author: SANDSTROM, Justice.

text:
    2004 ND 156
    Liliam GONZALEZ, Plaintiff and Appellee v. Jessica TOUNJIAN, Defendant and Dolund Partnership, L.L.P., Defendant and Appellant.
    No. 20040015.
    Supreme Court of North Dakota.
    Aug. 4, 2004.
    Daniel J. Dunn (argued), Fargo, N.D., and Anthony J. Weiler (appeared), Maring Williams Law Office, Bismarck, N.D., for plaintiff and appellee.
    Corey J. Quinton (argued) and Paul R. Oppegard (on brief), Smith, Bakke, Oppe-gard, Porsborg & Wolf, Moorhead, MN, for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Dolund Partnership, L.L.P. (“Do-lund”), has appealed from a district court order denying its motion to vacate an amended judgment. We affirm, concluding the district court did not abuse its discretion in denying the motion.

I

[¶ 2] Liliam Gonzalez suffered serious injuries in a March 14, 1997, apartment fire in a building owned by Dolund. Gonzalez brought a personal injury action against Dolund and Jessica Tounjian, the tenant in the apartment where the fire started. Gonzalez settled her claims against Tounjian, and the case against Do-lund was tried to a jury. The jury found Dolund 85 percent at fault and Tounjian 15 percent at fault for Gonzalez’s injuries. The jury found that Gonzalez had sustained $285,000 in past economic damages and $1,500,000 in past noneconomic damages and that she would have $650,000 in future economic damages and $500,000 in future noneconomic damages. The jury also awarded prejudgment interest on her damages at the rate of 3.5 percent annually. The trial court reduced the amount of damages to account for Tounjian’s percentage of fault, and added costs, disbursements, and interest, including interest on future damages. Judgment against Do-lund in the amount of $2,983,099.94 was entered on April 29, 2002.

[¶ 3] Dolund appealed to this Court, contending the trial court applied an erroneous premises liability standard, erred in admission of expert testimony, erred in admission of evidence on future medical expenses, and erred in allowing prejudgment interest on past noneconomic damages and on all future damages. In Gonzalez v. Tounjian, 2003 ND 121, 665 N.W.2d 705, we concluded the trial court had not erred in its application of premises liability law or in admitting evidence, and the majority concluded the trial court had not erred in allowing interest on past non-economic damages. We did, however, conclude that prejudgment interest on future damages was not allowable, and this Court affirmed in part, reversed in part, and remanded for entry of judgment without interest on future damages.

[¶ 4] On remand, the parties agreed that the correct amount of the judgment as of April 29, 2002, without prejudgment interest for future damages, was $2,808,293.40. The parties disputed, however, whether Gonzalez was entitled to post-judgment interest at the statutory rate of 12 percent from April 29, 2002, the date of the original judgment. See N.D.C.C. § 28-20-34. The trial court concluded Gonzalez was entitled to post-judgment interest from the date of the original judgment, and an amended judgment was entered on November 14, 2003, awarding Gonzalez $2,808,293.40 plus post-judgment interest from April 29, 2002.

[¶ 5] On November 28, 2003, Dolund moved under N.D.R.Civ.P. 60(b) to vacate the amended judgment. The trial court denied the motion, and Dolund appealed from the order denying the motion to vacate the judgment.

[¶ 6] The trial court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.

II

[¶ 7] Dolund argues the trial court abused its discretion in denying the motion to vacate the amended judgment because, as a matter of law, Gonzalez was entitled to post-judgment interest only from the date of the amended judgment, not from the date of the original judgment.

[¶ 8] A motion to vacate a judgment is governed by N.D.R.Civ.P. 60(b), which provides the trial court may provide relief from a final judgment for the following reasons:

(i) mistake, inadvertence, surprise, or excusable neglect; (ii) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (iii) fraud (whether denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (iv) the judgment is void; (v) the judgment has been satisfied, released, or discharged, or a previous judgment upon which it is based has been reversed or otherwise vacated, or it is no longer ' equitable that the judgment should have prospective application; or (vi) any other reason justifying relief from the operation of the judgment.

[¶ 9] Except for cases challenging jurisdiction, the trial court has broad discretion in determining whether to grant or deny a motion to vacate under N.D.R.Civ.P. 60(b), and our review of the trial court’s decision is extremely limited:

A trial court’s decision to deny relief under N.D.R.Civ.P. 60(b) will not be overturned on appeal absent an abuse of discretion. We do not determine whether the court was substantively correct in entering the judgment from which relief is sought, but determine only whether the court abused its discretion in ruling that sufficient grounds for disturbing the finality of the judgment were not established. An abuse of discretion occurs only when the trial court acts in an arbitrary, unconscionable, or unreasonable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination. Rule 60(b) attempts to strike a proper balance between the conflicting principles that litigation must be brought to an end and that justice should be done, and, accordingly, the rule should be invoked only when extraordinary circumstances are present.

Knutson v. Knutson, 2002 ND 29, ¶ 7, 639 N.W.2d 495 (citations omitted).

[¶ 10] We further explained the limited nature of our review in In re I.K., 2003 ND 101, ¶ 10, 663 N.W.2d 197 (quoting Production Credit Ass’n of Minot v. Dobrovolny, 415 N.W.2d 489, 491-92 (N.D.1987)):

“An abuse of discretion by the trial court is never assumed and must be affirmatively established. Dvorak v. Dvorak, 329 N.W.2d 868, 870 (N.D.1983); Avco Financial Services v. Schroeder, 318 N.W.2d 910, 912 (N.D.1982). An abuse of discretion is defined as an unreasonable, arbitrary, or unconscionable attitude on the part of the trial court. Dvorak, 329 N.W.2d at 870; Avco, 318 N.W.2d at 912. A movant for relief under Rule 60(b) has a burden of establishing sufficient grounds for disturbing the finality of the judgment. Avco, id.; Gajewski v. Bratcher, 240 N.W.2d 871, 886 (N.D.1976). The moving party must also show more than that the lower court made a ‘poor’ decision, but that it positively abused the discretion it has in administering the rule. Bender v. Liebelt, 303 N.W.2d 316, 318 (N.D.1981). We will not overturn that court’s decision merely because it is not the one we may have made if we were deciding the motion. [State Bank of Burleigh County Trust v.] Patten, 357 N.W.2d [239] at 242 [ (N.D.1984) ]; [State v.] Red Arrow [Towbar Sales Co.], 298 N.W.2d [514] at 516 [(N.D.1980) ].”

Ill

[¶ 11] Dolund contends the trial court misinterpreted N.D.R.App.P. 37, which governs interest on a judgment following an appeal. Rule 37 states:

(a) When the Court Affirms. Unless the law provides otherwise, if a judgment for money in a civil case is affirmed, whatever interest is allowed by law is payable from the date the judgment was entered in the district court.
(b) When the Court Modifies or Reverses. If a judgment is modified or reversed with a direction that a judgment for money be entered in the district court, the mandate may contain instructions about the allowance of interest.

[¶ 12] Rule 37 does not explicitly delineate the proper procedure when a judgment is affirmed in part and reversed in part, and we have not previously addressed this issue. Because N.D.R.App.P. 37 is derived from the corresponding federal rule, we consider federal courts’ interpretations of Fed. R.App. P. 37 as highly persuasive when construing our rule. State v. Norby, 2002 ND 71, ¶ 4, 642 N.W.2d 924; McKenzie County Soc. Serv. Bd. v. C.G., 2001 ND 151, ¶ 20, 633 N.W.2d 157. We also note that similar state and federal statutes mandate payment of interest upon judgments. See 28 U.S.C. § 1961(a); N.D.C.C. § 28-20-34.

