                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A14-1403

                                Anthony Patrick Huber,
                                     Appellant,

                                           vs.

                               Jason R. Vohnoutka, et al.,
                                     Respondents,

                                Darlene Heimerl, et al.,
                                     Defendants.

                                 Filed April 6, 2015
                               Reversed and remanded
                                   Johnson, Judge

                              Anoka County District Court
                               File No. 02-CV-13-3735

Steven E. Uhr, Eden Prairie, Minnesota (for appellant)

James S. Reece, Wynne C.S. Reece, Reece Law, LLC, Minneapolis, Minnesota; and

Michael G. Patiuk, Thompson Coe Cousins and Irons, LLP, St. Paul, Minnesota (for
respondent)

      Considered and decided by Halbrooks, Presiding Judge; Johnson, Judge; and

Larkin, Judge.
                        UNPUBLISHED OPINION

JOHNSON, Judge

       Anthony Patrick Huber commenced this action to obtain a remedy for his

therapist’s release of records of his psychotherapy sessions. Huber alleged multiple

claims, including a claim under the Minnesota Health Records Act against an attorney

who requested and obtained the records from the therapist, on the ground that the

attorney obtained the records under false pretenses. The district court granted summary

judgment to the attorney on that claim, reasoning that the attorney did not mislead the

therapist when he obtained Huber’s health records by mailing a subpoena duces tecum to

the therapist and by referring to a consent form in which Huber had authorized his

therapist to release his health records to a different person. We conclude that there is a

genuine issue of material fact as to whether the attorney obtained Huber’s health records

under false pretenses. Therefore, we reverse and remand.

                                        FACTS

       In 2009, Huber was a party to a child-custody proceeding commenced by a woman

with whom Huber had had a child. The woman petitioned the Anoka County District

Court for an award of sole legal custody and sole physical custody of the child, who then

was two years old. In his response, Huber, through counsel, sought an award of joint

legal custody. In February 2009, the district court in the custody case ordered a custody

evaluation and appointed Marcia Young, a family-court evaluator with the Anoka County

Domestic Relations Unit, to conduct the evaluation before a hearing on the mother’s

petition.


                                            2
        On February 11, 2009, Huber signed a document, entitled “Consent for Release

and Exchange of Confidential Information,” which appears to be a form developed by the

Anoka County Domestic Relations Unit. The key language of the consent form states:

                     I give my permission and request that the following
              information be released for the purpose of a custody or
              parenting time evaluation, mediation or resolution counseling
              or other assessment purposes.

                     I hereby authorize you to disclose to Marcia Young the
              information requested below. I also give my permission for
              the above staff person to exchange information with you.

The consent form also states, “I understand this release is valid only for the following

information: . . . mental health counseling/therapy records, including psychological

testing.”

        On February 18, 2009, Young wrote to Huber’s psychotherapist, Darlene Heimerl,

and requested “a summary letter of [Huber’s] work in therapy with you, including client’s

presenting problem, progress, and prognosis.” Young added, “If you prefer, send me

copies of your progress notes.” Young enclosed a copy of Huber’s signed consent form.

Heimerl did not respond to Young’s request. Young prepared her custody evaluation

without Huber’s mental-health records or any input from Heimerl. In April 2009, Young

recommended that the child’s mother be awarded sole legal custody because the parents

had difficulty communicating and the child otherwise “would be caught in a war zone.”

        In September 2009, the child’s mother retained Jason R. Vohnoutka, an attorney,

to represent her in the upcoming custody hearing, which then was scheduled for October

2009.    Vohnoutka reviewed the previous attorney’s file, which included a copy of



                                           3
Huber’s signed consent form.      On September 22, 2009, Vohnoutka sent a letter to

Heimerl concerning Huber’s mental-health records. The body of Vohnoutka’s letter

states as follows:

                     The undersigned has been substituted as counsel for
              Petitioner in the above-captioned matter in the place and stead
              of James Gerharter, Esq. Accordingly, enclosed please find a
              copy of the substitution of counsel.

                     Your patient Anthony Huber is a party to the above-
              captioned custody case. You were previously requested by
              Marcia Young, the Custody Evaluator in this case, to provide
              counseling records relative to Mr. Huber’s sessions.
              Mr. Huber executed an Authorization for release of that
              information. To date no information has been received from
              you. The matter is scheduled for trial on October 8, 2009,
              and review of those records is necessary prior to that trial.

