Doris Evanson, 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This opinion is nonprecedential except as provided by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
A24-1802

Doris Evanson, et al.,
Respondents,

vs.

Heidi Bealka, et al.,
Defendants,

Donald Evanson,
Appellant,

and

Doris Evanson, et al.,
Respondents,

vs.

Donald Evanson,
Appellant,

Evanson & Evanson,
Respondent,

American Plumbing Company of Winona, Inc.,
Defendant.

Filed August 4, 2025
Affirmed
Bentley, Judge

Winona County District Court
File No. 85-CV-18-2398

Craig R. Steger, Hale, Skemp, Hanson, Skemp & Sleik, La Crosse, Wisconsin (for
respondents)
2

William L. French, French Law Office, Rochester, Minnesota (for appellant)

Considered and decided by Bentley, Presiding Judge; Frisch, Chief Judge; and
Segal, Judge.
∗
NONPRECEDENTIAL OPINION
BENTLEY, Judge
Following a jury verdict for respondents on a breach-of-fiduciary-duty claim, and
the district court’s denial of appellant’s motion for judgment as a matter of law (JMOL)
and for a new trial, appellant argues the district court (1) erred by denying the JMOL
motion because damages were speculative and based on a theory that had not been pled
and (2) abused its discretion in denying the motion for a new trial because the court should
have granted his motion in limine and because the evidence did not show that appellant
owed respondents a fiduciary duty when the alleged breach occurred. We affirm.
FACTS
This case involves disputes arising out of a family business. Brothers Donald
Evanson, appellant, and the late Carl Evanson were the sole partners of Evanson &
Evanson (E&E), a Minnesota general partnership formed to own and rent property. The
Evanson brothers also co-owned another business, American Plumbing Company of
Winona, Inc. (APC). Both businesses were described as “asset rich, cash poor.” After
Carl’s death in 2014, his wife, respondent Doris Evanson, became a partner of E&E. Carl’s

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
3
son, respondent Christopher Evanson, became the personal representative of Carl’s estate
in 2018.1
Following Christopher’s appointment as personal representative, he and Doris
(collectively, respondents) filed two lawsuits relating to Donald’s management of E&E and
APC. The lawsuits, which were eventually consolidated, asserted several claims and named
several parties, but this appeal only concerns the claim that Donald breached his fiduciary
duty to the E&E partnership and to Carl’s estate. Respondents tried that claim to a jury and
were awarded $500,000. The following factual summary is based on evidence presented at
that trial.2
Background
E&E owned two properties that were secured by the same mortgage: a school
property and a farm referred to as “Southforks.” Southforks is a large parcel in Winona
County that includes tillable acres, recreational land, outbuildings, and a house. E&E
intended for Southforks to be a “legacy property” for the family’s use and enjoyment, as
well as an investment property for the partnership. Southforks was appraised at $1,246,000
in 2010.

1 Because Donald Evanson, Carl Evanson, Doris Evanson, and Christopher Evanson share
a surname, we refer to them by their first names.