[¶ 13] We agree with the rationale of the numerous federal decisions holding that when a lower-court judgment is affirmed in part but reversed or modified in part, interest on that portion of the judgment that is affirmed runs from the date of the original judgment. See, e.g., Johansen v. Combustion Eng’g, Inc., 170 F.3d 1320, 1340 (11th Cir.1999); Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 55 (2d Cir.1998); Bancamerica Commercial Corp. v. Mosher Steel of Kansas, Inc., 103 F.3d 80, 81-82 (10th Cir.1996); Stewart v. Donges, 20 F.3d 380, 382 (10th Cir.1994); Dunn v. HOVIC, 13 F.3d 58, 61 (3d Cir.1993); Loughman v. Consol-Pennsylvania Coal Co., 6 F.3d 88, 99-100 (3d Cir.1993); Tinsley v. Sear-Land Corp., 979 F.2d 1382,1383 (9th Cir.1992); Coal Res., Inc. v. Gulf & Western Indus., Inc., 954 F.2d 1263, 1274-75 (6th Cir.1992) (on Order Clarifying Opinion); Masinter v. Tenneco Oil Co., 929 F.2d 191, 195 (5th Cir.1991); H.J. Inc. v. Flygt Corp., 925 F.2d 257, 261-62 (8th Cir.1991); Cordero v. De Jesus-Mendez, 922 F.2d 11, 17-18 (1st Cir.1990); Total Petroleum, Inc. v. Davis, 822 F.2d 734, 738 (8th Cir.1987). Institutionalized Juveniles v. Secretary of Pub. Welfare, 758 F.2d 897, 927 (3d Cir.1985); Brooks v. United States, 757 F.2d 734, 740-41 (5th Cir.1985); Perkins v. Standard Oil Co. of California, 487 F.2d 672, 675-76 (9th Cir.1973).

[¶ 14] Numerous state courts have reached the same result. See, e.g., Life Ins. Co. of Ga. v. Johnson, 725 So.2d 934, 939-40 (Ala.1998); Richards v. Kailua Auto Mach. Serv., 10 Haw.App. 613, 880 P.2d 1233, 1239-40 (1994); Medical Mut. Liab. Ins. Soc’y of Md. v. Davis, 365 Md. 477, 781 A.2d 781, 785-87 (2001); Thomas O’Connor & Co. v. City of Medford, 20 Mass.App.Ct. 761, 482 N.E.2d 877, 880 (1985); Ulibarri v. Gee, 107 N.M. 768, 764 P.2d 1326, 1327 (1988); see also L.R. James, Annotation, Date From Which Interest on Judgment Starts Running, as Affected by Modification of Amount of Judgment on Appeal, 4 A.L.R.3d 1221 (1965).

[¶ 15] The rationale underlying this result has been aptly stated in the seminal opinion of the United States Court of Appeals for the Ninth Circuit in Perkins, 487 F.2d at 676 (citations omitted):

Where a single item such as attorneys’ fees is reduced on appeal, the district court’s determination should be viewed as correct to the extent it was permitted to stand, and interest on a judgment thus partially affirmed should be computed from the date of its initial entry.
We alternatively hold that interest should run from the date of entry of the original judgment because that is the date on which the correct judgment should have been entered.
In so ruling, we decline to hold that the cost of the loss of use of a money judgment pending appeal should be borne by an injured plaintiff rather than a defendant whose initial wrongful conduct invoked the judicial process and who has had the use of the money judgment throughout the period of delay.

In Dunn, 13 F.3d at 61, the court noted: “We see no reason why [the plaintiff] should be disadvantaged in the calculation of interest because the jury overestimated his damages.” Similarly, other courts have concluded that fairness dictates this result because allowing interest only from the date of the second judgment would penalize the plaintiff for the trial court’s error. See Cordero, 922 F.2d at 18; Richards, 880 P.2d at 1240.

[¶ 16] It would be grossly inequitable to deny Gonzalez seventeen months’ worth of interest on a $3,000,000 judgment during the pendency of the appeal merely because the trial court erroneously allowed a relatively insignificant amount of prejudgment interest on future damages. Furthermore, Dolund had the power to suspend the accrual of interest while the appeal was pending by tendering the amount of the original judgment into court. See Dick v. Dick, 434 N.W.2d 557, 559 (N.D.1989).

[¶ 17] We conclude that when a judgment is affirmed in part and reversed in part on appeal, post-judgment interest on the affirmed portion runs from the date of the original judgment.

IV

[¶ 18] Dolund has failed to meet its burden under N.D.R.Civ.P. 60(b) to demonstrate sufficient grounds for disturbing the finality of the judgment. See In re I.K., 2003 ND 101, ¶ 10, 663 N.W.2d 197. We conclude the trial court did not abuse its discretion in denying Dolund’s motion to vacate the amended judgment.

[¶ 19] The order denying the motion to vacate the amended judgment is affirmed.

[¶ 20] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, WILLIAM F. HODNY, S.J., and CAROL RONNING KAPSNER, JJ., concur.

[¶ 21] The Honorable WILLIAM F. HODNY, Surrogate Judge, sitting in place of MARING, J., disqualified.


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2004 ND 159
    In the Interest of J.S. Bayani Alberto Y. Abordo, M.D., Petitioner and Appellee v. J.S., Respondent and Appellant.
    No. 20040183.
    Supreme Court of North Dakota.
    Aug. 4, 2004.

      Leo A. Ryan, Special Assistant Attorney General, Jamestown, ND, for petitioner and appellee.
    Jodie Koch Scherr, Valley City, ND, for respondent and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] J.S. appealed from a district court order authorizing his continued treatment at the North Dakota State Hospital (“State Hospital”) until June 9, 2005, a period of one year, or until further order of the court. We affirm.

I

[¶ 2] This is J.S.’s tenth appeal from various mental health commitment or treatment orders. See In the Interest of J.S., 2003 ND 138, 667 N.W.2d 641 (“J.S.DT); In the Interest of J.S., 2002 ND 7, 638 N.W.2d 45; In the Interest of J.S., 2001 ND 25, 625 N.W.2d 264; In the Interest of J.S., 2001 ND 10, 621 N.W.2d 582; In the Interest of J.S., 1998 ND 92, 578 N.W.2d 91; In the Interest of J.S., 545 N.W.2d 145 (N.D.1996); In the Interest of J.S., 530 N.W.2d 331 (N.D.1995); In the Interest of J.S., 528 N.W.2d 367 (N.D.1995); In the Interest of J.S., 499 N.W.2d 604 (N.D.1993).

[¶ 3] J.S. has lived at the State Hospital in Jamestown since October 1989, and has been diagnosed as suffering from paranoid schizophrenia, Type II diabetes, and hypertension. He receives injections of haldol decanoate to treat his mental illness and insulin to treat his diabetic condition. In May 2004, Dr. Bayani Alberto Y. Abor-do petitioned the district court for a continuing treatment order requiring J.S. to remain at the State Hospital for another year. A hearing on the petition was held June 9, 2004, in which the district court concluded J.S. continues to be mentally ill and requires further treatment at the State Hospital.

[¶ 4] On appeal, J.S. contends he cannot be forced to take medication under the continuing treatment order and the district court erred by not ordering the least restrictive alternative treatment.

II

[¶ 5] In an appeal from a continuing treatment order, our review is “limited to a review of the procedures, findings, and conclusions of the lower court.” N.D.C.C. § 25-03.1-29. Under N.D.C.C. § 25 — 03.1—18.1(l)(a), a request for court-authorized involuntary treatment with prescribed medication “may be considered by the court in an involuntary treatment hearing.” However, the petitioner did not seek such an order in this case, and the district court did not make any findings regarding involuntary treatment of J.S. with prescribed medications. Therefore, J.S.’s first issue is not properly before us.

[¶ 6] Because forced medication was not requested at the hearing or in the petition for continuing treatment, the record is unclear regarding whether J.S. is voluntarily or involuntarily receiving his medications at this time. This record does not contain an order authorizing involuntary treatment of J.S. with prescribed medication. See N.D.C.C. § 25-03.1-18.1.

