2011 NG 102 8008 102 2011 102 2014 102 2014 102 v. Howard J. Rubin, Respondent. (2025)

OPINION

This appeal arises out of a lawsuit brought by appellant Serene E. Warren. Warren is a beneficiary of several trusts that own shares of respondent ACOVA, Inc., her family's closely held business. Warren's father, Kenneth (Ken) L. Evenstad,¹ and brother, respondent Mark B. Evenstad, were on the board of directors of ACOVA and held other leadership roles at ACOVA and its predecessor, Upsher-Smith Laboratories (USL). In her complaint, Warren brought numerous claims that, in general, derive from two separate factual bases. First, Warren brought claims related to decisions Ken and Mark made as directors, officers, and beneficial shareholders of ACOVA and USL that she contends were unfairly prejudicial to her and improperly benefited Ken and Mark.² Second, Warren brought claims related to the conduct of respondent Howard J. Rubin as trustee of the various trusts.

Before trial, Warren amended her original complaint. Following the amendment, the district court dismissed several of Warren's claims for failure to state a claim upon which relief can be granted. Later, Warren moved to file a second amended and supplemental complaint. The district court granted in part and denied in part Warren's motion, thereby reinstating some of her claims. After a bench trial and posttrial motions, the district court denied Warren's claims related to Rubin's administration of the trusts, including her breach-of-fiduciary-duty claim. But, with respect to her claims against Ken, Mark, and ACOVA, the district court determined that Warren was entitled to equitable relief under section 302A.751, subdivision 1(b), and awarded Warren's trusts over $40 million in payments from ACOVA.

On appeal, Warren raises a number of issues. Warren first challenges the district court's determination that Rubin did not breach his fiduciary duty and the related denial of her request for removal of Rubin as trustee. She also challenges the district court's pretrial dismissal of certain claims for failure to state a claim. Lastly, she disputes the partial denial of her motion to file a second amended and supplemental complaint. By cross-appeal, the Evenstad parties challenge the district court's grant of equitable relief pursuant to section 302A.751, subdivision 1(b). They also argue the district court abused its discretion by excluding evidence of Ken's pretrial testimony.

With regard to Warren's arguments, we conclude the district court erred in its analysis of Warren's claims against Rubin as trustee and therefore reverse the district court's dismissal of those claims and remand them for further consideration. We also reverse and remand the district court's pretrial dismissal of one of Warren's claims—her unjust-enrichment claim against Ken. But we affirm the district court's decision to dismiss Warren's “disguised distribution” claims because those claims are derivative claims belonging to ACOVA. We also affirm the district court's partial denial of Warren's motion to file a second amended and supplemental complaint.

With regard to the Evenstad parties’ arguments on cross-appeal, we reverse the district court's grant of equitable relief pursuant to section 302A.751, subdivision 1(b), because Warren lacks standing to bring such an action as a beneficial owner of ACOVA shares, but we remand for the district court to consider alternative bases for standing. Finally, we affirm the district court's decision to exclude evidence of Ken's pretrial testimony.

We therefore affirm in part, reverse in part, and remand.

FACTS

The following facts were found by the district court or otherwise describe the procedural history of this case. This case involves the Evenstad family, which consists of Ken, Grace, and their two children, Mark and Warren. Ken and Grace purchased the pharmaceutical company USL in 1969 from Grace's uncle. The company grew substantially after being purchased by Ken and Grace. Ken served as the CEO of USL until 2003, when Mark was appointed CEO. As explained in more detail below, Warren had a falling out with Ken, Mark, and Grace. The acrimony among the Evenstad family led to the dissolution of USL. In connection with the dissolution, ACOVA was formed to sell USL's assets, and USL's shares were converted into ACOVA shares. Ken, Mark, and Grace were appointed to ACOVA's board of directors. And Mark served as ACOVA's CEO until his resignation in October 2017, after which he became chairman of the board. Warren has never been an officer or served on the board of USL or ACOVA. At the time of trial, ACOVA was still in the process of selling off USL's assets. The following summarizes the lengthy history that precipitated the disputes within the Evenstad family that resulted in the dissolution of USL and this action.

A. USL's success leads Ken and Grace to initiate complex estate planning.

As USL became increasingly successful, Ken and Grace sought estate-planning advice on how to share the benefits of USL with Warren and Mark in a tax-advantaged manner. In the 1990s, Ken and Grace hired Rubin to be their estate-planning attorney. Rubin helped Ken and Grace develop an estate plan involving trusts designed to remove assets from their taxable estates. As part of this plan, Ken and Grace gifted shares of USL stock to various family trusts that named Warren and Mark, among others, as beneficiaries.

By 2015, all of USL's shares were owned by various trusts for the benefit of the Evenstad family, through which Ken, Grace, Warren, and Mark each beneficially owned approximately one-fourth of USL. Warren beneficially owned her portion of the USL shares through five trusts. Rubin served as the independent trustee of each of these trusts.

Warren was also a beneficiary—along with Ken, Mark, and Mark's and Warren's respective children—of the Grace B. Evenstad 2011 Irrevocable Grantor Trust (the Valley Trust). The Valley Trust was created by Grace in 2011 and funded with USL shares. Rubin served as a trustee of the Valley Trust.

B. Family strife leads to the sale of USL and the formation of ACOVA.

Warren's relationship with her family started fraying around 2014. In 2016, Mark and Warren determined that they wanted financial separation from each other and agreed that selling USL was appropriate. To accomplish the sale, USL formed a new company, ACOVA. USL then became a wholly owned subsidiary of ACOVA, which would sell off USL's assets. The Evenstad family trusts then conveyed their USL shares to ACOVA in exchange for ACOVA shares.

ACOVA finalized the sale of a substantial portion of USL's generic-drug business in May 2017. Following the sale, Ken and Mark, in their roles as board members of ACOVA, approved bonus payments for themselves from the sale proceeds. The bonuses totaled $75 million—$25 million to Ken and $50 million to Mark. The stated reasons for the bonuses were “historical underpayment of executive salaries” and to facilitate the “change in control” of USL to ACOVA.

Later in 2017 and in early 2018, the Evenstad family discussed a buyout of Warren's beneficial interest in ACOVA. Amid these discussions, Ken and Grace, through counsel, requested that Rubin distribute all the Valley Trust's assets to Ken. Ken and Grace asserted that they needed the funds for another business that they owned, to resolve litigation related to fraud claims against USL's pension fund, and to potentially fund the buyout of Warren's beneficial interest in ACOVA. Rubin distributed all the assets of the Valley Trust to Ken on January 14, 2018, a few days after the request. The assets consisted of over 13 million shares of ACOVA and over $59 million in marketable securities and cash.

C. Warren commences her lawsuit.

In March 2018, Warren served her complaint on Ken, Mark, ACOVA, and Rubin. Warren alleged that Ken and Mark abused their positions with ACOVA in a manner that unfairly prejudiced her. She also alleged that Rubin committed serious breaches of trust. Some of Warren's claims related to the bonuses Ken and Mark paid to themselves following the sale of USL's generic-drug business. Other claims related to Rubin's distribution of the Valley Trust's assets to Ken. In all, Warren brought the following seven counts:

(1) Breach of fiduciary duty by Ken and Mark (Count I);

(2) Unfairly prejudicial action by all defendants toward Warren, warranting a statutory buyout at fair value or court-ordered sale of ACOVA pursuant to Minnesota Statutes sections 302A.467 and 302A.751 (2024) (Count II);

(3) Equitable relief, against all defendants, including statutory buyout at fair value or court-ordered sale of ACOVA, payment of Warren's share of the bonuses paid to Ken and Mark, as well as attorney fees, costs, and expenses (Count III);

(4) Unjust enrichment against Ken and Mark, requiring payment to Warren of her share of the bonuses paid to Ken and Mark (Count IV);

(5) Unjust enrichment against Ken relating to the distribution of the Valley Trust's assets (Count V);

(6) Breach of fiduciary duty by Rubin (Count VI); and

(7) Removal of Rubin as trustee from all trusts in which Warren is a beneficiary based on Rubin's alleged breaches of fiduciary duty (Count VII).

In January 2019, Warren filed an amended complaint. The amended complaint added no new claims and added factual allegations that are not material on appeal. The district court granted in part and denied in part the defendants’ ensuing motions to dismiss Warren's amended complaint. The district court concluded that Warren's claims against Ken, Mark, and ACOVA in Counts I-IV, which included disguised-distribution claims based on the bonuses paid to Ken and Mark, were largely derivative. Accordingly, the district court dismissed Counts I, III, and IV in their entirety, as well as Count II except to the extent Warren asserted that ACOVA did not produce corporate books and records as required by Minnesota Statutes section 302A.461 (2024). The district court also dismissed Count V, unjust enrichment against Ken, for failure to state a claim on which relief could be granted. Lastly, the district court denied Rubin's motion to dismiss Counts VI and VII.

D. Ken, Grace, and Mark redeem their ACOVA shares and ACOVA continues its wind down.

Following the district court's decision on the defendants’ motions to dismiss, Ken resigned from the ACOVA board and invoked a procedure to redeem his shares. ACOVA then hired an independent firm to conduct a valuation of ACOVA. After the valuation was completed, ACOVA held a board meeting that Ken, Grace, Mark, and Warren all attended. At the board meeting, Mark expressed his desire to redeem some of his ACOVA shares at the valuation price. Shortly after the board meeting, Grace and Warren also agreed to redeem their ACOVA shares.

At another board meeting, which Warren did not attend, ACOVA's new CEO advised Grace and Mark that redeeming all the family's shares at once would jeopardize ACOVA's financial solvency. The CEO therefore proposed two alternative redemption scenarios. Under the first scenario, Ken, Grace, Mark, and Warren would each receive a partial up-front payment, with the remaining balance paid over five years. Under the second scenario, Warren would receive a full, albeit discounted, up-front payment, while Ken, Grace, and Mark would receive nothing up front and be repaid over five years. Both scenarios were contingent on Warren signing a waiver and release of all claims against ACOVA and its officers, directors, shareholders, and the trustees of any shareholder trusts, which would have required Warren to release her outstanding claims against Rubin.

Although ACOVA's board approved either scenario, Warren rejected the offers and stated that she would not agree to a redemption plan that required her to waive any and all claims against the other parties. ACOVA construed Warren's response as a rejection of the redemption offer, and proceeded with the redemption of Ken's, Grace's, and Mark's shares in 2019 pursuant to the first scenario, under which Ken, Grace, and Mark received a partial up-front payment in exchange for their shares. None of Warren's shares were redeemed.

ACOVA continued its wind down in the following months by selling assets, generating hundreds of millions of dollars. Following some of these sales, Warren received distributions to her trusts commensurate with her beneficial ownership interest in ACOVA. But ACOVA also used funds from certain sales to make advanced repayments to Ken, Grace, and Mark as part of the redemption of their shares. ACOVA made no shareholder distributions from those funds, so Warren received nothing.

E. Warren files a proposed second amended and supplemental complaint.

In early 2020, Warren moved for leave to amend and supplement her amended complaint. In support of her motion, Warren argued that the manner in which Ken's, Grace's, and Mark's shares were redeemed was designed to unfairly prejudice her, thereby providing additional grounds in support of some of the previously dismissed claims (Counts I-III). Warren also argued that she should be permitted to amend her complaint based on the frustration of her reasonable expectations of fair separation, liquidity, and financial independence, asserting that “[r]ecent developments in Minnesota law” supported such a theory. Lastly, Warren sought to assert two additional claims based on the Valley Trust distribution: a claim against Ken for aiding and abetting Rubin's breach of fiduciary duty (Count VIII) and a claim against Rubin and Ken for civil conspiracy (Count IX).

The district court permitted Warren to amend and supplement her amended complaint, as it relates to Counts II and III, to include factual allegations about the frustration of her reasonable expectations of fair separation, liquidity, and financial independence. The district court further allowed Warren to assert Counts VIII and IX against Ken and Rubin. But the district court denied her motion with regard to Count I. Warren filed her second amended and supplemental complaint in June 2020.

