Joseph Roach, et al., Appellants,

This opinion is nonprecedential except as provided by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

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1638

Joseph Roach, et al.,
Appellants,

vs.

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

Filed July 18, 2022
Affirmed
Reyes, Judge

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

Denis E. Grande, Zachary P. Armstrong, DeWITT, L.L.P., Minneapolis, Minnesota (for
appellants)

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

Michael J. Morley, Victoria A. Vold, Morley Law Firm, Ltd., Grand Forks, North Dakota
(for respondents Gary Heitkamp Construction, et al.)

Considered and decided by Reyes, Presiding Judge; Jesson, Judge; and Wheelock,
Judge.

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NONPRECEDENTIAL OPINION
REYES, Judge
Appellants Joseph and Jennifer Roach (the Roaches) argue that the district court
erred by denying their motion to reallocate Becker County’s (the county) share of fault to
jointly and sev erally liable respondents Thomas and Sandra Alinder (the Alinders) and
Gary Heitkamp and Gary Heitkamp Construction Inc. (Heitkamp) (collectively,
respondents). Because we agree with the district court that the Roaches filed an untimely
motion under Minn. Stat. § 604.02, subd. 2 (2020), we affirm.
FACTS
The current appeal is the sixth time this case has come before this court. The facts
underlying the dispute are described at length in our previous opinions. 1 In short, the
Roaches and the Alinders own adjacent lakefront properties in the county. The Alinders’
property was initially at a lower elevation than the Roaches’ property. In 2003, the
Alinders obtained a permit to build a new house on their property and contracted with
Heitkamp to build the house. As part of the construction project, respondents added fill to

1 In re Decision of Becker Cty. Zoning Adm’r, No. A07-1580, 2008 WL 4224508 (Minn.
App. Sept. 16, 2008) ( Roach I ); Roach v. County of Becker , No. A12 -0132, 2012 WL
6097133 (Minn. App. Dec. 10, 2012) (Roach II), rev. denied (Minn. Feb. 19, 2013); Roach
v. County of Becker, No. A16-0915, 2017 WL 1316117 (Minn. App. Apr. 10, 2017) (Roach
III); Roach v. County of Becker, No. A19-2083, 2020 WL 4281003 (Minn. App. July 27,
2020) (Roach IV), aff’d in part and rev’d in part, 962 N.W.2d 313 (Minn. 2021); and Roach
v. County of Becker, No. A20-0739, 2021 WL 318003 (Minn. App. Feb. 1, 2021) (Roach
V), rev. granted (Minn. Apr. 28, 2021) and order granting rev. vacated (Minn. Aug. 24,
2021).
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the Alinders’ property, which changed the elevation and caused water to run off onto the
Roaches’ property.
After years of litigation with the county and respondents, the Roaches obtain ed a
restoration order from the district court requiring respondents to remove enough fill to
restore the Alinders’ property to its preconstruction elevation. The parties also proceeded
to trial on damages. Before the trial began, the district court dism issed the county as a
party due to governmental immunity.
In April 2019, the district court held a jury trial to determine damages. Although
the county had been dismissed as a party, Heitkamp asked the district court to include the
county on the jury’s special-verdict form for apportionment of liability. Over the Roaches’
objection, the district court included the county on the special -verdict form. The jury
awarded the Roaches $260,000 in past damages and $300,000 in future damages,
apportioning 20% of fault to the county, 40% to the Alinders, and 40% to Heitkamp.
Respondents moved for a new trial, contesting the jury’s damages award. The
Roaches moved for judgment as a matter of law (JMOL) on the 20% of fault apportioned
to the county, arguing that the county owed no duty and that the evidence did not support
a finding of negligence by the county. The Roaches also moved for preverdict interest,
attorney fees, leave to amend the complaint to add a claim for punitive damages, and a civil
contempt order against respondents.
The district court granted some of the Roaches’ requested preverdict interest but
denied their motions for attorney fees, punitive damages, civil contempt, and JMOL as to
the county’s fault. The district court conditionally granted respondents’ motion for a new
4
trial unless the Roaches agreed to a remittitur reducing the future damages award to $0 and
reducing the costs-and-disbursements award. The Roaches accepted the remittitur.
The district court filed the amended final order for judgment on October 24, 2019,
and entered judgment on October 28, 2019 . The district court made the following
calculation of the final award to the Roaches, multiplying the damages award by 80% to
account for the jury’s attribution of 20% of fault to the county:
Damage to Lake Lot ($10,000 * 80%): $8,000.00
Damage to Cabin ($200,000 * 80%): $160,000.00
Nuisance Damages ($50,000 * 80%): $40,000.00
Trespass Damages (against Heitkamp): $4,800.00
Costs and Disbursements: $74,574.20
Preverdict Interest: $227,511.57