III

[¶ 7] The remaining issue before us on appeal is J.S.’s contention that the district court erred by not ordering the least restrictive alternative treatment. The district court found less restrictive alternative treatment was not appropriate for J.S. Concluding this finding is not clearly erroneous, we summarily affirm the continuing treatment order under N.D.R.App.P. 35.1(a)(2). See J.S. IX, 2003 ND 138, ¶ 6,' 667 N.W.2d 641 (holding the district court’s finding that no less restrictive alternative treatment was appropriate for J.S. was supported by the evidence, similar to the evidence presented in this appeal, and not clearly erroneous).

[¶ 8] The continuing treatment order is affirmed.

[¶ 9] DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ„ concur.


author: PER CURIAM.

text:
    2004 SD 88
    STATE of South Dakota, Plaintiff and Appellee, v. Wendy Kay PHAIR, Defendant and Appellant.
    No. 23031.
    Supreme Court of South Dakota.
    Considered on Briefs on June 1, 2004.
    Decided July 7, 2004.

      Lawrence E. Long, Attorney General, Jeffery J. Tronvold, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Traci Smith, Office of Minnehaha County, Public Defender Attorney, Sioux Falls, South Dakota, Attorney for defendant and appellant.
   PER CURIAM.

[¶ 1.] Wendy Phair appeals her conviction for grand theft by deception. We affirm.

FACTS

[¶2.] In early 2001, Phair’s daughter was looking for a used car to buy, but was unable to obtain a loan without a co-signer. Thus, on April 16, both Phair and her daughter went to First Federal Savings Bank in Sioux Falls where they obtained a loan of $4,925 for the daughter’s purchase of a car she had found. As part of the loan process, bank personnel explained to both Phair and her daughter what a lien was and that they would be required to give the bank a lien against the car purchased by the daughter. Because Phair was a co-signer on the note, she was also listed as a co-owner on the application for a vehicle title completed in connection with the loan documents.

[¶ 3.] Due to a mistake committed by the South Dakota Department of Revenue, the vehicle title mailed to Phair’s home failed to note First Federal Savings Bank’s lien on the vehicle purchased by Phair’s daughter. Thus, on July 16, 2001, Phair was able to use the title as collateral to obtain a short term loan of $450 from the North American Title Loan Company in Sioux Falls (North American). Phair paid that loan off plus interest on July 23 and obtained a new loan that same day in the amount of $1,000, again using the title to her daughter’s vehicle as collateral. When taking out each of these loans, Phair asserted to North American’s representatives that there were no liens on the vehicle. North American’s manager later testified that North American would not have approved a title loan if there were prior liens against the vehicle.

[¶ 4.] After these events were reported to law enforcement, Phair was charged with one count of grand theft by deception in connection .with the $1,000 loan from North American. The charge was filed pursuant to SDCL 22-30A-1, 22-30A-3(4) & 22-30A-17. SDCL 22-30A-1 provides: “Any person who takes, or exercises control over, property of another with intent to deprive him of it, is guilty of theft.” SDCL 22-30A-3(4) provides:

Any person who obtains property of another by deception is guilty of theft. A person deceives if with intent to defraud he:
* * *
(4) Fails to disclose a known lien, adverse claim or other legal impediment to the enjoyment of property which he transfers or encumbers in consideration for property he obtains, whether such impediment is or is not valid, or is or is not a matter of official record.
The term “deceive” does not, however, include falsity as to matters having no pecuniary significance, or puffing by statements unlikely to deceive reasonable persons.

SDCL 22-30A-17 provides:

Theft is grand theft, if:
(1) The value of the property stolen exceeds five hundred dollars;
* * *
Theft in all other cases is petty theft. Grand theft is a Class 4 felony.

[¶ 5.] Phair’s jury trial was on August 27, 2003. During trial, Phair was precluded from presenting evidence that she had made some payments on the $1,000 loan from North American. At the close of trial, the jury returned a guilty verdict. Phair was sentenced to eighteen months in the penitentiary suspended on various conditions including forty-five days confinement in the county jail and two years of probation. Phair appeals.

ISSUE ONE.

[¶ 6.] Did the trial court abuse its discretion in excluding defense evidence of Phair’s payments on the loan from North American?

[¶ 7.] Phair argues that the trial court abused its discretion in refusing to admit evidence that she made some payments on the $1,000 loan that she obtained from North American. Prior to addressing the merits of this issue, it is useful to consider the background of the offense with which she was charged. Theft by deception is a codification of the common law offense of theft by false pretenses. See 35 CJS False Pretenses § 3 (1999)(theft by deception is statutory successor to theft by false pretenses). The gravamen of the offense is obtaining the property of another by purposely creating a false impression. See State v. Rodgers, 230 N.J.Super. 593, 554 A.2d 866, 870 (N.J.Super.Ct.App.Div.1989). The charge has been employed in various jurisdictions to prosecute individuals who have obtained loans based upon false information. See Morris v. State, 54 Fla. 80, 45 So. 456 (1907) (party who falsely represents he owns property he mortgages to secure a loan can be convicted of obtaining property by false pretenses); Com. v. Lewis, 48 Mass.App.Ct. 343, 720 N.E.2d 818 (1999) (loan transaction may result in larceny by false pretenses where funds are obtained by false pretense irrespective of intent to repay or actual repayment); State v. Whitledge, 269 S.W.2d 748 (Mo.1954) (obtaining property under false pretenses occurred where, through false representations, defendant received a loan draft and endorsed it); Rodgers, supra (obtaining loan based upon misrepresentation as to status of lien on real estate pledged as, collateral constituted theft by deception); State v. Cronin, 299 N.C. 229, 262 S.E.2d 277 (N.C.1980) (crime of obtaining property by false pretense is committed when one obtains a loan by falsely representing the nature of the security given); State v. Banks, 24 N.C.App. 604, 211 S.E.2d 860 (N.C.Ct.App.1975) (false representation that land is free of encumbrances when made to obtain a loan may be subject matter of offense of obtaining property by false pretenses).

[¶ 8J South Dakota’s theft by deception statute contains an intent to defraud element. See SDCL 22-30A-3. Successful prosecution requires proof that the defendant obtained the property of another by deception which is defined as acting “with intent to defraud[J” Id. Phair concedes that the loan payments she made to North American were inadmissible as a defense to the theft by deception charge, but argues that her payments should have been admitted as evidence of her lack of intent to defraud.

[¶ 9.] There is limited authority on the admissibility of evidence of repayment as bearing on the intent element in prosecutions for theft by deception or false pretenses. As set forth in C.L. Feinstock, Annotation, Admissibility, in Prosecution for Obtaining Money or Property by Fraud or False Pretenses, of Evidence of Subsequent Payments Made by Accused to Victim, 10 ALR3d 572, § 4 (1966-2004):

Although there is limited authority considering the question of the admissibility of subsequent payments as evidence of lack of intent to defraud, courts which have been confronted with this problem have permitted such evidence to be introduced where its purpose was not to demonstrate restitution or reimbursement to the victim, but instead, to show that there was no actual intent to defraud. Such courts, although for the most part recognizing the general rule that restoration is not a defense to a criminal charge, hold that such evidence is admissible in order to aid the jury in determining whether the defendant did in fact act in good faith.

However, in State v. Latendresse, 459 N.W.2d 234 (N.D.1990), the North Dakota Supreme Court held that evidence of restitution had no bearing on a criminal prosecution for writing a bad check. More closely on point, in Lewis, 720 N.E.2d at 822, n. 3, the Massachusetts Appeals Court specifically noted that a loan transaction may result in the crime of larceny by false pretenses where loan funds are obtained by a false pretense irrespective of the defendant’s intent to repay or actual repayment of the loan.