Before trial, the district court denied the parties’ cross-motions for summary judgment. In doing so, the district court “concluded that Warren had established her reasonable expectations for liquidity of her stock at a fair price and financial separation when she [agreed with Mark to sell USL].”

F. Following trial and posttrial motions, the district court files its final order and judgment.

The case proceeded to a 16-day court trial in January and February 2022, at which the district court considered Counts II-III (based on section 302A.751) and VI-IX (based on the Valley Trust distribution and Rubin's other conduct as trustee). Several months after trial, Grace and Mark's attorney notified the district court of our decision in Demskie v. U.S. Bank National Ass'n, No. A22-0777, 2022 WL 17751473 (Minn. App. Dec. 19, 2022), aff'd in part, rev'd in part, 7 N.W.3d 382 (Minn. 2024). Based on that decision, and for the first time, the Evenstad parties challenged Warren's standing to seek relief under Minnesota Statutes section 302A.751.

On March 27, 2023, the district court filed its detailed, 300-plus page findings of fact, conclusions of law, and order for judgment. The parties filed posttrial motions, and on January 16, 2024, the district court filed its amended findings of fact, conclusions of law, and order for judgment.

Relevant here, the district court concluded that Warren did not prove any of her claims relating to Rubin's distribution of the Valley Trust's assets to Ken or relating to Rubin's conduct as trustee (Counts VI-IX). Regarding Warren's claims under section 302A.751, the district court concluded that Ken, Mark, and ACOVA, through the redemption process, acted in a manner that was unfairly prejudicial to Warren and frustrated Warren's reasonable expectations of receiving fair value for her beneficial ownership interests (Counts II-III). Pursuant to section 302A.751, subdivision 1(b), the district court ordered ACOVA to continue to wind down its business and to make distribution payments to Warren's trusts consistent with the advanced repayments made to Ken, Grace, and Mark between 2019 and 2021. Relatedly, the district court concluded that it need not address the issue of standing based on our opinion in Demskie.

Both Warren and the Evenstad parties appeal, raising numerous issues.

ISSUES

I. Did the district court err by denying Warren's claim against Rubin for breach of fiduciary duty?

II. Did the district court abuse its discretion by denying Warren's request to remove Rubin as trustee?

III. Did the district court err by dismissing Warren's claim against Ken for unjust enrichment for failure to state a claim upon which relief can be granted?

IV. Did the district court err by dismissing Warren's disguised-distribution claims because they are derivative claims?

V. Did the district court abuse its discretion by denying Warren's motion to revive a previously dismissed claim against Ken and Mark for breach of fiduciary duty as part of her second amended and supplemental complaint?

VI. Did the district court err by awarding Warren, as a beneficial owner, equitable relief under section 302A.751, subdivision 1(b)?

VII. Did the district court abuse its discretion by excluding evidence of Ken's pretrial testimony?

ANALYSIS

The issues raised by Warren on appeal and by the Evenstad parties on cross-appeal concern a broad array of rulings by the district court, ranging from the district court's order on the defendants’ motions to dismiss during the infancy of this case to the district court's amended factual findings and legal conclusions issued nearly two years after the trial ended. We first discuss Warren's arguments related to Rubin's distribution of the Valley Trust's assets to Ken (Issues I-III). We next address her arguments related to Ken's and Mark's allegedly prejudicial, unfair conduct against Warren during ACOVA's wind down (Issues IV-V).

We then turn to the Evenstad parties’ arguments on cross-appeal. First, we address their argument that the district court erred by awarding Warren relief under section 302A.751, subdivision 1(b), because Warren lacked standing as a “beneficial owner” to bring her claims under that provision (Issue VI). Lastly, we address the exclusion of Ken's pretrial testimony (Issue VII).

I. The district court erred in denying Warren's claim against Rubin for breach of fiduciary duty.

Warren challenges the district court's denial of her claim for breach of fiduciary duty against Rubin based on Rubin's distribution of all the Valley Trust's assets to Ken. Warren argues that the district court's denial is based on multiple legal errors. Before addressing Warren's specific legal arguments, we discuss the applicable law and the extent of Rubin's fiduciary duties as a trustee.

The Valley Trust agreement provides that the “validity and construction” of its terms are governed by South Dakota law. If a trust agreement includes such a choice-of-law provision, Minnesota courts will apply the laws of the designated state when analyzing “legal issues which may arise ․ relating to the validity of the trust or its administration.” Danov v. ABC Freight Forwarding Corp., 122 N.W.2d 776, 784 (Minn. 1963). We therefore apply South Dakota law to our analysis of Warren's breach-of-fiduciary-duty claim related to the Valley Trust.

Under South Dakota law, trustees must act in accordance with various fiduciary duties owed to the trust's beneficiaries. “[A] trustee's first duty as a fiduciary is to act in all things wholly for the benefit of the trust.” In re Wallbaum Revocable Living Tr. Agreement, 813 N.W.2d 111, 119 (S.D. 2012) (quotation omitted). A trustee is also bound by the duty of loyalty, “which requires the trustee to preserve trust assets and administer the trust solely in the interest of the beneficiaries.” Id. (quotation omitted). A trustee also has a separate duty of impartiality, under which the trustee must administer the trust impartially “with respect to the various beneficiaries of the trust.” Restatement (Third) of Trusts § 79(1)(a) (Am. L. Inst. 2007).³

The terms of the Valley Trust agreement limit Rubin's liability as a trustee for a breach of fiduciary duty. Section 13.1 of the trust agreement states that Rubin “shall be liable only if it can be clearly established that the exercise of the Trustee's discretionary powers was made in bad faith.” And section 14.14 states, “No beneficiary or other person shall have any right to question the judgment and decision of [Rubin] when acting in good faith in reliance upon any express or implied trustees’ powers as set forth herein.” An exculpatory clause in a trust agreement that limits a trustee's liability for breach of trust, except for a breach committed in bad faith, is generally enforceable. Restatement (Third) of Trusts § 96(1)(a) (Am. L. Inst. 2012). Warren does not contend otherwise, and so we understand the trust agreement to require Warren to clearly establish that Rubin breached a fiduciary duty in bad faith to prevail on her claim against Rubin based on the distribution of the entirety of the Valley Trust's assets to Ken.

The district court determined that Warren did not clearly establish that Rubin made the distribution based on a bad-faith breach of any fiduciary duty. In reaching this conclusion, the district court did not consider whether Rubin breached his fiduciary duty of impartiality. Instead, the district court relied on extrinsic evidence, including evidence of Grace's discussions with Rubin about her wishes as well as expert testimony on “spousal lifetime access trusts” (commonly known as SLATs), to determine that Rubin's distribution of the Valley Trust's assets to Ken was consistent with Grace's intent in establishing the trust. The district court also concluded that Rubin's distribution “necessarily was not done in bad faith” and did not constitute a breach of the duty of loyalty because the Valley Trust agreement permitted distributions of assets to any of its beneficiaries.

Warren raises several challenges to the district court's analysis. She argues that the district court erred by considering extrinsic evidence to determine Grace's intent rather than relying on the unambiguous terms of the Valley Trust agreement. She further argues that by determining Grace's intent based on extrinsic evidence, the district court impermissibly relieved Rubin of his duty of impartiality without considering whether Rubin violated that duty. And she contends that the district court's analysis of her breach-of-fiduciary-duty claim is tainted because the district court applied an improper standard of proof and because it erroneously concluded that Rubin's distribution “necessarily was not done in bad faith.” For the reasons stated below, we agree with Warren and reverse and remand for further proceedings.

We begin by considering whether the district court erred by considering extrinsic evidence to determine Warren's intent regarding the Valley Trust. We then turn to whether this error resulted in the district court failing to analyze whether Rubin breached his duty of impartiality. Finally, we consider Warren's other arguments.

A. The district court erred by relying on extrinsic evidence to define Grace's intent in creating the Valley Trust.

Warren argues the district court erred by considering extrinsic evidence that contradicts the Valley Trust agreement's unambiguous language when determining Grace's intent. It is axiomatic under South Dakota law that, when interpreting a trust agreement, courts must honor the intent and wishes of the grantor. Plains Com. Bank, Inc. v. Beck, 986 N.W.2d 519, 528 (S.D. 2023); Guardianship of Novotny, 904 N.W.2d 346, 350 (S.D. 2017); In re Est. of Long, 846 N.W.2d 782, 788 (S.D. 2014). When the grantor's intent is evident from the express language of the trust agreement, the court's duty is to declare that intent and enforce it. Long, 846 N.W.2d at 788. But when the trust agreement is ambiguous as to the grantor's intent, the court may examine extrinsic evidence of the grantor's intent to resolve the ambiguity. Novotny, 904 N.W.2d at 350. A trust agreement is ambiguous “when it is reasonably capable of being understood in more than one sense.” Id. (quotation omitted). We review de novo whether a district court's consideration of extrinsic evidence was proper. In re Foley Tr., 671 N.W.2d 206, 211 (Minn. App. 2003).⁴

Neither Rubin nor Warren contend that the Valley Trust agreement is ambiguous. Likewise, the district court identified no ambiguity within the trust agreement. We also conclude that the trust agreement is unambiguous. “The construction of an unambiguous written document is reviewed de novo by this court.” Norwest Bank Minn. N., N.A. v. Beckler, 663 N.W.2d 571, 581 (Minn. App. 2003).

Warren argues that because the trust agreement is unambiguous, the district court impermissibly relied on extrinsic evidence to determine the purpose of the trust instead of relying on Grace's intent as set forth in the trust agreement. To discern Grace's intent, we identify and review the relevant unambiguous provisions of the agreement.

The Valley Trust is an irrevocable trust for the benefit of Ken, Mark and his children, and Warren and her children. Section 1.3 of the Valley Trust agreement provides that, as an irrevocable trust, Grace “has no right to change, modify, amend, or revoke any term or provision hereof” and “surrenders all interests of whatever nature in and to the Trust Estate or the income therefrom.” Sections 1.7 and 4.4 indicate Grace's intent to exclude the trust's assets from her taxable estate.

Section 6.1 addresses distributions from the Vally Trust. Section 6.1 provides that, while either Grace or Ken are alive, Rubin has the discretion to distribute to Ken, Mark, Warren, or their respective children “such sum or sums from either the net income from or principal of the Trust Estate as [Rubin], in [his] discretion, may determine.” After Grace's and Ken's deaths, sections 6.2 and 8.1 of the trust agreement instruct Rubin to distribute the balance of the trust in equal shares to separate trusts for the benefit of Warren and her children and Mark and his children.

Exhibit B to the trust agreement is a “Statement of Trustees,” which contains various acknowledgments by the trustees:

We are aware of the nature of a fiduciary duty that Trustees owe to trust beneficiaries. Specifically, Trustees must act at all times in good faith and for the primary benefit of the trust beneficiaries. When given discretionary power by the Trust Agreement, the Trustees must exercise their own judgment. The Trustees cannot delegate that duty to others.

․ We have not agreed, expressly or by implication, to be subject to the control of anyone. We understand that to do so would be a breach of [our] fiduciary duty. Furthermore, we have not yet made any specific decisions regarding the management of trust property or the investment of trust funds, and have not stated or intimated otherwise to anyone.

Rubin signed the Statement of Trustees. The trust agreement also includes a “Complete Agreement” clause, stating that the trust agreement and any attached exhibits “shall determine all rights, authority and duties of the parties, as well as designate the fiduciaries and [b]eneficiaries under this Trust Agreement.”

