Maria Olson, 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This opinion is nonprecedential except as provided by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
A23-1758

Maria Olson, et al.,
Appellants,

vs.

Hinshaw & Culbertson LLP,
Respondent.

Filed August 12, 2024
Affirmed
Bratvold, Judge

Hennepin County District Court
File No. 27-CV-21-9240

Wayne B. Holstad, Craig J. Beuning, St. Paul, Minnesota (for appellants)

Louise A. Behrendt, Timothy R. Schupp, Mark A. Bloomquist, Meagher & Geer, P.L.L.P.,
Minneapolis, Minnesota (for respondent)

Considered and decided by Bratvold, Presiding Judge; Larkin, Judge; and Jesson,
Judge.*
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
In this appeal from a final judgment for respondent Hinshaw & Culbertson LLP
(Hinshaw), appellants Maria Olson, Shannon Olson, and SSO LLC (collectively, the

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
Olsons) allege that the district court (1) erred by dismissing their fraudulent-concealment
claim on summary judgment, (2) abused its discretion by excluding several exhibits during
trial, and (3) abused its discretion when it gave a curative instruction after the Olsons’
opening statement. We affirm.
FACTS
The Olsons owned “three adjoining commercial properties located in Cambridge”—
653 Main Street (653 property), which included a ten-unit condominium; 807 Main Street
(807 property), which included a health center; and a vacant lot (Lot 2) that lies between
the 653 and 807 properties. The 653 property had an access easement over Lot 2; the 807
property did not. In 2010, the Olsons defaulted on their mortgages for the 653 property and
Lot 2, and the People s Bank of Commerce (Cambridge Bank) served a summons and
complaint to foreclose on those mortgages.
The Olsons hired Hinshaw to represent them and negotiate with Cambridge Bank.
In October 2010, the Olsons and Cambridge Bank reached a settlement agreement in which
the Olsons agreed to sell the 653 property to MN Silvercare Inc., which was owned by
James Scott Kent. 1 The next month, the Olsons also sold the 807 property to Kent. The
Olsons retained Lot 2. Kent signed promissory notes in relation to the two purchases, on
both of which he later defaulted. In 2013, Kent initiated proceedings to obtain an access
easement over Lot 2 for the benefit of the 807 property.

1 This opinion will refer to MN Silvercare Inc. as “Kent.”
3
In November 2013, Peoples National Bank of Mora ( Mora Bank), which hel d the
mortgage on the 807 property, first foreclosed on the mortgage and then sued the Olsons,
alleging that Kent “purchased [the 807 property] and [that] the Mora Bank approved a loan
for the purchase based on the mistaken belief that the parking lot and driveway on Lot 2
were included in the sale.” Mora Bank’s complaint also alleged that “[t]his mistake was
the result of repeated misrepresentations made by [the Olsons] . . . with the intended
purpose of inducing . . . the sale.”
Hinshaw represented Mora Bank in its action against the Olsons and prepared the
summons and complaint, to which the parties refer as the “47 complaint.”2 The Olsons had
not consented to Hinshaw’s representation of Mora Bank. Shortly after the 47 complaint
was served, the Olsons’ attorney wrote to Hinshaw, stating that Hinshaw had a conflict of
interest because it had represented the Olsons in the Cambridge Bank foreclosure action in
2010. Hinshaw withdrew one month after Mora Bank filed suit against the Olsons.
In March 2014, the Olsons filed a complaint against Hinshaw through the Minnesota
Office of Lawyers Professional Responsibility (OLPR). The Fourth Judicial District Ethics
Committee considered the complaint on October 29, 2014, and unanimously recommended
a private admonition. The OLPR ultimately determined that discipline was not warranted
on November 2, 2015.