[¶ 10.] The lack of clear authority on the admissibility of evidence of repayment in theft by deception cases is resolved in South Dakota by the specific language of SDCL 22-30A-10.1:

If a person, who has been accused of theft, restores or returns the property allegedly appropriated before an indictment or information is laid before a magistrate, such fact may be considered in mitigation of punishment. The restoration or return of the property is not a defense nor may it be considered by the finder of fact, (emphasis added).

The plain language of this statute clearly excludes evidence of restoration or repayment from being considered by the finder of fact in theft prosecutions. There are no exceptions. A good rationale for application of this strict rule of exclusion in loan fraud cases is provided by United States v. Karro, 257 F.3d 112, 118 (2dCir.2001) where the court observed that sufficient intent to inflict harm or defraud:

can be found from the intentional withholding of information from a lender which lowers the value of the transaction due to the lender’s lack of information pertinent to the accurate assessment of the risk it faces and the propriety of extending credit to that particular individual, and because of the increased expense and difficulty of any necessary bill collection efforts. Because this intent is sufficient, it is irrelevant whether the borrower intended in good faith to repay the loan.

“It is also irrelevant whether such a defendant does in fact pay back the loan[.]” United States v. Rossomando, 144 F.3d 197, 201 n. 4 (2dCir.1998).

[¶ 11.] “Decisions to admit or refuse evidence are reviewed under the abuse of discretion standard.” State v. Faulks, 2001 SD 115, ¶ 18, 633 N.W.2d 613, 619. Based upon the foregoing authorities and, primarily, the plain language of SDCL 22-30A-10.1, the trial court committed no abuse of discretion in refusing to admit evidence of Phair’s payments on the $1,000 loan she obtained from North American.

[¶ 12.] As part of her argument under this issue, Phair also challenges the trial court’s admission of testimony from First Federal Savings Bank personnel (ie., the first lender) concerning the repossession of her daughter’s car. However, the reference to repossession was an isolated comment by the loan officer that was unsolicited by the State. The comment was made during the loan officer’s testimony concerning some admissions Phair had made at a meeting relevant to her intent when she obtained the second and third loans on the daughter’s vehicle. Phair’s counsel objected and the trial court immediately admonished the jury to “forget” the testimony and that, “[w]hat happened to the car is totally immaterial to this proceeding and should not be considered by the jury in any fashion.” Phair’s counsel failed to make an immediate mistrial motion. At the close of the State’s case, she made general objections that the court’s admonishment was insufficient to cure the loan officer’s testimony and contended that it would be improperly considered by the jury. Viewing counsel’s objections as a mistrial motion, the court ruled:

DOt’s my conclusion and decision that I think the person misspoke. I don’t think he intentionally threw it into the trial for the purposes of gaining an advantage. I’m sure he was instructed not to mention it. As soon as it was mentioned that the checks made by the defense, I instructed the jury to disregard the testimony, told the jury it had no consideration for any verdict in this case, or any decision the jury might reach in this case. And for those reasons, the motion for a mistrial is denied.

[¶ 13.] The standards for reviewing the denial of a mistrial motion are well settled:

Trial courts have considerable discretion not only in granting or denying a mistrial but also in determining the prejudicial effect of a witness’ statements. Only when this discretion is clearly abused will this court overturn the trial court’s decision.
To justify the granting of a mistrial, an actual showing of prejudice must exist. Prejudicial error for purposes of determining whether error constitutes grounds for mistrial is error ‘which in all probability must have produced some effect upon the jury’s verdict and is harmful to the substantial rights of the party assigning it.’

State v. Anderson, 1996 SD 46, ¶ 21, 546 N.W.2d 395, 401 (quoting State v. Myers, 464 N.W.2d 608, 609-10 (S.D.1990)). A witness’ inadvertent comment on an excluded matter does not automatically result in a mistrial absent a showing of actual prejudice by the defendant. See e.g. id. Here, counsel demonstrated no particular prejudice and the trial court found its instructions adequate to remedy the inadvertent testimony. Thus, we find no abuse of discretion in its denial of the mistrial motion.

ISSUE TWO

[¶ 14.] Did the trial court err in denying Phair’s motion for a judgment of acquittal?

[¶ 15.] Phair argues that the trial court abused its discretion in denying her motions for a judgment of acquittal at the close of the state’s case and after presentation of all the evidence. “The standard of review for denial of a motion for judgment of acquittal is whether the ‘evidence was sufficient to sustain the conviction[ ].’ ” State v. Downing, 2002 SD 148, ¶ 22, 654 N.W.2d 793, 800 (quoting State v. Verhoef, 2001 SD 58, ¶ 22, 627 N.W.2d 437, 442).

[¶ 16.] Based upon a recitation of the evidence in the record favorable to her position, Phair contends the evidence was insufficient because it failed to establish her intent to defraud in the loan transaction with North American. In that regard, she mentions representations she made during the loan transaction that were truthful and accurate. Phair also relies on her trial defense that, because her name was on the vehicle title, she thought she had the authority to use it to obtain the loan from North American. However, in reviewing rulings on acquittal motions, this Court does not look to the evidence favorable to the appellant.

“When reviewing sufficiency of the evidence, this [C]ourt, considers the evidence in a light most favorable to the verdict.” A guilty verdict will not be set aside if the state’s evidence and all favorable inferences that can be drawn therefrom support a rational theory of guilt.” “We do not resolve conflicts in the evidence, pass on the credibility of the witnesses, determine the plausibility of an explanation, or weigh the evidence.”

Id.

[¶ 17.] Here, in addition to the evidence referenced by Phair, the record also shows that, when she and her daughter obtained the initial vehicle loan, First Federal Savings Bank’s personnel specifically explained what a lien was and that they would be required to give the bank a lien against the car. The record further shows that, notwithstanding that information, Phair went to North American on not just one, but two subsequent occasions and obtained loans by affirmatively representing that there were no liens on the vehicle. Based upon this evidence, the jury could have found that Phair acted with intent to defraud by intentionally misrepresenting the lien status of the vehicle. The jury obviously accepted that theory and convicted Phair of the theft offense. This was fully within the jury’s province and, accordingly, the trial court did not err in denying Phair’s motion for a judgment of acquittal. ■

[¶ 18.] Affirmed.

[¶ 19.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, participating.


author: /s/Sam Hanson Associate Justice

text:
    Irvin C. HAMM, Respondent, v. MARVIN WINDOWS & DOORS, Self-Insured/Berkley Risk Adm’rs, Co., Relators, and Arctic Cat, Inc., Self-Insured/Berkley Risk Adm’rs, Co., and Mickelson Chiropractic, Blue Cross/Blue Shield of Minnesota & Blue Plus, MN Dep’t of Economic Sec., and MN Dep’t of Human Servs, Intervenors, and Special Compensation Fund.
    No. A04-895.
    Supreme Court of Minnesota.
    July 20, 2004.
    Rehearing Denied Aug. 11, 2004.
    James S. Pikala, Arthur, Chapman, Kettering, Smetak & Pikala, PA, Minneapolis, MN, for Marvin Windows & Doors, Relator.
    Jeffrey R. Hannig, Fargo, ND, for Irvin C. Hamm, Respondent.
    Richard L. Plagens, Lommen, Nelson, Cole & Stageberg, P.A., Minneapolis, MN, for Arctic Cat, Inc., Respondent.
    John R. Baumgarth, Duluth, MN, for Special Compensation Fund, Respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed April 21, 2004, be, and the same is, affirmed without opinion. See Minn. R. CivApp. P. 136.01.

Employee is awarded $1,200 in attorney fees.

BY THE COURT:

/s/Sam Hanson Associate Justice


author: PARKER, Judge.

text:
    SIEMENS BUILDING TECHNOLOGIES, INC., a Delaware corporation, Respondent, v. PEAK MECHANICAL, INC., Defendant, Associated Bank Minnesota, N.A., a banking corporation, Appellant.
    No. A04-131.
    Court of Appeals of Minnesota.
    Aug. 10, 2004.