Read as a whole, the unambiguous terms of the Valley Trust agreement plainly state that Grace intended to create a trust to be administered by Rubin for the benefit of Ken, Mark and his children, and Warren and her children. There is no language in the trust agreement indicating that any one beneficiary has a greater right to the trust's assets than the other beneficiaries. Instead, the Valley Trust affords Rubin the discretion to distribute “sums from either the net income from or principal of the Trust Estate” to any of the beneficiaries during Grace's and Ken's lifetimes. And, in the attached Statement of Trustees, Rubin acknowledged that he had “not yet made any specific decisions regarding the management of trust property.” These terms plainly and unambiguously evince Grace's intent to create a trust for the benefit of her husband, children, and grandchildren, without placing any individual beneficiary's rights to distributions above the others.

The district court nevertheless determined, based on extrinsic evidence, that “Grace's unquestioned intent when the Valley Trust was created was to provide a vehicle through which Ken could access funds, unrestricted, to support their lifestyle while they were living, and that any assets would pass tax-free to her children (and their children) upon Ken's and Grace's deaths.” (Emphasis added.) The district court's interpretation of Grace's intent is not supported by the unambiguous language of the Valley Trust agreement.

In identifying Grace's intent, the district court relied on extrinsic evidence. For instance, based on Rubin's trial testimony and Grace's deposition testimony, the district court found that Grace was reluctant to place assets in the Valley Trust but agreed to do so after Rubin explained that “Ken, as the spousal beneficiary, would have the right to access any assets in a SLAT trust during his lifetime if he wanted them.” The district court also found, based on Rubin's trial testimony and Grace's deposition testimony, that Grace understood “that Ken would have access to the Valley Trust[’s] assets for any purpose and as if it were his own money” and that “Ken, Grace, and Rubin understood before [the] creation of the Valley Trust that Ken had a right to access the trust assets during his lifetime.” And, based on the trial testimony of the parties’ experts, the district court made specific findings on “the prevailing industry view” of SLATs. The district court found that “[t]he primary beneficiary [of a SLAT] is the spouse of the donor spouse.” None of these purported purposes of the Valley Trust are reflected by the trust agreement's unambiguous language.

The district court stated that it did not consider extrinsic evidence from Grace, Rubin, and the testifying experts “to modify or vary the terms of the Valley Trust” but rather considered that evidence only “to evaluate Rubin's exercise of discretion under the Valley Trust.” This statement is inaccurate. As explained above, the district court's order reflects that the district court relied heavily on extrinsic evidence to determine Grace's intent regarding the terms of the Valley Trust, notwithstanding the trust agreement's unambiguous language.

Because the language of the Valley Trust is unambiguous, the district court erred when it relied on extrinsic evidence to discern Grace's intent regarding distributions from the Valley Trust. See Long, 846 N.W.2d at 788 (noting that “[t]o carry out the settlor's intentions,” a court is to “first look to the language of the trust instrument” and enforce the language if clear (quotation omitted)). The district court further erred in making a finding of Grace's “unquestioned intent” that is directly contrary to the plain, unambiguous language of the trust agreement. See id.

B. The district court erred by not making a finding on whether Rubin breached his duty of impartiality.

Warren contends not only that the district court's consideration of extrinsic evidence of Grace's intent was erroneous but that its consideration of this evidence resulted in the district court failing to consider whether Rubin breached his duty of impartiality, thereby effectively relieving Rubin of this fiduciary duty. We agree.

At trial, Warren argued that Rubin breached his duty of impartiality in bad faith by promising Grace that she and Ken would unconditionally retain access to any funds placed in the Valley Trust, and then following through with that promise by distributing all the Valley Trust's assets to Ken. Warren argued that, by carrying out that promise, which is not reflected in the explicit terms of the Valley Trust agreement as discussed above, Rubin breached his duty of impartiality owed to the other beneficiaries of the Valley Trust, including Warren.

It is undisputed that Rubin had a duty of impartiality in administering the Valley Trust. At trial, Rubin conceded that South Dakota law imposed a duty of impartiality on him related to his administration of the trust. And Warren's and Rubin's experts each testified that Rubin owed the Valley Trust's beneficiaries a duty of impartiality.

The duty of impartiality requires a trustee “to administer the trust in a manner that is impartial with respect to the various beneficiaries” including with regard to “distributing the trust estate.” Restatement (Third) of Trusts § 79(1)(a). Although the duty of impartiality does not necessarily require equal treatment of the beneficiaries’ interests, “[i]mpartiality does mean that a trustee's treatment of beneficiaries or conduct in administering a trust is not to be influenced by the trustee's personal favoritism or animosity toward individual beneficiaries.” Restatement (Third) of Trusts § 79 cmt. b (Am. L. Inst. 2007). Nor may the trustee “ignore the interests of some beneficiaries ․ because a particular beneficiary has more access to the trustee.” Id.

The district court acknowledged that the duty of impartiality is “generally recognized in the trust environment,” but the district court did not discuss or analyze the duty of impartiality as it relates to Rubin's distribution of the Valley Trust's assets. Nonetheless, the district court's findings, or lack thereof, call into question whether Rubin breached his duty of impartiality to the other trust beneficiaries and acted in bad faith when he distributed the entirety of the Valley Trust's assets to Ken. For example, the district court found that Rubin acted in conformity with his assurances to Grace and Ken when he distributed the Valley Trust's assets to Ken,⁵ but the district court did not make any findings as to whether Rubin considered the interests of any trust beneficiaries other than Ken in so doing. Nor did the district court make any findings as to whether Rubin's distribution of the assets to Ken was a result of favoritism arising from his assurances to Grace and Ken prior to the establishment of the trust. Likewise, the district court did not consider whether Rubin's assurances to Grace and Ken violated the Statement of Trustees, which provides that, at the trust's inception, Rubin had “not yet made any specific decisions regarding the management of trust property.” These unresolved fact questions go to whether Rubin violated his duty of impartiality because he was impermissibly influenced by “personal favoritism” or ignored the interests of the other beneficiaries because of Ken's “access to the trustee.” Id. In sum, the district court should have but did not address Warren's claim that Rubin breached his duty of impartiality. It failed to do so after it improperly relied on extrinsic evidence to determine Rubin's distribution of the Valley Trust's assets to Ken was consistent with Grace's intent. This was legal error.

Warren further argues that we should affirmatively conclude that Rubin breached his duty of impartiality instead of remanding the issue to the district court. She argues that the district court's finding that Rubin promised Grace that Ken could receive the Valley Trust's assets establishes a breach of the duty of impartiality as a matter of law. But whether Rubin breached that duty is a question of fact under South Dakota law. Est. of Stoebner v. Huether, 935 N.W.2d 262, 267 (S.D. 2019). Because the district court did not make the necessary findings on Rubin's duty of impartiality to resolve this important fact inquiry, such as whether Rubin impermissibly favored Ken, we remand to the district court to do so.⁶

C. The district court made other related errors that should be addressed on remand.

Lastly, we address Warren's remaining arguments in support of her contention that the district court erred in rejecting her breach-of-fiduciary-duty claim based on Rubin's distribution of assets from the Valley Trust to Ken. These alleged errors arose in the context of the district court's analysis of whether Rubin breached his duty of loyalty, which the district court addressed. Specifically, Warren asserts that the district court (1) applied a standard of proof that is inconsistent with the trust agreement's language and (2) erroneously determined that any trustee action authorized by the trust “necessarily [i]s not done in bad faith” or in breach of a fiduciary duty.⁷ We address each argument separately.

1. The district court applied the incorrect standard of proof.

Warren argues that the district court's denial of her breach-of-fiduciary-duty claim is erroneous because the district court applied an improper standard of proof. Whether the district court applied the correct standard of proof presents a question of law, which we review de novo. C.O. v. Doe, 757 N.W.2d 343, 352 (Minn. 2008). In determining the standard of proof, the district court interpreted the Valley Trust agreement's trustee-liability clause. We review a district court's interpretation of a trust agreement's terms de novo. In re Stisser Grantor Tr., 818 N.W.2d 495, 502 (Minn. 2012). When interpreting a trust agreement's terms under South Dakota law, courts afford “ordinary words ․ their usual and ordinary meaning.” In re Schwan 1992 Great, Great Grandchildren's Tr., 709 N.W.2d 849, 854 (S.D. 2006).

The Valley Trust agreement provides that “[t]he Trustee shall be liable only if it can be clearly established that the exercise of the Trustee's discretionary powers was made in bad faith.” (Emphasis added.) The Valley Trust agreement does not define the term “clearly established.” To define “clearly established” the district court relied on caselaw discussing the “clear and convincing” standard of proof. The district court also noted that one dictionary definition of “clear” is “free from doubt.” Synthesizing these sources, the district court settled on the following definition: “ ‘[C]learly established’ bad faith is reasonably understood to mean bad faith that is highly probable, unambiguous, and free from reasonable doubt.”

Focusing on the district court's inclusion of the term “free from reasonable doubt,” Warren argues that the district court's interpretation of “clearly established” is unduly burdensome. We agree.

Under South Dakota law, civil litigants must typically prove their claims by a preponderance of the evidence, which means “the greater weight of evidence.” Pieper v. Pieper, 841 N.W.2d 781, 787 (S.D. 2013) (quotation omitted). In some cases, civil litigants face a heightened “clear and convincing” standard of proof. Cromwell v. Hosbrook, 134 N.W.2d 777, 780 (S.D. 1965). “The quality of proof to be clear and convincing is somewhere between the rule in ordinary civil cases and the requirement of [South Dakota's] criminal procedure, that is, it must be more than a mere preponderance but not beyond a reasonable doubt.” Id. (quotation omitted).

Based on South Dakota caselaw, we construe the Valley Trust agreement's use of “clearly established” to be akin to requiring Warren to prove Rubin's bad faith by clear and convincing evidence. Although this standard requires Warren to prove Rubin's bad faith by more than a preponderance of the evidence, it does not require Warren to prove Rubin's bad faith “free from reasonable doubt.” By requiring Warren to prove Rubin's bad faith “free from reasonable doubt,” the district court imposed a heightened standard of proof that is typically reserved for criminal proceedings. On remand, the district court shall apply the correct standard of proof to determine whether Rubin breached any of his fiduciary duties, which is clear and convincing evidence.

2. A trust distribution can be made in bad faith and constitute a breach of fiduciary duty even when a trustee is given broad discretion under the trust agreement's express terms.

Warren also disputes the district court's determination that Rubin's distribution of the Valley Trust's assets to Ken necessarily was not done in bad faith because the trust agreement's terms gave Rubin the discretion to distribute assets in any amount to any of the beneficiaries.

In reaching its decision, the district court looked to sections 6.1 and 14.14 of the Valley Trust agreement. Section 6.1 gives Rubin the discretion to make distributions from the Valley Trust to any of the beneficiaries in any amount while either Grace or Ken are alive. Section 14.14 provides that no beneficiary may question the trustee's judgment “when acting in good faith in reliance upon any express or implied trustees’ powers.” Because Rubin's distribution of all the Valley Trust's assets to Ken fits within the parameters of section 6.1, the district court concluded that Rubin's distribution necessarily was not done in bad faith.

Citing Restatement (Third) of Trusts § 78, cmt. c(2), the district court reasoned that “[w]here an action is authorized by the terms of the trust, a trustee does not breach his duty of loyalty by engaging in that action.”⁸ But comment c(2) concerns provisions in a trust agreement that “expressly or by implication” permit the trustee to engage in transactions that would otherwise violate the duty of loyalty, such as those “involving a conflict of fiduciary and personal interests” or self-dealing. Restatement (Third) of Trusts § 78, cmt. c(2). As discussed above, the terms of the Valley Trust agreement do not “expressly or by implication” permit Rubin to promise unfettered access to just one of the trust's several beneficiaries. To the contrary, the Statement of Trustees explicitly forbade such conduct. Therefore, the district court's reliance on comment c(2) was misplaced.

We are not persuaded by the district court's reliance on comment c(2) for two additional reasons. First, comment c(2) only regards the fiduciary duty of loyalty. Restatement (Third) of Trusts § 78 and cmt. c(2). As discussed above, the district court performed no independent analysis of whether the distribution, even if not inconsistent with the trust agreement's broad grant of discretion, was made in breach of Rubin's separate duty of impartiality.

