A24-1327

This opinion is nonprecedential except as provided by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
A24-0327
A24-1327

Scott A Pineur,
Appellant,

vs.

Travis J Semmann, et al.,
Respondents.

Filed April 7, 2025
Affirmed
Ross, Judge

Rice County District Court
File No. 66-CV-21-124

Christopher W. Bowman, Madigan, Dahl & Harlan, P.A., Minneapolis, Minnesota; and

James Carlson, Carlson Law Office, Burnsville, Minnesota (for appellant)

Robert G. Benner, John T. Giesen, Dunlap & Seeger, P.A., Rochester, Minnesota (for
respondents)

Considered and decided by Ross, Presiding Judge; Smith, Tracy M., Judge; and
Bratvold, Judge.
NONPRECEDENTIAL OPINION
ROSS, Judge
Scott Pineur was injured after he turned his utility terrain vehicle into the path of
and collided with Travis Semmann’s dump truck. Pineur sued Semmann, alleging
negligence, but lost at trial. Pineur challenges the district court’s denial of his posttrial
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motions for judgment as a matter of law, for a new trial, and for relief from judgment,
raising three theories: that the district court should not have sent the question of negligence
to the jury because Semmann was negligent as a matter of law; that the jury instructions
and damage award were erroneous; and that newly discovered evidence and fraudulent
conduct by Semmann entitle him to relief from judgment. Because Pineur establishes no
legal error, we affirm.
FACTS
Scott Pineur sued Travis Semmann and his trucking company for injuries Pineur
suffered in a June 2020 collision between Semmann’s dump truck and Pineur’s utility
terrain vehicle (UTV). Pineur’s negligence suit went to trial, and the two offered the jury
conflicting testimony.
Semmann testified that, the evening of the collision, he was driving a dump truck
southbound in the southbound lane of Geneva Avenue in Shieldsville Township . It was
sunny and he could see clearly. He saw a UTV with a driver and two passengers ahead of
him on the shoulder of the road, also traveling southbound. Semmann testified that he saw
no mirrors on the UTV. He said that the UTV slowed as he approached from the rear and
that its driver, Pineur, looked over his shoulder so sharply that he could see Pineur’s face
and both eyes. Semmann decided then that “it was safe to move over to allow space
between myself and him to go around him.” Semmann said that he checked for oncoming
traffic and, seeing none, crossed into the northbound lane, accelerating to roughly 50 miles
per hour in a 55-mile-per-hour zone.
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Semmann described the collision’s cause, testifying that, at that point, Pineur “took
off” from the shoulder, went straight for a short distance, and suddenly veered left across
the road and into his truck’s path. Semmann said he slammed on his brakes and that the
right front corner of his truck struck the UTV.
Pineur’s testimony about the collision’s cause differed substantially from
Semmann’s. Pineur said that his UTV was equipped with a rearview mirror and that he had
looked into it but saw no vehicle approaching from behind. He said that he extended his
left arm to signal a turn and that he continued ten to twenty feet and began to move from
the shoulder toward the centerline of Geneva Avenue. He testified that he then looked over
his shoulder and was instantly struck. He produced evidence indicating that the collision
resulted in his various injuries: cuts, bruises, and a damaged pelvis, bladder, and knee.
The jury received into evidence postcollision photographs of the UTV, which do
not apparently reveal a mirror on it. At the close of evidence, each party moved for
judgment as a matter of law (JMOL), and the district court denied both motions.
Before the jury began deliberating, the district court gave a “look-no-see”
instruction, which stated that a driver is liable for negligence “if he looks but fails to see
another vehicle that is in plain view.” The jury issued a special verdict finding that Pineur
was negligent, that his negligence was a direct cause of the collision, that Semmann was
not negligent, that Pineur sustained a disability for sixty or more days due to the collision,
and that “$0.00” “would fairly compensate” Pineur for any damages.
Pineur renewed his motion for JMOL and moved alternatively for a new trial. The
district court denied his motions. Pineur appealed the district court’s denial of his posttrial
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motions as well as the district court’s entry of judgment on the jury verdict. He successfully
moved this court to stay the appeal, allowing him to move the district court for relief from
judgment based on alleged newly discovered evidence. He maintained that he had recently
learned that the day after the collision a government inspector had issued a commercial
vehicle inspection report indicating that the left brake, the left steer tire, and the headlight
and bumper on Semmann’s dump truck did not meet federal safety regulations. The district
court denied Pineur’s motion. It reasoned that Pineur had failed to exercise necessary due
diligence to find the report before trial and that Pineur had not proved that Semmann’s
failure to disclose maintenance-related information constituted fraud that prevented Pineur
from fully and fairly prosecuting his case.
Pineur appealed the district court’s denial of his motion for relief from the judgment.
We consolidated Pineur’s appeals and decide them now.
DECISION
Pineur makes three principal arguments on appeal. He argues first that he was
entitled to JMOL because Semmann was negligent as a matter of law when he crossed the
centerline on Geneva Avenue. He argues second that the district court erroneously
instructed the jury and that the jury’s verdict assigning no damages conflicts with its
finding that Pineur suffered a temporary disability. And he argues third that he is entitled
to relief from judgment because he exercised due diligence to find the commercial vehicle
inspection (CVI) report and truck-maintenance information but was hindered from finding
it by Semmann’s allegedly fraudulent conduct. Pineur’s arguments fail.

