Demo Unlimited Incorporated, 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This opinion is nonprecedential except as provided by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
A23-1633

Demo Unlimited Incorporated, et al.,
Respondents,

vs.

Ross Peterson,
Appellant.

Filed July 29, 2024
Affirmed
Reyes, Judge

Hennepin County District Court
File No. 27-CV-21-11526

Matthew R. Hartranft, Matthew R. Doherty, Alexander D. Schwartz, Brutlag, Trucke &
Doherty, P.A., Plymouth, Minnesota (for respondents)

Ross Peterson, Stillwater, Minnesota (self-represented appellant)

Considered and decided by Ross, Presiding Judge; Reyes, Judge; and Smith, John,
Judge.∗
NONPRECEDENTIAL OPINION
REYES, Judge
Appellant challenges the district court’s declaratory judgment that he had no interest
in respondent-corporation, arguing that he should receive a new trial because (1) procedural

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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irregularities adversely impacted his trial rights; (2) newly discovered evidence discredits
the district court’s findings; and (3) the evidence does not support the district court’s
decision. Alternatively, appellant argues that the district court should have amended
certain factual findings that he asserts are not supported by the record. We affirm.
FACTS
In November 2002, two brothers, appellant Ross Peterson and respondent Erik
Peterson, incorporated respondent Demo Unlimited, Inc. (Demo), with each brother
assuming 50% ownership of the corporation. In 2007, Ross and Erik 1 reached an oral
agreement under which Ross would receive $100,000 in exchange for his interest in Demo
(the agreement). Following the agreement, Ross continued to work for Demo from 2007
to 2018, during which time he received a salary, benefits, and a series of 25 disputed
payments that totaled $117,000. The last payment Ross received was a $20,000 check with
a memo reading “Final Payment.” Believing that the disputed payments were redemption
payments that satisfied his obligation under the agreement, Erik demanded that Ross
transfer his remaining stock shares in Demo. Ross refused, arguing that the disputed
payments were not made to redeem his interest in Demo, but to reimburse him for services
he provided to Demo.
Erik and Demo (collectively, respondents) brought an action against Ross in which
they sought, in part, a declaratory judgment that (1) an enforceable redemption agreement
existed between Ross and respondents; (2) the 25 disputed payments to Ross satisfied

1 Because Ross and Erik share the same last name, we use their first names when referring
to them individually.
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Erik’s obligations under the agreement; and (3) Erik was now the sole shareholder of
Demo. The case proceeded to a court trial beginning in November 2022.
At trial, the district court received numerous exhibits documenting the parties’
financial transactions and heard testimony from Erik, Ross, Ross’s wife, and several Demo
employees. Following trial, the district court granted respondents’ requested declaratory
relief, determining that the parties had an enforceable agreement, that Ross was no longer
a Demo officer following the agreement, and that Ross had surrendered his interest in
Demo by accepting $104,000 in redemption payments. Ross filed a motion for a new trial
under Minn. R. Civ. P. 59.01 or amended findings under Minn. R. Civ. P. 52.02, which the
district court denied.
This appeal follows.
DECISION
I. The district court did not abuse its discretion by denying Ross’s motion for a
new trial.

Self-represented on appeal, Ross incorporates by reference and supplements the
arguments made by his counsel in the motion for a new trial or amended findings filed in
district court. Ross argues that he should be granted a new trial under Minn. R. Civ. P.
59.01 because (1) procedural irregularities adversely impacted his trial rights ; (2) newly
discovered evidence shows that he did not agree to surrender his interest in Demo; and
(3) the evidence does not support the district court’s findings and ultimate determination.
See Minn. R. Civ. P. 59.01 (a), (d), (g). We address each argument in turn.
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Motions for a new trial should be granted “cautiously and sparingly” by a district
court. Baker v. Amtrak Nat’l R.R. Passenger Corp., 588 N.W.2d 749, 753 (Minn. App.
1999). Because the district court “has the feel of the trial,” we generally defer to its “broad
discretion in deciding whether to grant a new trial.” Vangsness v. Vangsness, 607 N.W.2d
468, 472 (Minn. App. 2000) (quotation omitted).
A. The district court did not commit any procedural irregularities
warranting a new trial.