      William M. Hennessey, Wagner, Falconer & Judd, Ltd., Minneapolis, MN, for respondent.
    Andrew D. Parker, John W. Munger, Smith Parker P.L.L.P., Minneapolis, MN, for appellant.

      Considered and decided by STONEBURNER, Presiding Judge; TOUSSAINT, Chief Judge; and PARKER, Judge.
   OPINION

PARKER, Judge.

In this action brought under Minn.Stat. § 514.02 (2002) of the mechanics’ lien statute, appellant Associated Bank Minnesota, N.A. (bank), appeals from the district court’s summary judgment in favor of respondent Siemens Building Technologies, Inc. (Siemens). Siemens sought to recover monies paid to defendant Peak Mechanical, Inc. (Peak), from the foreclosure of a mechanics’ lien. The bank had a prior secured interest in the proceeds paid to Peak.

Because the clear language of Minn. Stat. § 514.02 does not apply to a third party who receives payment in the ordinary course of business, we reverse.

FACTS

This matter arose out of the construction of the Grand Hotel/Minneapolis Athletic Club (the project). Siemens provided services to Peak, a subcontractor to Mor-cón Construction, Inc., general contractor on the project. In 2001, the project owners defaulted on their payments to the various contractors and subcontractors.

In October 2001, one subcontractor, Quality Drywall, Inc., began an action to foreclose its mechanics’ lien against the project; Peak became a party to that lawsuit, asserting a claim that may have included the money it owed Siemens. See Quality Drywall, Inc. v. 679 East Third Street Investors Co., Henn. Cty. File No. 01-16319. In May 2002, the project owners and lien claimants settled this action for somewhat more than 50 cents on the dollar. As part of the settlement agreement, Peak received $215,088 of its claim for $383,000. Siemens was not a party to the mechanics’ lien action.

The bank has held a perfected security interest in Peak’s inventory, accounts, including accounts receivable, and proceeds since 1998. In November 2001, Peak defaulted on its loan payments to the bank. On February 20, 2002, prior to the mechanics’ lien settlement, Peak entered into a voluntary surrender agreement with the bank and surrendered all right, title, and interest in its accounts receivable to the bank.

On May 24, 2002, as part of the mechanics’ lien settlement agreement, a joint check was issued to Peak and the bank in the amount of $215,088. The bank issued payments to one of Peak’s subcontractors who had been a party to the mechanics’ lien lawsuit and to the attorneys who held an attorney’s lien for the work done on the lien action. Both Peak and the bank were aware at this time that Peak owed Siemens $106,781.75 for labor and materials supplied for the project, but the bank did not issue payment to Siemens.

Siemens brought suit against Peak and the bank in October 2002. Default judgment was entered against Peak on December 16, 2002. Both Siemens and the bank moved for summary judgment on June 20, 2003. On June 24, the district court granted an apparent partial summary judgment to Siemens. A trial on damages was held on September 15, 2003. The court issued findings and an order granting Siemens judgment of $106,781.75 against the bank. The court held that the funds received by Peak and the bank were trust funds that Peak and the bank were required to hold for the benefit of Siemens pursuant to Minn.Stat. § 514.02.

The bank moved for amended findings; the district court issued amended findings on November 24, 2003, but did not change its conclusions of law or its order for judgment. This appeal followed.

ISSUE

Did the district court err in interpreting Minn.Stat. § 514.02 (2002) to apply to a third party receiving funds in the ordinary course of business?

ANALYSIS

Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). Certain rules of construction apply when this court reviews a district court’s statutory interpretation. The object of construction of a law is to ascertain and give effect to the legislature’s intent. Minn.Stat. § 645.16 (2002). If a law is not ambiguous in its application to an existing situation, however, a court may not ignore the letter of the law in order to pursue what it perceives to be the spirit of the law. Id. Thus, unless there is an inherent ambiguity in the law, this court applies the plain meaning of an act using the usual conventions of syntax and grammar. First Nat’l. Bank of the North v. Auto. Fin. Corp., 661 N.W.2d 668, 670 (Minn.App.2003), review denied (Minn. Aug. 5, 2003).

Minn.Stat. § 514.02, subd. 1(a) (2002), states:

Proceeds of payments received by a person contributing to an improvement to real estate ... shall be held in trust by that person for the benefit of those persons who furnished the labor, skill, material, or machinery contributing to the improvement. Proceeds of the payment are not subject to garnishment, execution, levy, or attachment.

A party failing to use the funds to pay a person for an improvement is guilty of theft. MinmStat. § 514.02, subd. 1(b) (2002). The statute also permits “[a] person injured by a violation of subdivision 1” to bring a civil action for damages, including costs, disbursements, and fees, against the person who committed the theft. Minn.Stat. § 514.02, subd. la. This statutory language is clear and unambiguous: a civil action may be taken against the person “who committed the theft.” Minn. Stat. § 514.02, subd. la.

The person responsible for the theft is defined by reference to subdivision 1 as “a person contributing to an improvement to real estate” who receives payment, but who “fails to use the proceeds of a payment ... for the improvement, for the payment for labor, skill, material, and machinery contributed to the improvement!,]” knowing that payment has not been made. Minn.Stat. § 514.02, subd. 1(a), (b). Again, this language is clear and unambiguous: liability for theft is limited to a person who contributes to the improvement in real estate. We therefore conclude that the bank does not fit within this statutory definition, having made no contribution to the improvement in real estate.

Further, although Minn.Stat. § 514.02, subd. 1, states that proceeds of payments for improvements to real estate are to be held in trust by the recipient for the benefit of those who furnished labor or materials and that those proceeds are not subject to garnishment, execution, levy, or attachment, the statute also states that “[t]he penalties and remedies provided in this section do not apply to a third party who receives a payment in the ordinary course of business.” Minn-Stat. § 514.02, subd. 1(a), (b), (c). The remedy created under this statute is essentially an action in contract. See Duluth Superior Erection, Inc. v. Concrete Restorers, Inc., 665 N.W.2d 528, 538 (Minn.App.2003). The contract to be enforced here is between Peak and Siemens; the bank is merely a third party and is not in privity of contract with Siemens.

Siemens argues that Peak’s surrender of accounts receivable to the bank is outside of the ordinary course of business. While the statute does not define it, the term “ordinary course of business” has been defined as “[t]he normal routine in managing a trade or business.” Black’s Law Dictionary 356 (7th ed.1999). A bank is in the business of extending credit and, presumably, collecting its loans. The bank here had a long-term lending agreement with Peak and a security interest in Peak’s accounts receivable. The bank’s collection of what would otherwise be a bad debt was done in the ordinary course of the bank’s business, and therefore falls within the statutory exception.

Nor do we agree that the rights of an unpaid subcontractor under Minn.Stat. § 514.02 are superior to the rights of a secured creditor, whose perfected security interest is generally effective protection against the claims of purchasers of collateral and creditors. See Minn.Stat. § 336.9-201 (2002); James Talcott, Inc. v. Franklin Nat’l Bank of Minneapolis, 292 Minn. 277, 284, 194 N.W.2d 775, 780 (1972) (stating that perfected security interest “afford[s] protection against execution creditors, trustees in bankruptcy, and secured parties whose financing statements [are] filed later”). Minn.Stat. § 514.02 deals with the unscrupulous or failing contractor who collects from an owner, but fails to pay subcontractors, and provides both the subcontractor and the owner with a means of recovery and some protection. Nothing in the statute creates a theory of recovery that promotes the rights of an unsecured creditor over those of a secured creditor, with whom the former has no privity of contract.

We therefore hold that Minn.Stat. § 514.02 does not apply to a third-party secured creditor who has received funds in the ordinary course of business and who is not in privity of contract with the unsecured creditor.

DECISION

The district court erred by interpreting MinmStat. § 514.02 to apply to a third party with a perfected security interest, who is not in privity of contract with the party asserting a claim under the statute.