                     Accordingly, enclosed and served upon you by mail,
              please find a Subpoena to produce documents. In lieu of
              producing Mr. Huber’s counseling records at my office, you
              may produce certified copies of those same and forward them
              to my office via mail. You are entitled to reasonable
              compensation for your time and expense involved in
              producing those documents. Please determine the amount of
              those expenses and inform me of such and those reasonable
              expenses will be paid immediately.

                    Please telephone me if you have any questions or
              concerns or wish to discuss this.

The enclosed subpoena states that Heimerl is “commanded to produce and permit

inspection and copying of . . . [a]ny and all records in your possession regarding Anthony

Huber,” at Vohnoutka’s office, on September 30, 2009, at 1:00 p.m. The letter indicates

that Vohnoutka’s client, but no one else, received a copy of the letter. On September 23,




                                            4
2009, Heimerl released Huber’s mental-health records to Vohnoutka by faxing 46 pages

of notes of Huber’s psychotherapy sessions, beginning in January 2008.

       The evidentiary hearing in the Anoka County District Court eventually occurred in

February 2010. Huber learned that Vohnoutka had obtained his mental-health records

when Vohnoutka attempted to introduce the records into evidence. Huber objected. The

district court sustained the objection and refused to admit the records into evidence

because of a lack of foundation, noting that Heimerl was not present to testify.

       In May 2010, the district court issued a 20-page order and memorandum in which

it awarded sole legal custody and sole physical custody of the child to his mother. The

district court granted parenting time to Huber on some weekday evenings and on

alternating weekends. The district court’s decision was based primarily on the “inability

to communicate and co-parent” of Huber and the child’s mother. Specifically, the district

court found that Huber had harassed his child’s daycare and medical providers, which

had “a negative impact on the minor child” and affected the child’s stability. When

analyzing the parents’ respective mental health, as required by statute, see Minn. Stat.

§ 518.17, subd. 1(9) (2014), the district court noted that it “did not receive evidence to

suggest [Huber] is not of good mental and physical health.”

       In April 2013, Huber commenced this action against Vohnoutka and Heimerl,

alleging an unlawful release of his mental-health records. His four-count complaint

alleged (1) a claim of fraudulent misrepresentation against Vohnoutka, (2) a claim of

intentional infliction of emotional distress against Vohnoutka, (3) a claim of negligence




                                             5
against Heimerl, and (4) a claim of a violation of the Minnesota Health Records Act

against Heimerl and Vohnoutka.

       In February 2014, the parties filed cross-motions for summary judgment. Huber

moved for summary judgment on his third and fourth claims; Vohnoutka and Heimerl

moved for summary judgment on all claims. In June 2014, the district court denied

Huber’s motion and granted Heimerl’s and Vohnoutka’s motions. In analyzing Huber’s

claim against Vohnoutka under the Minnesota Health Records Act, the district court

reasoned that, as a matter of law, Vohnoutka did not use false pretenses because Huber

did not submit any evidence that Vohnoutka intended to deceive Heimerl.

       Huber appeals from the district court’s judgment in favor of Vohnoutka, but only

with respect to his fourth claim, which alleges a violation of the Minnesota Health

Records Act.     Huber’s counsel represents that Huber and Heimerl have voluntarily

resolved his claims against her.

                                      DECISION

       Huber argues that the district court erred by granting Vohnoutka’s motion for

summary judgment on Huber’s claim that Vohnoutka obtained his mental-health records

under false pretenses in violation of the Minnesota Health Records Act.

       A district court must grant a motion for summary judgment if the evidence

demonstrates “that there is no genuine issue as to any material fact and that either party is

entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. A genuine issue of

material fact exists if a rational trier of fact, considering the record as a whole, could find

for the non-moving party. Frieler v. Carlson Mktg. Grp., Inc., 751 N.W.2d 558, 564


                                              6
(Minn. 2008). This court applies a de novo standard of review to the district court’s legal

conclusions on summary judgment and views the evidence in the light most favorable to

the non-moving party. RAM Mut. Ins. Co. v. Rohde, 820 N.W.2d 1, 6 (Minn. 2012); Day

Masonry v. Independent Sch. Dist. 347, 781 N.W.2d 321, 325 (Minn. 2010).