2 The 47 complaint refers to the court file number for Mora Bank’s lawsuit against the
Olsons: 30-CV-14-47.
4
Meanwhile, in March 2015, Mora Bank and the Olsons settled. Among other things,
the settlement released Kent from his obligations under the promissory notes, and the
Olsons sold Lot 2 to Kent.
In September 2015, Kevin Slator, the senior assistant director of the OLPR,
provided Maria Olson with internal emails that were exchanged among Hinshaw attorneys,
were dated from June 2009, and involved Lot 2. The emails indicated that, before or during
the Cambridge Bank foreclosure action, Hinshaw knew the 807 property lacked an access
easement over Lot 2.
Nearly six years later, in July 2021, the Olsons served Hinshaw with a complaint
alleging four counts: (1) fraudulent concealment, (2) breach of fiduciary duties, (3) tortious
interference with a contract and aiding and abetting tortious interference with a contract,
and (4) slander of title. The district court granted Hinshaw’s motion to dismiss the claim
for slander of title and granted it summary judgment on the claim for fraudulent
concealment but allowed the other claims to proceed to trial.
In preparation for trial, Hinshaw submitted several motions in limine. Relevant to
this appeal, Hinshaw moved to “exclude evidence regarding Maria Olson’s complaint” to
the OLPR and “preclude the Olsons from introducing the so- called ‘smoking gun’ or
‘exculpatory evidence’” that the Olsons received from Slator and had submitted along with
an affidavit in opposition to Hinshaw’s summary-judgment motion. The “smoking gun”
documents3 that Hinshaw moved to exclude included (1) “emails between Mora Bank and

3 The district court and the parties refer to these as the “smoking gun” documents. We do
so as well.
5
[Hinshaw] about the Lot 2 easements” and (2) “an email from Mora Bank to [Hinshaw]
stating, ‘Our legal counsel indicates to us that the [Small Business Association] has a case
for fraud against the Olsons . . . and should use that angle to force the Olsons to deed over
the parking lot parcel.’” This opinion refers to the Olsons’ OLPR complaint, the OLPR
determination dated November 2, 2015, and the OLP R smoking gun documents
collectively as the OLPR documents.
Hinshaw argued that the OLPR documents should be excluded under Minn. R. Evid.
402 and 403because they related to an administrative determination involving “different
legal and evidentiary standards than the standards applicable to litigated matters.” Hinshaw
also argued that the smoking gun documents should be excluded under Minn. R. Evid. 403
because some of them “have nothing to do with Hinshaw” and introducing the documents
would be “prejudicial and misleading.” The Olsons opposed Hinshaw’s motions in limine.
The district court issued an order on Hinshaw’s motion to exclude the OLPR
documents. As to the OLPR complaint and determination, the district court acknowledged
that “Hinshaw rightly argues that the issues ” before the ethics committee and the OLPR
“were only administrative matters and that administrative matters involve different legal
and evidentiary standards than litigated cases.” The district court ruled that the Olsons
“may not offer the OLPR investigation or any resulting reports as direct evidence of
Hinshaw’s liability.” The district court also commented that the Olsons “rightly argue that
lawyer discipline can still be admitted for a limited purpose, such as to impeach an
attorney’s credibility as a witness.” Therefore, the district court deferred ruling “until it
sees how [the Olsons] attempt to use this evidence at trial.”
6
As to the smoking gun documents, the district court also deferred ruling “until it
sees how [the Olsons] attempt to use this evidence at trial.” The district court noted,
however, that it would “not admit this evidence without foundation tying it to Hinshaw”
and warned the Olsons “not to use this lawsuit as a proxy for claims it would have brought
against Mora Bank absent the settlement agreement.”
At trial, the jury found for Hinshaw on all issues submitted by special verdict. The
Olsons moved for a new trial, claiming that the district court erred by excluding (1) Slator’s
testimony and related exhibits, (2) the OLPR documents, (3) the “documents disclosed to
the [Olsons] pursuant to discovery,” and (4) “correspondence from Scott Kent to the Mora
Bank.” The motion also argued that the district court erred by granting Hinshaw’s “motion
in limine related to the allegations of fraud” in the 47 complaint and by giving a curative
jury instruction related to the Olsons’ opening statement, which referred to the OLPR
investigation. After a hearing, the district court denied the motion for a new trial.
This appeal follows.
DECISION
I. The district court did not err by granting Hinshaw’s motion for summary
judgment on the Olsons’ claim for fraudulent concealment and granting
Hinshaw’s related motion in limine.
The Olsons argue that the “claim for fraudulent concealment . . . should not have
been dismissed in the summary judgment motion and testimony regarding the fraud
allegations made in the complaint drafted by Hinshaw on behalf of Mora Bank should have
been permitted.”
7
Summary judgment may be granted if the moving party can establish that there are
no genuine issues of material fact and that it is entitled to judgment as a matter of law.
Minn. R. Civ. P. 56. “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). Appellate courts “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).