Reversed.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

      . In 1998, Peak owed the bank approximately $600,000; no precise figure for the amount owing on February 20, 2002, was introduced into evidence.

      . In its order, the district court stated that both parties' motions for summary judgment were denied, but in its memorandum, the court stated that Minn.Stat. § 514.02 controlled the action and that the proceeds were to be held in trust for Siemens until a hearing on damages could be held.


author: WRIGHT, Judge. KALITOWSKI, Judge

text:
    COUNTY OF BLUE EARTH, petitioner, Respondent, v. Francis E. WINGEN, et al., Appellants.
    No. A03-1957.
    Court of Appeals of Minnesota.
    Aug. 10, 2004.

      John M. Riedy, Jorun Groe Meierding, Maschka, Riedy & Ries, PLLP, Mankato, MN, for appellants.
    Arvid L. Wendland, Wendland Timmer-man, P.A., Blue Earth, MN; and Ross E. Arneson, Blue Earth County Attorney, Mankato, MN, for respondent.
    Considered and decided by KALITOWSKI, Presiding Judge; WILLIS, Judge; and WRIGHT, Judge.
   OPINION

WRIGHT, Judge.

On a prior appeal, appellants posted a supersedeas bond and stayed a condemnation order pending the outcome of the appeal. Respondent prevailed and moved for “damages in consequence of the appeal.” Minn. R. Civ.App. P. 108.01, subd. 2. The district court awarded damages in excess of the amount of the supersedeas bond. Appellants argue that (1) the district court erred in awarding damages in excess of the amount of the supersedeas bond and (2) the evidence is insufficient to support the amount of damages. By notice of review, respondent also argues that the damage award is not supported by the record. We reverse and remand.

FACTS

This appeal involves respondent Blue Earth County’s two condemnation actions against four acres of property owned by appellants Francis and Mary Wingen. The county brought these actions to obtain grading fill for two highway projects. The first condemnation action sought a temporary-easement (temporary-easement action); the second action sought fee title outright (fee-title action).

The county brought the temporary-easement action in July 2001. Following a hearing on September 12, 2001, the district court ordered the easement. Based on this order, the Wingens brought the first appeal in this matter, challenging the county’s authority to obtain the easement. County of Blue Earth v. Wingen, Nos. C0-01-1731, C3-02-17, 2002 WL 1839209 (Minn.App. Aug.13, 2002). Pending the outcome of the appeal, the Wingens moved to stay the temporary easement. See Minn. R. Civ.App. P. 108.01.

To cover potential damages as a result of the stay, the county requested that ap-peUants file a supersedeas bond. The county offered a supporting affidavit by its highway engineer, Alan Forsberg, who estimated that damages would exceed $61,000 because of the extra cost to purchase and transport fill. Forsberg maintained that it was not feasible to avoid these costs by suspending the highway projects pending the resolution of the appeal.

On October 22, 2001, the district court granted the stay and ordered appellants to post a supersedeas bond of $5,200. The district court subsequently explained its ruling:

[The county] ... claimed that the appeal could be expected to damage [it] to the extent of $61,700. At the hearing on the merits of the issues conducted on October 16, 2001, the Court expressed [its] doubts as to the merits of [the Wingens’] position and deferred to [the county’s] attorney in regard to the amount of the bond. The Court was assured [by the county] that $5,200 was quite sufficient.

In an attempt to avoid the operation of the stay, the county brought the fee-title action in October 2001. On November 19, 2001, the district court ordered the transfer of fee title. The Wingens appealed this order and again moved for a stay. The district court granted the stay and ordered a supersedeas bond in the amount of $8,302, which the Wingens never posted.

We considered consolidated appeals in these matters and affirmed, holding that the county had sufficient grounds for its condemnation actions. County of Blue Earth v. Wingen, Nos. C0-01-1731, C3-02-17, 2002 WL 1839209 at *1-*2 (Minn.App. Aug.13, 2002). The district court subsequently lifted the stay in the temporary-easement action in January 2003 and dismissed the fee-title action in March 2003.

In July 2003, the county moved for damages arising out of the stay in the temporary easement action. Relying on Minn. R. Civ.App. P. 108.01, the county claimed that it was entitled to compensation for expenses incurred as a result of delays caused by the appeal. The county submitted another affidavit by Forsberg, who this time determined that the damages from the delay were approximately $35,600. Forsberg calculated the amount of damages based on the difference between the actual cost of fill for the highway projects and the estimated cost of fill from the temporary easement.

In its order of October 13, 2003, the district court found that appellants were ordered to post supersedeas bonds of $5,200 in the temporary-easement action and $8,225 in the fee-title action. The district court stated:

[The county] had the opportunity to obtain a more significant bond but failed to do so. If the bond had been set in the appropriate amount, respondents would have been put on direct notice of their liability exposure. They could have either filed the bond or dropped their appeal. Therefore, to impose judgment upon them at this time for virtually [seven] times the value of the temporary easement is inappropriate.
The total amount of the Supersedeas Bonds for the two files should have been $13,425. That is the amount that [the Wingens] should be compelled to pay for [the county’s] damages pursuant to Rule 108 “in consequence of the appeal.”

The district court did not make any findings as to the nature or amount of damages the county incurred in consequence of the prior appeal. This appeal followed.

ISSUES

I. Does the district court have authority to award “damages in consequence of the appeal” exceeding the amount of the supersedeas bond?
II. Did the district court err in its determination of damages?

ANALYSIS

I.

The Wingens first contend that the district court lacked authority to award the county damages in excess of the amount of the supersedeas bond. Conclusions of laws, including the interpretation of a procedural rule, are reviewed de novo. Kastner v. Star Trails Ass’n, 646 N.W.2d 235, 238 (Minn.2002).

Rule 108.01, subdivision 2, governs the award of damages in consequence of the appeal and provides:

If the appeal is from an order, the condition of the bond shall be the payment of the costs of the appeal, the damages sustained by the respondent in consequence of the appeal, and the obedience to and satisfaction of the order or judgment which the appellate court may give if the order or any part of it is affirmed or if the appeal is dismissed.

Minn. R. Civ. P. 108.01, subd. 2. In O’Leary v. Carefree Living of Am. Inc., 655 N.W.2d 639 (Minn.App.2003), we considered the scope and effect of supersede-as bond conditions. O’Leary involved a quiet-title action in which appellants obtained a supersedeas bond and kept possession of the property pending appeal. Id. at 641. The amount of the supersedeas bond was based on the estimated value of occupancy for the duration of the appeal. Id. But the district court underestimated this duration. Id. Not only did appellants enjoy possession for a longer period, but they also transferred rents to third parties and failed to make mortgage payments. Id.

The O’Leary court recognized that the amount of a supersedeas bond “limits the liability of the surety but not the liability of the principal.” Id. at 643. It then held that, based on principles of unjust enrichment, respondents were entitled to recover more than the amount of the bond. Id. at 644. O’Leary also did not foreclose recovery for other reasons such as waste. Id. at 644^15.

Applying O’Leary to the facts here, the Wingens are fully bound by the bond conditions and are liable for all damages caused by the stay, regardless of the bond amount. See id. at 643-44. The bond is a prospective assessment of the anticipated amount of damages caused by the stay, not an actual determination of these damages. See Eide v. Bierbaum, 472 N.W.2d 193, 194-95 (Minn.App.1991) (injunction bond).

The Wingens attempt to distinguish O’Leary by suggesting that recovery in excess of the bonding amount is only available in cases of unjust enrichment. But O’Leary does not foreclose damages under other theories of recovery. O’Leary, 655 N.W.2d at 644-45. Furthermore, a basic canon of construction is that words and phrases are construed according to their plain meaning. See Minn.Stat. § 645.16 (2002). An appellant is liable for “the damages sustained by the respondent in consequence of the appeal” without reference to the theory by which damages are sustained. Minn. R. CivApp. P. 108.01, subd. 2.

