                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2012).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A13-2097

                                 Jovani Nassar, et al.,
                                     Appellants,

                                          vs.

                                 Fady Chamoun, et al.,
                                    Respondents.

                              Filed September 22, 2014
                                      Affirmed
                                  Rodenberg, Judge

                             Dakota County District Court
                              File No. 19HA-CV-10-499

Evan H. Weiner, John R. Neve, Webb, PLLC, Minneapolis, Minnesota (for appellants)

James A. Reding, Jr., Matthew P. Stewart, Reding & Pilney, PLLP, Lake Elmo,
Minnesota (for respondents)

      Considered and decided by Worke, Presiding Judge; Cleary, Chief Judge; and

Rodenberg, Judge.

                       UNPUBLISHED OPINION

RODENBERG, Judge

      Appellants Jovani Nassar and Sonia Morales challenge the district court’s

dismissal of their claims after a jury verdict, arguing that the district court erred by

(1) instructing the jury on comparative fault; (2) including a nonparty on the special

verdict form; (3) excluding evidence of the parties’ purchase agreements and
homeowners’ association covenants; and (4) denying their alternative motions for

judgment as a matter of law (JMOL) or a new trial. We affirm.

                                        FACTS

      In March 2008, respondents Fady and Sylvana Chamoun purchased a home in the

City of Rosemount from U.S. Home Corporation d/b/a Lennar Homes, Inc. (Lennar).

The purchase agreement contained a “master disclosure and information addendum.”

Paragraph 13.2 of this addendum describes the drainage and utility easements:

             There are drainage and utility easements along the perimeter
             of every homesite in the Community. . . . Nothing may be
             done in any drainage and utility easement area to impede the
             drainage of surface water or to interfere with the installation,
             maintenance and repair of utility lines and structures. Play
             structures, landscaping, accessory structures (such as small
             sheds) or other improvements may not be installed in the
             drainage and utility easement areas, because they might
             change the drainage pattern and/or might have to be removed,
             at the homeowner’s expense, in order to maintain
             underground utility lines.

In August 2008, appellants purchased the home immediately adjacent to respondents’

home and entered into a similar purchase agreement with Lennar, containing the same

addendum.

      Respondents closed on the purchase of their home in September 2008. Before

closing, and before ground was broken for construction of appellants’ home, Lennar

approved respondents’ landscaping plan, and respondents installed landscaping. The

parties dispute whether part of respondents’ landscaping falls within the drainage

easement and whether respondents added fill to the easement.




                                            2
      Appellants’ expert testified that, before appellants’ closing in March 2009, the

grade of appellants’ property was lowered approximately five feet.1 Both Lennar and the

City of Rosemount approved the property’s final grade. But when appellants attempted

to landscape their property in July 2009, they discovered a grading issue that they claim

caused water to flow from respondents’ property to theirs. Appellants concluded that

both properties needed to be regraded to create a drainage swale between them. In

response to these concerns, appellants, respondents, Lennar, and the City of Rosemount

negotiated, and Lennar performed, a regrading of the drainage easement on both

properties without removing respondents’ landscaping.2

      Appellants were not satisfied after the regrading. They sued respondents, alleging

negligence, nuisance, trespass, and third-party-beneficiary breach-of-contract claims.

The district court granted respondents’ motion for summary judgment. On appeal, we

reversed the district court’s grant of summary judgment in part and remanded for further

proceedings. Nassar v. Chamoun, No. A11-793, 2012 WL 426595, at *1 (Minn. App.

Feb. 13, 2012). We explained that “[t]he drainage of surface water onto neighboring land

is governed by the reasonable-use doctrine, which balances the benefits of drainage with

the harm to the neighboring landowner.” Id. at *3. Concerning appellants’ breach-of-


1
  Appellants’ home is a “walkout,” with the lower level being at ground level in the back
of the house. It appears from the record that the regrading may have been done to
accommodate the walkout configuration.
2
  Appellants appear to argue that, even after the regrading, there was no drainage swale
between the two properties. Respondents appear to argue that there was always a
drainage swale and that the water drainage was proper at all times. The parties’
competing arguments, photographs of the properties, and the opinions of multiple expert
witnesses were considered by the jury.

                                           3
contract claim, we concluded that “appellants were not intended beneficiaries and are

precluded from enforcing the agreement as third party beneficiaries.” Id. at *2. We also

held that appellants were precluded from basing their other claims on any contractual

obligations arising from the purchase agreements, but that appellants could bring other

claims based on the reasonable-use doctrine. Id. at *4-5. Because appellants alleged

negligence and nuisance based on the reasonable-use doctrine, we reversed the district

court’s grant of summary judgment on those two claims.           Id. at *4.   But because

appellants alleged trespass based solely on the purchase agreement, we affirmed the grant

of summary judgment on that claim. Id. at *5.