Count 1 of the Olsons’ complaint against Hinshaw is tit led “fraudulent
concealment” and alleges
• certain facts about easements over Lot 2 by quoting seven
statements from the 47 complaint and reciting the relevant
paragraph number;
• that Maria Olson learned of “exculpatory evidence” for the
“first time” during a discussion with an OLPR investigator
about documents and email correspondence that were
“discovered” in Hinshaw files;
• that “claims made in the 47 complaint that the Mora Bank was
unaware that easements over Lot 2 were not included” were
“false at the time made”; and
• that Hinshaw had a “duty to disclose the evidence” of “its
knowledge of Lot 2.”

Based on our review of the Olsons’ complaint and the summary-judgment arguments, we
initially conclude that, although the district court and the Olsons refer to a “fraudulent
concealment” claim, the Olsons’ complaint appears to assert fraudulent misrepresentation
8
and concealment. The arguments on appeal focus on fraudulent misrepresentation, the
elements of which are
(1) a false representation of a past or existing material fact
susceptible of knowledge; (2) made with knowledge of the
falsity of the representation or made without knowing whether
it was true or false; (3) with the intention to induce action in
reliance thereon; (4) that the representation caused action in
reliance thereon; and (5) pecuniary damages as a result of the
reliance.
U.S. Bank N.A. v. Cold Spring Granite Co., 802 N.W.2d 363, 373 (Minn. 2011).
In response to Hinshaw’s summary-judgment motion, the district court determined
that the Olsons’ fraud claim “fails as a matter of law because the claim cannot meet the
first element of fraud— that Hinshaw made a false representation.” According to the district
court, the Olsons’ complaint alleged that, when Hinsha w prepared the 47 complaint, it
fraudulently concealed that “Mora Bank knew that Lot 2 was not included” in the sale of
the 807 property to Kent and that the Olsons relied on the statements in the 47 complaint
when they settled with Mora Bank and released Kent from his obligations under the
promissory notes.
The district court observed that count 1 relied “entirely” on statements in the
47 complaint that Hinshaw drafted and that the Olsons “allege no other representation that
Hinshaw made.” The district court then commented that it agreed with another district
court’s determination in related litigation between the Olsons and Mora Bank: “Allegations
in a complaint are not promises or representations to the defendant; they are accusations
against the defendant.” The district court quoted the prior order and cited this court’s
9
subsequent opinion, which affirmed the district court’s decision. Olson v. Kent,
No. A16-0221, 2016 WL 7338751, at *5 (Minn. App. Dec. 19, 2016).
Returning to the Olsons’ fraud claim against Hinshaw, the district court determined
“that a statement in a complaint is an allegation, not an actionable representation, because
no defendant in a legal proceeding could reasonably understand it to be anything else.” The
district court reasoned that both “[o]pinions and ‘puffery’ are not actionable representations
because the person to whom such statements are made has no right to rely upon them and
does so at her own peril,” citing Kennedy v. Flo-Tronics, Inc., 143 N.W.2d 827, 828 (Minn.
1966). The district court concluded that the allegations in a complaint are similar to
opinions, citing the definition of an “allegation.” See Black’s Law Dictionary 93 (11th ed.
2019) (defining “allegation” as “[s]omething declared or asserted as a matter of fact, esp.
in a legal pleading; a party’s formal statement of a factual matter as being true or provable,
without its having yet been proved”). Accordingly, the district court granted summary
judgment for Hinshaw on fraudulent concealment.
Relying on its summary-judgment decision, the district court later granted
Hinshaw’s motion in limine to preclude the Olsons “from suggesting that the 47 complaint
contained fraud claims or that Hinshaw committed fraud by drafting the 47 complaint.”
The district court reasoned that it had “previously dismissed” the Olsons’ fraud claim, and
therefore, “[t]here is no surviving fraud claim against Hinshaw, and any references to fraud
in either instance will confuse and mislead the jury.”
The Olsons argue in their brief to this court that the district court erred by granting
summary judgment for Hinshaw on count 1 and, in turn, by granting Hinshaw’s related
10
motion in limine. They argue that “[a]llegations in a pleading are representations of fact”
and that Hinshaw made the representations to induce the Olsons into settling with Mora
Bank.4 Hinshaw contends that the Olsons’ claim fails as a matter of law.
No binding precedent guides our analysis of whether allegations in a complaint may
be actionable under fraud. The Olsons rely on Cohen v. Appert , 463 N.W.2d 787 (Minn.
App. 1990), rev. denied (Minn. Jan. 24, 1991), and Wild v. Rarig, 234 N.W.2d 775 (Minn.
1975), but both cases are inapt. Cohen involved an attorney’s false statements to a client
during representation. 463 N.W.2d at 788-89. Wild considered whether to toll the statute
of limitations for a fraudulent-concealment claim. 234 N.W.2d at 795. Neither case
addresses whether an allegation in a complaint may be a false representation.
The Olsons’ argument here is very similar to the argument this court rejected in
Olson, in which we affirmed the district court’s decision denying the Olsons’ motion to
vacate their settlement with Mora Bank based on alleged fraudulent concealment in the
47 complaint. 2016 WL 7338751, at *5. We explained that the district court “examined the

