Patricia Klug, et al., Respondents,

This opinion is nonprecedential except as provided by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

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1479

Patricia Klug, et al.,
Respondents,

vs.

Robert Ellenz, et al.,
Appellants.

Filed June 1, 2021
Affirmed
Reilly, Judge

Houston County District Court
File No. 28-CV-17-480

Dwight D. Luhmann, Luhmann Law, LLC, Preston, Minnesota (for respondents)

Thomas M. Manion, Manion O’Koren Law Firm, LLC, Lanesboro, Minnesota (for
appellants)

Considered and decided by Frisch, Pres iding Judge; Reilly, Judge; and Florey,
Judge.
NONPRECEDENTIAL OPINION
REILLY, Judge
In this adverse-possession action, the di strict court conducte d a bench trial and
determined that respondents failed to prove th at they adversely possessed portions of the
disputed property. Respondents filed a co mbined motion for a new trial or amended
findings of fact and conclusions of law, and submitted additio nal evidence in support of

2
their motion. The district court issued amende d findings of fact and conclusions of law,
determining that respondents proved adverse possession of the entire disputed property.
Appellants raise four arguments on appeal: (1) the district court erred by allowing
respondents to present new evidence in support of their posttrial motion, in violation of the
Minnesota Rules of Civil Procedure; (2) the di strict court failed to honor a stipulation to
which the parties agreed at tr ial; (3) the district court erre d by not rejecti ng respondents’
new evidence for failure to timely serve appellants, in violation of the Minnesota General
Rules of Practice; and (4) the district cour t clearly erred by finding that respondents
adversely possessed a portion of the disputed property. We affirm.
FACTS
This is a dispute between two families over possession of farmland in Houston
County. In June 2017, respondents Patricia and Gregory Klug sued appellants Robert and
Lori Ellenz claiming a parcel of real estate purportedly owned by appellants. The two
families own parcels of land next to ea ch other, with appellants’ farm bordering
respondents’ farm to the north and west. The complaint alleged that respondents had
adversely possessed narrow portions of appellants’ real estate along the border of the
properties for more than 15 ye ars. The complaint asked th e district court to declare
respondents the owners of that real property and to establish a boundary line between the
two properties consistent with respondents’ claims.

3
The case proceeded to a bench trial over five days in December 2019.1 The district
court issued findings of fact and conclusions of law in April 2020 . The district court
determined that respondents had proven by clear and convincing evidence that they
adversely possessed the disputed property along the north-south boundary. But the district
court found that there was not clear and convincing evidence of adverse possession of the
disputed property along the west -east boundary, or in an ar ea of unworked vegetation in
the northwest corner, which th e parties called the “green tr iangle.” In reaching this
conclusion, the district court reasoned that respondents had never farmed within the green
triangle. As a result, the district court declar ed respondents to be the owners of only part
of the disputed real property.
Respondents moved for a new trial or, alte rnatively, for amended findings of fact
and conclusions of law. Respondents argued that a new trial or amended findings were
necessary because the district court’s findi ngs were not supported by the evidence, the
district court committed errors of law, and the district court deprived respondents of a fair
trial by admitting certain exhibits at trial over respondents’ obj ection. In support of the
motion, respondents submitte d an affidavit from Gregor y Klug, along with four
photographs of aerial images that purported to show that a fence between the properties
had not been moved between 2008 and 2017 , which respondents alleged contradicted
Robert Ellenz’s testimony.

1 The trial began as a jury trial, but on the th ird day of trial, the parties agreed to dismiss
the jury and submit the issues to the court for decision.