2 We present the facts in the light most favorable to the nonmoving parties—here,
respondents—as is required on review of an order denying a post-trial motion for judgment
as a matter of law or, in the alternative, a new trial. Vermillion State Bank v. Tennis
Sanitation, LLC, 969 N.W.2d 610, 618 (Minn. 2022).
4
APC completed “specialty niche work, ” primarily as a contractor for government
entities. APC owned a 6-acre parcel with a maintenance shop, an office building, and
several sheds. Its assets also included various construction materials and large equipment,
such as bulldozers, loaders, excavators, and cranes, as well as a large amount—potentially
thousands of tons— of scrap metal that it had accumulated from demolition projects. APC
turned a profit until about the late 1990s.
Financial Troubles Begin
In 2003, “a perfect storm” broke out: three projects went poorly, leading APC to
cease nearly all operations. Some Evanson family members remained employed at APC
until around 2006. They worked on clearing and organizing the property for a scrap auction
but never completed the process. On several occasions, Carl met with an auctioneer to
facilitate selling the scrap at an auction. But each time, Donald shut down the auction idea
because he believed the auctioneer undervalued the scrap.
By 2009, the brothers had again made plans to sell the APC real estate and scrap.
Donald testified that he could have arranged for a scrap auction with the help of family
members and that selling the scrap would have helped relieve the “cash flow problem” that
the businesses were facing. Christopher testified that an auctioneer had offered to pay
$250,000 to handle the cleanup and sale of all the APC scrap and equipment. Donald again
declined to sell the scrap metal.
Foreclosure and Redemption
In 2011, the bank foreclosed on Southforks and the school property, and the
properties were sold at a sheriff’s sale in October of that year. The school property could
5
be redeemed if E&E paid the bank approximately $226,000 within six months, and
Southforks could be redeemed if E&E paid the bank approximately $260,000 within one
year. Donald made efforts to redeem both properties.
Donald intended to sell the real estate and scrap materials from APC and redeem
Southforks with the proceeds. For the APC property, Donald found a buyer willing to pay
around $720,000 and executed a purchase agreement subject to various conditions. One of
the conditions was that the property be cleared of scrap and other equipment. Donald
scheduled a scrap auction in October, but the scrap auction was never held.
On or around September 11, 2012, Donald emailed his children, including his
daughter, Heidi Bealka, and told them that there would no longer be a scrap auction. Two
days later, Bealka emailed a banker at AgStar explaining that Southforks was being
foreclosed on, that Donald and Carl “would be willing to assign redemption rights to
[Bealka]” if she could obtain financing to redeem the property, and that she would need
about $260,000 to do so. Donald worked with Bealka to get her a loan to redeem
Southforks.
On September 21, 2012, about a month before the redemption deadline for the farm,
Donald emailed a large group of family members announcing that the sale of the APC
property was unlikely to go through. He alluded that he had identified another purchaser.
Four days later, Bealka emailed Donald and E&E’s attorney to express her
intentions in purchasing Southforks. She explained:
My sole interest in redeeming the rights to the farm is to carry
the torch forwards toward those primary objectives, on behalf
of my extended family. It is under these premises that I
6
approached my Dad as a potential “temporary holder” of the
farm until he and Uncle Carl can clear up their other
investments, generate some liquidity, pay off the financing on
the farm, and take their ownership interests back. I inten[d] to
serve as the preservationist of about $1,000,000 in family
equity in a temporary way. In more recent years, after the
liquidity of E&E and APC assets and real property holdings
became a pressing concern, my Dad had several times
suggested that his and Carl’s heirs apparent ought to consider
setting up a trust to hold the farm, but there is simply not time
to do that under current circumstances.

Shortly thereafter, E&E executed a quitclaim deed that assigned its interests in Southforks
to Bealka.
As for the school property, Donald found investors to pool funds into a mortgage
trust that covered the redemption cost of the school property. E&E applied the rent it
received from the school tenant to pay the cost of the mortgage for a time. But in December
2012, Donald learned that the tenant was leaving the school property. And without the
tenant, Donald believed that he would not have the funds to service the loans the
partnership had taken out to redeem the school. To secure the funds, Donald again decided
to liquidate the APC property, but he did not follow through because “the scrap market was
depressed,” and “there were IRS liens in place.” From then on, Donald monitored scrap
prices but did not facilitate an auction. E&E stopped the monthly payments after the school
tenant left.
In September 2014, Carl died. His wife, Doris, became a partner three months later.
Over the following years, Doris and Donald’s relationship frayed.
7
Litigation
In September 2018, Doris and Christopher sued Bealka, Donald, AgStar, and a
lawyer who worked with the partnership (“the constructive trust action”). Doris brought
the suit individually and as a partner in E&E, and Christopher was acting in his capacity as
personal representative of Carl’s estate. The complaint alleged that Bealka was unjustly
enriched in purchasing Southforks, that the quitclaim deed was not validly executed by
Carl, and that Donald breached a fiduciary duty to E&E in executing the quitclaim deed to
Bealka. The complaint requested, among other things, a determination that Southforks is
subject to a constructive trust for Doris, Christopher, and E&E.
In November 2019, Doris, in her capacity as an E&E partner, and Christopher, in
his capacity as personal representative of Carl’s estate, filed a separate complaint (“the
dissolution action”), naming Donald as the defendant and E&E and APC as nominal
defendants. The complaint alleged, among other things, that Donald breached his fiduciary
duties to E&E and APC “by knowingly and willingly blocking multiple transactions to sell
partnership property favorably, and by failing to properly notify Plaintiffs of the impending
tax forfeiture in a timely fashion[.]” The complaint sought, among other things, the
accounting and dissolution of APC and E&E, and damages from Donald for his breach of
fiduciary duty.3 The court soon appointed a receiver to liquidate the APC and E&E assets.
When APC was eventually liquidated, the scrap was sold for $140,022.60, and the real