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I
Pineur argues first that the district court erred when it denied his JMOL motion. We
review a motion for JMOL de novo, applying the same standard used by the district court,
viewing the evidence in the light most favorable to the nonmoving party, and considering
whether there was sufficient evidence to submit an issue of fact to the jury. Christie v. Est.
of Christie, 911 N.W.2d 833, 838 n.5 (Minn. 2018); Jerry’s Enters., Inc. v. Larkin,
Hoffman, Daly & Lindgren, Ltd., 711 N.W.2d 811, 816 (Minn. 2006).1 We conclude under
this standard that the district court did not err by denying Pineur’s JMOL motion.
Pineur maintains specifically that Semmann violated a safety statute when he
crossed the double yellow centerline into the northbound lane on Geneva Avenue to go
around Pineur. It is generally unlawful to drive on the left- hand side of a two-way road
marked by a “distinctive centerline” that prohibits passing, Minn. Stat. § 169.18, subd.
5(b)(3) (2024), and a double yellow line signifies that passing is prohibited, see Minn.
Dep’t of Transp., Minnesota Manual on Uniform Traffic Control Devices 3B.1 (2011).
Semmann admitted at trial that he crossed the double yellow line on Geneva Avenue when
he attempted to pass Pineur, leaving no factual dispute about it.
Pineur argues that Semmann’s centerline crossing constitutes negligence as a matter
of law. He is correct that a violation of section 169.18 is “prima facie evidence of

1 Minnesota eliminated the nominal distinction between motions for a directed verdict and
motions for judgment notwithstanding the verdict in 2006 and replaced them with a single
standard: the JMOL motion. Minn. R. Civ. P. 50.04 2006 advisory comm. cmt. The name
change did not affect the substance of the standard, id., so we refer to pre-2006 case law
when addressing the JMOL standard. See Longbehn v. Schoenrock, 727 N.W.2d 153, 159
n.1 (Minn. App. 2007).
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negligence.” Minn. Stat. § 169.96(b) (2024). But a violator of section 169.18 may
overcome the prima facie negligence assumption by presenting evidence of a “reasonable
excuse or justification” for his violation or evidence showing that he reasonably could have
assumed from the circumstances that his violation was not negligent and would not
reasonably endanger him or others that the law protect s. Borris v. Cox, 73 N.W.2d 372,
374–75 (Minn. 1955). When there is evidence that could support a finding that a section
169.18 violation was justified, excused, or not negligent under the circumstances, the fact-
finder rather than the court should decide the negligence issue. Id. at 375. Based on
Semmann’s account that he saw Pineur look over his shoulder and reduce speed, a jury
could reasonably find that Semmann reasonably assumed that crossing the centerline would
not endanger himself or others. The jury, crediting Semmann’s testimony, could infer that
Semmann reasonably supposed that the UTV was stopping to allow Semmann to accelerate
his dump truck to highway speeds while he passed safely into the clear northbound lane on
the UTV’s left. This view of the evidence in the light most favorable to Semmann presents
a factual question for the jury as to whether Semmann’s violation was reasonably excused
or whether he could reasonably assume that his violation was not negligent under the
circumstances. Pineur also seems to argue that Semmann would have had to submit
evidence that his violation was necessary under the circumstances to rebut the presumption.
But he cites no authority advancing that interpretation, and we are aware of none. The
district court did not erroneously deny Pineur’s motion for JMOL.

