• May 14, 2015
Dirty Dog

Copyright Des Colhoun and licensed for reuse under this Creative Commons Licence.

Update (May 14, 2015): The battling Hogenson brothers, as noted below in the original post, have treated Minnesota litigators with legal decisions for some years now. Yet another decision this week reflects their inadvertently generous fraternal strife.

Minnesota Litigator has discussed the mushy Minnesota law of unjust enrichment before.

In the latest Hogenson kerfuffle the Hennepin County District Court and the Minnesota Court of Appeals again are out of sync as to what the doctrine really stands for. It is not enough when someone stumbles on a windfall benefit and the benefit came at the expense of someone else. This does not state a claim for unjust enrichment because stumbling upon something is not “illegal” or “unlawful.”

It probably did not hurt Diversified Water Diversion’s appeal that Brother Arthur Hogenson (who was the beneficiary of the lower court’s unjust enrichment decision) had apparently fraudulently created promissory notes to reflect his loan to Diversified and submitted “not legitimate” evidence at trial.

“Equity does not comfort those who come to it with unclean hands” is one way of saying it. “A dirty dog will not have justice by the court” is another.

Philadelphia Love Park

Philadelphia Love Park

Initial post (August 12, 2014): Economists talk about “positive externalities,” or economic benefits created by one actor and enjoyed at little or no cost by another actor. Imagine, for example, the coffee shop whose sales rise because of the great smells wafting from the next-door bakery. The bakery makes the appetite-whetting aroma that pushes coffee sales but it cannot charge the coffee-house or its customers for the aroma. (It should consider selling coffee (and not the brown hot water that some bakeries have the temerity to sell and call coffee.))

Arthur Allen Hogenson and Michael W. Hogenson are two brothers who have not gotten along very well. In fact, they have been in litigation for years (and it is on-going.) In this sad tale of family discord, though, there is the positive externality of Minnesota court decisions that help the rest of us get clarification of muddled areas of Minnesota law.

First, there was the troubling and confusing issue of whether there is a tort under Minnesota law for tortious interference with prospective economic relations. (Yes, there is.)

And now the Brothers Hogenson have been instrumental in a new decision on the availability of preverdict interest when the amount of damages was not “ascertainable” before the verdict. (Yes, it is.)

(Minnesota Litigator readers may recall an earlier post referring to an order following a $10,000,000.00 jury verdict in which Hennepin County District Court Judge Marilyn B. Rosenbaum held that “an award of prejudgment interest is available only when damages are readily ascertainable.” (Another case with roots in fraternal discord, coincidentally.)) Preverdict interest at 10% per annum can add up in such cases (along with post-verdict interest and post-judgment interest).

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