3 The district court managed both actions as though they were consolidated, although they
were not formally consolidated until 2024.
8
estate was sold for $530,642.52. The receiver paid $177,347.20 in back taxes owed on the
APC property.
By January 2022, the party-attorney and AgStar were dismissed from the
constructive-trust action. The district court entered a stipulated order for separate trials to
resolve the claims against the remaining parties: Bealka (Phase I trial) and Donald (Phase
II trial).
Phase I Trial
The district court held the Phase I bench trial in May 2022 and filed its findings of
fact, conclusions of law, verdict, and order for judgment in September 2022. The court
determined that Doris and Christopher had standing to sue Bealka in their capacities as
partner of E&E and Carl’s personal representative, respectively. The district court
determined that the quitclaim deed conveying Southforks to Bealka “was knowingly
executed by the partnership, was not void, and thus, is valid and bound the Partnership.”
Relatedly, the district court found there was inadequate evidence to prove that Carl
believed there was “an unwritten side agreement allowing the Partnership to maintain
enforceable rights to eventually recover Southforks.” As to the unjust-enrichment claim,
the district court found that Bealka did not act in bad faith and did not take on a binding
trust obligation when dealing with the partnership.
Phase II Trial
The district court held the Phase II jury trial in January 2024, which spanned three
days. The sole issue was respondents’ claim that Donald breached the fiduciary duty he
owed to E&E, its partners, and Carl’s estate.
9
On the first day of trial, the district court heard Donald’s motions in limine, which
included a request for dismissal of the breach-of-fiduciary-duty claim and, in the
alternative, a jury instruction that the sale of Southforks to Bealka “was knowingly
executed by the Partnership, was not void, and thus is valid and bound the Partnership.”
Respondents argued that the motion in limine seeking dismissal was a dispositive motion
in disguise. The district court agreed with respondents and ruled that the motion was “not
timely before the Court” because the deadline for dispositive motions had passed.
Nevertheless, the jury was instructed at the outset that “[s]ome legal issues in this dispute
have already been litigated” and that the jury’s role is “to resolve the breach of fiduciary
duty claims by plaintiffs Doris Evanson and Christopher Evanson against defendant
Donald Evanson.”
Donald, Christopher, and Bealka testified. Doris did not; she was excused for
medical reasons. For the first time in these proceedings, Bealka testified that if Donald and
Carl would have reimbursed her, she would have transferred Southforks back to E&E. She
supposed that she likely would have entertained that arrangement for about two years,
between 2013 and 2014, but she was unsure beyond that.
In closing argument, Donald’s counsel emphasized that Donald did not violate his
fiduciary duty because Carl consented to the conveyance of Southforks to Bealka and was
happy to keep the property in the family. In their closing argument, respondents stressed
that Donald had failed to take actions within his power to liquidate the APC property and
generate capital so that Southforks could be redeemed. Respondents contended that even
after Southforks had been conveyed to Bealka, Donald could have generated funding to
10
buy Southforks back from her and sell the farm for Doris’s benefit. Counsel asked the jury
to award respondents $500,000 for Southforks and almost $150,000 for losses on the APC
and school properties.
Following closing arguments, Donald sought a curative instruction on the basis that
respondents’ closing argument referenced facts not in evidence relating to attorney fees,
the timing of accumulation of property taxes on the properties, and a witness’s love for the
Evanson family. He requested a renewed instruction that the jury “should only consider the
evidence in the case.” The district court denied the motion because Donald had not objected
during the closing, and the jury already had been instructed that attorney statements in
closing are not evidence.
The jury found that Donald breached a fiduciary duty and awarded $500,000 to
respondents.
