Daniel Brehmer, Appellant,

This opinion is nonprecedential except as provided by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
A24-0944

Daniel Brehmer,
Appellant,

vs.

Knife River Materials,
Respondent,

Nebish Township,
Defendant,

Beltrami County,
Respondent.

Filed March 10, 2025
Affirmed; motion denied
Slieter, Judge

Beltrami County District Court
File No. 04-CV-22-2870

Michael A. Bryant, Tucker L. Isaacson, Bradshaw & Bryant, PLLC, Waite Park, Minnesota
(for appellant)

Marc M. Berg, J. Selmer Law, P.A., Minneapolis, Minnesota (for respondent Knife River
Materials)

Kendra E. Olson, Pemberton Law, P.L.L.P., Fergus Falls, Minnesota (for respondent
Beltrami County)

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Considered and decided by Bentley, Presiding Judge; Slieter, Judge; and Florey,
Judge.∗
NONPRECEDENTIAL OPINION
SLIETER, Judge
In this negligence suit arising from a motorcycle accident and following the district
court’s grant of summary judgment to respondents, appellant argues that the district court
erred by failing to allow him to redepose a witness or, alternatively, by declining to
consider an unsworn audio recording involving this same witness. Because appellant did
not preserve for our review the failure to allow a redeposition of a witness, and the district
court acted within its discretion to decline to consider the unsworn audio recording when
it granted respondents summary judgment, we affirm.
FACTS
The following summarizes the undisputed facts viewed in a light favorable to
appellant Daniel Brehmer as the nonmoving party.
The accident and investigation
Brehmer’s negligence lawsuit against respondents Knife River Materials and
Beltrami County stem s from a motorcycle accident. In September 2020, Brehmer was
driving a motorcycle headed northeast on a paved county road. He turned left onto a gravel
road managed by a township. Once he turned onto the gravel road, Brehmer encountered