Second, comment c(2) provides that “no matter how broad the provisions of a trust may be in conferring power to engage in self-dealing or other transactions involving a conflict of fiduciary and personal interests, a trustee violates the duty of loyalty to the beneficiaries by acting in bad faith or unfairly.” Restatement (Third) of Trusts § 78 cmt. c(2). South Dakota law also provides a court with jurisdiction to review a trustee's discretionary distribution if the trustee acts dishonestly, acts with an improper motive, or fails to act when under a duty to do so. S.D. Codified Laws § 55-1-43(3) (2024). Accordingly, even if the Valley Trust agreement gave Rubin the discretion to distribute all assets to Ken, it is not the case that the distribution necessarily was not done in bad faith. See, e.g., In re Otto Bremer Tr., 984 N.W.2d 888, 897 (Minn. App. 2023) (“Even when a trustee is given complete discretion, the trustee cannot exercise that discretion in a manner that violates a fiduciary duty owed to the trust's beneficiaries.”), aff'd, 2 N.W.3d 308 (Minn. 2024); Robertson v. Cent. Jersey Bank & Tr. Co., 47 F.3d 1268, 1274 (3d Cir. 1995) (noting that even when a trust agreement authorizes trustee to retain investments, “a trustee may not rely on a power to retain investments when circumstances make retention imprudent”).

For instance, imagine the following hypothetical. A trustee of a trust identical to the Valley Trust secretly agrees with beneficiary A to distribute all the trust's assets to beneficiary A in exchange for payment of one-half of the assets. While the trust agreement may give the trustee the discretion to distribute all the assets to beneficiary A, the surrounding circumstances clearly evince bad faith and self-dealing in breach of the trustee's fiduciary duties to the trust's other beneficiaries.

The foregoing is merely a hypothetical and we express no opinion on whether Warren has in fact established that Rubin acted in bad faith. But in circumstances such as these, where a beneficiary (Warren) alleges that the trustee (Rubin) agreed prior to the trust's creation to place all of the trust's assets in another beneficiary's hands, whether the trust agreement's terms afforded the trustee broad discretion in making distributions is not dispositive. The district court therefore erred to the extent that it determined Rubin's distribution of the assets to Ken was not in bad faith and did not breach the duty of loyalty simply because the trust agreement gives Rubin discretion in making distributions from the trust.

D. Conclusion

The district court erred in its analysis of Warren's claim of breach of fiduciary duty by: (1) considering extrinsic evidence to determine Grace's intentions regarding the trust given that the Valley Trust agreement is unambiguous, (2) failing to address whether Rubin breached his duty of impartiality, (3) applying the incorrect standard of proof to its analysis of whether Rubin breached his fiduciary duties, and (4) concluding that Rubin's distribution of the Valley Trust's assets to Ken “necessarily” did not constitute a bad-faith breach of his duty of loyalty. These errors warrant reversal of the district court's denial of Warren's claim for breach of fiduciary duty against Rubin (Count VI).⁹ On remand, the district court must assess Warren's breach-of-fiduciary-duty claim consistent with Grace's unambiguous intent as set forth in the terms of the Valley Trust agreement. The district court must also resolve under the correct standard of proof whether Rubin breached any of his fiduciary duties, including the duty of impartiality, by distributing the Valley Trust's assets to Ken. If the district court determines Rubin breached a duty, the district court shall determine, in a manner not inconsistent with this opinion, whether Rubin acted in bad faith.¹⁰

II. Remand is necessary on the question of whether there are grounds to remove Rubin as trustee.

Warren also argues that the district court abused its discretion by declining to remove Rubin as trustee of various trusts in which Warren has an interest. As noted above, Rubin is the trustee of the Valley Trust and various other family trusts. We review a district court's refusal to remove a trustee for an abuse of discretion. In re Otto Bremer Tr., 2 N.W.3d 308, 317 (Minn. 2024). “A district court abuses its discretion when its decision is based on an erroneous view of the law or is inconsistent with the facts in the record.” Stisser, 818 N.W.2d at 508.

Some of the trusts at issue are controlled by South Dakota law, while others are controlled by Minnesota law. Under both Minnesota and South Dakota law, a court may remove a trustee when the trustee commits “a serious breach of trust.” Minn. Stat. § 501C.0706(b)(1) (2024); S.D. Codified Laws § 55-3-20.1 (2024). Neither statute defines “a serious breach of trust.” Consequently, both the Minnesota and South Dakota Supreme Courts have turned to the Uniform Trust Code for guidance. See Bremer, 2 N.W.3d at 317; In re Tr. Fund of Baumgart, 868 N.W.2d 568, 577 (S.D. 2015). The Uniform Trust Code provides: “A serious breach of trust may consist of a single act that causes significant harm or involves flagrant misconduct. A serious breach of trust may also consist of a series of smaller breaches, none of which individually justify removal when considered alone, but which do so when considered together.” Unif. Tr. Code § 706 cmt. (Unif. L. Comm'n 2023).

Warren argues that Rubin committed a serious breach of trust by distributing the Valley Trust's assets to Ken. Warren also argues that Rubin committed a serious breach of trust through his facilitation of Mark's and Ken's redemption of their ACOVA shares in 2019. Warren contends that the district court erred in finding that neither event constituted a breach of fiduciary duty, and she argues that, individually and collectively, Rubin's actions constitute a “serious breach of trust” warranting removal.

Because we reverse and remand the district court's denial of Warren's claim for breach of fiduciary duty in relation to Rubin's distribution of the Valley Trust's assets, we likewise reverse and remand for the district court to reconsider whether Rubin committed a serious breach of trust with regard to these issues after making additional factual findings on Warren's breach-of-fiduciary-duty claim. But, for the reasons discussed below, we conclude that the district court did not abuse its discretion by declining to remove Rubin as trustee based on Rubin's alleged involvement in the 2019 redemption of ACOVA shares by Ken, Grace, and Mark.

In arguing that the district court abused its discretion by declining to remove Rubin on account of his participation in the 2019 redemption, Warren essentially disputes the district court's factual finding that Rubin did not breach any fiduciary duties related to the redemption. Under both Minnesota and South Dakota law, whether a trustee breached a fiduciary duty presents a question of fact. Berreman v. W. Publ'g Co., 615 N.W.2d 362, 367 (Minn. App. 2000), rev. denied (Minn. Sept. 26, 2000); Stoebner, 935 N.W.2d at 267. We review findings of fact for clear error. Minn. R. Civ. P. 52.01. Under the clear-error standard, we will not disturb a factual finding “unless, on the entire evidence, we are left with a definite and firm conviction that a mistake has been committed.” In re Civ. Commitment of Kenney, 963 N.W.2d 214, 221 (Minn. 2021) (quotation omitted); see also Bremer, 2 N.W.3d at 319 (applying Kenney to a trust case). In conducting our analysis, we view the evidence in a light favorable to the district court's findings. Kenney, 963 N.W.2d at 221. And we may not reweigh the evidence, “engage in fact-finding anew,” or reconcile conflicting evidence. Id. at 221-22. Rather, our role is only to review the record “to confirm that evidence exists to support the decision.” Id. at 222.

The district court found that Rubin did not breach his fiduciary duties regarding the 2019 redemption. In support of that ultimate finding, the district court found that “Rubin played no role in any substantive aspects of the redemptions; his role was purely administrative.” According to the district court, “[t]here is no evidence that Rubin pressed, induced, or even encouraged Ken to [redeem his shares].” The district court also found that Rubin did not participate in “discussions or negotiations surrounding the 2019 redemption.” The district court further found that, when Ken, Grace, and Mark invoked the buy-sell agreement to redeem their shares, Rubin “had the duty to abide by and uphold” the agreement as trustee of several trusts that held the Evenstad family's ACOVA shares.

These findings have support in the record, and Warren's reliance on conflicting evidence is unavailing in light of the applicable clear-error standard of review. As such, the district court did not abuse its discretion by declining to remove Rubin as trustee in relation to his role in the 2019 redemption of ACOVA shares. Consequently, we reverse and remand Warren's removal claim only for the district court to further consider whether Rubin's distribution of the Valley Trust's assets to Ken constituted a serious breach of trust warranting removal of Rubin as trustee.

III. The district court erred by dismissing Warren's claim for unjust enrichment against Ken (Count V) because Warren was not required to plead that she conferred the Valley Trust's assets to Ken.

Warren next argues that the district court erred when it dismissed her unjust-enrichment claim against Ken for failure to state a claim under Minnesota Rule of Civil Procedure 12.02(e). We review the grant of a motion to dismiss for failure to state a claim de novo. Sterry v. Minn. Dep't of Corr., 8 N.W.3d 224, 235 (Minn. 2024). “A claim fails under Rule 12.02(e) when the complaint does not set forth a legally sufficient claim for relief.” Id. (quotation omitted). On a motion to dismiss, the court “must consider only the facts alleged in the complaint, accepting those facts as true and must construe all reasonable inferences in favor of the nonmoving party.” Id. (quotation omitted).

Warren alleged in her amended complaint that Ken was unjustly enriched by his receipt of the Valley Trust's assets.¹¹ “Unjust enrichment is an equitable doctrine that allows a plaintiff to recover a benefit conferred upon a defendant when retention of the benefit is not legally justifiable.” Herlache v. Rucks, 990 N.W.2d 443, 450 (Minn. 2023) (quotation omitted). To establish unjust enrichment, the plaintiff must show that the defendant's enrichment is illegal, unlawful, or morally wrong. Id.

Relying on our decision in Zinter v. University of Minnesota, 799 N.W.2d 243 (Minn. App. 2011), rev. denied (Minn. Aug. 16, 2011), the district court determined that a claim for unjust enrichment requires the plaintiff to confer a benefit on the defendant. Because Warren did not allege that she, as opposed to Rubin or the Valley Trust, conferred a benefit upon Ken, the district court dismissed Warren's unjust-enrichment claim for failure to state a claim.¹² Warren argues that Zinter is inapposite and runs contrary to the supreme court's unjust-enrichment jurisprudence, which imposes no such plaintiff-conferral requirement.

In Zinter, we stated, “Unjust enrichment requires that: (1) a benefit be conferred by the plaintiff on the defendant; (2) the defendant accept the benefit; (3) the defendant retain the benefit although retaining it without payment is inequitable.” 799 N.W.2d at 247. But, in Zinter, the question of whether the plaintiff conferred the benefit upon the defendant was not at issue—it was undisputed that the plaintiff's unjust-enrichment claim was for tuition payments she made to the defendant university. Id. And the supreme court has never recited the elements of an unjust-enrichment claim as we did in Zinter. Nor has the supreme court ever required the plaintiff to be the one who confers the unjustly retained benefit upon the defendant. Instead, the supreme court's discussion of unjust enrichment generally demonstrates that the defining element of a claim for unjust enrichment is the defendant's wrongful retention of a benefit, without regard to whether that benefit has been conferred by the plaintiff.¹³ See, e.g., Hepfl v. Meadowcroft, 9 N.W.3d 567, 571 (Minn. 2024) (“Namely, ‘[e]nrichment is unjust, in legal contemplation, to the extent it is without adequate legal basis; and the law supplies a remedy for unjustified enrichment because such enrichment cannot conscientiously be retained.’ ” (quoting Restatement (Third) of Restitution and Unjust Enrichment § 1 cmt. b)); ServiceMaster of St. Cloud v. GAB Bus. Servs., Inc., 544 N.W.2d 302, 306 (Minn. 1996) (“To establish an unjust enrichment claim, the claimant must show that the defendant has knowingly received or obtained something of value for which the defendant in equity and good conscience should pay.” (quotation omitted)). The supreme court also has “specifically cautioned against restricting the broad scope of the unjust enrichment remedy, given that the whole point of the action [is] ‘to relieve against the too narrow procedure of the law.’ ” Herlache, 990 N.W.2d at 451 (quoting Seastrand v. D.A. Foley & Co., 175 N.W. 117, 119 (Minn. 1919)). And, importantly, “[t]he measure of relief for an unjust enrichment claim is based on what the person allegedly enriched has received, not on what the opposing party has lost.” Id. at 450 (emphasis added) (quotation omitted). We therefore do not read the supreme court's recent decisions in Hepfl and Herlache, which postdate Zinter, as requiring a plaintiff-conferred benefit to state a claim for unjust enrichment.