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II
Pineur contends next that the district court improperly denied his motion for a new
trial. We review a district court’s denial of a new-trial motion for an abuse of discretion,
Christie, 911 N.W.2d at 838, and we ordinarily will not reverse unless there is a “clear
abuse” of that discretion, Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905,
910 (Minn. 1990). The record here reveals no abuse of discretion on Pineur’s contention
about the jury instructions or about its special verdict.
We are not persuaded to reverse by Pineur ’s argument that the district court
erroneously provided the jury the so-called look-no-see instruction:
A driver is guilty of negligence if he looks but fails to
see another vehicle that is in plain view, unless there are
specific obstructions or other circumstances like road or
weather conditions that would interfere with the driver’ s
opportunity to have an adequate view.
Although general, as opposed to specific, jury instructions are typically preferred to avoid
favoring a party or confusing the jury, Fallin v. Maplewood-N. St. Paul Dist. No. 622, 362
N.W.2d 318, 322 (Minn. 1985), “a party is entitled to a specific instruction on their theory
of the case if there is evidence to support the instruction and it is in accordance with
applicable law,” Kalsbeck v. Westview Clinic, P.A., 375 N.W.2d 861, 867 (Minn. App.
1985), rev. denied (Minn. Dec. 30, 1985). A district court has “broad latitude” in
determining whether a specific instruction is proper. Id. The record satisfies us that the
district court acted within that breadth in providing the instruction here.
Pineur unconvincingly builds his argument on the notion that Semmann’s dump
truck was not visible from the UTV’s rearview mirror and was therefore not in plain sight.
8
Whether circumstances excuse a person’s failure to see and avoid an approaching truck is
a question for the fact-finder. See Lapides v. Wagenhals, 173 N.W.2d 334, 336–37 (Minn.
1969). Pineur’s argument would require us to disregard the evidence of the circumstances,
including evidence that the visibility was clear and that the view between the UTV and the
dump truck (which the evidence revealed was 32 feet long and more than 11 feet tall) was
unobstructed. It would also require us to disregard Semmann’s testimony that Pineur
looked back at his truck and slowed. This evidence was enough to create a question of fact
as to whether Semmann’s truck was in Pineur’s plain view. The district court’s look-no-
see instruction demonstrates no abuse of discretion.
Similarly unpersuasive is Pineur’s contention that the district court abused its
discretion by denying his request for a new trial because the jury’s verdict awarding him
no damages was inconsistent with its finding that he had been disabled for at least 60 days
because of the collision. It is true that a district court may grant a new trial when a jury
awards insufficient or excessive damages that appear to have been given “under the
influence of passion or prejudice.” Minn. R. Civ. P. 59.01(e); O’Neil v. Wells Concrete
Prod. Co., 477 N.W.2d 534, 538 (Minn. App. 1991), rev. denied (Minn. Jan. 17, 1992).
But when a verdict on liability is supported by credible evidence, a jury’s denial of damages
does not entitle a plaintiff to a new trial. Otterness v. Horsley, 263 N.W.2d 403, 405 (Minn.
1978); see also Russell v. Johnson, 608 N.W.2d 895, 900 (Minn. App. 2000) (concluding
that a jury’s finding of no negligence by the defendant mooted the issue of damages), rev.
denied (Minn. June 27, 2000). Because the evidence could support the jury’s no-liability
9
finding for reasons we have already indicated, whether it properly determined that Pineur
suffered no damages is moot and therefore does not require a new trial.
We add that, even if the issue were not moot, the result would likely be the same.
Our review of the record suggests that the jury’s finding on damages comports with the
precise question the special verdict form directed the jury to answer. The form did not ask
merely what money would compensate Pineur for damages he suffered; it asked a more
nuanced question, which was, “What amount of money would fairly compensate” him for
damages he suffered. (Emphasis added.) The jury’s finding of “$0.00” in money damages