4
Following a motion hearing, the district court in September 2020 denied
respondents’ request for a new trial, but gr anted their request for amended findings and
conclusions of law. In an order accomp anying the amended order and judgment, the
district court explained the reasons for its amended findings. The district court determined
that “[u]pon further review of the testimony . . . while [respondent] did not actively work
the ground in the Green Triangle, he considered the Green Triangle part of his property”
and farmed that corner of the property “consistent with standard farming practices.” The
district court also found that, “[u]pon furt her review of the evidence, and with the
arguments and evidence presented at [the motion] hearing,” Robert Ellenz’s testimony and
two exhibits appellants introduced at trial lacked credibility. The district court then found
that the testimony and exhibits instead supported respondents’ assertion about the position
of the west-east boundary of the property.
Thus, the district court in its amended fi ndings of fact and conclusions of law
determined that respondents proved adverse possession of all the disputed property by clear
and convincing evidence, including the portion along the west-east boundary and the green
triangle. The district court declared respondents the owners of the real property in dispute
and entered judgment accordingly.
This appeal follows.

5
DECISION
I. The district court did not commit reversible error by considering respondents’
new evidence in support of their posttrial motion.
Appellants argue that the district court erred by allowing respondents to present new
evidence in support of their posttrial motion. The new evidence in question is the affidavit
from Gregory Klug and the aerial photographs of the boundary be tween the properties,
which respondents filed to support their motion for a new trial or amended findings of fact
and conclusions of law. Because of the alle ged error by the district court in considering
this new evidence, appellants urge us to re verse the amended order and judgment, and to
reinstate the original order and judgment.
Appellants argue that the district cour t’s consideration of respondents’ new
evidence was improper on three grounds: (1) Mi nnesota Rule of Civil Procedure 52.02,
(2) the parties’ stipulation at trial, and (3) Minnesota General Rule of Practice 115.03. We
note at the outset that appellants did not object to respondents’ new evidence before the
district court, nor did they raise any of these arguments in either their written submissions
to the district court or at the motion hearing. And we rarely consider issues that were not
presented to and considered by the district court. Thiele v. Stich , 425 N.W.2d 580, 582
(Minn. 1988). Despite appellants’ failure to raise the arguments below, even if we consider
the arguments on their merits, we conclude that none dictate reversal.
A. Minnesota Rule of Civil Procedure 52.02
Appellants first argue that the district court could not consider respondents’ new
evidence because the Minn esota Rules of Civil Procedure do not allow the district court,

6
when deciding a motion for amended findings, to consider evidence that was not a part of
the trial record. We review a district c ourt’s decision on a motion for amended findings
for an abuse of discretion. Zander v. Zander, 720 N.W.2d 360, 364 (Minn. App. 2006),
review denied (Minn. Nov. 14, 2006). A district court abuses its discretion when “its
decision is based on an erroneous view of the law or is against logic and the facts in the
record.” Landmark Cmty. Bank, N.A. v. Klingelhutz , 927 N.W.2d 748, 754 (Minn. App.
2019).
Appellants correctly note that a district court typically may not consider new
evidence on a moti on for amended findings. The rules of civil procedure provide that a
motion for amended findings “may be made on the files, exhibits, and minutes of the court.”
Minn. R. Civ. P. 52.02. The purpose of a motion for amended findings is to allow the
district court to review its exercise of discretion. Johnson v. Johnson, 563 N.W.2d 77, 78
(Minn. App. 1997), review denied (Minn. June 30, 1997). The supreme court has explained
that “[i]n considering the moti on for amendment of its findings, the [district] court must
apply the evidence as submitted during the trial of the case. It may neither go outside the
record, nor consider new evidence.” Rathbun v. W.T. Grant Co. , 219 N.W.2d 641, 651
(Minn. 1974); see also Otte v. Otte , 368 N.W.2d 293, 299 (Minn. App. 1985) (providing
that a motion for amended findings “must be based upon the files, exhibits and minutes of
the court, not upon newly discovered evidence which is not a part of the record”).
Although the rules prohibit a district c ourt from considering new evidence when
deciding a motion for amended findings by itself, respondents here filed a combined motion
for amended findings and a new trial. And the rules allow a district court to consider new