       The Minnesota Health Records Act governs the release of patients’ health-related

records by health-care providers. See Minn. Stat. § 144.293, subd. 1 (2014). At the crux

of the statute is the following rule of proscription:

                     A provider, or a person who receives health records
              from a provider, may not release a patient’s health records to
              a person without:

                     (1)     a signed and dated consent from the patient or
              the patient’s legally authorized representative authorizing the
              release;

                      (2)    specific authorization in law; or

                     (3)  a representation from a provider that holds a
              signed and dated consent from the patient authorizing the
              release.

Minn. Stat. § 144.293, subd. 2. The legislature has expressly authorized a cause of action

for a violation of section 144.293, subdivision 2:

                     A person who does any of the following is liable to the
              patient for compensatory damages caused by an unauthorized
              release or an intentional, unauthorized access, plus costs and
              reasonable attorney fees:

                     (1)    negligently or intentionally requests or releases
              a health record in violation of sections 144.291 to 144.297;

                     (2)    forges a signature on a consent form or
              materially alters the consent form of another person without
              the person’s consent;


                                               7
                    (3)    obtains a consent form or the health records of
              another person under false pretenses; or

                    (4)    intentionally violates sections 144.291 to
              144.297 by intentionally accessing a record locator service
              without authorization.

Minn. Stat. § 144.298, subd. 2 (2014); see also Larson v. Northwestern Mut. Life Ins.

Co., 855 N.W.2d 293, 301-02 (Minn. 2014).

       In this case, Huber argues that Vohnoutka should be held liable under the third

paragraph of section 144.298, subdivision 2, on the ground that Vohnoutka obtained his

mental-health records under false pretenses.       In response, Vohnoutka makes three

arguments: (1) he did not use false pretenses when seeking to obtain Huber’s mental-

health records; (2) in the alternative, he did not obtain Huber’s mental-health records

because of any false pretenses; and (3) again in the alternative, Huber is not entitled to an

award of compensatory damages because he failed to submit sufficient evidence of a

compensable injury.

       Before analyzing the parties’ respective arguments, we note that Vohnoutka does

not argue on appeal that the release of Huber’s mental-health records was not an

“unauthorized” release. See Minn. Stat. § 144.293, subd. 2. Vohnoutka merely hints that

he did not use false pretenses because he did not mislead Heimerl when he sent her a

letter explaining that Huber had signed a consent form authorizing the release of his

mental-health records. He asserts that both he and Heimerl believed that Huber had

consented to Heimerl’s release of records to Vohnoutka, which might be read to suggest

that the release was authorized by Huber’s signed consent form. Vohnoutka also hints


                                             8
that he did not use false pretenses because he sent Heimerl a subpoena duces tecum. He

asserts that the subpoena duces tecum is valid despite certain procedural irregularities,

which might be read to suggest that the release was authorized by the subpoena duces

tecum. But Vohnoutka does not expressly argue that either of these suggestions is a

reason why the district court properly granted his summary-judgment motion. For the

sake of clarity, we will review the reasons why Heimerl’s release of Huber’s mental-

health records to Vohnoutka was not authorized by either Huber’s signed consent form or

by the subpoena duces tecum.

       First, a provider is authorized to release a patient’s health records if there is “a

signed and dated consent from the patient or the patient’s legally authorized

representative authorizing the release.” Minn. Stat. § 144.293, subd. 2(1). Huber signed

a consent form that authorized Heimerl to disclose his records to Young “for the purpose

of a custody or parenting time evaluation, mediation or resolution counseling or other

assessment purposes.” By its plain language, the consent form did not authorize Heimerl

to release Huber’s mental-health records to anyone other than Young or for any other

purpose than the purposes stated. In other words, the consent form did not authorize

Heimerl to release Huber’s mental-health records to Vohnoutka for purposes of trial.

Thus, the consent form that Huber signed on February 11, 2009, did not authorize “the

release” of records by Heimerl on September 23, 2009. See Minn. Stat. § 144.293,

subd. 2(1).

       Second, a provider is authorized to release a patient’s health records if there is

“specific authorization in law.” Minn. Stat. § 144.293, subd. 2(2). Vohnoutka prepared a


                                            9
subpoena duces tecum and sent it by mail to Heimerl with his September 22, 2009 letter.