presumably reflects its reasoned judgment that awarding any damages to the driver whose
sole negligence caused the collision would be unfair. In any event, the district court did not
abuse its discretion by denying Pineur’s motion.
Pineur mentions unspecified, supposedly flawed evidentiary rulings but includes no
clear supporting argument. The challenge warrants no discussion.
III
Pineur finally maintains that the district court improperly denied his motion for
relief from judgment based on newly discovered evidence and fraud. We review a district
court’s refusal to grant relief from judgment for an abuse of discretion. Gams v. Houghton,
884 N.W.2d 611, 620 (Minn. 2016). Pineur’s argument is unconvincing.
Some additional background frames our discussion of Pineur’s newly-discovered-
evidence argument, which he bases on the CVI report that Semmann allegedly fraudulently
withheld. About two weeks after the district court denied Pineur’s first posttrial motions,
his attorney learned about a CVI performed on Semmann’s dump truck the day after the
10
collision. The attorney learned about the CVI by a letter from another attorney who was
representing one of the passengers of Pineur’s UTV in a separate civil action. A
commercial-vehicle inspector, Patrick Forster of the Minnesota State Patrol, had performed
the CVI. Inspector Forster identified three violations of federal safety regulations on
Semmann’s truck: the left steer brake was out of adjustment; the left steer tire was
contacting the steering output shaft; and the right headlight and the front bumper were
damaged by the collision. See 49 C.F.R. §§ 393.47(e), 393.209(d), 396.3(a)(1) (2023). The
steering violation put the vehicle out of service, meaning that, according to Forster, the
vehicle was not supposed to move from a safe location without being repaired or towed.
The other two violations did not put the vehicle out of service. Forster placed a copy of the
CVI report in Semmann’s truck and called Semmann, who then met with Forster and was
handed the report. Semmann told him that he thought the steering violation was due to his
steer tires being too big.
The evidence concerning the practical impact of the violations is conflicting. As to
the brake violation, a mechanic who submitted an affidavit for Pineur stated that the brake
being out of adjustment would “pull[] the vehicle sharply to the right when the brakes are
applied” and would be noticeable to the driver. But Semmann testified by affidavit that
there was “no pull from the brakes before the accident.” Regarding the steering violation,
Pineur’s mechanic-affiant stated that every time the dump truck made a right turn the driver
would have felt the steering problem. Semmann stated, however, that the issue affected his
steering only during sharp turns off road and was not restricted on improved roads like
Geneva Avenue. As for when the violations first arose, Inspector Forster testified by
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deposition that he had “no idea” whether the collision caused the brake misalignment,
while his CVI report had previously suggested that the collision did not cause the brake
misalignment. Semmann asserted that the force of braking during the collision caused the
brake misalignment, but he conceded that the collision did not cause the steering violation.
Pineur’s attorney did not learn of the regulatory violations on Semmann’s dump
truck from the CVI until after the district court denied his first posttrial motions. But a
police incident report written on the day of the collision, which Pineur received before or
during discovery, revealed that a CVI would occur:
Trooper Swanhorst advised that a CVI would not be
responding today, but would inspect the dump truck tomorrow
(06/24/20). I then requested Glenn’s Towing to respond to the
scene to tow and hold the dump truck for evidence and
safekeeping. . . .
. . . .
Glenn’s Towing arrived on scene and drove the dump
truck a short distance so it was parallel with the roadway and
could be hooked up to the tow truck. Glenn’s towed the dump
truck to Faribault to be held for evidence and CVI inspection.
Pineur’s attorney stated that he made repeated requests to police to ensure that he had “the
full police file” but that he never received a copy of the CVI report until he learned of it in
January 2024.