      On remand, appellants moved to amend their complaint to add additional parties,

including the homeowners’ association, the City of Rosemount, and the company that

landscaped respondents’ property. The district court denied the motion.3 Appellants

were permitted to amend their complaint to include a trespass claim against respondents

based on the reasonable-use doctrine. The case was tried to a jury over seven days.

      Appellants’ expert witnesses opined that removal of respondents’ landscaping and

regrading of the drainage swale were necessary to fix an extensive drainage problem that

violated city code. Respondents’ expert recommended that appellants install a retaining

wall on their property to fix a “pretty localized” drainage issue. There was also testimony



3
  Appellants had a separate arbitration with Lennar to resolve their claim regarding the
grading of the property. The arbitrator ordered Lennar to pay for and repair the drainage
swale once appellants received city approval of their repair plan. We affirmed the
arbitrator’s award on appeal. Nassar v. U.S. Home Corp., No. A13-1137, 2014 WL
621700, at *1 (Minn. App. 2014), review denied (Minn. Apr. 29, 2014).

                                            4
that some of the damage to appellants’ home and property was caused by a lack of

gutters, deficient window flashing, and a lack of sod and landscaping to prevent erosion.

       The jury returned a lengthy special verdict, concluding that (1) neither respondents

nor appellants created a nuisance affecting appellants’ property; (2) Lennar created a

nuisance affecting appellants’ property; (3) neither Lennar nor respondents were

negligent; (4) appellants were negligent and their negligence was a direct cause of their

claimed damages; (5) neither respondents nor Lennar trespassed on appellants’ property;

and (6) appellants had proven no damages. The district court entered judgment for

respondents based on the jury’s verdict.

       Appellants moved for a new trial, JMOL, and amended findings. The district

court denied these motions. This appeal followed.

                                     DECISION

                                            I.

       Appellants first challenge the jury instructions. “The district court has broad

discretion in determining jury instructions and we will not reverse in the absence of abuse

of discretion.” Hilligoss v. Cargill, Inc., 649 N.W.2d 142, 147 (Minn. 2002). If a jury

instruction was both erroneous and prejudicial to appellants, then appellants are entitled

to a new trial. See Youngquist v. W. Nat’l Mut. Ins. Co., 716 N.W.2d 383, 386 (Minn.

App. 2006). “A new trial is also required if the instruction was erroneous and its effect

cannot be determined.” Morlock v. St. Paul Guardian Ins. Co., 650 N.W.2d 154, 159

(Minn. 2002).




                                            5
       A district court “errs if it gives a jury instruction that materially misstates the law.”

Youngquist, 716 N.W.2d at 385-86. “An instruction that is so misleading that it renders

incorrect the instruction as a whole will be reversible error . . . . Where instructions

overall fairly and correctly state the applicable law, appellant[s are] not entitled to a new

trial.” Hilligoss, 649 N.W.2d at 147.

       Appellants chose to assert three claims against respondents for (1) negligence,

(2) nuisance, and (3) trespass. Because these claims arose from the drainage of surface

water onto neighboring land, the reasonable-use doctrine applies. See Highview N. Apts.

v. Cnty of Ramsey, 323 N.W.2d 65, 71 (Minn. 1982). The reasonable-use doctrine

balances the benefits “to the land drained” with the harms to the neighboring property

“receiving the burden.” Enderson v. Kelehan, 226 Minn. 163, 168, 32 N.W.2d 286, 289

(1948). “This is a flexible doctrine, presenting a question of fact to be resolved according

to the circumstances of each case.” Highview N. Apts., 323 N.W.2d at 71. “No one

factor or circumstance is controlling.” Enderson, 226 Minn. at 168-69, 32 N.W.2d at

289.

       Appellants argue on appeal that the district court erred in instructing the jury “on

principles of ordinary negligence.” But appellants brought a negligence claim against

respondents, and they proposed jury instructions that included the definitions of

negligence and its reasonable-care standard. See 4 Minnesota Practice, CIVJIG 25.10

(2006) (explaining that “[n]egligence is the failure to use reasonable care” and that

“[r]easonable care is the care a reasonable person would use in the same or similar

circumstances”). The district court agreed with appellants and gave the instructions


                                               6
appellants proposed regarding negligence and reasonable care. The district court did not

err in instructing the jury on principles of ordinary negligence, and the instructions given

were appropriate based on the claims advanced by appellants.