But Vohnoutka did not serve the subpoena duces tecum on Heimerl and did not give

notice to Huber or his attorney. Vohnoutka suggests that the subpoena duces tecum was

valid and enforceable despite a lack of proper service because Heimerl did not object to

receiving the subpoena duces tecum by mail. But the rules of civil procedure clearly

require personal service. A subpoena commanding production of documents “must be

served on the subject of the subpoena,” and a party must do so “by delivering a copy

thereof to such person or by leaving a copy at the person’s usual place of abode with

some person of suitable age and discretion then residing therein.” Minn. R. Civ. P.

45.02(a). Thus, if a subpoena is delivered by mail instead of personal service, the

subpoena is not valid and not enforceable and, thus, does not impose an obligation on the

non-party to respond. See id.; see also Smith v. Midland Brake, Inc., 162 F.R.D. 683, 686

(D. Kan. 1995) (denying motion to compel compliance with subpoena that was invalid

because of improper service).

       Vohnoutka also suggests that the subpoena duces tecum was valid and enforceable

despite his failure to give notice to Huber. Again, the rules of civil procedure are clear.

Notice of a production of documents pursuant to a subpoena duces tecum “must be served

. . . on each party to the action, at least seven days before the required production.”

Minn. R. Civ. P. 45.02(a). In 2007, the rules were amended to make clear that “[a]ny use

of a subpoena, other than to compel attendance at a trial, without prior notice to all parties

to the action, is improper and may subject the party or attorney issuing it, or on whose

behalf it was issued, to sanctions.” Minn. R. Civ. P. 45.01(e); Minn. R. Civ. P. 45, 2007


                                             10
advisory committee comment, ¶ 2; see also Sandberg v. Commissioner of Revenue, 383

N.W.2d 277, 280-82 (Minn. 1986) (disapproving of state’s “improper” use of ex parte

subpoena duces tecum but declining to reverse because taxpayer was not prejudiced by

lack of notice).1

       The Minnesota Health Records Act authorizes a release of health records in only

three circumstances. See Minn. Stat. § 144.293, subd. 2. Heimerl’s release of Huber’s

mental-health records was not authorized in the first way because Huber’s consent form

was limited in scope. See id., subd. 2(1). Heimerl’s release was not authorized in the

second way because the subpoena duces tecum that Vohnoutka prepared and mailed was

invalid and unenforceable.2 See id., subd. 2(2). Heimerl’s release was not authorized


       1
          In 2010, the rules were amended again to prevent the “misuse” of a subpoena,
including the use of a subpoena without notice to an opposing party. The advisory
committee stated that “notice of issuance of a subpoena is required in order that all
parties have an opportunity to participate in the production and to curtail use of a
subpoena for ex parte investigation.” Minn. R. Civ. P. 45, 2010 advisory committee
comment, ¶ 1. A new provision was added to require the party issuing a subpoena duces
tecum to “make available to all parties” any documents or other things produced pursuant
to the subpoena duces tecum, to require the party serving the subpoena duces tecum to
give all parties seven days’ notice if the time or place of a production of documents is
changed from what is shown on the face of the subpoena, and to give all parties a right to
“attend and participate in any noticed or rescheduled production or inspection” pursuant
to the subpoena duces tecum. Minn. R. Civ. P. 45.04(a)(5); see also Minn. R. Civ. P. 45,
2010 advisory committee comment, ¶ 2. The 2010 amendments, however, did not
become effective until July 1, 2010, after Vohnoutka obtained Huber’s mental-health
records.
        2
          Because the subpoena duces tecum in this case is invalid and unenforceable
because it was not properly served on Heimerl, we need not consider or decide whether a
valid subpoena duces tecum would constitute “specific authorization in law” for the
release of health records. See Minn. Stat. § 144.293, subd. 2(2). Health records typically
contain information that is protected by a medical privilege. See Minn. Stat. § 595.02,
subd. 1(d), (g) (2014). The privilege “belongs to the patient” and, thus, “may be waived
only by the patient.” Wenninger v. Muesing, 307 Minn. 405, 407, 240 N.W.2d 333, 335

                                           11
according to the third method because Vohnoutka was not a provider. See id., subd. 2(3);

Minn. Stat. § 144.291, subd. 2(h) (2014) (defining “provider”). Therefore, Heimerl’s

release of Huber’s mental-health records was unauthorized.

A.     Use of False Pretenses

       We turn to Huber’s main argument, and Vohnoutka’s first counterargument, which

concerns the question whether Vohnoutka “obtain[ed] . . . the health records . . . under

false pretenses.” See Minn. Stat. § 144.298, subd. 2(3).