Pineur sent Semmann interrogatories during pretrial discovery. He first asked
Semmann to identify “all persons who have any knowledge relating to the occurrence
referred to” in the complaint. Semmann’s answer included the trooper who had written the
incident report. It did not mention Forster or directly reference the CVI report. Pineur also
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asked Semmann for “any photographs, slides, motion pictures, videotapes, plats, drawings,
models, charts or other physical, demonstrative or illustrative evidence of any type or
nature whatsoever, relating to this case.” Semmann responded that he possessed
photographs that police took on the day of the collision. Pineur asked Semmann for other
physical evidence relating “in any manner” to the case, and Semmann stated that he had
none at that time. Pineur also asked Semmann to relate “all conversations that took place
at the time of, prior to, or following the occurrence referred to” in the complaint.
Semmann’s answer did not mention any conversation with Inspector Forster. Semmann
later stated by affidavit that, by the time Pineur sued him and discovery began, he no longer
possessed a copy of the CVI report. An employee of the law firm representing Semmann
likewise stated that the firm did not possess a physical copy of the CVI report until January
2024.
Pineur also sent Semmann a request for production of documents. He asked him to
disclose impeaching evidence, and Semmann responded that any such evidence was
“[u]nknown at this time.” Pineur asked for dump-truck maintenance records for the period
of one year before the collision. The record suggests that Semmann provided records
indicating that his truck had passed a state safety inspection on May 18, 2020, about a
month before the collision. Pineur last asked for maintenance records from after the
collision, and Semmann objected to the request “as being not reasonably calculated to lead
to the discovery of admissible evidence.” Pineur does not contest that he failed to challenge
this objection.
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Pineur elicited Semmann’s testimony during discovery and at trial. In a deposition,
Pineur asked whether he “had the opportunity to review any of the police reports, accident
reports, anything at all, since the date of the accident?” Semmann replied, “I have received
a police report.” Semmann testified that his brakes were in “[o]ne hundred percent working
order” and that his tires were in “[o]ne hundred percent working condition.” Pineur’s
attorney briefly discussed with Semmann the incident report that contained a reference to
the CVI, but he did not ask whether the CVI occurred or whether a CVI report existed. At
trial, Pineur asked Semmann whether there was anything that prevented him from operating
his truck differently on the day of the collision, to which Semmann answered, “No.”
Semmann testified that the truck was operational and that its brakes worked fine.
Pineur now challenges the district court’s denial of his motion for relief, arguing
that he could not have discovered the regulatory violations with due diligence and that
Semmann’s conduct during trial and discovery constitutes fraud. We address both
arguments.
Pineur contends that the district court erroneously concluded that he did not exercise
the due diligence required for it to grant his motion. A district court may grant relief from
a final judgment when there is “[n]ewly discovered evidence which by due diligence could
not have been discovered in time to move for a new trial.” Minn. R. Civ. P. 60.02(b). Due
diligence requires a party to use “available discovery tools” and “reasonable investigation
efforts to find and produce the evidence at trial.” Regents of Univ. of Minn. v. Med . Inc.,
405 N.W.2d 474, 479 (Minn. App. 1987), rev. denied (Minn. July 15, 1987); Turner v.
Suggs, 653 N.W.2d 458, 467 (Minn. App. 2002) (quotation omitted). The record supports
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the district court’s determination that Pineur failed to exercise due diligence to discover the
CVI report. Pineur knew or should have known before trial that a CVI would follow after
the initial investigation, based on the trooper’s plain, postcollision report that a towing
service had “towed the dump truck to Faribault to be held for evidence and CVI inspection”
and that an investigator would inspect it the following day. Pineur discussed that report
with Semmann but did not ask him about the CVI that the trooper’s report predicted, and
Pineur did not obtain the CVI on the government website that makes the report accessible
on request. The record supports the district court’s conclusion that Pineur failed to exercise
due diligence in seeking the CVI report.
We are not persuaded otherwise by Pineur’s reference to federal caselaw about the
exercise of due diligence after requests during discovery. In Edgar v. Finley, the Eighth
Circuit Court of Appeals considered whether the defendant in a car-collision case had acted
with sufficient diligence in discovering eyewitnesses. 312 F.2d 533, 534, 537 (8th Cir.
1963). Edgar is both nonbinding on this court and readily distinguished on its facts. That
case involved a vehicle-collision trial in which the critical fact issue was whether the
plaintiff’s car was, at the time of the collision, traveling on the oncoming side across the
highway’s centerline. Id. at 534. In that case, the district court erroneously sustained the
plaintiff’s objections to an interrogatory asking for “the identity and location of persons