4 The Olsons also argue that the district court’s decision in its order on the motion to
dismiss, in which it declined to extend judicial-action privilege to the statements in the
complaint, “should have been followed throughout the litigation,” and thus, the district
court should have denied summary judgment on the fraud issue. We need not reach this
issue for two reasons. First, the Olsons failed to raise this issue in district court at any point
following the order on the motion to dismiss. See Thiele v. Stich, 425 N.W.2d 580, 582
(Minn. 1988) (“A reviewing court must generally consider only those issues that the record
shows were presented and considered by the trial court in deciding the matter before it. ”
(quotation omitted)). Second, the district court’s decision on summary judgment was
narrower than its decision in its order on the motion to dismiss. In the summary-judgment
order, the district court addressed whether the statements tended to prove a specific element
of the Olsons’ fraud claim—false representation of a past or existing material fact—and
did not address judicial-action privilege.
11
elements of fraud in relation to Maria Olson’s argument that [Mora Bank] concealed
evidence that it knew Lot 2 was not included in the conveyances and that [Mora Bank’s]
claims in the [47 complaint] were therefore false.” Id. The district court also reasoned that
Maria Olson “did not rely on the ‘representations’ in any event, and that she specifically
denied [Mora Bank’s] claims.” Id. We concluded that there was “no error” in the district
court’s determination that the Olsons’ allegations were “not false representations, but were
instead claims made in litigation.” Id.5
While our prior opinion is not precedent, it is persuasive. See Minn. R. Civ. App. P.
136.01, subd. 1(c) (stating that nonprecedential opinions may be cited as persuasive
authority); Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800 (Minn. App. 1993) (stating
that nonprecedential opinions “can be of persuasive value”). We agree with the district
court that the allegations in the 47 complaint prepared by Hinshaw were litigation claims,
not false representations. Also, as we noted in Olson, the Olsons’ answer to the
47 complaint expressly denied the allegations , which suggests that they did not rely on
these statements. See 2016 WL 7338751, at *5.
We therefore conclude that the district court did not err by determining that the
Olsons failed, as a matter of law, to present evidence that Hinshaw made “a false
representation of a past or existing material fact.” Cold Spring Granite Co., 802 N.W.2d at

5 Olson also cited City of Barnum v. Sabri, 657 N.W.2d 201, 205 (Minn. App. 2003), in
which this court held that the burden to prove fraud is on the party seeking relief from a
judgment. Id. at *4. We concluded accordingly in Olson that the district court did not err
by determining “that appellants did not produce clear and convincing evidence of fraud
inducing them to settle” and that “the district court acted within its discretion in denying
relief.” Id. at *5.
12
373. The district court, therefore, did not abuse its discretion by granting summary
judgment in Hinshaw’s favor on this issue or granting Hinshaw’s motion in limine to
exclude arguments at trial that Hinshaw fraudulently drafted the 47 complaint.
II. The district court did not abuse its discretion by excluding evidence.
The Olsons challenge the district court’s evidentiary rulings. For our analysis, we
have grouped the arguments into three categories, which we address in turn: the OLPR
documents, Slator’s testimony, and the Kent-Worden documents . To prevail on an
evidentiary issue, an appellant must establish that the district court erred and that excluding
evidence prejudiced the appellant at trial. Uselman v. Uselman, 464 N.W.2d 130, 138
(Minn. 1990). During review, appellate courts “afford the district court broad discretion
when ruling on evidentiary matters, and . . . will not reverse the district court absent an
abuse of that discretion.” Doe 136 v. Liebsch, 872 N.W.2d 875, 879 (Minn. 2015).
A. OLPR Documents
The Olsons broadly argue that the district court abused its discretion by excluding
the OLPR documents. The Olsons’ brief to this court refers to these exhibits: 11, 12, 57,
70, 71, 80, 83, 87, 89, 90, 91, 92, 97, 98, 99, 100, 104, 146, 147, 148, 156, and 157.
The Olsons failed to preserve error on all but two of these exhibits for appellate
review.6 We generally decline to consider matters not argued to and considered by the
district court. Thiele, 425 N.W.2d at 582. “Error may not be predicated upon a ruling which
admits or excludes evidence unless a substantial right of the party is affected,” and the rules