       The Minnesota Health Records Act defines ten words or terms but does not define

the term “false pretenses.” See Minn. Stat. § 144.291. The appellate courts have not


(1976), superseded by statute on other grounds, Minn. Stat. § 595.02, subd. 5 (2014). A
person waives the medical privilege if he or she “voluntarily places in controversy” his or
her physical or mental health in the course of a pending civil action. Minn. R. Civ. P.
35.03. If a person has waived the medical privilege pursuant to rule 35.03, the disclosure
of the patient’s health records is governed by rule 35.04, which provides a means for the
disclosure of medical records “as to which privilege has been waived.” Minn. R. Civ. P.
35.04(b). In that event, it appears that rule 35.04 is “the exclusive means” of conducting
discovery into the medical issues for which the privilege has been waived. See
Wenninger, 307 Minn. at 412, 240 N.W.2d at 337. In that context, an attorney’s
disclosure of health records to a rule 35 examiner is specifically authorized by law and,
thus, permitted by the Minnesota Health Records Act. Newman v. Brendel & Zinn, Ltd.,
691 N.W.2d 480, 483 (Minn. App. 2005), review denied (Minn. Mar. 29, 2005). Rule 35
applies in a child-custody proceeding to govern the disclosure of mental-health records,
at least with respect to the petitioning party’s mental-health records. See Morey v.
Peppin, 353 N.W.2d 179, 183 (Minn. App. 1984), rev’d on other grounds, 375 N.W.2d
19 (Minn. 1985). If rule 35.03 applies, an attorney should obtain medical records
pursuant to rule 35.04, which allows the district court to supervise the discovery process
and to “use its protective authority to prevent disclosures that are irrelevant to the custody
question or otherwise annoying, embarrassing, oppressive, or unduly burdensome.”
Morey, 353 N.W.2d at 183 (citing Minn. R. Civ. P. 26.03). Thus, if rule 35 applies, it
appears that an attorney should not seek to obtain medical records pursuant to rule 45.
See Wenninger, 307 Minn. at 412, 240 N.W.2d at 337. Similarly, in a criminal case, an
attorney should seek to obtain medical records of a victim only pursuant to a court order.
See Minn. R. Crim. P. 22.01, subd. 2.

                                             12
interpreted the term as it is used in the Minnesota Health Records Act. The district court

reasoned that the term “false pretenses,” in this context, “includes the element of intent to

deceive or defraud.” On appeal, Huber appears to contend that “false pretenses” requires

an intent to deceive, but he cites no authority for such a requirement. Vohnoutka offers a

slightly different meaning for the term and cites two authorities from which a working

definition might be derived. First, he notes that, at common law, “false pretenses” was

the label of a criminal offense for “knowingly obtaining title to another’s personal

property by misrepresenting a fact with the intent to defraud.”           See Black’s Law

Dictionary 678 (9th ed. 2009). Second, he notes that a statute criminalizing identify theft

defines the term “false pretenses” to mean, in part, “any false, fictitious, misleading, or

fraudulent information or pretense or pretext.” See Minn. Stat. § 609.527, subd. 1(c)

(2014). Absent a definition of “false pretenses” within the Minnesota Health Records

Act, we will rely on the legislature’s definition of the same term within the identity-theft

statute, which seems to incorporate the common-law definition. See Dayton Hudson

Corp. v. Johnson, 528 N.W.2d 260, 262 (Minn. App. 1995) (borrowing definition from

another statute to interpret undefined statutory term). Thus, we will analyze the evidence

to determine whether Vohnoutka used any false, fictitious, misleading, or fraudulent

information or pretense or pretext as a means of inducing Heimerl to release Huber’s

mental-health records.

       The district court concluded that Vohnoutka was entitled to summary judgment

because Huber “failed to produce evidence that Mr. Vohnoutka intended to deceive Ms.

Heimerl.” Huber argues that the district court erred because “[t]he record contains


                                             13
substantial circumstantial evidence that Mr. Vohnoutka intended to deceive Ms. Heimerl

into believing that” she was authorized or required to release Huber’s mental-health

records to Vohnoutka. Huber focuses on Vohnoutka’s written correspondence to Heimerl

and contends that a fact-finder reasonably could draw inferences that would allow the

conclusion that Vohnoutka used false pretenses to obtain Huber’s mental-health records.