The district court also found that respondents were jointly and severally liable under
Minn. Stat. § 604.02, subd. 1(2) (2020).
The Roaches appealed the amended final judgment. See Roach IV, 2020 WL
4281003. Relevant to this appeal, the Roaches challenged the district court’s posttrial
denial of their motion for JMOL on the county’s fault. They also challenged the district
court’s preverdict interest calculation and its denial of their mot ions for attorney fees,
punitive damages, and civil contempt. Id. at *1. Respondents argued on appeal that the
Roaches waived their right to appeal all issues by accepting the remittitur. Id.
In an opinion filed July 27, 2020, we concluded that the Roaches did not waive their
right to appeal all issues by accepting a remittitur on future damages. Id. at *2-3. We then
affirmed the district court’s denial of the Roaches’ motions for JMOL as to the county’s
5
fault, punitive damages, and civil contempt. Id. at *4-8. But we reversed the district court’s
calculation of preverdict interest and its denial of attorney fees. Id. at *4, *7.
The Minnesota Supreme Court granted respondents’ petition for review on two
issues: (1) whether the Roaches’ acceptance of the remittitur precluded the Roaches’ appeal
and (2) whether attorney fees were authorized under the Minnesota watershed law. Roach
IV, 962 N.W.2d at 318. The Roaches did not petition for review of our affirmance of the
district court’s denial of JMOL on the county’s fault.
While Roach IV was on appeal, the parties continued to litigate over payment of the
2019 judgment and postjudgment interest. Respondents moved to deposit the amount of
the judgment against them and asked the district court to ac cept the deposit and halt the
accrual of postjudgment interest. The district court granted respondents’ motion and
ordered that, upon deposit, postjudgment interest would cease accruing as of the date the
Roaches filed their initial appeal.
The Roaches again appealed, arguing that the district court erred by halting accrual
of postjudgment interest. Roach V, 2021 WL 318003, at *2. We agreed with the Roaches.
Id. at *4-6. Respondents petitioned the supreme court for review of that decision. On April
28, 2021, the supreme court granted review and stayed further proceedings in Roach V
pending its final decision in Roach IV.
The supreme court issued its decision in Roach IV on July 21, 2021, affirming in
part and reversing in part. 962 N.W.2d at 315. The supreme court held that acceptance of
a remittitur does not bar an appeal raising issues separate and distinct from the remittitur
order, and, after concluding that the attorney -fee and preverdict -interest issues were
6
separate and distinct from the remittitur, it affirmed our decision on preverdict interest but
reversed our decision on attorney fees. Id. at 322-28.
On August 13, 2021, the Roaches moved the district court to amend the October 28,
2019 judgment with updated preverdict and postverdic t-prejudgment interest based on
instructions issued by this court in Roach IV. Shortly after, on August 24, 2021, the
supreme court vacated its grant of review in Roach V. Two days later, on August 26, 2021,
the Roaches moved the district court to amend the October 28, 2019 judgment to include
postjudgment interest based on our decision in Roach V.
That same day, August 26, 2021, the Roaches also moved to reallocate the county’s
20% share of the damages award to respondents under Minn. Stat. § 604.02, subd. 2.
On October 11, 2021, the district court granted the Roaches’ motion for amended
judgment to adjust the interest award based on our decisions in Roach IV and Roach V.
But it denied the Roaches’ motion for reallocation as untimely. It also dete rmined that,
even if they had filed a timely motion , the judgment did not include an amount for the
county’s percentage of fault, so there was no amount of the judgment to reallocate, and that
section 604.02, subdivision 2, did not apply because the county was immune and therefore
not severally liable. This appeal follows.

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DECISION
Because the Roaches moved for reallocation more than one year after the district
court entered judgment, the Roaches filed an untimely reallocation motion under
section 604.02, subdivision 2.