6 We address exhibits 104 and 156 in section C below.
13
of evidence require that (1) the party makes a “timely objection or motion to strike” stating
“the specific ground of objection” or that (2) the party makes an offer of proof, meaning
“the substance of the evidence was made known to the court by offer or was apparent from
the context.” Minn. R. Evid. 103(a). “Once the court makes a definitive ruling on the record
admitting or excluding the evidence, either at or before trial, a party need not renew an
objection or offer of proof to preserve a claim of error.” Id. Finally, a party may need to
raise the evidence issue in a motion for a new trial to preserve an evidentiary issue for
appeal. Sauter v. Wasemiller, 389 N.W.2d 200, 202 (Minn. 1986). In County of Hennepin
v. Bhakta, however, the supreme court held that the rule in Sauter “does not apply to pretrial
orders on motions in limine.” 922 N.W.2d 194, 199 (Minn. 2019).
We conclude that the Olsons cannot seek appellate review for OLPR documents that
the Olsons did not offer into evidence, exhibits that were admitted by stipulation, or
exhibits that were withdrawn after objection and for which there was no definitive pretrial
or trial ruling on their admissibility. We consider each of these preservation issues in turn.
First, the Olsons did not offer several of the exhibits into evidence. Based on our
review of the record, exhibits 57, 70, 71, 83, 89, 91, 92, 98, and 100 were not offered into
evidence, even though the Olsons argue that these exhibits were “excluded” in their brief
to this court.
Second, the district court received by stipulation some exhibits referenced in the
Olsons’ brief to this court. Exhibits 11, 12, and 148, which are called the smoking gun
documents, were admitted by stipulation as part of exhibit 161. The parties also stipulated
to the admission of exhibits 146, 147, and 157.
14
Third, the Olsons withdrew—during trial and after Hinshaw objected to their
admission—several exhibits identified in the Olsons’ brief to this court. For example, the
Olsons offered exhibit 80, an email from Maria Olson to the OLPR investigator, during the
direct examination of Maria Olson. Hinshaw objected, arguing that the exhibit was
addressed in the district court’s order in limine, in which the district court determined that
the Olsons “may not offer the OLPR investigation or any resulting reports as direct
evidence of Hinshaw’s liability.” The objection was sustained, and the Olsons’ attorney
withdrew exhibit 80.
Also, Hinshaw requested to exclude exhibits 87, 90, 97, and 99 during trial and after
the in limine ruling. Hinshaw argued that these documents were excluded by the district
court’s order on the motions in limine. The district court stated that it would assess each
exhibit individually to determine whether it fell under the in limine ruling. The Olsons ’
attorney then stated that they would “cut this whole thing short” and withdrew exhibits 87, 90,
97, and 99. Based on our review of the record, the Olsons did not attempt to introduce these
exhibits again. T hus, the Olsons withdrew exhibits 80, 87, 90, 97, and 99. Accordingly, the
Olsons neither offered the exhibits nor secured a ruling on their admissibility.
To the extent that the Olsons intend to challenge the district court’s in limine ruling
excluding the OLPR documents for the purpose of showing liability, their brief to this court
is unclear. Still, we assume without deciding that the Olsons make this argument. We first
acknowledge that the district court’s in limine order states that the OLPR documents may