Posttrial Motions
After trial, Donald moved for JMOL or, in the alternative, for a new trial. He argued
that he was entitled to a new trial or JMOL because respondents’ closing-argument
theory—that Donald had breached his fiduciary duty by failing to repurchase Southforks
from Bealka and sell the parcel— was not in the pleadings, and the evidence did not support
an award of net proceeds from the sale of Southforks as required by that theory. He also
argued that he was entitled to a new trial or JMOL because the district court erred in
denying the pretrial motion in limine asking for dismissal of the breach-of-fiduciary-duty
claim and, in the alternative, to instruct the jury that the Phase I trial found E&E’s transfer
of Southforks to be valid.
11
The district court denied the posttrial motions in their entirety. The district court
determined that the evidence supported respondents’ claim that Donald breached his
fiduciary duty and that Donald was on notice of the claim. The district court also explained
that it did not instruct the jury on the Phase I trial’s finding that the Southforks sale was
valid because, at the Phase II trial, respondents’ claim was not about the sale’s validity; it
was about whether Donald breached a fiduciary duty to the partnership. Finally, the district
court concluded that the damages award was supported by the evidence.
Donald appeals.
DECISION
Donald makes four primary arguments. He maintains that he was entitled to
judgment as a matter of law (JMOL) because (1) the jury awarded damages based on a
theory that was not pled and (2) the damage award lacked a legally sufficient evidentiary
basis and was therefore speculative. He also argues that he is entitled to a new trial because
(3) the district court abused its discretion by denying his pretrial motion in limine, and
(4) he did not owe a fiduciary duty to respondents during the period for which the jury
awarded damages. We first address his arguments relating to the denial of JMOL, and then
turn to his arguments relating to the denial of a new trial.
I
A district court may grant JMOL against a party when that “party has been fully
heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury
to find for that party on that issue[.]” Minn. R. Civ. P. 50.01(a). We review the denial of a
motion for JMOL de novo and view the evidence in the light most favorable to the
12
nonmoving party. Vermillion State Bank v. Tennis Sanitation, LLC, 969 N.W.2d 610, 618
(Minn. 2022). This means we “must ignore all the evidence that points in favor of the
moving party and focus solely on the evidence supporting the nonmoving party’s position.”
Peterson v. W. Nat’l Mut. Ins. Co., 946 N.W.2d 903, 911 (Minn. 2020). If there is
“sufficient evidence to present an issue of fact for the jury,” this court will affirm the denial
of a motion for JMOL. Jerry’s Enters., Inc. v. Larkin, Hoffman, Daly & Lindgren, Ltd.,
711 N.W.2d 811, 816 (Minn. 2006).
Donald argues that he is entitled to JMOL because respondents “relied exclusively”
on an unpled theory in closing argument. The theory is that Donald breached his fiduciary
duty by failing to raise the funds necessary to repurchase Southforks from Bealka between
2012 and 2014 (the failure-to-repurchase theory). Under that theory, the repurchase of
Southforks would have permitted Donald to sell the farm, generating at least $500,000 for
both partners. Donald also argues that the evidence does not support the award of $500,000
for the net proceeds of the eventual sale of the farm.
We turn first to Donald’s argument that the pleadings do not adequately describe
the failure-to-repurchase theory or the special damages arising out of that theory. Because
Minnesota is a notice-pleading state, pleadings must “give the adverse party fair notice of
the theory on which the claim for relief is based.” Haugland ex rel. Donovan v. Mapleview
Lounge & Bottleshop, Inc., 666 N.W.2d 689, 694 (Minn. 2003) (quotation omitted).
Special damages, which are “the natural but not the necessary and inevitable result of the
wrongful act,” Miller v. Soo Line R.R. Co., 925 N.W.2d 642, 656 (Minn. App. 2019)
(quotation omitted), must be “specifically stated” in pleadings, Minn. R. Civ. P. 9.07.
13
“When issues not raised by the pleadings are tried by express or implied consent of the