The Roaches argue that they moved for reallocation within the statutory time limit
because they filed their motion within one year of the supreme court’s remand following
Roach IV and Roach V. We disagree.
The parties’ dispute requires us to interpret and apply section 604.02, subdivision 2.
Statutory interpretation is a question of law, which we review de novo. See Cocchiarella
v. Driggs, 884 N.W.2d 621, 624 (Minn. 2016). We also review de novo the “[a]pplication
of a statute to the undisputed facts of a case.” In re Est. of Rutt , 824 N.W.2d 641, 645
(Minn. App. 2012) (quotation omitted). When interpreting a statute, we first determine
whether the statute is ambiguous. See Peterson v. City of Minneapolis, 892 N.W.2d 824,
827 (Minn. 2017). A statute is ambiguous when “it is susceptible to more than one
reasonable interpretation.” A.A.A. v. Minn. Dep’t of Hum . Servs., 832 N.W.2d 816, 819
(Minn. 2013) (citation omitted). If the statute’s meaning is clea r and unambiguous, then
the plain language of the statute controls. 328 Barry Ave., LLC v. Nolan Props. Grp., LLC,
871 N.W.2d 745, 749 (Minn. 2015).
Section 604.02, subdivision 2, states, “Upon motion made not later than one year
after judgment is ente red, the court shall determine whether all or a part of a party’s
equitable share of the obligation is uncollectible from that party and shall reallocate any
uncollectible amount among the other parties .” (Emphasis added.) Neither party argues
that section 604.02, subdivision 2, is ambiguous. Instead, they disagree as to its
8
application. We conclude that the statute is unambiguous. By its plain language, the statute
applies to the final judgment entered by the district court after damages and the parti es’
shares of fault have been determined. And, significantly, a party must move to reallocate
an uncollectible share of a party’s obligation “not later than one year after” that judgment
is entered. An appeal from the judgment does not, by itself, automa tically suspend that
statutory one-year deadline. Cf. Brown -Wilbert, Inc. v. Copeland Buhl & Co., P.L.L.P. ,
732 N.W.2d 209, 221 (Minn. 2007) (reaffirming that judgment becomes final when it is
entered in district court and remains final despite pending appeal).
Here, the district court entered its amended final judgment on October 28, 2019.
Under the plain language of the statute, the Roaches had to move for reallocation by
October 28, 2020. But the Roaches did not file their reallocation motion until August 2021,
almost two years after the district court entered judgment.
The Roaches nevertheless argue that a motion to reallocate is timely when it is
brought within one year of an appellate court’s decision remanding a case for further
proceedings, citing Hosley v. Pittsburg Corning Corp., 401 N.W.2d 136, 139 (Minn. App.
1987) ( Hosley II), and Swanson v. Chorney , No. C4 -97-1421, 1998 WL 27297, at *2
(Minn. App. Jan. 27, 1998). We are not persuaded. First, the Roaches’ interpretation
contradicts the plain language of the statute. Second, Hosley II and Swanson are
distinguishable. In Hosley II, the parties argued on appeal over the apportionment of
damages and whether the reallocation statute applied, and the district court had specifically
imposed a stay of enforcement on a portion of the damages. 401 N.W.2d at 139. Here,
this court in Roach IV decided the only issue raised on appeal potentially affecting the
9
county’s share of fault, and the district court never ordered a stay of the judgment that could
have precluded the Roaches from seeking reallocation of the county’s share.2
Swanson is nonprecedential and nonbinding, see Minn. R. Civ. App. P. 136.01,
subd. 1(c), and similarly distinguishable. In Swanson , the appellant file d a supersedeas
bond, which resulted in a stay of “all further proceedings . . . upon the judgment” at the
district court. 1998 WL 27297, at *2. We therefore applied the rationale of Hosley II to
avoid “requiring a judgment debtor to choose between appea ling from a judgment and
moving for reallocation.” Id. But this case does not involve a supersedeas bond or an
equivalent stay of the judgment that could have affected the district court’s ability to
consider a motion for reallocation during the parties’ Roach IV appeal.
The Roaches argue that the district court effectively imposed a stay because, in
granting respondents’ motion to deposit the judgment amount, the district court ordered
that “[a]fter deposit, the funds shall not be subject to a levy of execution or garnishment on
judgment pending the decision from the Court of Appeals.” But, by its own terms, that
order only affected the Roaches’ ability to withdraw the deposited funds pending appeal ;
it did not preclude the Roaches from moving for reallocation of the county’s uncollectible
share, which had never been included in the amended final judgment.
The Roaches also cite to the Staab line of decisions to argue that a motion to
reallocate is timely when it is filed within a year of appellate remand. See Staab v. Diocese