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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large bumps and dips, leading him to take a wider than normal turn. Brehmer lost control
of his motorcycle, it tipped over, he was caught underneath it, and he sustained injuries.
Shortly after the accident, K.S., who lived nearby, came to help Brehmer out from
under the motorcycle. The next day, Brehmer went to K.S.’s residence to discuss the
accident with him. Brehmer recorded their conversation without informing K.S. During
the conversation, K.S. told Brehmer that the gravel road where the accident occurred was
damaged due to the large construction equipment that Knife River had parked there while
completing a road-improvement project for Beltrami County.
Legal proceedings
Brehmer commenced this negligence action against Knife River and Beltrami
County, alleging that Knife River negligently maintained the township road where the
accident occurred and that Beltrami County was vicariously liable for Knife River’s
negligence.
During his deposition, K.S. denied telling Brehmer that Knife River damaged the
road by parking equipment near the crash site and stated that he would not have said that
because he did not observe Knife River’s equipment parked on that gravel road. It was
after Brehmer’s attorney sent Brehmer a copy of the transcript of K.S.’s deposition
testimony that Brehmer first disclosed to his attorney the audio recording of his earlier
discussion with K.S.
One month after the discovery period closed, Knife River and Beltrami County each
moved for the summary-judgment dismissal of Brehmer’s claims. The key evidence
submitted in support of the summary-judgment motions included Brehmer’s answers to
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interrogatories, a transcript of Brehmer’s deposition, a transcript of K.S.’s deposition, an
affidavit from Beltrami County’s public-works director describing the intersection, and an
affidavit from a Knife River employee attesting that the company did not use the gravel
road where Brehmer’s accident occurred for parking construction equipment. Brehmer
submitted a transcript of the audio-recorded conversation with K.S. though the district
court did not include the audio-recorded statement as evidence when it determined
respondents’ summary-judgment motions.
In Brehmer’s memoranda of law in opposition to the summary-judgment motions,
he asked the district court to deny summary judgment and stated that “a better solution to
this problem would be to retake [K.S.’s] deposition” and “a second deposition of [K.S.]
should be allowed so that he can be questioned about the audio recording and the
discrepancies between his deposition and the recording.” During the summary-judgment
hearing, counsel for Brehmer stated that “[K.S.’s] depo should be retaken so we can figure
out why he said these things and now is saying something different” and added that
“arguably there’s the issue concerning this person’s, [K.S.’s] depo.” The district court
granted respondents summary-judgment dismissal of Brehmer’s complaint.
This appeal follows.
DECISION
Appellate courts review a district court’s “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).
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Brehmer does not argue that the evidence before the district court demonstrates the
existence of genuine issues of material fact. Instead, Brehmer’s primary argument is that
the district court abused its discretion by not allowing him to redepose K.S. before
considering the respondents’ summary-judgment motions.
However, we do not address the merits of Brehmer’s argument because he never
properly asked the district court for a redeposition of K.S. Generally, a party may not seek
appellate review on an issue that was not presented to and considered by the district court.
Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Put differently, appellate courts can
only consider “those issues which the record shows were, or had to be, presented and
considered by the trial court in deciding the matter before it.” Thompson v. Barnes, 200
N.W.2d 921, 927 (Minn. 1972).
Brehmer asserts that he did preserve the issue for our review because he asked for a
second deposition in his memoranda in opposition to summary judgment and in his
statements during oral argument during the summary-judgment hearing. In his memoranda
of law, Brehmer stated that “a second deposition of [K.S.] should be allowed” and that
retaking the deposition would be a “better solution.” And during the summary-judgment
hearing, counsel for Brehmer stated that “[K.S.’s] depo should be retaken so we can figure
out why he said these things and now is saying something different” and made another
reference to the “issue concerning this person’s, [K.S.’s] depo” at the conclusion of the
hearing.
We conclude that Brehmer failed to properly present this issue before the district
court in order to afford it the opportunity to rule upon it. At no time did Brehmer bring a
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motion before the district court seeking to be permitted to conduct a redeposition of K.S.
Counsel for Brehmer became aware of the audio recording on September 20, 2023, nearly
two months before the discovery period was to close on November 15, 2023.
Moreover, Minnesota Rule of General Practice 115.04(a) ordinarily requires a party
bringing a nondispositive motion, which includes discovery motions pursuant to rule
115.01(a)(2), to file: (1) a notice of motion and motion; (2) a proposed order; and (3) if
applicable, affidavits, exhibits, and a memorandum of law. As we have noted, Brehmer
brought no such motion before the district court.
Brehmer’s comments in his summary-judgment memoranda and his oral comments
during the summary-judgment hearing do not equate to a formal motion to the district court
asking for such relief. And notably, Minnesota Rule of Civil Procedure 56.04 authorizes
the district court to “allow time to obtain affidavits or take discovery,” provided that the
nonmovant shows “by affidavit that, for specified reasons, it cannot present facts essential
to justify its opposition.” Brehmer made no such motion for additional discovery before
the summary-judgment hearing.
1
Because Brehmer failed to properly seek relief in the form of a redeposition of K.S.
before the district court, we conclude that he has forfeited appellate review of this issue.