be admitted to impeach a witness. To the extent that the Olsons argue an OLPR document
was relevant for this limited purpose, they needed to offer the document into evidence for
15
impeachment during trial before they could claim on appeal that the document was
excluded by the district court. See Minn. R. Evid. 103(a) (stating than an offer of proof is
needed to preserve error in the exclusion of evidence).
Even assuming that the Olsons preserved the district court’s exclusion of the OLPR
documents as liability evidence and that they have raised the issue on appeal, we conclude
that the district court did not abuse its discretion. The Minnesota Rules of Professional
Conduct “are intended to discipline attorneys, not provide a basis for civil liability.” L & H
Airco, Inc. v. Rapistan Corp., 446 N.W.2d 372, 380 (Minn. 1989). Although the opinion
in L & H Airco does not address an evidentiary ruling, it establishes that the OLPR
documents were of minimal probative value to the Olsons’ claims against Hinshaw.
Hinshaw persuasively argues that the risk of confusing the jury by admitting the OLPR
documents substantially outweighed their minimal probative value. Accordingly, the
district court did not abuse its discretion by excluding the OLPR documents as evidence of
Hinshaw’s liability.
B. Slator’s Testimony
Before the Olsons called their first witness at trial, Hinshaw objected to testimony
from Slator, an OLPR employee who provided documents to Maria Olson. Hinshaw
argued, first, that Slator’s testimony should be excluded based on the district court’s ruling
in limine about the OLPR documents. Second, Hinshaw argued that the Minnesota Rules
of Professional Conduct “prohibit [Slator] from testifying” and cited Minn. R. Prof.
Conduct 20(a)(4). Hinshaw acknowledged during trial that it did not raise the rule 20
argument in its motion in limine. The Olsons urged that Slator should be allowed to testify.
16
Eventually, the parties stipulated to receive exhibit 161, which included exhibits 11, 12,
and 148, “in lieu of Slator’s testimony.” So, Slator did not testify.
The Olsons argue in their brief to this court that the district court improperly
excluded Slator’s testimony. They contend that Hinshaw’s motion to exclude Slator’s
testimony was “untimely, extremely prejudicial[,] and erroneously decided.” The Olsons
also urge that it was improper to exclude Slator’s testimony under rule 20 of the Minnesota
Rules of Professional Conduct because (1) the rule 20 objection was raised for the first
time at trial, (2) “[r]ule 20 does not exclude attorney investigation documents released to a
client,” and, (3) even if rule 20 did apply, the testimony would fall under the “extraordinary
circumstances” exception.
As Hinshaw points out, the record does not support the Olsons’ arguments. The
Olsons’ attorney stated that they sought to call Slator “for foundational purposes” to admit
exhibits 11 and 12. 7 After extended discussion, the parties stipulated to admit exhibits 11
and 12 as part of exhibit 161, which accomplished the stated reason for calling Slator.
We conclude that the Olsons failed to preserve this issue for appeal. After the
off-the-record discussion and agreement to admit exhibit 161, the Olsons did not call Slator
as a witness or object to admitting exhibit 161 in lieu of his testimony. The district court
did not rule that Slator could not testify; the reason Slator did not testify was the parties’
stipulation. Accordingly, the district court did not abuse its discretion in its handling of
Slator’s testimony.