The supreme court's much earlier decision in Seastrand further persuades us that a claim for unjust enrichment does not require the plaintiff to confer the unjustly retained benefit. In Seastrand, the supreme court held that the plaintiff stated a claim for “money had and received” when the plaintiff alleged that the defendant received money from a third party, “which in equity and good conscience, [the defendant] ought to pay to plaintiff.” 175 N.W. at 118-19. The supreme court has referred to the doctrine of “money had and received” as “unjust enrichment's historical, common-law antecedent.” Herlache, 990 N.W.2d at 450. And, in Cady v. Bush, the supreme court referred to “unjust enrichment” and “money had and received” interchangeably when discussing “claims based upon failure of consideration, fraud, mistake, and ․ other situations where it would be morally wrong for one party to enrich himself at the expense of another.” 166 N.W.2d 358, 361-62 (Minn. 1969). Taken together, the foregoing authorities indicate that a claim for unjust enrichment does not depend on whether the plaintiff conferred the unjustly retained benefit upon the defendant.

We acknowledge that we, along with the district court, are bound by the holdings in our precedential decisions, including Zinter. State v. M.L.A., 785 N.W.2d 763, 767 (Minn. App. 2010), rev. denied (Minn. Sept. 21, 2010). But “the language used in an opinion must be read in the light of the issues presented.” Skelly Oil Co. v. Comm'r of Tax'n, 131 N.W.2d 632, 645 (Minn. 1964) (quotation omitted). Because the plaintiff's conferral of the benefit was not at issue in Zinter and given the supreme court's broader treatment of unjust enrichment, we decline to read Zinter as requiring Warren to allege that she conferred the benefit at issue (the Valley Trust's assets) upon Ken in order to state a claim for unjust enrichment. Instead, we hold that a claim for unjust enrichment may be based on an allegation that a third party conferred a benefit upon the defendant when it would be unjust for the defendant to retain the benefit. The district court therefore erred by dismissing count five of Warren's amended complaint on this basis.

The Evenstad parties contend that, even if Warren is not required to plead that she conferred the Valley Trust's assets on Ken, Warren's unjust-enrichment claim nonetheless fails because: Warren did not plead that she was entitled to the Valley Trust's assets; Warren did not plead that Ken's retention of the assets was unjust; and the existence of the Valley Trust agreement, like a contract, bars Warren from pursuing a claim for unjust enrichment against another party to the agreement. The district court did not consider these arguments. “A reviewing court must generally consider only those issues that the record shows were presented and considered by the [district] court in deciding the matter before it.” Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (quotation omitted). Accordingly, we decline to consider these alternative arguments and reverse and remand for the district court to address them in the first instance.

IV. The district court did not err by dismissing Warren's disguised-distribution claims because they are derivative, not direct, claims.

We next consider Warren's argument that the district court erred when it dismissed her disguised-distribution claims as set forth in Counts I-IV of her amended complaint. Those claims were based on allegations that Ken and Mark, as board members of ACOVA, gave themselves improper bonuses that were in effect disguised shareholder distributions. The district court dismissed Warren's disguised-distribution claims, concluding that the claims are derivative claims that belong to ACOVA.¹⁴ Warren argues that these claims are direct, not derivative, such that she may bring them in her individual capacity.

“The determination of whether shareholder claims are direct or derivative presents a question of law subject to de novo review.” In re Medtronic, Inc. S'holder Litig., 900 N.W.2d 401, 405 (Minn. 2017). And, for purposes of our de novo review, we accept the facts alleged in the amended complaint as true because Warren's disguised-distribution claims were dismissed pursuant to a Minnesota Rule of Civil Procedure 12.02(e) motion. See id.; Bahr v. Capella Univ., 788 N.W.2d 76, 80 (Minn. 2010).

The supreme court has outlined the contours of derivative claims, which belong to the corporation, and direct claims, which belong to an individual shareholder.¹⁵ See, e.g., Wessin v. Archives Corp., 592 N.W.2d 460, 464 (Minn. 1999) (“Where the injury is to the corporation, and only indirectly harms the shareholder, the claim must be pursued as a derivative claim.”). Under Minnesota law, a corporation is an entity distinct from its shareholders. W. Bend Mut. Ins. Co. v. Allstate Ins. Co., 776 N.W.2d 693, 706 (Minn. 2009). Therefore, “an individual shareholder may not assert a cause of action that belongs to the corporation, but instead must sue in a representative capacity on behalf of the corporation if asserting a claim alleging an injury to the corporate entity.” Medtronic, 900 N.W.2d at 406 (quotation omitted). Such a claim is known as a derivative claim, and any recovery must go to the corporation, not the individual. Janssen v. Best & Flanagan, 662 N.W.2d 876, 882 (Minn. 2003) (“Derivative suits allow shareholders to bring suit against wrongdoers on behalf of the corporation, and force liable parties to compensate the corporation for injuries so caused.”).

“A direct claim, on the other hand, alleges an injury to the shareholder rather than an injury to the corporation.” Medtronic, 900 N.W.2d at 406; see also 12B William Meade Fletcher et al., Fletcher Cyclopedia of the Law of Private Corporations § 5908 (perm. ed., rev. vol. 2000) (“[I]n a direct shareholder action, the shareholder need only show an injury to himself that is distinct from any injury suffered by the corporation.”), quoted in Medtronic, 900 N.W.2d at 406.

To determine whether a claim is direct or derivative, the supreme court has focused on “two basic questions: who suffered the injury alleged and thus who would receive the benefit of any recovery.” Medtronic, 900 N.W.2d at 408. The supreme court's analysis does not look “to the theory in which the claim is couched, but instead to the injury itself.” Wessin, 592 N.W.2d at 464.

Here, Warren's disguised-distribution claims are based on allegations that Ken and Mark improperly and unjustifiably paid themselves $75 million in “historical underpayment” and “transaction bonuses” using ACOVA funds and that those payments were actually shareholder distributions. Warren further alleges that, as a result, she did not receive her share of the $75 million based on the percentage of her interest in ACOVA. Warren does “not allege that her percentage ownership or voting rights in ACOVA diminished.” Instead, Warren seeks relief against Ken and Mark, asking that they make a payment to her for her pro rata share of the $75 million.

Our de novo review of whether these disguised-distribution claims are direct or derivative is guided by the supreme court's analysis in Wessin and its progeny. In Wessin, the supreme court considered whether an action that “alleged misappropriation and waste of corporate assets by the majority shareholder,” including “the payment of dividends” to the majority shareholder, involved direct or derivative claims. 592 N.W.2d at 462, 465. Focusing on whether “the complained-of injury was an injury to the shareholder directly, or to the corporation,” the supreme court held that “[t]hese claims are traditional derivative claims that rightfully belong to the corporation.” Id. at 464-65. The supreme court reached this conclusion because “the injuries alleged by [appellants] hinge on the waste and misappropriation of corporate assets” and “[a]ny damage claimed by the [minority shareholders] arises only from their status as existing shareholders.” Id.

The supreme court in Wessin also specifically rejected the appellants’ argument that their claims were direct because some of the excess payment at issue “was in the form of actual or constructive dividends” under Minnesota Statutes section 302A.551, subdivision 4 (1998), which generally requires a corporation to pay all shareholders of a particular class of stock when it pays dividends. Id. at 465. In doing so, the court relied on Minnesota Statutes section 302A.557, subdivision 1 (1998), which provides “[a] shareholder who receives a distribution made in violation of the provisions of section 302A.551 is liable to the corporation.” Id. The supreme court reasoned that because the complaint alleged that the dividends “were not properly payable,” the corporation should recover any improperly paid dividends. Id. at 466. Consequently, the supreme court held that claims at issue in Wessin were derivative, not direct. Id.

Following the supreme court's decision in Wessin, we addressed whether a claim based on allegations that a controlling shareholder paid himself excessive compensation and otherwise used corporate assets for his personal gain stated a direct or derivative claim. Blohm v. Kelly, 765 N.W.2d 147, 153 (Minn. App. 2009). Applying the injury-focused analysis articulated in Wessin, we concluded that the claim was derivative. Id. at 153-54. We explained:

If true, the alleged conduct reduced the assets of the corporation in the first instance. Corporate assets do not belong to the stockholders, but to the corporation. The alleged conduct, if it occurred, also reduced the capital distributions to Blohm, but only indirectly. Blohm's alleged injury is not separate, distinct, and independent from the corporation's injury. Thus, the alleged injury is primarily an injury to the corporation.

Id. at 153 (quotations and citations omitted). Because the complained-of injury was to the company, we concluded that the claim was derivative. Id. at 153-54.

Applying the supreme court's injury-focused analysis, we conclude that Warren's disguised-distribution claims are derivative. These claims are based on injuries analogous to those examined in Wessin and Blohm. Warren alleges that Ken and Mark received payments totaling $75 million that were improper and unjustified. If true, these improper payments resulted in a reduction in the overall value of the company by decreasing its assets. Any impact to the value of Warren's shares, based on the decreased assets, was indirect. The injury alleged by Warren bears the hallmarks of a derivative claim. Medtronic, 900 N.W.2d at 409-11. And, as in Wessin, if there were unlawful dividends paid to Ken and Mark, they are liable to ACOVA directly because the funds belonged to ACOVA. See Minn. Stat. §§ 302A.551, subd. 4, .557, subd. 1 (2024).

To persuade us otherwise, Warren argues that her claims are still direct because her claims involve $75 million in payments to Ken and Mark “that should have been paid pro-rata to all of ACOVA's shareholders,” including her. Warren makes this argument primarily based on Abuzeni v. Mutschler, a nonprecedential opinion of this court. No. A18-2097, 2019 WL 4254844, at *1 (Minn. App. Sept. 9, 2019). While nonbinding and factually different, Abuzeni supports our conclusion that Warren's claims are derivative, not direct. See Minn. R. Civ. App. P. 136.01, subd. 1(b) (providing that “[n]onprecedential opinions and order opinions are not binding authority ․ , but nonprecedential opinions may be cited as persuasive authority”). In Abuzeni, we likewise concluded that the plaintiff's counts alleging “injuries in the form of misappropriation or comingling [sic] of corporate assets[ ] ․ are ‘traditional derivative claims’ that rightfully belong to the” defendant corporate entities “because the injuries affect the entities in the first instance.” 2019 WL 4254844, at *3 (quoting Wessin, 592 N.W.2d at 465). We then went on to conclude that certain claims, which alleged “the reduction or elimination of distributions” were direct claims, because “only the shareholders would suffer the immediate harm” and the corporate entities were “not also affected by the alleged injury.” Id.¹⁶

Here, Warren's claims of disguised distributions are similar to the claims in Abuzeni involving misappropriation, not to the Abuzeni claims based solely on a reduction or elimination of distributions. Warren specifically alleges that Ken and Mark made improper payments totaling $75 million in ACOVA funds to themselves for “historical underpayment and transaction bonuses.” This is a claim of misappropriation of corporate funds. See Wessin, 592 N.W.2d at 465-66. And it is as a result of this alleged misappropriation of corporate funds that Warren alleges she did not receive her pro rata share of the $75 million. Consequently, Warren does not allege that she was harmed directly, but only indirectly based on decreased assets available for distribution. The only direct injury alleged is to the corporation. The fact that Warren wants to be paid her pro rata share does not change this conclusion because, if her allegations are proven, the remedy would be for Ken and Mark first to pay the funds to the corporation before any funds are paid to Warren's trusts. See Minn. Stat. § 302A.557, subd. 1. Because Warren's disguised-distribution claims allege an injury to ACOVA, not Warren, and any recovery should be awarded to ACOVA in the first instance, our conclusion that Warren's claims are derivative is consistent with this court's analysis in Abuzeni.¹⁷

In sum, the district court correctly concluded that Warren's disguised-distribution claims are derivative. Therefore, we affirm the district court's dismissal of those claims from her amended complaint.¹⁸

V. The district court did not abuse its discretion by denying Warren's motion to revive her previously dismissed claim against Ken and Mark for breach of fiduciary duty.