1 Had Brehmer brought a motion before the district court to extend discovery for the
purpose of a redeposition in response to the summary-judgment motions, it would have
been within the district court’s discretion to deny this request. Brehmer’s response to the
summary-judgment motions was well after the close of discovery. Because we will only
reverse a district court’s discovery decision upon “a clear abuse of discretion,” the district
court would have acted within its discretion by denying a discovery request made after
discovery closed. Smith v. Kessen, 996 N.W.2d 581, 590 (Minn. 2023) (quoting Erickson
v. MacArthur, 414 N.W.2d 406, 407 (Minn. 1987)).
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Brehmer alternatively argues that, even if the issue of a redeposition of K.S. has not
been preserved for appellate review, we may reverse summary judgment because the
district court abused its discretion by declining to consider the unsworn audio recording of
K.S. Appellate courts review a district court’s decision to disregard certain statements in
deciding a summary-judgment motion for an abuse of discretion. Metro. Transp. Network,
Inc. v. Collaborative Student Transp. of Minn., LLC, 6 N.W.3d 771, 779 (Minn. App.
2024), rev. denied (Minn. July 23, 2024).
“Evidence offered to support or defeat a motion for summary judgment must be
such evidence as would be admissible at trial.” Id. (quotation omitted). The Minnesota
Rules of Evidence generally exclude hearsay, defined as an out-of-court statement offered
to prove the truth of the matter asserted, unless otherwise provided. Minn. R. Evid. 801,
802.
The district court determined that the unsworn audio recording was hearsay and that
no exceptions to the hearsay rule apply. More specifically, the district court determined
that the recording was not admissible as an excited utterance or a recorded recollection.
On appeal, Brehmer does not dispute that the recording is hearsay but argues that the
recording would be admissible as an excited utterance, recorded recollection, or as
impeachment evidence. We are not persuaded.
Excited utterance
Brehmer first argues that the excited-utterance exception applies. An
excited-utterance exception applies to statements “relating to a startling event or condition
made while the declarant was under the stress of excitement caused by the event or
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condition.” Minn. R. Evid. 803(2). Because the record does not indicate that K.S.
witnessed the actual crash and the record reveals that he made the audio-recorded statement
the day following the crash, there exists no evidence that he was under the “stress of
excitement” during the audio-recorded discussion with Brehmer. The district court acted
within its discretion by determining that this hearsay exception does not apply.
Recorded recollection
The recorded-recollection exception applies to records “concerning a matter about
which a witness once had knowledge but now has insufficient recollection to testify fully
and accurately,” provided that the record was “made or adopted by the witness when the
matter was fresh in the witness’ memory.” Minn. R. Evid. 803(5). If admitted, the “record
may be read into evidence but may not itself be received as an exhibit unless offered by an
adverse party.” Id.
The record indicates that, during his deposition, K.S. had sufficient knowledge and
recollection to testify about this topic. Additionally, K.S. did not make or adopt the
recording, which is additionally required for this exception to apply. See Minn. R. Evid.
803(5). The district court acted within its discretion by determining that this hearsay
exception does not apply.
Impeachment evidence
Brehmer finally argues that the recording would be admissible to impeach K.S. To
be admissible as substantive evidence as a prior inconsistent statement, K.S. must have
made the statements in the recordings while under oath. Moore v. State, 945 N.W.2d 421,
431 (Minn. App. 2020), rev. denied (Minn. Aug. 11, 2020); see also Minn. R. Evid.
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801(d)(1). Because K.S. did not make these statements while under oath, the recording is
only admissible for impeachment purposes rather than as substantive proof of the truth of
the allegations in the recording. See id.; see also Minn. R. Evid. 607. The potential
admissibility of this recording as impeachment evidence would therefore not create a
genuine issue of material fact because the admissible facts do not demonstrate that Knife
River parked its equipment on the road at which the accident occurred. The district court
acted within its discretion by determining that this hearsay exception does not apply.
We therefore conclude that the district court, in granting respondents summary
judgment, properly excluded consideration of the unsworn audio-recorded statement of
K.S.
For these reasons, the district court did not err by granting summary judgment to
Knife River. And because vicarious liability is the only basis for holding Beltrami County
liable, which counsel for Brehmer confirmed during oral argument, the district court
properly granted the county summary judgment. See Eng’g & Constr. Innovations, Inc. v.
L.H. Bolduc Co., Inc., 825 N.W.2d 695, 708 (Minn. 2013) (requiring “actionable conduct
of another” to impose vicarious liability).2
Affirmed; motion denied.

2 Knife River moves this court to strike portions of appellant’s brief as unsupported by the
record. Although we will “not consider matters outside the record on appeal and will strike
references to such matters from the parties’ briefs,” Stageberg v. Stageberg, 695 N.W.2d
609, 613 (Minn. App. 2005), we deny Knife River’s motion to strike as unnecessary
because the statements that Knife River challenges are not material to our decision.