known to plaintiff or to anyone acting for her, ‘having knowledge of relevant facts with
respect to the accident.’” Id. at 534, 536. The plaintiff knew of the names and addresses of
three eyewitnesses who saw her driving out of control on the wrong side of the highway,
but she misleadingly responded to interrogatories by representing that she knew only of a
15
witness who arrived at the scene after the collision. Id. at 536 –37. The Eighth Circuit
decided that the “unusual circumstances” required it to determine that the defendant had
acted with due diligence by his specific discovery requests combined with the fact that his
“efforts to obtain the desired information were not only thwarted by plaintiff’s violation of
the spirit as well as the letter of the applicable discovery rules, but also [the fact] that the
[trial] court’s action contributed to the violation.” Id. at 537–38. Edgar does not resemble
this case, where, among other distinguishing circumstances, Pineur’s discovery requests
did not specifically ask for the CVI report revealed later, the existence of the evidence was
previously apparent from the trooper’s report, and the party objecting to its nondisclosure
could have easily obtained it even without formal discovery. Edgar does not help Pineur.
By contrast, Minnesota caselaw supports the district court’s decision. The supreme
court has held that a plaintiff failed to exercise due diligence when, despite the defendant’s
plainly misleading conduct at trial, it would have been “simple and convenient” for the
plaintiff to obtain the newly discovered evidence before trial. Brown v. Bertrand, 94
N.W.2d 543, 548–51 (Minn. 1959). Comparing the circumstances in Brown, Semmann’s
responses were not comparatively misleading. And like the party who failed to discover
the missing evidence in Brown, Pineur failed to avail himself of the simple and convenient
opportunity to identify and obtain the new evidence alleged in this case. The district court
did not abuse its discretion when it denied Pineur’s new-evidence motion on due-diligence
grounds.
Pineur argues alternatively that he is entitled to relief from judgment because
Semmann’s failure to disclose the CVI report and underlying truck-maintenance issues and
16
his allegedly misleading statements constitute fraud. A court may grant relief from
judgment if an adverse party engages in “[f]raud . . . , misrepresentation, or other
misconduct.” Minn. R. Civ. P. 60.02(c). The party alleging fraud must establish “by clear
and convincing evidence that the adverse party engaged in fraud or other misconduct which
prevented it from fully and fairly presenting its case.” Turner, 653 N.W.2d at 466
(quotation omitted). We see no evidence of fraud requiring a new trial.
Pineur focuses his argument on the district court’s analysis related to Semmann’s
failure to reveal the steering violation. Pineur specifically challenges the district court
determination that Semmann’s nondisclosure of the safety violations did not go to the
“ultimate issue” of the matter. But this was not the only basis for the district court’s
determination. The district court also concluded that Pineur overall had not provided clear
and convincing evidence of fraud. The record supports this determination. Semmann
testified by deposition that his tires were in “[o]ne hundred percent working condition.”
The CVI report did not contradict this characterization, indicating that the steering violation
was due to contact between the tire and the steering output shaft. Semmann’s trial
testimony that the truck was “operational” on the day of the collision was also apparently
accurate. Only a month earlier the truck had passed an inspection that assessed its steering
components. It was the postcollision CVI that designated the truck out of service. The
district court properly concluded that no clear and convincing evidence showed that
Semmann’s nondisclosure of the violations was fraudulent.
The district court likewise properly concluded that Semmann’s failure to disclose
his knowledge of the CVI report did not constitute fraud sufficient for rule-60 relief.
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Semmann provided the police incident report to Pineur, and that report clearly referenced
the CVI. Although Semmann narrowly answered Pineur’s deposition question as to
whether he had the chance to review any reports (saying, “I have received a police report”)
the answer does not actually misrepresent the truth. And the record does not indicate that
Pineur ever asked the district court to overrule Semmann’s objection to his request for
postcollision maintenance records.
The district court also properly concluded that Semmann’s failure to disclose his
conversation with Inspector Forster regarding the CVI did not constitute fraud that
prevented Pineur from presenting his case for vacating a judgment. Simply failing to
disclose a matter that would defeat a party’s claim or defense does not constitute extrinsic
fraud. Halloran v. Blue & White Liberty Cab Co., 92 N.W.2d 794, 798 (Minn. 1958). The
district court properly applied this principle here in part to find that Semmann’s not
disclosing his conversation with Forster was not fraud sufficient to justify relief. And the
record supports the district court’s assessment that Pineur could have overcome
Semmann’s alleged evasiveness by diligently seeking the CVI report that was plainly
predicted in the police report.
We hold that the district court did not abuse its discretion by denying Pineur’s
motion for relief from judgment.
Affirmed.