Ross appears to contend that the district court committed numerous procedural
irregularities throughout his trial, including (1) relying on excluded evidence in its order
granting declaratory relief to respondents; (2) failing to “recognize the respondents as
separate entities;” (3) allowing respondents to change legal theories without filing a motion
to amend under Minn. R. Civ. P. 15.02; and (4) committing judicial misconduct by
demonstrating bias in favor of respondents. We are not persuaded.
Under Minn. R. Civ. P. 59.01(a), a moving party may receive a new trial if an
“[i]rregularity in the proceedings of the court . . . or any order or abuse of discretion”
deprived that party of a fair trial. An irregularity is defined as a “failure to adhere to a
prescribed rule or method of procedure not amounting to an error in a ruling on a matter of
law.” Boschee v. Duevel, 530 N.W.2d 834, 840 (Minn. App. 1995) (quotation omitted),
rev. denied (Minn. June 14, 1995).
As an initial matter, the only irregularity addressed by Ross’s motion for a new trial
was that the district court’s order improperly relied on excluded evidence. As a result,
Ross’s remaining irregularity arguments are forfeited on appeal. Sauter v. Wasemiller, 389
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N.W.2d 200, 201 (Minn. 1986) (“A post-trial motion for a new trial [under] Minn. R. Civ.
P. 59.01 raising individual errors allegedly occurring at trial is a prerequisite to appellate
review of those errors.”).2
Ross’s remaining argument is that the district court could not have made certain
factual findings without relying on exhibits listing Demo’s shareholder distributions that
were offered, but not admitted, into evidence. The challenged findings include the district
court’s summary of the payments Ross received under the agreement and its finding that
there was no imbalance between the distributions Erik and Ross received before the
agreement between 2006 and 2007.
We conclude that the district court did not need to rely on excluded evidence when
issuing its findings of fact. Ross testified that he received each of the payments listed in
the district court’s findings and the district court therefore did not need to rely on the
excluded exhibits for that information. Additionally, Erik testified that he and Ross
received approximately the same distributions from Demo before the agreement and that
he had worked with Demo’s tax consultant to ensure that there was no discrepancy in
Demo’s distributions to himself and Ross. See Butler v. Jakes , 977 N.W.2d 867, 871
(Minn. App. 2022) (“We defer to the district court’s credibility determinations . . . .”).
Because ample evidence beyond the excluded exhibits supports the district court’s
findings, Ross’s argument fails.

2 For this same reason, Ross has forfeited the argument that the district court misinterpreted
the powers of corporate shareholders under Minn. Stat. chapter 302A (2022).
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B. There is no newly discovered evidence warranting a new trial.

Ross argues that newly discovered evidence in the form of bank loans obtained on
Demo’s behalf, for which he was a signatory, proves that he was not removed as an officer
following the agreement and that he did not agree to transfer his interest in Demo. Ross’s
argument is unavailing.
A district court may grant a new trial based on newly discovered evidence if the
new evidence (1) is “material” and (2) “with reasonable diligence could not have been
found and produced at the trial.” Minn. R. Civ. P. 59.01(d). Determining whether these
requirements have been met is within the district court’s discretion. Frazier v. Burlington
N. Santa Fe Corp., 811 N.W.2d 618, 631 (Minn. 2012).
In his sworn declaration to the district court, Ross stated that, “[a]fter trial and the
[district court’s] decision in this matter, I attempted to get information about my role in
[Demo’s] bank loans and accounts with Anchor Bank. Anchor Bank was purchased by
Old National Bank.” On appeal, Ross claims that, although he was unable to obtain the
loan information in his pretrial discovery efforts concerning Old National Bank, he realized
after trial that he had not performed any bank-records searches “for Demo Unlimited or
loans with his name” and that he was able to acquire the loan documents after performing
those searches.
Here, the district court determined that Ross failed to exercise reasonable diligence
by not obtaining this evidence before trial. The record supports the district court’s
determination. Not only did Ross delay searching for the loan information until “[a]fter
trial and the [district court’s] decision,” but he failed to explain why he could not have
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searched for the information before trial. See Henderson v. Bjork Monument Co., 24
N.W.2d 42, 46 (Minn. 1946) (noting that new trial is not warranted if “the same diligence
which led to the discovery of the new evidence after trial would have discovered it had
such diligence been exercised prior thereto”) (quotation omitted). The district court
therefore did not abuse its discretion by denying Ross’s motion for a new trial based on
newly discovered evidence.3 Minn. R. Civ. P. 59.01(d); Frazier, 811 N.W.2d at 631.
C. The district court’s decision is supported by the evidence.

Ross asserts that he should receive a new trial because the evidence presented at
trial failed to demonstrate that (1) the parties had an enforceable agreement between them
and (2) respondents satisfied their obligations under the agreement. We are not convinced.
A new trial should not be granted for insufficient evidence under Minn. R. Civ. P.
59.01(g) “unless the verdict is so contrary to the preponderance of the evidence as to imply
that the [factfinder] failed to consider all the evidence or acted under some mistake.” Ayers
v. Kalal, 925 N.W.2d 291, 297 (Minn. App. 2019).