parties, they shall be treated in all respects as if they had been raised in the pleadings.”
Minn. R. Civ. P. 15.02. “Consent is commonly implied either where the party fails to object
to evidence outside the issues raised by the pleadings or where he puts in his own evidence
relating to such issues.” T. W. Sommer Co. v. Mod. Door & Lumber Co., 198 N.W.2d 278,
281 (Minn. 1972) (quoting Roberge v. Cambridge Coop. Creamery Co., 67 N.W.2d 400,
403 (Minn. 1954)).
Donald contends that “[i]f there is a new factual claim, as here, then it is imperative
that plaintiff move to amend the complaint.” But Donald did not object to the
failure-to-repurchase theory in his closing argument. He therefore implicitly consented to
the theory, id., and it “shall be treated . . . as if [it] had been raised in the pleadings,” Minn.
R. Civ. P. 15.02. Moreover, although the failure-to-repurchase theory is not specifically
described in the pleadings, the pleadings put Donald on notice of respondents’ general
theory: that he breached his fiduciary duty by failing to liquidate assets to prevent the
transfer of Southforks and by ultimately transferring Southforks. For these reasons, we are
not persuaded that his argument regarding the pleadings warrants JMOL.
As a separate basis for JMOL, Donald argues that the jury could award $500,000 in
damages under the failure-to-repurchase theory only if it engaged in impermissible
speculation. In so arguing, Donald presumes that the jury awarded damages based on that
theory. But Donald is not entitled to JMOL unless there is “no legally sufficient evidentiary
basis for a reasonable jury to find” that he breached a fiduciary duty and caused respondents
financial loss in the sum of $500,000. See Minn. R. Civ. P. 50.01(a). In this context, that
14
means Donald is not entitled to JMOL if the jury’s verdict could have been based on a
theory that does not require speculation. See Kelly v. City of Minneapolis, 598 N.W.2d 657,
663 (Minn. 1999) (reinstating jury finding where the evidence supported “at least two
theories” consistent with the jury’s findings in its special verdict form).
Based on our review of the record, we conclude that there is a legally sufficient
evidentiary basis for the jury’s award of $500,000 that is separate and apart from the
failure-to-repurchase theory. The jury was instructed that “recoverable damages may
include the lost value of an asset[ .]” The jury reasonably could have concluded that
Donald’s decision to cancel the APC scrap auction in October 2012, shortly before the
Southforks redemption period expired, prevented the partnership from raising the $260,000
it needed to redeem the farm. Viewing the evidence in the light most favorable to the
verdict, that decision constituted a breach of Donald’s fiduciary duty to the partnership and
resulted in the loss of $1,000,000 in equity in the farm. Because the jury’s verdict is
consistent with the evidence, the district court did not err by denying Donald’s motion for
JMOL.
II
Donald alternatively argues that the district court abused its discretion in denying
his motion for a new trial. A district court may grant a new trial for “[e]rrors of law
occurring at the trial, and objected to at the time or, if no objection need have been made
pursuant to Rules 46 and 51, plainly assigned in the notice of motion.” Minn. R. Civ. P.
15
59.01(f).4 “We review a district court’s decision to grant or deny a new trial for an abuse
of discretion.” Christie v. Est. of Christie, 911 N.W.2d 833, 838 (Minn. 2018). An appellate
court “will not set aside a jury verdict on an appeal from a district court’s denial of a motion
for a new trial unless it is manifestly and palpably contrary to the evidence viewed as a
whole and in the light most favorable to the verdict.” Navarre v. S. Wash. Cnty. Schs., 652
N.W.2d 9, 21 (Minn. 2002) (quotations omitted).
A
Donald argues that the district court made three legal errors relating to his motion
in limine that warrant a new trial.
First, Donald contends that the district court erred by not granting his “motion in
limine.” The motion asked the court to dismiss the fiduciary-duty claim based on the
finding from Phase I of the trial that the sale of Southforks to Bealka was valid. And if the
court did not dismiss the claim, the motion asked the court to instruct the jury about the