       Appellants next suggest that the jury may have confused the reasonable-care and

reasonable-use instructions.     Appellants themselves proposed instructing the jury

regarding both doctrines. They cannot now argue that the district court confused the jury

by instructing it as appellants themselves proposed. See Frazier v. Burlington N. Santa

Fe Corp., 811 N.W.2d 618, 628 (Minn. 2012) (explaining that a party cannot try a case

on one theory without objecting to the jury instructions “while holding a second theory in

reserve for a possible appeal”). And, more importantly, there is nothing in the record to

suggest that the jury was confused by either instruction. See State v. Weaver, 386

N.W.2d 413, 418 (Minn. App. 1986) (“When reviewing jury instructions, a reviewing

court must assume that the jurors were intelligent and practical people.” (quotation

omitted)), review denied (Minn. June 19, 1986). The jury concluded that respondents had

neither unreasonably used their property nor failed to exercise reasonable care. The

verdict reflects no confusion.

       Appellants also challenge the jury instruction regarding comparative fault, arguing

that comparative fault does not apply in a reasonable-use case. For all three claims, the

district court instructed the jury to compare the relative fault of (1) appellants and

respondents and (2) appellants, respondents, and Lennar. See 4 Minnesota Practice,

CIVJIG 28.15 (2006). Appellants have cited no Minnesota caselaw suggesting that the

comparative-fault instruction the district court gave materially misstated the law. See


                                             7
Youngquist, 716 N.W.2d at 385-86 (explaining that a district court errs when its jury

instructions “materially misstate[] the law”).      The district court exercised its broad

discretion to craft thoughtful jury instructions that would cover all of the areas addressed

by the special verdict form. See Hilligoss, 649 N.W.2d at 147 (“The district court has

broad discretion in determining jury instructions and we will not reverse in the absence of

abuse of discretion.”).

       Appellants argue that we should follow the reasoning of a California case, W. Salt

Co. v. City of Newport Beach, wherein the court held that a contributory-fault instruction

was improper in a case involving surface-water damage. 271 Cal. App. 2d 397, 402 (Cal.

Ct. App. 1969). But California does not apply Minnesota’s reasonable-use doctrine. See

Highview N. Apts., 323 N.W.2d at 71 (stating that Minnesota’s reasonable-use doctrine is

a “flexible doctrine”); W. Salt. Co., 271 Cal. App. 2d at 403 (stating California’s

doctrine). Because W. Salt. Co. is from a foreign jurisdiction, it is not binding. Midland

Credit Mgmt. v. Chatman, 796 N.W.2d 534, 536 n.3 (Minn. App. 2011) (“Only the

decisions of the Minnesota Supreme Court and the U.S. Supreme Court are binding on

this court.”). Because it applies a very different substantive law, it is also unpersuasive.

       Moreover, even if the district court’s comparative-fault instruction was somehow

erroneous, appellants cannot establish that it was prejudicial.        See Youngquist, 716

N.W.2d at 386 (explaining that a new trial is warranted only when both error and

prejudice are established). “An error is prejudicial if there is a reasonable likelihood that

the giving of the instruction in question would have had a significant effect on the verdict

of the jury.” Id. (quotation omitted).


                                              8
        The jury determined that respondents did not create a nuisance, were not

negligent, and did not trespass on appellants’ property. Appellants were the only ones

found by the jury to be both at fault and the cause of appellants’ damages. Therefore, the

jury never reached or answered the comparative-fault questions on the special verdict

form. Because the jury never reached the comparative-fault questions, the comparative-

fault instruction could not have had any significant effect on the jury’s verdict. The

district court did not abuse its discretion in instructing the jury.

                                               II.

       Appellants next challenge the district court’s decision to include Lennar on the

special verdict form. “District courts have broad discretion to decide whether to use

special verdicts and what form special verdicts are to take.” Poppler v. Wright Hennepin

Coop. Elec. Ass’n, 845 N.W.2d 168, 171 (Minn. 2014). Appellants are entitled to a new

trial only when the special verdict form was both erroneous and prejudicial. See RAM

Mut. Ins. Co. v. Meyer, 768 N.W.2d 399, 406-07 (Minn. App. 2009) (applying the abuse-

of-discretion standard to a special-verdict question), review denied (Minn. Oct. 20, 2009).