7 These exhibits included emails from November 21, 2013, June 22, 2009, and June 23,
2009.
17
In the district court’s order denying the Olsons’ motion for a new trial, it determined
that Slator’s testimony was properly excluded under rule 20. We need not consider this
analysis, however, because as stated above, Slator did not testify because the parties agreed
to receive exhibit 161 “in lieu of Slator’s testimony.”
C. The Kent-Worden Documents
The Olsons argue that they “are entitled to a new trial based on the exclusion of
necessary testimony and documents from decedents Scott Kent and Rolfe Worden,”
contending that the evidence was admissible under an exception to the hearsay rule.
We first address documents written by Worden, an attorney at Hinshaw who passed
away before this litigation. At trial, the Olsons attempted to introduce exhibit 156, an email
written by Worden “in connection with the 47 lawsuit.” The Olsons proposed to lay
foundation for exhibit 156 by showing that “it was disclosed in discovery” and offered to
call one of their attorneys, Craig Beuning. The district court did not allow the Olsons to
call Buening for this purpose but determined that the Olsons could introduce exhibit 156
during their cross-examination of Hinshaw’s expert or if they otherwise laid proper
foundation.
In its order denying the Olsons’ motion for a new trial based on the exclusion of
Beuning’s testimony, the district court stated that Beuning “was not competent to provide
foundation testimony for the admission of certain Hinshaw inter-office e-mails.” The
district court explained that Buening did not meet the standard to testify under Minn. R.
Evid. 602, which requires that a witness have personal knowledge. The district court noted
that the “only personal knowledge Mr. Beuning had was that he received the documents
18
from Hinshaw in discovery” and that he “did not have personal knowledge that the e-mails
were authentic, i.e. that the e-mails were actually exchanged within Hinshaw.” The district
court also noted that the Olsons “could have subpoenaed a custodian of records from
Hinshaw or one of the individuals included on the e-mails” but failed to do so.
The Olsons argue in their brief to this court that they provided sufficient foundation
“based on the fact the proffered evidence was in response to a discovery request” and that
“Buening, the attorney who requested and received the documents through discovery,
should have been allowed to testify” about these documents.
The district court did not abuse its discretion when it excluded Beuning’s testimony
for the purpose identified. Under Minn. R. Evid. 602, a “witness may not testify to a matter
unless evidence is introduced sufficient to support a finding that the witness has personal
knowledge of the matter.” Receiving a document through discovery does not give an
attorney personal knowledge to testify about a document’s foundation. Accordingly, the
district court properly permitted the Olsons to introduce exhibit 156 only through the
testimony of witnesses with personal knowledge about its foundation or during the
cross-examination of Hinshaw’s expert.
Second, we consider exhibit 104, an email sent by Kent that related to Mora Bank
and to which the parties refer as the “Scott Kent Letter.” In its order denying a new trial,
the district court reiterated that it sustained Hinshaw’s objection to exhibit 104 because
the letter “was not relevant to the claims at trial.” The district court added that “Hinshaw
was not a recipient of Kent’s e-mail in 2015 and had withdrawn as Mora Bank’s counsel
over two years earlier.” The district court also cited Minn. R. Evid. 403 and determined
19
that admitting exhibit 104 would have a “strong potential of prejudicing the jury” because
the letter “alleged wrongdoing on behalf of Mora Bank, not on behalf of Hinshaw.”
In their brief to this court, the Olsons argue that the district court abused its
discretion by excluding exhibit 104, relying on an exception to the hearsay rule. See Minn.
R. Evid. 806 (stating that “[w]hen a hearsay statement . . . has been admitted in evidence,
the credibility of the declarant may be attacked, and if attacked may be supported, by any
evidence which would be admissible for those purposes if declarant had testified as a
witness”). Hinshaw counters that the district court did not abuse its discretion by excluding
exhibit 104 under Minn. R. Evid. 403.
Rule 403 allows the district court to exclude evidence when it determines that the
risk of prejudice or potential confusion for the jury substantially outweighs the probative
value of the evidence. Here, the probative value of exhibit 104 was low because, as the
district court pointed out, Hinshaw was not mentioned in exhibit 104, did not receive
exhibit 104, and had withdrawn from the Mora Bank litigation two years before exhibit 104
was written. The risk of prejudice or confusion of the issues for the jury was high because
exhibit 104 suggested wrongful conduct by Mora Bank, a nonparty to this action.
Accordingly, the district court did not abuse its discretion by excluding exhibit 104, and
we need not address the Olsons’ argument that the letter is admissible under a hearsay
exception.
20
III. The district court did not abuse its discretion in giving a curative instruction
after the Olsons’ opening statement.
During opening statements, the Olsons’ attorney referred to the OLPR investigation
and stated that Maria Olson “did a complaint to the lawyers ethics board and said, ‘Wait a
minute here. They’ve got no right to do this.’” Hinshaw objected, arguing that “based on
the court’s order and the motions in limi ne, this isn’t part of the case.” The district court
“grant[ed] the objection, allow[ed] the statement as made on the record to stand, and
order[ed] no further discussion on the topic.”