3 Ross also failed to provide the loan information to the district court to allow it to
determine whether the new evidence was material. See MacDonald v. Brodkorb, 939
N.W.2d 468, 474 (Minn. App. 2020) (“We generally will not consider matters outside the
record on appeal or evidence not produced and received in the district court.”).
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1. The record supports the district court’s finding that the parties
entered into an enforceable agreement.

Ross first appears to argue that the parties did not reach an enforceable agreement
because they did not agree on the essential term of whether respondents would cover his
health-insurance expenses.4 We disagree.
To form an enforceable contract, there must be mutual assent between the parties
on the contract’s essential elements. Vermillion State Bank v. Tennis Sanitation, LLC, 947
N.W.2d 456, 466 (Minn. App. 2020), aff’d, 969 N.W.2d 610 (Minn. 2022). Both the
existence of a contract and the material terms of that contract are questions of fact to be
determined by the factfinder. Id. We review findings of fact for clear error and will not
reverse the district court unless we are “left with the definite and firm conviction that a
mistake has been made.” Heidbreder v. Carton, 636 N.W.2d 833, 838 (Minn. App. 2001)
(quotation omitted), aff’d, 645 N.W.2d 355 (Minn. 2002). The test for contractual
formation is objective, “to be judged by the words and actions of the parties and not by
their subjective mental intent.” Hill v. Okay Constr. Co. , 252 N.W.2d 107, 114 (Minn.
1977).
Here, the record supports the district court’s findings and ultimate determination
that the parties entered into an enforceable redemption agreement. Both Ross and Erik
testified that they had agreed that Ross would receive $100,000 in exchange for his interest
in Demo and several other witnesses testified that a redemption/buyout agreement existed.

4 Ross also contends that his cell-phone bill was an essential term to the agreement.
However, even if that were the case, the district court credited Erik’s testimony that he paid
Ross’s cell-phone bill until 2018. See Butler, 977 N.W.2d at 871.
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Witnesses additionally testified that, following the agreement, Ross turned in his company
vehicle and no longer took part in the decisionmaking process for Demo, actions that are
objectively consistent with the understanding that he was no longer an officer and no longer
had an ownership interest. See Hill, 252 N.W.2d at 114.
The record also supports the district court’s finding that Ross’s health insurance was
not an essential term to the agreement. Erik testified that Ross’s insurance was only
covered when Demo could afford to pay it, and Demo did not begin providing health
insurance to Ross until over a year after the agreement in May 2008. See Butler, 977
N.W.2d at 871. Additionally, even if health insurance was initially a term of the agreement,
the record supports the district court’s determination that Ross waived the health-insurance
term by continuing to accept payments under the agreement until 2018, despite his health-
insurance coverage ending in 2009. See Appollo v. Reynolds, 364 N.W.2d 422, 424 (Minn.
App. 1985) (noting that waiver exists when parties ignore certain contractual provisions
while continuing to exercise their contractual rights). Because none of the district court’s
findings regarding the parties’ agreement are clearly erroneous, Ross’s argument fails.
2. The record supports the district court’s finding that respondents
fully performed their agreement obligations.

Ross next appears to argue that, even if an enforceable agreement existed, the
evidence presented at trial failed to show that respondents made the disputed payments to
satisfy their obligations under the agreement. We disagree.
Ross admitted to receiving each of the disputed payments, which totaled $117,000.
Multiple witnesses, including Erik and Demo’s accountant, testified that these payments
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were made under the agreement. Furthermore, the district court did not credit Ross’s
alternative theories for why he received certain payments. See Butler, 977 N.W.2d at 871.
Although the district court offset $13,000 of the disputed payments that Erik acknowledged
were made to reimburse Ross for expenses, the record demonstrates that respondents paid
the remaining $104,000 to satisfy their obligation under the redemption agreement.
Because the district court’s determinations that an agreement existed and that
respondents performed their obligations under the agreement are supported by the
evidence, the district court acted within its discretion by denying Ross’s motion for a new
trial under Minn. R. Civ. P. 59.01(g). Ayers, 925 N.W.2d at 297.
II. The district court’s order denying the motion for amended findings is not
appealable.

Ross also appears to challenge the district court’s order denying his motion “for . . .
amended findings.” However, a district court order denying a motion for amended findings
is not appealable. Tompkins v. Sandeen, 67 N.W.2d 405, 406 (Minn. 1954) (“An appeal
will not lie from an order denying a motion for amended findings.”). We therefore do not
consider Ross’s challenge to the portion of the district court’s order that denied his motion
for amended findings.
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Affirmed.

5 Even if were to construe Ross’s appeal as one taken from the final judgment, his motion
for amended findings challenges many of the same district court findings pertaining to
contract formation and performance that were addressed by his motion for a new trial. His
argument would therefore fail on its merits for the reasons set forth in Part I.C.