7
evidence on a motion for a new trial: “On a motion for a new trial in an action tried without
a jury, the court may open the judgment if one has been entered, take additional testimony,
amend findings of fact and conclusions of law or make new findings and conclusions, and
direct entry of a new judgment.” Minn. R. Civ. P. 59.01. While a new-trial motion “shall
be made and heard on the files, exhibits, and minutes of the court,” “[p]ertinent facts that
would not be a part of the minutes may be shown by affidavit.” Minn. R. Civ. P. 59.02.
We note that this case is unusual beca use, while respondents made a combined
motion for amended findings and a new trial, th e district court issued amended findings
without granting a new trial. Appellants mainta ined, at oral argument, that this was
improper and that if the district court does not grant a new trial when deciding a combined
motion, it cannot consider the new evidence when issuing amended findings. Respondents
counter that the district court may consider new evidence in this situa tion, as long as the
motion for amended findings was made in conjunction with a proper motion for a new trial.
There is very little caselaw that has addre ssed this issue, and we are aware of only
one precedential authority on point. In Chin v. Zoet, the appellants challenged the district
court’s grant of summary judgment against them, and they submitted affidavits in support
of their motion for amended findings or a new trial. 418 N.W.2d 19 1, 195 (Minn. App.
1988). This court determined that the distri ct court erred by refusing to consider the
affidavits when making its decision, and we reasoned that the district court had a right to
do so because the appellants m oved for a new trial and for am ended findings at the same
time. Id. at 195 n.2. This court’s decision in Chin suggests that it is proper for the district

8
court to consider evidence that was not part of the record when the district court considers
a combined motion, even if it ultimately chooses not to grant a new trial.2
We need not decide whether the district court properly considered respondents’ new
evidence without granting a new trial, because we are satisfi ed that any prejudice to
appellants was minimal. We will not reverse if a district court’s error “does not affect the
substantial rights of the parties. ” Minn. R. Civ. P. 61. Here , the district court relied on
respondents’ new evidence—a two-page affi davit from Gregory Klug and four aerial
photographs—to support its determination that two exhibits appellants introduced at trial
and a part of Robert Ellenz’s testimony lacked credibility. According to the affidavit, the
purpose of the aerial photographs was to sh ow that a fence was not moved between 2008
and 2017, which contradicted Robert Ellenz’s testimony at trial. And at the motion hearing,
respondents explained that the photographs went solely to th e issue of Robert Ellenz’s

2 We observe that this position also appears to follow the explanation in Minnesota Practice
about the district court’s consideration of new evidence on a motion for amended findings
and a new trial:
Rule 52.02 permits a motion for amended findings to be
combined in the alternative with a motion for a new trial. Both
motions require the court to perform similar although different
functions in reviewing the propri ety of the original decision.
The motion for amended findings restricts the court to consider
the evidence submitted during th e trial. A motion for a new
bench trial permits the court to take additional testimony and
then amend the findings of fact and conclusions of law or make
new findings and conclusions an d direct the entry of the new
judgment. . . . A combined motion provides the court with the
opportunity to review the form er evidence and consider any
new evidence.
David F. Herr & Roger S. Haydock, Minnesota Practice § 52.20 (6th ed. 2020) (emphasis
added).

9
credibility and that the location of the fence de picted in the photographs was immaterial.
In other words, the district court did not rely on the affidavit or the photographs themselves
to determine the location of the boundary between the two properties. The new evidence
thus connected to an issue of witness credibility, not a substantive issue.
We add that the district court reached its credibility determination based not only
on the new evidence, but also “[ u]pon further review of the ev idence” presented at trial.
The district court had the opportunity to judge the witnesses’ credibility over the course of
multiple days at trial. Even if the district court should not have considered respondents’
new evidence, any error was harmless because the district court could reach the same
conclusion by considering only the evidence that was part of the trial record. In sum, we
reject appellants’ argument that the district court’s consideration of respondents’ new
evidence constituted reversible error under the rules of civ il procedure because any error
did not affect appellants’ substantial rights.
B. The Parties’ Stipulation
Appellants also argue that the district court should not have considered respondents’
new evidence because this conflicted with a stipulation to which the parties agreed at trial.
On the third day of trial, the parties agreed to dismiss the jury and submit the issues to the
court. At that time, the parties reached a stipulation and read the stipulation into the record.
The stipulation provided in part: “[T]here w ould be a further understanding that neither
party following both parties resting in their cases in chief, would be able to submit any
further evidence to the court.” Appellants argue that the district court’s consideration of
respondents’ new evidence in support of their posttrial motion “was in direct contradiction