Our analysis is supported by the common law of supersedeas bonds. In Miller v. Reiter, for example, a city official who, when compelled to issue a liquor license, stayed a writ of mandamus by supersedeas bond. 155 Minn. 110, 111, 192 N.W. 740, 740 (1928). The Minnesota Supreme Court allowed the bar owner to recover lost profits, calculating the amount of damages without reference to the amount of the bond or the theory of recovery. Id. at 113, 192 N.W. at 741.

Injunction-bond cases also provide a useful analogy. Cf. O’Leary, 655 N.W.2d at 642 (equating law of injunction bonds and supersedeas bonds). When an injunction bars a party’s actions, damages are not limited to unjust enrichment by the enjoining party. If a party is enjoined from employment, that party may recover lost salary and benefits. Hubbard Broad., Inc. v. Loescher, 291 N.W.2d 216, 219-20 (Minn.1980). If a party is enjoined from business premises, that party may recover lost profits. Paradata of Minn., Inc. v. Fox, 356 N.W.2d 852, 855 (Minn.App.1984), review denied (Minn. Feb. 6,1985).

The purpose of supersedeas bond conditions is to assure that, pending the outcome of an appeal, the economic risk of the appeal is not borne by the party that prevailed below. Given the breadth of relief ordinarily available in other cases involving supersedeas bonds, the limit on the prevailing party’s recovery sought by the Wingens is without legal authority.

II.

Both parties challenge the factual basis for the district court’s determination of damages, asserting that the amount is either excessive or insufficient. A district court’s findings of fact are reviewed for clear error and will not be disturbed if they are supported by reasonable evidence. Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn.1999).

The amount of damages sustained by the prevailing party in consequence of the appeal must be rationally related to the loss suffered by the respondent. See O’Leary, 655 N.W.2d at 644. It was error to award damages for lost profits in Miller, a supersedeas bond case, without evidence of a business’s accounts, inventory, or operating expenses. Miller, 155 Minn, at 113, 192 N.W. at 741. In O’Leary, the issue was remanded when the district court awarded damages for loss of possession of real property but did not itemize other damages for waste or misuse of rental income. O’Leary, 655 N.W.2d at 644-45.

Here, the district court awarded respondent $13,425 in damages. This amount is the sum of the supersedeas bond amounts in the temporary-easement and fee-title actions. We must infer that the district court relied on the county’s representations, at the time the bonds were set, that the supersedeas bond amounts were sufficient, notwithstanding the Forsberg affidavits which forecasted greater damages resulting from the stay pending appeal.

The final damages order, however, does not explain how the county was compensated for losses suffered in consequence of the appeal. Nor are there any findings that would help establish a rational relationship between the added expense for the highway project and the amount of the damage award. Because no reasonable evidence supports the outcome here, the damage award is clearly erroneous.

Because both parties also challenge the method by which the district court calculated damages, we also consider the meaning of “damages in consequence of the appeal” under Minn. R. Civ.App. P. 108.01, subd. 2. In accordance with common law doctrine of supersedeas bonds, our analysis of the remedy here is guided by contract principles. See First State Bank of Mountain Lake v. C.E. Stevens Land Co., 123 Minn. 218, 219, 143 N.W. 355, 356 (1913) (noting that supersedeas bond, “if given for a valid consideration, is binding and enforceable according to its terms”).

Calculation of consequential damages requires an assessment of the losses a party suffers that are caused by the harm, due to the loss of property or privileges to which the party was otherwise entitled. 1 Dan B. Dobbs, Law of Remedies §§ 3.2, 3.3(4) (2d ed.1993). Because the scope of causation is potentially unbridled, eonse-quential damages are subject to several limitations.

The primary limitation on consequential damages is that a party is only liable for damages that, at the time the agreement is reached, are reasonably foreseeable to the parties. Imdieke v. Blenda-Life, Inc., 363 N.W.2d 121, 125 (Minn.App.1985), review denied (Minn. Apr. 26, 1985). The harmed party has the burden to demonstrate such damages “with a reasonable degree of certainty and exactness.” Nelson v. Smith, 349 N.W.2d 849, 854 (Minn.App.1984) (citation omitted), review denied (Minn. July 26, 1984); see also Miller, 155 Minn, at 113, 192 N.W. at 741 (considering certainty of evidence of lost profits when awarding damages against supersedeas bond). The harmed party also has an obligation to take reasonable measures to mitigate damages. See Deutz-Allis Credit Corp. v. Jensen, 458 N.W.2d 163, 166 (Minn.App.1990) (stating that nonbreaching party is duty bound under contract law to “use reasonable diligence to mitigate damages”). Applying these principles to the law of supersedeas bonds, we conclude that consequential damages are those reasonably foreseeable by the parties at the time the stay is entered, subject to the prevailing party’s duty to mitigate damages.

DECISION

Under Minn. R. Civ.App. P. 108.01, the district court has authority to award damages in excess of the amount of the super-sedeas bond. Because we do not discern a rational relationship between the county’s damages and the amount awarded by the district court, the damage award is clearly erroneous. We reverse and remand for a determination of consequential damages in a manner not inconsistent with the principles set forth herein. The decision to reopen the record for this purpose rests within the district court’s discretion.

Reversed and remanded.

KALITOWSKI, Judge

(concurring specially).

I concur with the holding of the majority but I write separately to comment on the county’s claim for damages in this case.

I agree that the law allows the district court to award damages in excess of the supersedeas bonds. But importantly, the court is not required to do so. And I share the district court’s concern that the county is claiming a damage amount that both greatly exceeds the total of the super-sedeas bonds it requested, and is many times the value of the temporary easement.

As stated by the majority, in making its award of damages it is within the district court’s discretion to determine both the reasonable foreseeability of the claimed damages and the county’s efforts to mitigate its damages.

      . The county argues in part that the superse-deas bond conditions at issue here are governed by Minn. R. Civ.App. P. 108.01, subd. 5. Subdivision 5 pertains to an appeal from a judgment directing the sale or delivery of a possessory interest in real property. Minn. R. Civ.App. P. 108.01, subd. 5. Because this case involves an easement, which does not confer a possessory interest in real property, subdivision 5 is inapposite. See Alvin v. Johnson, 241 Minn. 257, 264, 63 N.W.2d 22, 27 (1954) (stating that easement does not carry with it title to or right of possession of land).

      . The Wingens also argue that constitutional guarantees of procedural due process prevent recovery in excess of the amount of the super-sedeas bond. Because this argument was not presented to or decided by the district court, we decline to consider it here. See Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988).

      . The district court’s order essentially relies on judicial estoppel. Under this doctrine, once a party makes a representation to a court, that party cannot contradict that representation in subsequent proceedings. State v. Profit, 591 N.W.2d 451, 462 (Minn.1999). Minnesota courts have declined to recognize judicial estoppel. Ill. Farmers Ins. Co. v. Glass Service Co., 683 N.W.2d 792, 800 (Minn.2004); Profit, 591 N.W.2d at 462. Moreover, in light of our conclusion in O’Leary that the amount of a supersedeas bond is not a cap on recoverable damages and the Forsberg affidavits addressing the estimated damages resulting from the stay, the county's representation that the amounts of the supersedeas bonds were sufficient does not warrant the conclusion that the county's request for damages constitutes a contradiction in a subsequent proceeding.