Warren next argues that the district court abused its discretion when it denied her request to revive her claim of breach of fiduciary duty against Ken and Mark as shareholders of ACOVA through amendments set forth in her proposed second amended and supplemental complaint (SASC).¹⁹ The district court granted in part and denied in part Warren's motion to file the proposed SASC.

Under the rules of civil procedure, once a responsive pleading has been served, a party may amend a complaint “only by leave of court or by written consent of the adverse party.” Minn. R. Civ. P. 15.01. “[L]eave shall be freely given when justice so requires.” Id. But a party “may not amend the complaint if the proposed amendment would be futile because it would serve no useful purpose.” U.S. Bank Nat'l Ass'n v. RBP Realty, LLC, 888 N.W.2d 699, 705 (Minn. App. 2016), rev. denied (Minn. Apr. 18, 2017). This includes “where the proposed claim could not withstand summary judgment.” Rosenberg v. Heritage Renovations, LLC, 685 N.W.2d 320, 332 (Minn. 2004). “Generally, the decision to permit or deny amendments to pleadings is within the discretion of the district court and will not be reversed absent a clear abuse of discretion.” Johns v. Harborage I, Ltd., 664 N.W.2d 291, 295 (Minn. 2003).

Through her proposed SASC, Warren sought to revive her previously dismissed claim against Mark and Ken for breach of fiduciary duty, as well as to support her existing buyout claim under section 302A.751 against ACOVA.²⁰ Warren's motion followed our decision in Lund v. Lund, in which we addressed a statutory buyout claim under section 302A.751 for unfairly prejudicial conduct by individuals in control of a closely held corporation and concluded that the district court did not abuse its discretion by granting a buyout motion under section 302A.751 based on conduct that violates or frustrates the reasonable expectations of liquidity and financial independence. 924 N.W.2d 274, 279-81 (Minn. App. 2019), rev. denied (Minn. Mar. 27, 2019). Based in part on Lund, Warren sought to add factual allegations involving ACOVA's frustration of her reasonable expectation of fair separation, liquidity, and financial independence from ACOVA through sale of the company or otherwise. She also proposed factual allegations of bullying and harassment by Ken and Mark.

The district court granted Warren's motion to amend her buyout claim under section 302A.751 by adding factual allegations. But the district court denied her request to revive her breach-of-fiduciary-duty claim against Ken and Mark based on the new factual allegations. The district court explained that “[u]nlike the buy-out analysis, there is no relevant caselaw or analysis [in Warren's filing] describing how these new factual allegations are sufficient to revive [the dismissed claim], and there is nothing relating these new factual allegations to a breach of fiduciary duty claim against Ken and Mark specifically.” Consequently, the district court denied Warren's motion to proceed with the breach-of-fiduciary-duty claim against Ken and Mark as part of her SASC.

We are not persuaded by Warren's arguments that the district court abused its discretion. Warren first argues that her “proposed amendments more than sufficed to state a claim for breach of fiduciary duty” against Ken and Mark. But her argument on appeal, like her argument before the district court, does not explain how Minnesota law supports such a breach-of-fiduciary-duty claim against Ken and Mark. Warren cites two cases—one precedential and one nonprecedential—to support her argument. But she provides no discussion or legal analysis beyond simply citing the two cases. Appellate courts do not consider issues “in the absence of adequate briefing,” State, Dep't of Lab. & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997), and argument without legal support is not sufficient to demonstrate an abuse of discretion “unless prejudicial error is obvious on mere inspection,” Schoepke v. Alexander Smith & Sons Carpet Co., 187 N.W.2d 133, 135 (Minn. 1971). Our review of the two cases reveals no prejudicial error; the two cases address different issues. See Berreman, 615 N.W.2d at 371 (addressing “duty to disclose material information”); Abuzeni, 2019 WL 4254844, at *2-4 (addressing the difference between direct and derivative claims).

In addition, Warren argues that the district court abused its discretion by declining to revive her breach-of-fiduciary-duty claim because she “added multiple allegations [to the SASC] regarding Mark and Ken's bullying and harassing behavior that violated their fiduciary duties.” To support this contention, Warren cites only one case, Evans v. Blesi, 345 N.W.2d 775 (Minn. App. 1984), rev. denied (Minn. June 12, 1984), but she does not provide any analysis of the case. In Evans, this court considered whether the specific evidence presented at trial was sufficient to support the district court's determination that the majority shareholder breached a fiduciary duty to a minority shareholder, and we concluded the evidence was sufficient. Id. at 780. Warren does not explain how her factual allegations of “bullying and harassment” might be comparable to those at issue in Evans. Nor does she explain what evidence she would present to the district court to demonstrate that a revived claim of breach of fiduciary duty against Ken and Mark based on bullying and harassment would survive summary judgment. See Rosenberg, 685 N.W.2d at 332 (noting that a “court should deny a motion to amend a complaint where the proposed claim could not withstand summary judgment”). No abuse of discretion by the district court is apparent from Warren's extremely limited briefing of this issue.

As the appellant, Warren has the burden to demonstrate error. Midway Ctr. Assocs. v. Midway Ctr., Inc., 237 N.W.2d 76, 78 (Minn. 1975). She has not done so here. We therefore affirm the district court's denial of Warren's motion to revive her breach-of-fiduciary-duty claim against Ken and Mark.

VI. The district court erred by rejecting the Evenstad parties’ argument that Warren lacks standing to bring an action under section 302A.751, subdivision 1(b), as a beneficial owner of ACOVA, but on remand the district court may consider whether there are alternative grounds to establish standing.

The Evenstad parties argue that the district court erred by granting equitable relief to Warren based on section 302A.751, subdivision 1(b). They reason that the district court may only grant such relief in an “action by a shareholder” of ACOVA under section 302A.751, subdivision 1(b), but this action was brought by Warren as a “beneficial owner.” Consequently, they contend that Warren lacks standing under section 302A.751, subdivision 1(b), and the district court cannot grant relief based on the statute in an action brought by a beneficial owner. Warren argues the district court did not err because the Evenstad parties’ argument actually relates to her capacity to sue, not standing, and any argument in that regard has been waived. She further argues that, even if the Evenstad parties have raised an issue of standing, she has standing under section 302A.751, subdivision 1(b).

“To exercise [its] judicial power,” a court must have jurisdiction. Minn. Voters All. v. Hunt, 10 N.W.3d 163, 167 (Minn. 2024). “An essential element of jurisdiction” is the standing of parties. Glaze v. State, 909 N.W.2d 322, 325 (Minn. 2018). “To have standing, a party must have ‘a sufficient stake in a justiciable controversy to seek relief from a court.’ ” Hunt, 10 N.W.3d at 167 (quoting State ex rel. Humphrey v. Philip Morris Inc., 551 N.W.2d 490, 493 (Minn. 1996)). In Minnesota, there are two ways to acquire standing: “either the plaintiff has suffered some injury-in-fact or the plaintiff is the beneficiary of some legislative enactment granting standing.” Phillip Morris, 551 N.W.2d at 493 (quotation omitted). When a party lacks standing, a court does not have jurisdiction to decide the claim. Hunt, 10 N.W.3d at 167. We review de novo the question of whether a party has standing. Id.

The parties dispute whether Warren may bring an action based on section 302A.751, subdivision 1(b). This is a question of standing, not capacity to sue. In differentiating these two concepts, we have explained that standing “concerns a party's right to bring a particular action,” and “capacity to sue concerns a party's right to maintain any action.” Cochrane v. Tudor Oaks Condo. Project, 529 N.W.2d 429, 433 (Minn. App. 1995) (holding that whether foreign corporation has a right to bring an action in Minnesota concerns capacity to sue), rev. denied (Minn. May 31, 1995). When, as here, we are asked to determine whether a particular party is authorized to seek relief under the language of a particular statute, we are evaluating standing. See, e.g., Growe v. Simon, 2 N.W.3d 490, 499 (Minn. 2024) (analyzing standing based on language of Minnesota Statutes section 204B.44(a) (2022)); Gretsch v. Vantium Cap., Inc., 846 N.W.2d 424, 429 (Minn. 2014) (analyzing standing based on language of Minnesota Statutes section 58.18, subdivision 1 (2012)); Citizens for a Balanced City v. Plymouth Congregational Church, 672 N.W.2d 13, 18 (Minn. App. 2003) (analyzing standing based on language of Minnesota Statutes section 462.361, subdivision 1 (2002)). Accordingly, we turn to the language of the statute.²¹

A. Warren, as a beneficial owner, lacks standing to bring an action under section 302A.751, subdivision 1(b).

To determine whether Warren has standing to bring an action under section 302A.751, subdivision 1(b), of the Minnesota Business Corporation Act (MBCA), Minnesota Statutes sections 302A.001-.92 (2024), we must interpret the language of the statute.²² We interpret the language of statutes de novo, Findling v. Grp. Health Plan, Inc., 998 N.W.2d 1, 6 (Minn. 2023), and we do so “to ascertain and effectuate the intention of the legislature,” Minn. Stat. § 645.16 (2024). “[W]hen the statutory text is clear and unambiguous, we give effect to the plain language.” Cambria Co., LLC v. M&M Creative Laminants, Inc., 11 N.W.3d 318, 323 (Minn. 2024). When the language is unambiguous, we do not “go beyond the plain language of the statute to determine the intent of the legislature.” Minn. Voters All. v. County of Ramsey, 971 N.W.2d 269, 275 (Minn. 2022) (quoting Rohmiller v. Hart, 811 N.W.2d 585, 589 (Minn. 2012)).

Section 302A.751 provides certain rights and remedies to parties related to corporations.²³ Section 302A.751, subdivision 1(b), provides, in relevant part: “A court may grant any equitable relief it deems just and reasonable in the circumstances ․ [i]n an action by a shareholder when” one or more of six enumerated circumstances are established. (Emphasis added.) And section 302A.751, subdivision 2, provides, in relevant part: “In an action under subdivision 1, clause (b), ․ the court may, upon motion of a corporation or a shareholder or beneficial owner of shares of the corporation, order the sale by a plaintiff or a defendant of all shares of the corporation held by the plaintiff or defendant ․” A “shareholder,” as that term is defined in the MBCA, is “a person registered on the books or records of a corporation or its transfer agent or registrar as the owner of whole or fractional shares of the corporation.” Minn. Stat. § 302A.011, subd. 29. “[B]eneficial owner” and “beneficial ownership” are defined more expansively. See id., subd. 41 (providing that “ ‘[b]eneficial owner,’ when used with respect to shares or other securities, includes, but is not limited to” certain persons).