10
to the [p]arties’ stipulation placed on the record.” Resp ondents disagree with this
characterization and insist that the stipulati on “was simply a reference to the bifurcated
nature of the parties[’] claims” and was not meant to prevent the parties from introducing
evidence in support of a posttrial motion.
We think that respondents’ understanding of the stipulation is more persuasive. We
reach this conclusion given the full context in which the parties made the stipulation. The
parties agreed to the stipulation to decide how the presentation of evidence was to proceed
in light of their decision to now try the case before the court rather than a jury. Counsel
read the stipulation into the record, which includ ed provisions that the parties would
“submit the issues of adverse possession and b oundary by practical location to the court
for decision,” that appellants would “put in [their] case in chief on both adverse possession
and boundary,” and that appella nts would “defer further ev idence on any counter claim
damages pending the court’s decision on ad verse possession and boundary by practical
location.” Counsel explained the reasoning be hind this stipulation: “If [respondents]
prevail, there would be no need for the damage s evidence. If [appella nts] prevail, there
would be a damages trial to the court without a jury.” It was at th at point that counsel
referenced the provision that neither party w ould submit more evidence after both parties
rested their cases in chief.
The stipulation, viewed in its entirety, supports respondents’ contention that the
provision simply reflected the parties’ unders tanding that they would separately try the
issues of adverse possession and damages. In other words, the purpose of the stipulation
was to prevent the parties fro m presenting evidence of advers e possession once the case

11
proceeded to a trial on damages. The stipul ation focused on the pa rties’ presentation of
evidence at trial; it did not refer to the parties’ ability to make posttrial motions. Nothing
in the stipulation suggests that it was intended to preclude the parties from submitting more
evidence in a motion for a new trial.
For these reasons, we conclude that the di strict court did not act contrary to the
parties’ stipulation by considering respondents’ new evidence in their posttrial motion.
C. Minnesota General Rule of Practice 115.03
Finally, appellants argue that the district court should have rejected respondents’
new evidence because respondents failed to tim ely serve the affidavit and exhibits on
appellants in accordance with Minnesota General Rule of Practice 115.03. Under the rule,
a district court will not hear a motion until the moving party serves the motion, and any
affidavits and exhibits subm itted along with the motion, “a t least 28 days before the
hearing.” Minn. R. Gen. Pr ac. 115.03(a). Appellants argue that respondents violated
rule 115.03(a) because they did not serve on appellants the affi davit and exhibits
accompanying their posttrial motion until June 16, 2020, which was only six days before
the motion hearing.
Appellants’ reliance on rule 115.03 is misplaced. Th e rules governing motion
practice specifically provide, “The timing provisions of sections 115.03 and 115.04 of this
rule do not apply to post-trial motions.” Minn. R. Gen. Prac. 115.01(c). Thus, rule 115.03
does not apply to respondents’ motion and is not a basis for us to reverse the district court’s
amended order and judgment.