       More specifically, Huber contends that the circumstantial evidence in the

summary-judgment record is sufficient to prove that Vohnoutka intended to deceive

Heimerl into believing that Huber had consented to her release of the records to

Vohnoutka. The language that Vohnoutka used in his September 22, 2009 letter supports

Huber’s contention. The letter stated that Huber is a party to a pending child-custody

case, that Heimerl had been “previously requested . . . to provide counseling records”

relating to Huber, that Huber had “executed an Authorization for release of that

information,” that Heimerl had not yet released any records, that trial was scheduled for

the near future, and that “review of those records is necessary prior to that trial.” A

reasonable fact-finder could rely on these statements in the letter as the basis of a finding

that Vohnoutka wanted Heimerl to believe that Huber had consented to the release that

Vohnoutka was requesting, even though Huber had not done so. Vohnoutka contends

that he did not mislead Heimerl because both he and Heimerl believed that Huber’s

signed consent form allowed Heimerl to release records to Vohnoutka. Vohnoutka’s

contention would require a fact-finder to conclude that he, an attorney, had an inaccurate

understanding of the law and the consent form.




                                             14
       Huber also contends that the circumstantial evidence in the summary-judgment

record is sufficient to prove that Vohnoutka intended to deceive Heimerl into believing

that she was obligated to release Huber’s mental-health records because of the subpoena

duces tecum. Again, the language of Vohnoutka’s September 22, 2009 letter supports

Huber’s contention.     After stating the information recited above, the letter states,

“Accordingly, enclosed and served upon you by mail, please find a Subpoena to produce

documents.” Huber notes that, by stating that Heimerl had been “served,” the letter

implied that Heimerl was obligated by law to respond.            Huber also notes that the

subpoena duces tecum included a stern warning that Heimerl could be found in contempt

of court for “failure to obey” the subpoena. Huber points out that the scope of the

documents described in the subpoena duces tecum is broader than the records described

in the consent form to which the letter referred. Huber also points out that Vohnoutka did

not give him notice of the subpoena. Huber contends that the circumstances indicate that

Vohnoutka was aware of the defects in his use of the subpoena but wished to conceal

them from Huber and his attorney. Indeed, Vohnoutka’s failure to notify Huber of the

subpoena duces tecum denied Huber the opportunity to object and seek a protective order

to prevent disclosure of the privileged information. See Minn. R. Civ. P. 45.03(c)(1)(C).

       Huber contends that Vohnoutka used false pretenses even if each of the statements

in his letter could be understood as true, if read literally and in isolation from the context.

Huber cites caselaw for the proposition that, “even if one has no duty to disclose a

particular fact, if one chooses to speak he must say enough to prevent the words from

misleading the other party.” M.H. v. Caritas Family Servs., 488 N.W.2d 282, 288 (Minn.


                                              15
1992) (holding that plaintiff’s evidence was sufficient to defeat defendant’s summary-

judgment motion on plaintiff’s claim of negligent misrepresentation). In addition, a

person may commit fraud by nondisclosure if the person suppressed facts of which he

was “under a legal or equitable obligation to communicate to the other, and which the

other party is entitled to have communicated to him.” Richfield Bank & Trust Co. v.

Sjogren, 309 Minn. 362, 365, 244 N.W.2d 648, 650 (1976). A person may have a duty to

communicate material facts if necessary “to prevent his words from misleading the other

party” or if he “has special knowledge of material facts to which the other party does not

have access.” Id. at 366, 244 N.W.2d at 650 (quotations omitted). These principles

might be helpful in a different case. But it is unnecessary to apply them in this case

because the parties have identified a working definition of the term “false pretenses.”

       We conclude that the evidence in the summary-judgment record is sufficient to

allow a reasonable fact-finder to find that Vohnoutka used false pretenses when he sent

the letter and subpoena duces tecum to Heimerl on September 22, 2009. Thus, the district

court erred by granting Vohnoutka’s motion for summary judgment on the ground that

Huber failed to produce sufficient evidence that Vohnoutka used false pretenses.