Hinshaw later asked the district court to give a curative instruction and offered the
following instruction:
The Olsons’ lawyer, in his opening statement to you,
said that Maria Olson made a complaint about Hinshaw &
Culbertson to the Office of Lawyers Professional
Responsibility (OLPR), which is the state agency that enforces
the ethical rules of lawyer conduct. You are advised that Maria
Olson did make an ethical complaint to the OLPR, that the
OLPR investigated the complaint, and that the OLPR
determined that Hinshaw & Culbertson had not violated any
ethical rule.
The Olsons responded and argued that a “ more accurate rendering of [their]
situation [w]ould be” the following instruction:
During his opening, Plaintiff's counsel stated that Ms.
Olson had filed an ethical complaint. The Office of Lawyers
Professional Responsibility, which is charged with making
determinations on matters related to alleged misconduct by
lawyers in Minnesota, investigated the complaint and found
21
that discipline against Hinshaw & Culbertson was not
warranted.
The Olsons also asked the district court to add language stating, “The trial (district) court
is, in general, in a better position than the Director in a disciplinary proceeding to determine
whether a party’s allegations in a pleading had a basis in law and fact.”
The district court noted that it “believe[d] the parties reached a neutral and
even-handed curative instruction” and accepted the stipulated instruction “as it was
offered.” The district court then read the jury instruction proposed by the Olsons after both
parties had rested, although the district court did not include the extra language about the
district court being in a better position than the OLPR director. The Olsons did not object,
and the district court denied the Olsons’ motion for a new trial on this issue.
On appeal, the Olsons argue that the curative instruction was “erroneously given,
untimely, [and] misleading.” “The district court has broad discretion in determining jury
instructions and [appellate courts] will not reverse in the absence of abuse of discretion.”
Hilligoss v. Cargill, Inc., 649 N.W.2d 142, 147 (Minn. 2002). “District courts are allowed
considerable latitude in selecting language used in the jury charge and determining the
propriety of a specific instruction.” Morlock v. St. Paul Guardian Ins. Co., 650 N.W.2d
154, 159 (Minn. 2002).
The Olsons claim that they objected to the curative instruction before it was given,
“during the May 6, 2023 Zoom conference occurring after all parties had rested.” The
Olsons also argue that the instruction “was a misleading portrayal of what the [OLPR]
stated” because the instruction stated that the OLPR found that “discipline against Hinshaw
22
was not warranted” but “the District Ethics Committee did not find that Hinshaw did
nothing wrong” and made an “18 -0 decision recommending sanctions.” The Olsons
acknowledge that the director “decided that sanctions [should] not be imposed [and] the
matter [should] be decided in district court.” Finally, the Olsons contend that the curative
instruction was prejudicial because it “inform[ed] the jury of an [OLPR] decision not to
discipline [Hinshaw], while not allowing [the Olsons] to present any evidence or context
concerning the investigation and conclusions of the OLPR.”
Hinshaw argues that the district court properly determined that the Olsons did not
object to the curative instruction. Hinshaw also emphasizes that the curative instruction
used language that the Olsons urged was “more accurate.” Finally, Hinshaw argues that the
curative instruction was not prejudicial to the Olsons.
In the district court’s order denying a new trial, the court noted that the Olsons
“never objected to the Court’s curative instruction” and that “[t]o the extent [the Olsons]
raised an objection at the Zoom conference . . . as counsel well knew, there was no court
reporter present and so no objection was recorded.” The district court also noted that the
Olsons’ attorney “admitted” at the hearing on the motion for a new trial that the Olsons
“did not subsequently put an objection to the curative instruction on the record.”
“A party who objects to an instruction or the failure to give an instruction must do
so on the record, stating distinctly the matter objected to and the grounds of the objection.”
Minn. R. Civ. P. 51.03(a). Parties “preserve[] an objection for appeal by asserting a proper
objection pursuant to rule 51.03.” Poppler v. Wright Hennepin Co-op Elec. Ass’n,
834 N.W.2d 527, 550 (Minn. App. 2013) (citing Minn. R. Civ. P. 51.04(a)). When a party
23
does not object to a jury instruction, appellate courts may review the instruction for plain
error. Id. (citing Minn. R. Civ. P. 51.04(b)). Still, “the doctrine of invited
error . . . precludes a party from asserting error on appeal which he invited or could have
prevented in the court below.” In re Hibbing Taconite Mine & Stockpile Progression,
888 N.W.2d 336, 344 (Minn. App. 2016) (quotation omitted).
The Olsons not only failed to object to the curative instruction on the record, but
they also suggested the language that the district court used in the curative instruction. The
Olsons do not claim that any error was plain or fundamental. Therefore, the Olsons failed
to preserve this issue for appeal both by inviting the district court to give the instruction
and by failing to object. Accordingly, we need not determine whether the curative
instruction was prejudicial to the Olsons.
Given that we reject each of the Olsons’ three issues on appeal, we need not consider
Hinshaw’s alternate motion for judgment as a matter of law based on arguments that the
Olsons’ claims are barred by the statute of limitations and that the Olsons failed to present
a prima facie case.
Affirmed.