The parties dispute whether a “shareholder,” as that term is used in section 302A.751, subdivision 1(b), includes a “beneficial owner.” Central to their dispute is our nonprecedential opinion in Demskie. There, we addressed an action in which the plaintiffs were “beneficial owners” of company shares held in a trust who sought a buyout under section 302A.751, subdivision 2. Demskie, 2022 WL 17751473, at *1-2, 4. Based on the language of section 302A.751, we concluded that although a “beneficial owner” could make a buyout motion under subdivision 2, such relief was unavailable “without an initiation of a shareholder action under subdivision 1(b).” Id. at *4. In reaching this decision, we noted that the plain language of subdivision 1(b) authorizes a “shareholder” to initiate an action, not a “beneficial owner.” Id. (citing Minn. Stat. § 302A.751, subd. 1(b)). And because the plaintiffs asserted only that they were “beneficial owners” of shares, not “shareholders,” we held that they could not commence an action under section 302A.751, subdivision 1(b), and therefore the buyout remedy under subdivision 2 was not available to them. Id.²⁴

Demskie is a nonprecedential opinion and not binding authority, but its reasoning is persuasive. See Minn. R. Civ. App. P. 136.01(c). Under the plain language of section 302A.751, subdivision 1(b), simply being a “beneficial owner” is not sufficient to bring an action for equitable relief. When the legislature uses different terms in a statute, we give effect to each. See, e.g., County of Ramsey, 971 N.W.2d at 277 (refusing to apply requirements applicable to an “election judge” to “deputy county auditors”). The MBCA not only defines “shareholder” and “beneficial owner” differently, Minn. Stat. § 302A.011, subds. 29, 41, but it also uses both terms in section 302A.751. Under section 302A.751, subdivision 2, a “beneficial owner of shares of the corporation” may bring a buyout motion in an action under subdivision 1(b). But section 302A.751, subdivision 1(b), only allows for “an action by a shareholder.” So, while a “beneficial owner” may make a buyout motion under section 302A.751, subdivision 2, and the district court may otherwise grant equitable relief under section 302A.751, subdivision 1, that may only happen once a “shareholder” has brought an action under section 302A.751, subdivision 1(b). By using the term “shareholder,” rather than the more expansive term “beneficial owner,” the legislature demonstrated its clear intent that being a “beneficial owner” does not give a party standing to bring an action under section 302A.751, subdivision 1(b).

Warren offers several reasons why we should interpret “shareholder” as used in section 302A.751, subdivision 1(b), to include a “beneficial owner.” None are persuasive. First, Warren contends that we need not rely on the statutory definitions in section 302A.011 to interpret the terms “shareholder” and “beneficial owner” as used in section 302A.751 because the MBCA has a proviso that a term's statutory definition applies “unless the language or context clearly indicates that a different meaning is intended.” Minn. Stat. § 302A.011, subd. 1. But we see no language or context providing such a clear indication, and the fact that both “shareholder” and “beneficial owner” are used in section 302A.751 is an indication to the contrary. Second, the cases that Warren cites to support her position are factually distinct, nonbinding, or both. See Warthan v. Midwest Consol. Ins. Agencies, Inc., 450 N.W.2d 145, 149 n.3 (Minn. App. 1990) (noting use of term “shareholder” in MBCA but indicating that when a corporation has not issued shares, the owners are still entitled to certain rights under the MBCA); Zenanko v. Vukelich, No. C2-90-1264, 1991 WL 6379, at *2 (Minn. App. Jan. 29, 1991) (holding incorporator may pursue buyout when no shares have been issued). And third, while Warren suggests that there is a “broader intent of the legislature ․ to provide remedies to counter majoritarian abuse” in the MBCA, we are bound to follow the plain, unambiguous language of the statute. See Cocchiarella v. Driggs, 884 N.W.2d 621, 624 (Minn. 2016) (“When the language of a statute is clear, we apply the plain language of the statute and decline to explore its spirit or purpose.”).

Accordingly, we conclude that being a “beneficial owner,” as that term is defined in section 302A.011, subdivision 41, is insufficient to establish standing to bring an action under section 302A.751, subdivision 1(b). And without standing under section 302A.751, subdivision 1(b), the district court lacks jurisdiction to provide equitable relief under section 302A.751, subdivision 1(b).

Here, the district court declined to address the Evenstad parties’ standing argument, which was raised in posttrial briefing following our decision in Demskie. The district court reasoned that Demskie was inapplicable because Demskie involved a buyout, whereas, here, the district court ordered other equitable relief under section 302A.751, subdivision 1—the continued wind down of ACOVA and payment of shareholder distributions to Warren's trusts. The district court erred when it concluded that it need not reach the issue of standing because it did not order a buyout in this case. The district court's focus on the type of relief requested was misplaced because, as discussed above, an action by a shareholder under subdivision 1(b) is required for the district court to grant relief under that provision—whether it be in the form of a buyout or the other equitable relief requested by Warren.

Based on our review, we can only discern that Warren brought her claims pursuant to section 302A.751, subdivision 1(b), as a “beneficial owner.”²⁵ As the Evenstad parties point out, the SASC identifies Warren as a beneficiary of the trusts, including in the case caption. Warren counters that she has standing on alternative grounds, including that she is a trustee of two of the trusts, and therefore this is an “action by a shareholder.” But, especially considering the SASC (including its caption) in which she repeatedly refers to her status as a beneficiary of the trusts, we are not convinced that the existing record demonstrates that Warren brought this action on a basis beyond solely being a “beneficial owner.”²⁶ Accordingly, because Warren lacks standing as a beneficial owner to bring an action pursuant to section 302A.751, subdivision 1(b), we reverse the district court's award of equitable relief on that basis.

B. On remand, the district court may consider whether there are alternative grounds to establish standing.

As noted, Warren argues that even if she lacks standing to bring an action as a “beneficial owner” under section 302A.751, subdivision 1(b), she has standing on alternative grounds. Those grounds are: (1) she was treated as a shareholder; (2) she is a trustee of two of the trusts, and (3) she may enforce rights under the trusts based on Rubin's failure or neglect to do so. The Evenstad parties argue that it is irrelevant whether Warren could bring an action under any of these theories because she did not do so. Instead, they argue, Warren brought this action only as a “beneficial owner,” and therefore the district court could not grant the relief it did.

While we conclude that Warren does not have standing as a “beneficial owner” to bring an action under section 302A.751, subdivision 1(b), we also decline to conclude that she cannot establish standing based on other grounds. Significantly, the Evenstad parties did not argue that Warren lacked standing under section 302A.751, subdivision 1(b), until after trial. They first raised the argument in posttrial briefing after this court issued its decision in Demskie. Warren argues that, before then, the Evenstad parties “repeatedly asserted that Warren was, in fact, a ‘shareholder.’ ” And, once the issue of standing was raised, the district court declined to address the question and, as a result, did not address Warren's theories for standing. On the particular facts of this case, the district court should address these issues in the first instance. “[A]n undecided question is not usually amenable to appellate review.” Hoyt Inv. Co. v. Bloomington Com. & Trade Ctr. Assocs., 418 N.W.2d 173, 175 (Minn. 1988); In re Tr. Known as Great N. Iron Ore Props., 243 N.W.2d 302, 308 (Minn. 1976) (“We better fulfill our function as a reviewing court when we review issues after they have been decided below, rather than deciding them ourselves in the first instance.”). This is particularly so when the question may involve whether issues were “tried by express or implied consent of the parties,” Minn. R. Civ. P. 15.02, because “whether to permit amendment of the pleadings is discretionary with the district court,” Lake Superior Ctr. Auth. v. Hammel, Green & Abrahamson, Inc., 715 N.W.2d 458, 474 (Minn. App. 2006), rev. denied (Minn. Aug. 23, 2006). Therefore, it is appropriate to remand to the district court to consider Warren's alternative bases for standing.

In sum, we conclude that the district court erred by granting Warren relief under section 302A.751, subdivision 1(b), because she lacks standing to bring an action under that provision as a “beneficial owner” of ACOVA shares. Accordingly, we reverse the district court's grant of equitable relief under section 302A.751, subdivision 1(b). But we also conclude that it is appropriate to remand to the district court so it may consider Warren's alternative bases for standing in the first instance.²⁷

VII. The district court did not abuse its discretion by excluding the transcript of Ken's interview with ACOVA's special litigation committee.

Lastly, the Evenstad parties argue that the district court abused its discretion by granting Warren's motion to exclude certain evidence, specifically, a transcript of Ken's pretrial testimony before a special litigation committee (SLC). In 2018, ACOVA appointed an SLC to investigate whether various claims in Warren's complaint were derivative and, if so, whether ACOVA should pursue them. As part of its investigation, the SLC interviewed Ken and a transcript was prepared. After the interview and prior to trial, Ken passed away. Because Ken died before he was deposed or could testify in this case, the Evenstad parties argue that the district court abused its discretion by granting Warren's motion to exclude the transcript of Ken's SLC interview at trial.

We review a district court's decision to exclude evidence for an abuse of discretion. Doe 136 v. Liebsch, 872 N.W.2d 875, 879 (Minn. 2015). “A district court abuses its discretion when its decision is based on an erroneous view of the law or is inconsistent with the facts in the record.” Bremer, 2 N.W.3d at 319 (quotation omitted). “In civil cases, the complaining party must demonstrate prejudicial error to be entitled to a new trial or hearing based on an erroneous evidentiary ruling.” Olson ex rel. A.C.O. v. Olson, 892 N.W.2d 837, 841 (Minn. App. 2017) (quotation omitted).

The Evenstad parties concede that Ken's testimony during the SLC investigation is hearsay. Although hearsay generally is not admissible at trial, the Evenstad parties argue that the residual exception to the rule against hearsay applies. See Minn. R. Evid. 802, 807. The residual-hearsay exception, found in rule 807, allows for the admission of an out-of-court statement when it is trustworthy and satisfies three other requirements. Specifically, rule 807 provides:

A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

In granting Warren's motion to exclude Ken's SLC testimony, the district court concluded that the Evenstad parties failed to establish that Ken's SLC testimony was more probative than any other evidence that was or could have been offered at trial. The district court noted that “the topics which the [Evenstad parties] have identified were covered at length by other witnesses.”

The Evenstad parties argue that the district court abused its discretion in making this determination because “[t]here is no more probative evidence as to Ken's responses to Warren's allegations and actions in this matter than his own answers to the questions about her allegations.” They argue that the transcript of Ken's SLC testimony is material to Warren's claims related to Rubin's distribution of the Valley Trust's assets to Ken and emphasize that, in the transcript, Ken explains his (and Grace's) “complicated estate planning strategy, including his intent behind the strategy and his understanding of how his goals were accomplished with Rubin's help.”²⁸ But the Evenstad parties provide no comparison of Ken's excluded SLC testimony with evidence admitted at trial on these same topics, much less other evidence that they could “procure through reasonable efforts,” to demonstrate that Ken's SLC testimony is more probative on a given issue. On the contrary, the Evenstad parties concede that “sufficient, compelling evidence corroborates Ken's statements in his SLC transcript.” As the district court noted, this concession “undermines the requirement that the testimony is more probative than other evidence.” Given the other evidence admitted at trial regarding Ken's involvement with the Valley Trust and his and Grace's estate-planning strategy, we conclude that the district court did not abuse its discretion by excluding the transcript of Ken's SLC testimony.

DECISION

While the district court issued a lengthy and detailed order, and clearly gave this matter great consideration, the district court erred (1) in its denial of Warren's claim for breach of fiduciary duty against Rubin based on the distribution of the Valley Trust's assets to Ken, (2) by dismissing Warren's claim against Ken for unjust enrichment, and (3) by rejecting the Evenstad parties’ argument that Warren lacked standing to bring her section 302A.751 claims.

The district court did not err by dismissing Warren's disguised-distribution claims. Nor did the district court abuse its discretion by (1) declining to remove Rubin as trustee of Warren's trusts based on his involvement in the redemption of Ken's, Grace's, and Mark's shares, (2) denying in part Warren's motion for leave to file a SASC, and (3) excluding evidence of Ken's SLC testimony from the trial.

For the forgoing reasons, we affirm in part, reverse in part, and remand to the district court for further proceedings not inconsistent with this opinion. The district court, in its discretion, may reopen the record.

Affirmed in part, reversed in part, and remanded.

FOOTNOTES

1.   Although Ken was initially a defendant in this matter, he died during the pendency of this litigation. Pursuant to Minnesota Rule of Civil Procedure 25.01, the district court ordered that respondent Grace Evenstad, who is Ken's wife and the personal representative of his estate, be substituted for Ken. Thus, Ken is not a respondent on appeal.

