court did not err by granting partial
summary judgment in favor of the university on Capacity’s out-of-pocket expenses.
New trial motion
Capacity argues that the district court abused its discretion by denying Capacity’s
motion for a new trial. See Christie v. Estate of Christie , 911 N.W.2d 833, 838 (Minn.
2018) (stating that we review denial of motion for new trial for an abuse of discretion). A
district court abuses its discretion if it makes clearly erroneous findings of fact or bases its
decision on an erroneous view of the law. Dahl v. Dahl, 765 N.W.2d 118, 123 (Minn. App.
2009). In its motion, Capacity argued that it was entitled to a new trial on the issue of
damages, claiming that the district court abused its discretion in related evidentiary rulings
and jury instructions. We address each claim in turn.
Evidentiary rulings
Capacity challenges two of the district court’s evidentiary rulings. We review a
district court’s evidentiary rulings for an abuse of discretion. Kroning v. State Farm Auto.
Ins. Co., 567 N.W.2d 42, 45 (Minn. 1997).
Capacity first argues that the district court abused its discretion by excluding Beck
from testifying as an expert at trial. Beck would have testified to Capacity’s out-of-pocket
expenses. But because the district court had granted partial summary judgment regarding
12
out-of-pocket expenses, the district court concluded that Beck’s testimony on that subject
was irrelevant and therefore inadmissible. See Minn. R. Evid. 402 (providing that
irrelevant evidence is inadmissible).
Capacity, however, attempts to recharacterize Beck’s testimony as evidence of its
expectation damages resulting from the university’s breach of contract. Capacity asserts
that evidence of its expenditures was relevant to prove how much money Capacity expected
to make had the university not breached the MOU. See Logan , 603 N.W.2d at 663
(defining expectation damages). Thus, Capacity argues that, even if the district court
properly granted summary judgment on its out-of-pocket expense s, or reliance damages,
Beck’s testimony was still relevant to establish its expectation damages.
To understand this argument, we must consider the difference between reliance
damages and expectation damages. Reliance damages are intended to place a party in the
same position that it would be in had a contract never been made—by reimbursing “losses
arising from a party’s change in its position in reliance on a contract.” Id. Reliance
damages may include “expenditures made in preparation for performance or in
performance” of a contract. Restatement (Second) of Contracts § 349 (1981); see also Dick
Weatherston’s Associated Mech. Servs., Inc. v. Minn. Mut. Life Ins. Co., 100 N.W.2d 819,
825 (Minn. 1960) (concluding that party could recover expenses incurred in “part
performance or in preparation for performance” of a contract). Expectation damages, on
the other hand, “attempt to place the plaintiff in the same position as if the breaching party
had complied with the contract.” Logan, 603 N.W.2d at 663 (emphasis added).
13
Essentially, Capacity argued to the district court that Beck’s testimony regarding
out-of-pocket expenses was relevant to its expectation damages because Capacity expected
to recoup its investment and then make additional profit. 7 But the district court properly
granted summary judgment regarding Capacity’s out-of -pocket expenses. The district
court did not abuse its discretion by excluding Beck from testifying about an issue that it
had removed from the case via summary judgment.8
Capacity next argues that the district court abused its discretion by admitting
evidence concerning the Massachusetts lawsuit. The district court admitted the evidence
for two purposes. First, the district court allowed the evidence as substantive evidence of
the university’s reasons for terminating negotiations with Capacity and as evidence
relevant to the issue of damages. Second, the district court allowed the university to cross-
examine Rosenfeld about the lawsuit under Minn. R. Evid. 608(b). We consider whether
the district court abused its discretion by admitting the evidence for each purpose.
Substantive evidence
Evidence is relevant if it has a “tendency to make the existence of [a] fact that is of
consequence to the determination of the action more probable or less probable than it would
be without the evidence.” Minn. R. Evid. 401. Relevant evidence is generally admissible.

7 We observe that it is common sense that an entity making expenditures on a business
venture would almost always expect to recoup its initial investment and make an additional
profit.
8 To the extent that Capacity’s expenditures were relevant to the discounted-cash-flow
analysis that it used to estimate the value of its rights under the MOU, and the potential
MLA, we observe (as Capacity does in this appeal) that evidence of the ge neral
expenditures on the project was introduced at trial.
14
Minn. R. Evid. 402. Here, the district court concluded that evidence of the university’s
knowledge of the Massachusetts lawsuit was relevant because it was probative to the
university’s contention that it acted in good faith when it terminated negotiations. The
district court also concluded that the same evidence was relevant to whether Capacity
suffered damages—reasoning that the evidence could show that Capacity never would have
realized profits from a future MLA because the university, knowing about the lawsuit,
never would have entered into the agreement. Capacity argues that the district court erred
in making these determinations and consequently abused its discretion by allowing the
evidence.
We see no abuse of discretion in the district court’s decisions. Both Gulachek and
his subordinate employee testified that there was a slight possibility that the university
would work with Capacity even after the email indicating that there were “no
circumstances” under which the university would reconsider its position, but that the
chances of entering into an MLA reduced to zero after the university learned about the
Massachusetts lawsuit. The university sent a subsequent letter to Capacity confirming its
decision to terminate negotiations. Whether that testimony was credible was a
determination for the jury to make. Covey v. Detroit Lakes Printing Co., 490 N.W.2d 138,
141 (Minn. App. 1992). But the evidence was relevant, and therefore admissible, because
15
it made the university’s claim that it acted in good faith when it terminated negotiations
with Capacity more probable. See Minn. R. Evid. 401.9
The evidence was also relevant to Capacity’s damages. Capacity’s expert witness
conceded that if Capacity never built a DAS network, there was “no money to be made.”
Thus, the jury could reasonably conclude that, if the university never would have entered
into an MLA with Capacity, Capacity’s claim for expectation damages from a prospective
MLA would fail. Again, the district court did not abuse its discretion in allowing the
evidence because it was relevant to damages.
Rule 608(b)
Capacity also asserts that the district court abused its discretion by allowing the
university to cross-examine Rosenfeld about the Massachusetts lawsuit under Minn. R.
Evid. 608(b). Rule 608(b) allows a party to attack the credibility of a witness by inquiring
into specific instances of conduct on cross-examination, so long as the inquiry is probative
to the witness’s character for truthfulness or untruthfulness.
Capacity first contends that the university, by asking questions about the
Massachusetts judge’s findings, effectively introduced extrinsic evidence of the lawsuit in
violation of rule 608(b). See Minn. R. Evid. 608(b) (disallowing use of extrinsic evidence
to establish witness’s character for truthfulness or untruthfulness). But Capacity never
made this argument to the district court. Thus, we do not review it on appeal. See Thiele,