       “When two or more persons are severally liable, contributions to awards shall be

in proportion to the percentage of fault attributable to each . . . .” Minn. Stat. § 604.02,

subd. 1 (2012). “Persons” in this context means “parties to the transaction,” not “parties

to the lawsuit.” Staab v. Diocese of St. Cloud, 813 N.W.2d 68, 75 (Minn. 2012). “If

there is evidence of conduct which, if believed by the jury, would constitute negligence

(or fault) . . . , the fault or negligence of that party should be submitted to the jury.” Lines

v. Ryan, 272 N.W.2d 896, 902 (Minn. 1978) (quotation omitted). This is true even when


                                               9
a party has been dismissed from the lawsuit or has been released. Id. at 902-03. The

jury’s apportionment on a special verdict form should include everyone who “may have

contributed to the arising of the cause of action.” Id. at 903.

       Appellants argue that, under Matter v. Nelson, 478 N.W.2d 211 (Minn. App.

1991), a property owner “has a continuing duty to take reasonable measure[s] to protect

the owners of adjoining property from harm due to . . . water drainage” regardless of who

created the drainage problem and that therefore Lennar should not have been included on

the special verdict form. But the facts in Matter are very different from the facts here. In

Matter, the appellants owned a mobile home park for nine years, during which time they

constructed a drainage swale to correct a water-drainage problem. 478 N.W.2d at 212-

13. “[A]n ‘ice dam’ diverted water out of the swale” and damaged the respondents’

property, but the appellants took no further remedial action. Id. at 213. The appellants

were found to have created a nuisance. Id. Unlike the appellants in Matter, respondents

here neither created the drainage swale nor established the final grading of the properties.

And respondents did not refuse to take remedial action; they agreed to and cooperated

with the regrading Lennar performed. Matter supports the proposition that property

owners are responsible for water-drainage problems that they create and fail to correct. It

does not address whether the fault of a previous property owner and creator of a drainage

problem is to be included on a special verdict form in a case such as this.

       Here, the district court crafted a thorough special verdict form, including

alternative questions concerning the allocation of fault, stating that it did so in order to




                                             10
“make an intelligent decision” regarding judgment upon the verdict. The district court

did not abuse its discretion in including Lennar on the special verdict form.

       And, as with the issues concerning jury instructions, appellants again cannot

establish prejudice. The district court instructed the jury that it would decide “some of

the questions on the verdict form” as if Lennar was a party to the lawsuit. It also

instructed the jury that it “must not be concerned that a particular answer on the verdict

form is favorable to one party or the other.” See 4 Minnesota Practice, CIVJIG 10.20

(2006). In answer to questions 1, 11, and 17, the jury found that respondents did not

create a nuisance, were not negligent, and did not trespass on appellants’ property.

Nothing in the record suggests that the jury was somehow confused or misled by the

presence of questions 8, 15, and 19, asking whether Lennar created a nuisance, was

negligent, or trespassed on appellants’ property. We assume that the jury followed the

district court’s instructions and answered the special-verdict questions as posed to them

and consistent with the instructions given them. See Weaver, 386 N.W.2d at 418 (“When

reviewing jury instructions, a reviewing court must assume that the jurors were intelligent

and practical people.” (quotation omitted)).

       Finally, when instructing the jury regarding the final special-verdict question

concerning what amount of money would compensate appellants for their damages, the

district court properly instructed the jury that it “must answer this question regardless of

[its] answers to the other questions on the verdict form” and must “not question the

possible effects of [its] answers to other questions.” See 4A Minnesota Practice, CIVJIG

90.10 (2006). The jury concluded that appellants had proven no damages (answering “0” to


                                               11
the question of what amount of money would fairly and adequately compensate appellants

for their damages). We again assume that the jurors followed the district court’s instruction

to answer this question regardless of the other special-verdict questions. Because the jury

determined that respondents were not at fault under any of appellants’ theories of liability

and that appellants were entitled to no damages, there is no reasonable likelihood that

including Lennar on the special verdict form had a significant effect on the jury’s verdict.

                                             III.

       Appellants challenge the district court’s decision to exclude evidence of the

parties’ purchase agreements and homeowners’ association covenants. The district court

excluded this evidence because, as explained by our earlier opinion, appellants cannot use

the documents to support claims for breach of contract. The district court concluded that

the documents were irrelevant to appellants’ claims for negligence, nuisance, and

trespass. In addition, the district court intended to present the jury only with “tort claims

and not contractual claims” and determined that the documents might confuse the jury.

       “The admission of evidence rests within the broad discretion of the [district] court

and its ruling will not be disturbed unless it is based on an erroneous view of the law or

constitutes an abuse of discretion.” Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d

42, 45-46 (Minn. 1997) (quotation omitted). Even if the district court’s evidentiary ruling

was erroneous, we will grant a new trial only if the complaining party can demonstrate

prejudicial error. Id. at 46.