12
II. The district court did not clearly err by finding that respondents had proven
adverse possession of the green triangle by clear and convincing evidence.
Appellants also argue that, even if the district court could properly consider
respondents’ new evidence submitted with thei r posttrial motion, th is evidence and the
evidence presented at trial was not sufficient to allow the dist rict court to conclude that
respondents adversely possessed the green triangle.3
To prevail on an adverse-possession clai m, a party “must show, by clear and
convincing evidence, an actual, open, hostile, continuous, and exclusive possession for the
requisite period of time,” which is 15 years in Minnesota. Ganje v. Schuler, 659 N.W.2d
261, 266 (Minn. App. 2003) (quoting Ehle v. Prosser, 197 N.W.2d 458, 462 (Minn. 1972)).
Whether the elements of adverse possession are present is a question of fact. Id. We will
not set aside the district court’s factual findings unless they are clearly erroneous. Denman
v. Gans, 607 N.W.2d 788, 794 (Minn. App. 2000), review denied (Minn. June 27, 2000).
Here, appellants challenge the district cour t’s finding of the existence of just one
element of adverse possession—openness. The openness requirem ent means that the
party’s possession must be “visible from the surroundings, or visible to one seeking to
exercise his rights.” Hickerson v. Bender, 500 N.W.2d 169, 171 (Minn. App. 1993). The
nature of the possession “must give unequivocal notice to the true owner that [someone] is
in possession in hostility to his title.” Ganje, 659 N.W.2d at 266 (quotation omitted).

3 Appellants challenge only the district court’s finding of adverse possession related to the
green triangle and do not dispute the findings of adverse possession about any other
portions of the disputed area.

13
In its original order and judgment, the district court determined that respondents had
not proven adverse possession of the green tria ngle by clear and convincing evidence. In
reaching this decision, the district court point ed to the fact that Gregory Klug had never
farmed within the green triangle and that cert ain markers within the area were located on
appellants’ farm. In its amended order and judgment, the district court reached a different
conclusion, determining that respondents had presented clear and convincing evidence to
prove adverse possession of the green triangle. The district court reasoned that, despite not
farming within the green triangle, responde nts had used the gree n triangle “in a manner
consistent with how any other farmer would have used it” by “farm[ing] into the corner as
close as they could.” Appellants argue that the district court’s finding was not supported
by clear and convincing evidence showing that respondents’ po ssession of the green
triangle was open. We disagree.
Respondents introduced testimony and exhibits at trial to show that their possession
of the green triangle was open. Gregory Klug te stified that he regularly farmed along the
northern boundary of his property but did not farm in the northwest corner. He explained
that the green triangle was “land that [he] was never able to till” because he could not “get
into that corner with tillage equipment” because of having to make a 90-degree turn when
moving from the northern boundary to the western boundary. According to Gregory Klug,
appellants farmed alongside the north and west sides of the green triangle, as this was part
of their property. Aerial photos of the prop erty, which respondents introduced at trial,
support his description of the green triangle. Gregory Klug said that he remembered the
green triangle being in that location for as lo ng as he could remember, at least since his

14
grandfather had owned the property. This ev idence supports the district court’s finding
that respondents used the green triangle consistent with how other farmers would have used
it and farmed into the northwest corner of the property as close as they could.
Appellants, however, argue that respondents’ possession of the green triangle was
not open because, based on the lack of farming activities within the triangle, respondents’
possession would not have been visible to appellants. But Gregory Klug’s testimony and
the aerial photo show that, even if respondents were not actively farming within the green
triangle, the triangle itself would have been visible to appellants. As evidenced by the
aerial photo, the green triangle—with its unusual shape and uncultivated nature—stood in
sharp contrast to the surroundi ng farmland. The north and west boundaries of the green
triangle ran even with the northern and we stern edges of respondents’ property, and
respondents farmed along those edges of their property up to the green triangle. And
appellants did not farm within the green triangle either, as they farmed along the northern
and western boundaries of the triangle. This evidence supports resp ondents’ contention
that they claimed the property up to the spot where the northern and western boundaries
intersected (i.e., the very north west corner of the green tria ngle), but did not farm within
the green triangle because it was not feasible. As respondents summed it up in their brief,
“The mere existence of the green triangle wa s unequivocal notice to the [a]ppellants and
their predecessors that the [r]espondents were possessing the land up to the north and west
sides of the green triangle.” Respondents presented sufficient evidence for the district court
to find that they met the openness requirement.

15
Because there is ample evidence in the record to support the district court’s finding
that respondents’ possession of the green triangl e was open, we conclude that the district
court did not clearly err by finding that re spondents had proven by clear and convincing
evidence that they adversely possessed the green triangle.
Affirmed.