4 “[Minnesota Rule of Civil Procedure 46] requires a party to raise his objection to a court’s
order at the time it is made. Indeed, a litigant is not normally entitled to remain silent when
he believes the court has committed error, and then raise his objection only if the jury
returns an unfavorable verdict.” Lines v. Ryan, 272 N.W.2d 896, 904 n.8 (Minn. 1978); see
also Abdul-Haqq v. LaLiberte, 985 N.W.2d 357, 364 (Minn. App. 2023), rev. denied
(Minn. May 16, 2023) (citing Lines for this proposition). Minnesota Rule of Civil
Procedure 51.04(b) permits a court to “consider a plain error in the [jury] instructions
affecting substantial rights that has not been preserved as required by Rule 51.04(a)(1)
or (2).”

16
prior finding “that the sale of Southforks to Bealka was knowingly executed, was not void,
and was valid.”5
The district court did not abuse its discretion in treating Donald’s “motion in limine”
as a motion for summary judgment and denying it as untimely. Donald admitted that the
motion was dispositive: the district court asked whether, if the motion were granted, “we
all go home,” and Donald’s attorney replied, “Correct.” A dispositive pretrial motion based
on matters outside the pleadings is properly treated as a motion for summary judgment.
See Minn. R. Civ. P. 12.03 (stating that a motion for judgment on the pleadings that
presents “matters outside the pleadings . . . shall be treated as one for summary judgment
and disposed of as provided for in Rule 56”). The label attached to the motion is not
dispositive. See Hebrink v. Farm Bureau Life Ins. Co., 664 N.W.2d 414, 419 (Minn. App.
2003) (holding that a district court did not abuse its discretion by treating a “motion in
limine” that “functioned as a motion for summary judgment” as a motion for summary
judgment). And although the motion was for summary judgme nt, it was served only 10
days before it was heard at the pretrial conference. The summary-judgment motion was
therefore untimely, Minn. R. Civ. P. 56.02 (providing that “in no event shall [a motion for