B.     Causation

       We next turn briefly to Vohnoutka’s second counterargument, which is asserted in

the alternative to his first counterargument. Vohnoutka contends that he may not be held

liable because, even if he used false pretenses, his false pretenses did not cause Heimerl

to release Huber’s mental-health records. Vohnoutka did not present this argument to the

district court. A party may not make an argument for the first time on appeal and thereby


                                            16
seek appellate relief on an issue that was not litigated in the district court. See, e.g.,

Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). “[T]he preservation requirement

prevents litigants from suffering unfair surprise at the appellate level if they had no

opportunity to address the issue in the district court” and “avoids frequent remands for

additional evidence gathering and findings, serves the need for finality in litigation and

conservation of judicial resources, and prevents appellate courts from frequently holding

everything accomplished below for naught.” Doe 175 ex rel. Doe 175 v. Columbia

Heights Sch. Dist., 842 N.W.2d 38, 43 n.1 (Minn. App. 2014) (quotations omitted).

Because Vohnoutka did not present a causation argument to the district court, we will not

consider the argument on appeal.

C.    Evidence of Compensable Injury

      We last turn to Vohnoutka’s third counterargument, which is asserted in the

alternative to his first and second counterarguments. Vohnoutka contends that this court

should affirm the district court on alternative grounds. Specifically, he contends that

Huber cannot establish his claim because he did not submit evidence of an injury that

justifies an award of compensatory damages. Vohnoutka preserved this argument by

presenting it to the district court in his summary-judgment memorandum. The district

court did not analyze this argument with respect to Huber’s claim under the Minnesota

Health Records Act, although the district court analyzed a similar argument with respect

to Huber’s negligence claim. Because Vohnoutka presented the argument to the district

court, he may re-assert the argument on appeal as an alternative ground for affirmance of

the district court’s decision. See Day Masonry, 781 N.W.2d at 331.


                                           17
       Vohnoutka contends that Huber did not present evidence of a compensable injury

because Huber “didn’t specify any damages that he suffered from respondent having his

counseling records.” In response, Huber contends that he sustained two types of injuries.

First, Huber contends that Vohnoutka’s possession of his mental-health records put him

at a disadvantage in the child-custody proceeding. Second, Huber contends that he

experienced “mental anguish.”

       With respect to Huber’s first contention, the Anoka County District Court awarded

sole legal custody and sole physical custody to the child’s mother based on its finding

that Huber and the child’s mother could not effectively communicate with each other.

Huber’s mental-health records were not admitted into evidence, and the ultimate decision

on custody indicates that Huber’s mental health was not a factor in the decision. Huber

has not identified any other way in which Vohnoutka’s possession of his mental-health

records had an impact on the child-custody proceedings.          It appears that Huber’s

contention is merely conjectural. “Damages which are remote and speculative cannot be

recovered.” Jackson v. Reiling, 311 Minn. 562, 563, 249 N.W.2d 896, 897 (1977).

       With respect to Huber’s second contention,3 Huber’s evidence is contained in his

own affidavit, in which he states that he has suffered “severe emotional distress that

continues to this day” and continues to suffer “stress, anxiety, depression, sleeplessness,

       3
        We assume without deciding that the Minnesota Health Records Act authorizes
an award of compensatory damages for a plaintiff’s emotional distress or mental anguish
arising from an unauthorized release of health records. Vohnoutka does not argue that
the statute does not allow an award of damages for such an injury. A person who violates
the act “is liable to the patient for compensatory damages.” Minn. Stat. § 144.298,
subd. 2. But the act does not describe the types of injuries for which compensatory
damages may be awarded.

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constant worry in addition to other symptoms.” Vohnoutka contends that Huber has

submitted only “bare, conclusory allegations which are insufficient to create a fact issue

concerning damages.”

      Huber’s evidence is similar to that of the plaintiff in Navarre v. South Washington

County Schools, 652 N.W.2d 9 (Minn. 2002), who testified at trial that the defendant’s

conduct had “made her extremely upset and caused her to be afraid to go out in public.”

Id. at 30. The supreme court noted that the respondent’s evidence of emotional distress

was “conclusory and not substantiated by any medical testimony” but, nonetheless, was

sufficient to allow her claim to be submitted to the jury. Id. In light of Navarre, Huber’s

evidence is sufficient to create a genuine issue of material fact on the factual question

whether he experienced emotional distress and mental anguish. Id. Accordingly, we

reject Vohnoutka’s argument for affirming the district court’s decision on alternative

grounds.

      In sum, the district court erred by granting summary judgment in favor of

Vohnoutka on Huber’s claim under the Minnesota Health Records Act.

      Reversed and remanded.




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