      . Citing O'Leary, the county suggests that calculation of "damages in consequence of the appeal” should be guided by principles of restitution. It is doubtful whether O’Leary can be construed in this manner. 655 N.W.2d at 645. Moreover, restitution is not a form of damages; it is based on profit received by the adverse party, rather than losses suffered by the harmed party. See Dobbs, supra, § 3.1. Because Minn. R. Civ.App. P. 108.01, subd. 2, expressly calls for "damages,” restitution is not an appropriate remedy here. Cf. Beck v. Spindler, 256 Minn. 565, 567, 99 N.W.2d 684, 686 (1959) (holding that restitution was unavailable where property had already been restored to its rightful owner and no profit was received by the adverse party).


author: MINGE, Judge.

text:
    In the Matter of the Welfare of A.A.M., Child.
    No. A03-1793.
    Court of Appeals of Minnesota.
    Aug. 17, 2004.

      John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, Minneapolis, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN; and Raymond F. Schmitz, Olmsted County Attorney, Karen A. Arthurs, Assistant County Attorney, Rochester, MN, for respondent.
    Considered and decided by MINGE, Presiding Judge; HARTEN, Judge; and HALBROOKS, Judge.
   OPINION

MINGE, Judge.

On appeal from an adjudication of delinquency, appellant juvenile argues that there was insufficient evidence to support the adjudication because the state failed to prove lack of consent, as would be understood by a reasonable juvenile. Because there is sufficient evidence in the record to support appellant’s adjudication and because we find no authority requiring the district court to apply a “reasonable juvenile standard” to the element of consent for criminal sexual conduct, we affirm.

FACTS

On May 8, 2003, appellant, the complainant, the complainant’s boyfriend, and another teen were driving around the city of Rochester when one of the passengers suggested that the complainant “flash,” by lifting up her shirt and exposing her breasts to the boys in the car and to individuals in passing cars. Appellant and the complainant’s boyfriend were in the back seat; the complainant was directly in front of appellant. Appellant and complainant were both 14 years old at the time.

The complainant was wearing a large jersey, with a tube top and bra underneath. According to the complainant’s testimony, appellant unhooked her bra, and grabbed and pinched her breasts by reaching around the front seat. The complainant stated that “[h]e just ... started touching me, and then it got worse.” At various times, both the complainant and her boyfriend told appellant to stop touching her.

Rochester Police Officer Jeffrey Sobczak was urged by another minor to check the vehicle in which the complainant was riding to make sure the complainant was “okay.” After another officer stopped that vehicle, Officer Sobczak approached the scene and spoke with the complainant. Officer Sobczak testified that the complainant was crying and shaking, and she told him that appellant had unhooked her bra and grabbed her breasts. Officer Sobczak found the complainant’s bra in the backseat of the vehicle.

On May 9, 2003, a three-count delinquency petition was filed, and following a two-day hearing, the district court found that appellant had committed criminal sexual conduct in the fifth degree in violation of Minn.Stat. § 609.3451, subds. 1(1), 2 (2002). A pre-dispositional report was prepared, and appellant was adjudicated delinquent on October 23, 2003.

ISSUE

Was there sufficient evidence to prove that appellant’s conduct was nonconsensual?

ANALYSIS

On appeal from a delinquency-petition determination concluding that each of the elements have been proved beyond a reasonable doubt, “an appellate court is limited to ascertaining whether, given the facts and legitimate inferences, a factfinder could reasonably make that determination. In re Welfare of S.M.J., 556 N.W.2d 4, 6 (Minn.App.1996) (citing State v. Merrill, 274 N.W.2d 99, 111 (Minn.1978)). It is the exclusive role of the factfinder to determine the weight and credibility of witness testimony. State v. Folkers, 581 N.W.2d 321, 327 (Minn.1998). “We are required to view the record in the light most favorable to the determination and assume that the factfinder believed the testimony supporting the determination and disbelieved any contrary evidence.” S.M.J., 556 N.W.2d at 6.

Criminal sexual conduct in the fifth degree is committed if a “person engages in nonconsensual sexual contact.” Minn.Stat. § 609.3451, subd. 1(1). Appellant argues that there was not sufficient evidence to prove that the complainant did not consent. Appellant contends that the state should be required to prove that a complainant has communicated refusal in such terms that a reasonable juvenile would understand that no consent existed. Appellant argues that a reasonable juvenile here would not have understood that the complainant did not consent because evidence exists that the complainant was laughing and flashing at times.

Courts have most commonly utilized a reasonable juvenile standard in two particular criminal situations: First, in the context of custodial interrogations, courts have asked whether, given the circumstances, a reasonable juvenile would have believed that he was not at liberty to terminate an interrogation and leave. See Alvarado v. Hickman, 316 F.3d 841, 848 (9th Cir.2002); Ramirez v. State, 739 So.2d 568, 574 (Fla.1999); State v. Jason L., 129 N.M. 119, 2 P.3d 856, 862 (2000); State ex rel. Juvenile Dep’t v. Loredo, 125 Or.App. 390, 865 P.2d 1312, 1315 (1993); In re D.A.R., 73 S.W.3d 505, 510-11 (Tex.App.2002).

Second, courts have used a reasonable juvenile standard when determining whether a juvenile’s conduct was criminally reckless or negligent. See In re Welfare of S.W.T., 277 N.W.2d 507, 514 (Minn.1979) (“[I]n juvenile delinquency proceedings, the question of culpable negligence must be decided with reference to the conduct and appreciation of risk reasonably to be expected from an ordinary and reasonably prudent juvenile of a similar age.”); see also J.R. v. State, 62 P.3d 114, 119 (Alaska Ct.App.2003) (determining that to sustain a charge of murder in the second degree, the question of whether a juvenile defendant displayed a reckless disregard for life must be judged by whether his conduct conformed to that of reasonable juvenile); In re William G., 192 Ariz. 208, 963 P.2d 287, 293 (1997) (holding that a juvenile should be judged by a standard of 15-year-olds of like intelligence and experience in an adjudication of delinquency). However, there exists no caselaw or statutory authority in Minnesota to support appellant’s proposition that a reasonable juvenile standard should apply to the element of consent in a criminal-sexual-conduct case, and we reject such an assertion.

Sexual contact is considered to be consensual when “a person’s words or overt actions ... indicate a freely given present agreement to perform a particular sexual act with [another].” 10 Minnesota Practice, CRIMJIG 12.52 (1999). Here, we find no evidence in the record that the complainant indicated in any way that she agreed to appellant grabbing her breasts. Instead, the complainant testified that appellant grabbed her more than five times, that the grabbing hurt, and that she told appellant to stop “more than three times.” The complainant explained that she leaned forward in her seat to prevent appellant from grabbing her. The complainant also testified that she did not want appellant touching her breasts, that she did not consent to his doing so, and that she did not encourage his actions in any way.

Appellant also argues that the district court failed to recognize that complainant was sending mixed messages; that she signaled consent by pulling up her shirt and laughing and that this justified his belief that she was not serious when she told appellant to stop. Minnesota law, however, does not specify how rejection is communicated. The supreme court has interpreted nonconsent to mean a situation in which a complainant has been physically attacked or has emerged from the incident so shaken or traumatized that' no reasonable person would believe the complainant desired that particular sexual contact. See State v. DeBaere, 356 N.W.2d 301, 304 (Minn.1984) (finding that injury to complainant was proof of her nonconsent). “Plashing” may be wild behavior; yet it is not consent to harsh grabbing of a girl’s breasts.

Here, the state introduced photographic evidence of the injuries to the complainant’s breasts. The district court found the photographs corroborated the conduct that the complainant described and concluded that “[t]he marks and bruises indicate a degree of conduct that is criminal rather than simply offensive and inappropriate under the circumstances.” The record reflects and the photographs show that the complainant’s breasts had bruises and red marks. The complainant testified that the marks shown in the photographs were the result of appellant “grabbing me and pinching me” and that appellant’s contact with her breasts “hurt.” The district court specifically found the complainant’s testimony to be credible' and consistent.

DECISION

Viewing the evidence in the light most favorable to the state, and giving due regard to the district court’s ability to weigh the credibility of the evidence, we find ample evidence to support the district court’s determination that appellant engaged in noneonsensual sexual contact with the complainant.

Affirmed.