2 Even if we were to assume that the Roaches’ appeal tolled the statutory deadline for their
reallocation motion, we decided the only issue on appeal regarding the county’s fault in
Roach IV, 2020 WL 4281003, at *4- 5, on July 27, 2020. The Roaches did not move to
reallocate until more than a year later, in August 2021.
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of St. Cloud, 813 N.W.2d 68 (Minn. 2012) ( Staab I); Staab v. Diocese of St. Cloud , 853
N.W.2d 713 (Minn. 2014) ( Staab II). But the Staab decisions do not explicitly address
timeliness. More importantly, in the Staab cases, there was nothing to reallocate until
remand, because the district court initially entered judgment for the entire damage award
against the defendant. See Staab II, 853 N.W.2d at 715-16. After the supreme court held
that the defendant could only be required to contribute 50% of the award and remanded to
the district court, the plaintiff then moved to reallocate the remaining 50% of the award
back to the defendant. Id. Here, the district court never included the county’s 20% share
of the damages award in its October 28, 2019 amended final judgment.
Finally, the Roaches argue that, under Minn. R. Civ. App. P. 108.01, subd. 2, the
district court lacked jurisdiction to decide a motion to reallocate while t he judgment was
on appeal in Roach IV and Roach V. Again, we disagree. Although the filing of an appeal
“suspends the [district] court’s authority to make any order that affects the . . . judgment
appealed from,” the district court “retains jurisdiction as to matters independent of,
supplemental to, or collateral to” th at judgment. Minn. R. Civ. App. P. 108.01, subd. 2.
Collateral matters are “independent of the underlying decision and do not seek to modify
the underlying decision” on the merits. Kellar v. Von Holtum, 605 N.W.2d 696, 700 (Minn.
2000). Motions for attorney fees, costs and disbursements, and preverdict interest are
considered collateral matters. Spaeth v. City of Plymouth, 344 N.W.2d 815, 824-25 (Minn.
1984) (holding that attorney fees are collateral); City of Waite Park v. Minn. Off. of Admin.
Hearings, 758 N.W.2d 347, 354 (Minn. App. 2008) (characterizing motion for costs and
disbursements as collateral); Fette v. Peterson , 406 N.W.2d 594, 597 (Minn. App. 1987)
11
(holding that prejudgment interest is collateral to decision on merits), rev. denied (Minn.
June 30, 1987). Enforcement of the judgment is also a collateral matter. David N.
Volkmann Const., Inc. v. Isaacs, 428 N.W.2d 875, 876-77 (Minn. App. 1988).
We conclude that, here, the Roaches’ motion to reallocate was collateral to the final
amended judgment. The Roaches moved to reallocate the county’s 20% share, which the
district court did not include in the amended final judgment. T he Roaches’ motion
therefore did not ask the district court to reconsider or modify the underlying judgment on
its merits. Rather, it required the district court to determine if the Roaches were entitled to
an additional amount because the county’s share of the already-decided obligation was
uncollectible and subject to reallocation under section 604.02, subdivision 2. Whether the
Roaches were entitled to reallocation of the county’s share was therefore a collateral matter
over which the district court retained jurisdiction pending the parties’ appeals.
In sum, because there was no stay of the judgment pending appeal that affected the
Roaches’ ability to move timely for reallocation, and because the Roaches did not file their
motion until August 2021, we conclude that the Roac hes did not move for reallocation
within a year after the district court entered judgment as required by section 604.02,
subdivision 2.
3 They therefore filed an untimely motion, and the district court did not err

3 The Roaches also argue in their reply brief that they filed a timely motion because they
filed it within a year after the district court entered its postappeal amended judgment on
October 11, 2021 . We do not consider a rguments not raised in an appellant’s principal
brief and raised for the first time in a reply brief. See Moorhead Econ. Dev. Auth. v. Anda,
789 N.W.2d 860, 887 (Minn. 2010). Because the Roaches did not raise this argument in
their principal brief, we do not consider it.
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by denying it. Because we conclude that the Roaches’ filed an untimely reallocation
motion, we do not address the merits of their motion.
Affirmed.