9 Capacity’s claim that the university breached the implied covenant of good faith and fair
dealing was premised on the allegation that the university acted in bad faith when it
terminated negotiations with Capacity.
16
425 N.W.2d at 582 (stating that a party may not “obtain review by raising the same general
issue litigated below but under a different theory”).
Relying primarily on Staffing Specifix, Inc. v. TempWorks Mgmt. S ervs., Inc., 896
N.W.2d 115 (Minn. App. 2017), aff’d, 913 N.W.2d 687 (Minn. 2018), Capacity also asserts
that the university’s questions to Rosenfeld about the Massachusetts lawsuit were more
prejudicial than probative because the university asked about what the judge in that case
found, which might cause a jury to give undue credit to the judge’s findings. See also
Minn. R. Evid. 403 (stating that relevant evidence may be excluded if its probative value
is outweighed by unfair prejudice). In Staffing Specifix, we determined that evidence that
a judge, in a separate matter, found that a witness gave testimony that was not credible was
not admissible under rule 608(b) because it was not probative of the witness’s character for
truthfulness—the judge could find a witness’s testimony not credible for a number of
reasons. 896 N.W.2d at 133-34. We also concluded that evidence of the credibility
determination, if it was probative of the witness’s character for truthfulness, was unduly
prejudicial because the witness’s credibility was a central issue in the case, and the
credibility finding came from a judge, “a person usually held in high esteem in the
community.” Id. at 134.
Staffing Specifix is distinguishable from this case—the cross-examination in
Staffing Specifix involved a judge’s credibility finding, not findings regarding the actual
acts of the witness. Moreover, Capacity is primarily concerned with the university’s cross-
17
examination questions, not the evidence that the questions elicited. 10 The district court
informed the jury in its instructions that “the attorneys’ questions are not evidence.” We
presume that the jury follows the district court’s instructions. Frazier v. Burlington N.
Santa Fe Corp., 811 N.W.2d 618, 630 (Minn. 2012). Ultimately, considering that the jury
found that the university breached both the MOU and the implied covenant of good faith
and fair dealing, we conclude that Capacity has not demonstrated that the district court
abused its discretion when it determined that the probative value of the inquiry was not
outweighed by the potential for unfair prejudice.
11
Jury instructions
Finally, Capacity argues that the district court abused its discretion by instructing
the jury that it was not permitted to award out-of-pocket expenses. A district court has
“considerable latitude” in giving jury instructions, and we will not reverse based on jury

10 Generally, Rosenfeld denied knowledge of the Massachusetts court’s findings, testifying
that he had not read the order at issue.
11 Because we conclude that the district court did not abuse its discretion by allowing the
evidence regarding the Massachusetts lawsuit, we need not consider whether Capacity has
demonstrated that it was prejudiced by the district court’s ruling. See Minn. R. Civ. P. 61
(providing that harmless error in the admission or exclusion of evidence is not a basis for
granting a new trial); see also Jerry’s Enters., Inc. v. Larkin, Hoffman, Daly & Lindgren,
Ltd., 691 N.W.2d 484, 494 (Minn. App. 2005) (stating that appellant must demonstrate
prejudice resulting from district court’s evidentiary ruling to obtain relief), aff’d as
modified, 711 N.W.2d 811 (Minn. 2006). Capacity, however, has not met its burden of
demonstrating prejudice. The jury found for Capacity on the issues of breach of contract
and breach of the implied covenant of good faith and fair dealing. Its damages award was
consistent with evidence in the record regarding how much money the university made as
a result of the breach, and consequently, what Capacity might have earned had the
university respected its exclusive right to negotiated with the carriers.
18
instructions if the instructions “fairly and correctly state the applicable law.” Russell v.
Johnson, 608 N.W.2d 895, 898 (Minn. App. 2000), review denied (Minn. June 27, 2000).
Here, the district court granted partial summary judgment on the issue of out-of-
pocket expenses, removing that issue from trial. We concluded above that the district court
did not err by granting partial summary judgment in that regard. Because the claim for
out-of-pocket expenses was no longer at issue in the litigation, the district court’s
instruction fairly and correctly stated the applicable law. We discern no abuse of discretion
in the district court’s instructions.
In sum, the district court did not err by granting partial summary judgment because
Capacity did not identify evidence establishing a genuine issue of material fact regarding
whether it incurred out-of-pocket expenses. Consequently, the district court did not abuse
its discretion by denying Capacity’s motion for a new trial due to alleged errors in
evidentiary rulings and jury instructions.
Affirmed.