2.   While we generally refer to individuals by their last names in our opinions, here we refer to Ken, Grace, and Mark Evenstad individually by their first names to avoid confusion. At times, we also refer to Ken, Grace, Mark, and Warren collectively as “the Evenstad family.” Lastly, we note that Grace, Mark, and ACOVA filed joint briefs on appeal. For ease of reference, we refer to these parties collectively as “the Evenstad parties” when discussing their joint positions on appeal.

3.   In construing the duties of a trustee, the South Dakota Supreme Court has relied on the Restatement (Third) of Trusts and its comments. See, e.g., In re Wintersteen Revocable Tr. Agreement, 907 N.W.2d 785, 790 (S.D. 2018) (citing the Restatement (Third) of Trusts § 70 cmt. a (Am. L. Inst. 2007) in stating that “the administration of a trust relates directly to the powers and duties of the trustee to carry out the terms and purposes of a trust, with respect to the trustee's fiduciary obligations”); Hein v. Zoss, 887 N.W.2d 62, 67 (S.D. 2016) (discussing the duty of loyalty as addressed by the Restatement (Third) of Trusts § 78 (Am. L. Inst. 2007)). The parties do not dispute that South Dakota law imposed a duty of impartiality on Rubin related to his administration of the Valley Trust.

4.   Questions of procedure, including our standard of review, are determined by the laws of the forum state. See Davis v. Furlong, 328 N.W.2d 150, 153 (Minn. 1983) (noting that Minnesota follows “the almost universal rule that matters of procedure and remedies [are] governed by the law of the forum state”); see also U.S. Bank Nat'l Ass'n v. Angeion Corp., 615 N.W.2d 425, 429 (Minn. App. 2000) (applying Minnesota summary-judgment standard of review in case involving interpretation of a contract under New York substantive law), rev. denied (Minn. Oct. 25, 2000). Accordingly, while the Valley Trust agreement's choice-of-law provision requires us to apply South Dakota law to interpret the trust agreement, that provision does not affect our standard of review.

5.   While the district court erred by relying on extrinsic evidence to determine Grace's intent under the Valley Trust agreement, we agree with the district court that it may consider evidence of assurances made by Rubin to evaluate Rubin's conduct in analyzing whether he breached a fiduciary duty. When used only for the latter purpose, the evidence is not “extrinsic evidence” at all, as it does not go toward altering the unambiguous language of the Valley Trust agreement. However, the district court did not limit its consideration of this evidence only to the latter purpose, and, as a result, the district court did not properly analyze whether Rubin breached his duty of impartiality by distributing the Valley Trust's assets to Ken.

6.   “It is not within the province of appellate courts to determine issues of fact on appeal.” Fontaine v. Steen, 759 N.W.2d 672, 679 (Minn. App. 2009) (quotation omitted).

7.   Warren also argues that the district court erred by “conflat[ing] the right of parents to ‘disinherit’ a child by removing her from their will with their rights in an irrevocable trust.” While Warren is correct that, throughout its 300-plus page order, the district court rejected the notion that Warren had an enforceable right “to dictate to her parents the inheritance her parents must pass on to her,” the district court did not invoke this principle in its analysis of Warren's claim for breach of fiduciary duty against Rubin related to the Valley Trust distribution. The district court's legal analysis was based entirely on considerations of Rubin's duties as trustee and Warren's rights as a beneficiary. And we discern no error in the district court's discussion of Warren's inheritance expectations in other parts of the order.

8.   The district court also cited the analogous Restatement (Second) of Trusts § 170 (Am. L. Inst. 1959), which also concerns the duty of loyalty and contains similar language regarding the express authorization of certain trustee actions.

9.   Because we reverse and remand for further consideration of Warren's breach-of-fiduciary-duty claim against Rubin (Count VI), we also reverse and remand the district court's denial of Warren's claim against Ken for aiding and abetting Rubin's breach of fiduciary duty (Count VII), which necessarily depends on the district court's findings on Count VI. We express no opinion on the denial of Warren's claim against Ken and Rubin for civil conspiracy (Count IX), as Warren does not challenge the denial of that claim on appeal.

10.   We note that the district court wrote, in a heading of its order, that Rubin distributed the assets to Ken in “good faith” because the distribution was consistent with Grace's intent and the industry understanding of SLATs. It is unclear whether the district court actually found that Rubin acted in good faith given the lack of an explicit finding of fact or conclusion of law on the issue. To the extent that the district court did find that Rubin acted in good faith, that finding is erroneously based on inadmissible extrinsic evidence of the Valley Trust's purpose and should be revisited on remand.

11.   Pursuant to a protective order issued by the district court at the parties’ request, the parties filed numerous documents as confidential or under seal, including Warren's amended complaint.Before filing her appellate brief, Warren moved this court to file portions of her brief under seal pursuant to Minnesota Rule of Civil Appellate Procedure 112.01, subdivision 2. Warren averred that she took “no position on whether the [confidential documents] or submissions to this Court discussing them should receive confidential treatment, particularly in light of the public trial that took place in this matter.” Warren instead sought direction from this court as to how she should proceed on appeal while still complying with the district court's protective order. By order dated July 16, 2024, we denied Warren's motion to file her brief under seal.Some of the issues on appeal involve portions of confidential or sealed documents. We address those issues but any reference to confidential or sealed documents is based on other documents in the record that are public or in the parties’ public briefs. Under the applicable rules, we may disclose such information. See Minn. R. Pub. Access to Recs. of Jud. Branch 4; see also Coursolle v. EMC Ins. Grp., Inc., 794 N.W.2d 652, 655-56 n.1 (Minn. App. 2011), rev. denied (Minn. Apr. 19, 2011). Although we do not disclose any information contained solely in confidential or sealed documents, we have fully reviewed and considered all documents relevant to the parties’ arguments on appeal, including those filed as confidential or under seal.

12.   The district court's order granting in part and denying in part the defendants’ motion to dismiss Warren's amended complaint was filed under seal. Accordingly, our recitation of the district court's analysis and reasoning therein is constrained to the descriptions contained in the parties’ briefs. See supra note 11.

13.   Similarly, the Restatement (Third) of Restitution and Unjust Enrichment § 1 (Am. L. Inst. 2011) endorses a broad treatment of claims for unjust enrichment. The restatement cautions against the use of an elements-based approach that requires the plaintiff to prove “the plaintiff conferred a benefit upon the defendant.” Restatement (Third) of Restitution and Unjust Enrichment § 1 cmt. d. The restatement notes that “[f]ormulas of this kind are not helpful,” and that the “whole of the question presented” by a claim for unjust enrichment relates to whether it is inequitable for the defendant to retain the benefit. Id.

14.   Counts I-IV were for breach of fiduciary duties (Count I), unfairly prejudicial conduct pursuant to Minn. Stat. §§ 302A.467 and 302A.751 (Count II), equitable relief (Count III), and unjust enrichment (Count IV). The district court dismissed Counts I, III, and IV in their entirety and Count II, in part, concluding that the disguised-distribution claims under each count were derivative.

15.   As discussed in part VI of the opinion, we note that Warren is a beneficial owner of ACOVA shares. The parties do not present arguments on how Warren's status as a beneficial owner may impact the direct/derivative analysis overall, and we express no opinion on the issue.

16.   The supreme court has indicated that it previously “allowed a direct action where a violation of [section 302A.551, subdivision 4] has occurred and one shareholder has been singled out to not receive the dividend.” Wessin, 592 N.W.2d at 465 (citing Segerstrom v. Holland Piano Mfg. Co., 199 N.W. 897, 898-99 (Minn. 1924); Murphy v. Country House, Inc., 349 N.W.2d 289, 292 (Minn. App. 1984)). But Grace had ACOVA shares when the bonuses were issued and would also have been deprived of distributions based on Warren's allegations, so we conclude these cases are inapplicable here.

17.   We also reject Warren's argument that her disguised-distribution claims are direct to the extent they seek a personal remedy—“a buy-out of her interests in ACOVA under Minn. Stat. § 302A.751.” In Wessin, the supreme court held that claims under section 302A.751 were not direct simply because they sought personal relief. 592 N.W.2d at 465; see also Medtronic, 900 N.W.2d at 409 n.5 (rejecting argument that “the direct/derivative distinction does not apply to ․ statutory claims under Minn. Stat. ch. 302A”). Additionally, this argument fails because, as discussed in part VI of the opinion, we conclude that Warren as a beneficial owner cannot bring an action under section 302A.751, subdivision 1(b), a prerequisite to a buyout under section 302A.751, subdivision 2.

18.   Warren also argues that the district court erred by making findings related to the “reasonableness” of the $75 million payment to Ken and Mark because, among other things, it was inappropriate to make findings on the dismissed disguised-distribution claims. In light of our conclusion that Warren's disguised-distribution claims were properly dismissed, Warren has not demonstrated prejudice, as required to be entitled to relief. Minn. R. Civ. P. 61; First Tr. Co. of St. Paul v. McLean, 93 N.W.2d 517, 521 (Minn. 1958) (holding that statement by district court concerning evidence not in the record was not prejudicial error).

19.   As discussed in part VI of the opinion, we note that Warren is a beneficial owner of ACOVA shares. The parties do not present arguments on how Warren's status as a beneficial owner may impact the fiduciary-duty analysis overall, and we express no opinion on the issue.

20.   Because we affirm the district court, we need not reach the Evenstad parties’ argument that Warren forfeited this argument.

21.   “Standing cannot be waived by the parties.” Glaze, 909 N.W.2d at 325; see also Cochrane, 529 N.W.2d at 433 (holding that “standing may be challenged at any time, [but] the right to challenge capacity to sue is waived if it is not timely asserted”). Accordingly, the Evenstad parties’ standing argument was not waived. Additionally, we note that Warren's responsive argument on standing is based on statutory standing under section 302A.751, subdivision 1(b). She does not allege that she otherwise has standing based on suffering “some injury-in-fact.” See Phillip Morris, 551 N.W.2d at 493 (quotation omitted).

22.   Warren and the district court also reference Minnesota Statutes section 302A.467, but both focus primarily on section 302A.751. We do as well. But we note that, like section 302A.751, subdivision 1(b), section 302A.467, provides for relief “in an action brought by a shareholder of the corporation.” Given the parallel language of section 302A.751, subdivision 1(b), and section 302A.467, requiring an action be brought “by a shareholder,” our analysis is also applicable to section 302A.467.

23.   Section 302A.751, subdivision 1(a) and (c)-(d), allows a court to grant equitable relief in other circumstances, none of which are relevant here.

24.   Regarding this issue, our opinion in Demskie was affirmed by the supreme court because the supreme court was equally divided. Demskie v. U.S. Bank Nat'l Ass'n, 7 N.W.3d 382, 389-90 (Minn. 2024). So, the supreme court left undisturbed our “conclusion that appellants, as owners of beneficial interests[,] ․ cannot commence a shareholder action under section 302A.751, subdivision 1, and therefore the buy-out remedy in subdivision 2 is not available to them.” Id. at 390.

25.   The parties agree that Warren, as a beneficiary of the trusts, is a “beneficial owner,” as that term is defined in the MBCA. See Minn. Stat. § 302A.011, subd. 41.

26.   We again note that Warren's SASC is under seal, thereby limiting our discussion of Warren's allegations. See supra note 11.

27.   Because the district court erred in granting relief and the district court has not yet decided whether Warren has an alternative basis for standing, we do not decide the other issues raised in this appeal related to the district court's award of relief under section 302A.751, subdivision 1(b), including the Evenstad parties’ argument that the district court erred in admitting evidence of the parties’ settlement negotiations in relation to this claim and that the district court's award of equitable relief to Warren in the form of cash was an abuse of discretion.

28.   The Evenstad parties also argue that Ken's SLC testimony is material to the events that led to the 2019 redemption. Because we reverse the district court's award of equitable relief based on the 2019 redemption on account of Warren's lack of standing, we need not address this basis for admitting Ken's SLC testimony.

Cochran, Judge