       Appellants rely on two cases in arguing that the district court erred in excluding

the documents: Foster v. Herbison Constr. Co., 263 Minn. 63, 115 N.W.2d 915 (1962)


                                              12
and Dornack v. Barton Constr. Co., 272 Minn. 307, 137 N.W.2d 536 (1965). In both

cases, the supreme court determined that a contract between a construction company and

the State of Minnesota should have been admitted into evidence for the jury’s

consideration of a construction company’s duty to an injured driver. Foster, 263 Minn. at

63-64, 70, 115 N.W.2d at 915-16, 919; Dornack, 272 Minn. at 311-312, 317-18, 137

N.W.2d at 540, 543-44. But those cases involve construction accidents and construction

contracts with language benefiting the general public. They do not require the admission

of the parties’ purchase agreements and homeowners’ association covenants. Here, each

purchase agreement benefits only the parties to the contract.

       Appellants’ claims of negligence, nuisance, and trespass are not based on the

purchase agreements or the homeowners’ association covenants. The documents are

therefore irrelevant to proving those claims.      See Minn. R. Evid. 401 (“‘Relevant

evidence’ means evidence having any tendency to make the existence of any fact that is

of consequence to the determination of the action more probable or less probable than it

would be without the evidence.”). Other evidence regarding the actions and duties of the

parties was properly introduced at trial. The district court acted within its discretion in

excluding evidence of the parties’ purchase agreements and homeowners’ association

covenants.

                                            IV.

       Finally, appellants argue that the jury’s findings that Lennar created a nuisance

and that appellants were entitled to no damages are “hopelessly contradictory.” “An

answer to a special verdict question should be set aside only if it is perverse and palpably


                                            13
contrary to the evidence, or where the evidence is so clear as to leave no room for

differences among reasonable persons.”          Moorhead Econ. Dev. Auth. v. Anda, 789

N.W.2d 860, 888 (Minn. 2010) (quotation omitted). “The test is whether the special

verdict answers can be reconciled in any reasonable manner consistent with the evidence

and its fair inferences. If the answers to special verdict questions can be reconciled on

any theory, the verdict will not be disturbed.” Dunn v. Nat’l Beverage Corp., 745

N.W.2d 549, 555 (Minn. 2008) (quotations and citation omitted).4

       Appellants rely on a North Carolina case, Pendergrast v. Aiken, 236 S.E.2d 787

(N.C. 1977), to argue that they are entitled to a new trial. But Pendergrast involves

vastly different facts from those here and applies a different nuisance law that requires

the finding of a substantial injury. 236 S.E.2d at 788-90, 799. The jury here did not have

to find that appellants had proved recoverable damages to the property to find that Lennar

created a nuisance. Pendergrast is of no help to us in applying Minnesota law to the facts

of this case because it is neither binding, see Midland Credit Mgmt., 796 N.W.2d at 536

n.3 (“Only the decisions of the Minnesota Supreme Court and the U.S. Supreme Court

are binding on this court.”), nor persuasive.

       The jury, having been properly instructed as discussed above, concluded that

Lennar created a nuisance that affected appellants’ property. The district court instructed

the jury that it must answer the damages question “regardless of [its] answers to the other


4
  The parties dispute the standard of review applicable to the review of a district court’s
determination of whether a jury’s verdict is inconsistent. Because we conclude that the
jury’s verdict is not internally inconsistent under any analysis, we need not resolve the
parties’ dispute concerning the precise formulation of the standard of review.

                                                14
questions on the verdict form” and that “[a] party asking for damages must prove the

nature, extent, duration, and consequences of his or her harm.” See CIVJIG 90.10; 4A

Minnesota Practice, CIVJIG 90.15 (2006). The jury concluded that appellants had failed to

meet their burden to prove damages. These special-verdict answers are not contradictory.

They reflect adherence to the district court’s instructions concerning the independence of

the damages question from the other questions on the verdict form.

       The jury also concluded that Lennar did not “negligently interfere with the

comfortable use or enjoyment of [appellants’] life or property.” This conclusion is

entirely consistent with its finding that appellants had proven no damages. Because the

jury’s answers are easily reconciled, appellants are not entitled to a new trial, and the

district court did not err in denying appellants’ motions for JMOL or a new trial.

       In sum, the district court acted within its discretion in instructing the jury, in

including Lennar on the special verdict form, and in its evidentiary rulings, and the jury’s

verdict reflects no inconsistency or confusion. After a lengthy trial involving conflicting

evidence, the jury found that respondents were not at fault and that appellants had not

proven any damages.

       Affirmed.




                                            15