5 Donald also states that the district court “admitted at the hearing on post-trial motions
that it had been incorrect and recognized that it should have given the requested curative
instruction.” The transcript suggests otherwise. Rather, the district court noted that the
general rules of practice, which it initially misunderstood, permit objections after closing
argument. The district court said that the rules indicated the court “should potentially give
a specific instruction,” but it did not say that it “recognize[d]” that it should have given any
specific curative instruction.
17
summary judgment] . . . be served less than 14 days before the time fixed for the hearing”),
and the district court did not err in declining to hear it on that basis.
Second, Donald argues that the district court at least should have instructed the jury
that E&E’s sale of Southforks to Bealka was valid. We review a district court’s refusal to
give a jury instruction for abuse of discretion. Vermillion, 969 N.W.2d at 629. “This means
that we will not reverse where jury instructions overall fairly and correctly state the
applicable law. And even if a jury instruction materially misstates the law, we need not
grant a new trial unless the error was prejudicial.” Id. (citation and quotation omitted).
Donald has not shown that the district court abused its discretion in failing to instruct
the jury about the validity of the Southforks sale. Donald argues that respondents were
“allowed to relitigate facts regarding the Southforks transaction,” and he gives one
example: “that Carl had relied upon Bealka’s view that she was temporary holder of
Southforks.” But at the Phase I trial, the district court did not decide what Carl believed.
Instead, it ruled that the partnership was bound by the deed even if Carl had a belief
“different from the language of the [deed].” Thus, Donald does not identify any facts that
were impermissibly relitigated. Donald also does not explain how he was prejudiced by the
district court’s failure to instruct, i.e., that the relitigation of facts relating to the Southforks
transaction affected the verdict. Rather, he states that respondents abandoned the claim in
closing argument. If anything, t hat assertion suggests that Donald was not prejudiced.
Because the refusal to instruct the jury neither unfairly stated the applicable law nor
prejudiced Donald, the district court did not abuse its discretion in denying his new-trial
motion. See Christie, 911 N.W.2d at 838.
18
Third, Donald argues that respondents’ closing argument contained “manifestly
prejudicial statements” that relied on facts not in the record including the following: (1) that
Carl “believed, reasonably so, that the money was going to come back to him”; (2) that
Donald “fought [respondents] every step of the way”; and (3) that “not included in here is
the enormous attorney fees that [respondents] undertook out of their own pocket to try and
recover Southforks.” He contends that “the court’s failure to give the [curative] instruction
constitutes an abuse of discretion requiring a new trial.” Respondents contend that the
district court had discretion to consider whether a curative instruction was warranted, and
it did not abuse that discretion.
Again, Donald did not demonstrate that he was prejudiced by the denial of his
curative-instruction request. If the court provided the curative instruction he requested, it
would have instructed that “the jury should only consider the evidence in the case.” But
the court instructed the jury that their decision must be “based solely on the evidence,” that
“[n]othing the attorneys say during the trial, including opening statement and closing
argument, is evidence ,” and that the jurors should rely on their own memories if the
attorneys made statements inconsistent with the evidence. Because the jury had already
been instructed to consider only the evidence in the case, which we presume it followed,
Frazier v. Burlington N. Santa Fe Corp. , 811 N.W.2d 618, 630 (Minn. 2012), we are not
persuaded that the district court abused its discretion by declining to repeat that instruction.
B
Finally, Donald argues that the verdict was not supported by the evidence because
he did not owe a fiduciary duty to respondents when the alleged breach occurred and
19
resulted in the sale of Southforks. He contends that he did not owe Doris a fiduciary duty
until she became a partner in 2014, and he did not owe Christopher a fiduciary duty until
he was appointed as personal representative of Carl’s estate in 2018. Respondents argue
that they are the proper parties to bring the claims because Christopher is pursuing the
claim on behalf of Carl’s estate, and Doris is asserting the claim on behalf of the
partnership.
Donald cites no authority to support his position that a current partner may not assert
claims on behalf of the partnership that occurred before she became a partner. Nor does
Donald cite authority about a personal representative’s ability to assert claims on behalf of
an estate that arose before the personal representative’s appointment. He also does not
address the district court’s decision at the Phase I trial that Doris and Christopher have
standing to sue as partner and personal representative, respectively. “An assignment of
error on mere assertion, unsupported by argument or authority, is forfeited and need not be
considered unless prejudicial error is obvious on mere inspection.” Scheffler v. City of
Anoka, 890 N.W.2d 437, 451 (Minn. App. 2017) (citing Schoepke v. Alexander Smith &
Sons Carpet Co., 187 N.W.2d 133, 135 (Minn. 1971)), rev. denied (Minn. Apr. 26, 2017).
We have carefully reviewed the record and arguments and have not identified any obvious
prejudicial error. Donald therefore forfeited his argument relating to respondents’ ability
to assert claims that predated their appointment as partner of E&E and personal
representative of Carl’s estate, respectively.
Affirmed.