Gary Carlson v. Ray Barta ( 2014 )


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  •                           This opinion will be unpublished and
                              may not be cited except as provided by
                              Minn. Stat. § 480A.08, subd. 3 (2012).
    
                                   STATE OF MINNESOTA
                                   IN COURT OF APPEALS
                                         A14-0003
    
                                          Gary Carlson,
                                          Respondent,
    
                                               vs.
    
                                           Ray Barta,
                                           Appellant.
    
                                     Filed October 20, 2014
                                            Reversed
                                         Larkin, Judge
    
                                  Olmsted County District Court
                                     File No. 55-CV-12-412
    
    
    William L. French, Rochester, Minnesota (for respondent)
    
    Kay Nord Hunt, Lommen Abdo, P.A., Minneapolis, Minnesota; and
    
    Samantha O. Sutton, David M. Werwie & Associates, St. Paul, Minnesota (for appellant)
    
    
             Considered and decided by Smith, Presiding Judge; Larkin, Judge; and Bjorkman,
    
    Judge.
    
                             UNPUBLISHED OPINION
    
    LARKIN, Judge
    
             In this appeal from judgment following a jury trial in a negligence action,
    
    appellant challenges the district court’s denial of his pretrial motion for summary
    judgment.      He argues that respondent’s negligence claim arose from respondent’s
    
    performance under the parties’ timber-sale contract and that the claim is barred under a
    
    provision in the contract. We conclude that the district court erroneously determined that
    
    the parties’ contract is irrelevant to respondent’s negligence claim and that the relevant
    
    provision is unenforceable.      And because the plain language of the provision bars
    
    respondent’s negligence claim, we reverse the judgment against appellant.
    
                                               FACTS
    
             Respondent Gary Carlson is a “certified Minnesota educational program logging
    
    professional.” He started logging in 1999, taking on small jobs in Rochester from the
    
    Minnesota Department of Natural Resources (DNR). His business has since grown to
    
    include larger jobs, which are still mostly sourced by the DNR. Around March of 2007,
    
    Carlson responded to a newsletter ad placed by appellant Ray Barta, which advertised the
    
    sale of “100+ cord [of] aspen trees.” Soon after, Carlson visited Barta’s property to
    
    inspect the property and the trees that Barta wanted to remove. Carlson informed Barta
    
    that he would need to find a purchaser for the wood before he would agree to remove the
    
    trees.
    
             In January 2008, after finding a willing buyer, Carlson returned to Barta’s property
    
    to remove the trees. On Carlson’s first day, the parties signed a form contract that the
    
    DNR provides for private landowners. Barta supplied the contract, but Carlson was
    
    
    
    
                                                  2
    familiar with the form, and he reviewed it before he began his work. The contract is
    
    titled “Timber Sale Contract,” and it includes the following liability clause:1
    
                  SECTION 8. IT IS MUTUALLY UNDERSTOOD AND
                  AGREED BY AND BETWEEN THE PARTIES HERETO
                  AS FOLLOWS:
                         1.    LIABILITY – The Purchaser agrees to save and
                  hold harmless the Seller from any and all claims, penalties or
                  expenses of any nature, type or description whatsoever,
                  arising from the performance of this contract, whether
                  asserted by itself or any individual, organization or
                  governmental agency or subdivision.2
    
           After working on Barta’s property for one month, Carlson had removed all but a
    
    small patch of the targeted trees. On February 16, Carlson drove his 28,000-pound
    
    harvester toward the remaining patch of trees.3 He crossed an area that he thought was an
    
    open field, but the area contained a partially frozen pond covered in snow. The harvester
    
    broke through ice and sunk into the water below.
    
           Carlson sued Barta for negligence, alleging that Barta failed to disclose the pond’s
    
    location and that he had suffered property damage and lost income as a result. Barta
    
    moved to dismiss Carlson’s lawsuit under Minnesota Rule of Civil Procedure 12.02(e).
    
    He argued, in part, that the suit was precluded by Carlson’s agreement, under sections 7
    
    and 8 of the parties’ contract, to assume the risk of, and hold Barta harmless for, any
    
    
    1
      The parties disagree regarding whether the clause is an exculpatory clause or one for
    indemnification. We need not resolve that issue and therefore refer to the clause as a
    “liability clause,” consistent with the contractual language.
    2
      The contract also includes the following provision: “SECTION 7. THE PURCHASER
    AGREES TO CUT AND REMOVE SAID TIMBER AT PURCHASER’S OWN RISK
    AND IN A WORKMAN LIKE MANNER . . . .”
    3
      The harvester cuts a tree down, measures its length, strips off its limbs, and cuts it to
    length.
    
                                                  3
    damages arising out of the performance of the contract. The district court denied Barta’s
    
    motion, declining to consider the substance of the contract because it was a “mere
    
    reference” in Carlson’s complaint. The district court also reasoned, “[Carlson’s] claim is
    
    based on negligence, not breach of contract. These are fundamentally different legal
    
    theories . . . .”
    
            Later, Barta moved for summary judgment under Minnesota Rule of Civil
    
    Procedure 56, again arguing that the parties’ contract precluded Carlson’s lawsuit. The
    
    district court denied Barta’s motion. It once again reasoned that “[Carlson’s] claim is
    
    based on negligence, not breach of contract.” It also concluded that the contract’s
    
    “exculpatory clause” did not control because the alleged breach of duty occurred before
    
    the contract was executed and that the clause was unenforceable because “[r]elieving
    
    landowners of their obligation to repair dangerous conditions, or to provide invited
    
    persons with adequate warning of the same, not only contravenes public policy, but may
    
    in some situations constitute intentional, willful, or wanton behavior.”
    
            The case was tried to a jury. On the first day of trial, the district court addressed
    
    the relevance of the parties’ contract. The district court judge stated, “Let’s talk about
    
    this contract. I’ve issued a number of decisions on this case really identifying that the
    
    alleged breach here occurred prior to execution of the contract and that the exculpatory
    
    clause and the language within that contract really does not apply.” The district court
    
    acknowledged that if the contract “did apply, it would be a different situation . . .
    
    especially considering that [Carlson] conceded the exculpatory clause was not
    
    ambiguous.”         Carlson argued that the contract was “superfluous” and “prejudicial.”
    
    
                                                  4
    According to Carlson, it was prejudicial because Carlson had requested that it be
    
    backdated one year for his tax purposes. The district court ruled that the contract would
    
    not be admitted as an exhibit at trial because it “would be highly prejudicial” and “[i]t’s
    
    completely unrelated to the negligence issue.” The district court explained:
    
                  This case has become incredibly complicated because we
                  have a breach—allegedly a breach of duty that allegedly
                  occurred prior to the execution of the contract. We have a
                  contract that has a solid exculpatory clause. At least it’s not
                  disputed that it’s a solid exculpatory clause, especially
                  considering that [Carlson] agrees that it’s not ambiguous . . .
                  But we need to focus on the theory of this case being
                  negligence and not breach of contract because as the facts
                  have been presented to the Court, this alleged breach all
                  occurred prior to execution of the contract and that’s why it
                  survived summary judgment.
    
           The jury returned a unanimous special verdict in Carlson’s favor. The jury found
    
    that Barta was 65% at fault and that Carlson was 35% at fault. Barta moved for judgment
    
    as a matter of law (JMOL), a new trial, and to stay entry of judgment, once more arguing
    
    that Carlson had assumed the risk of, and agreed to hold Barta harmless for, any damages
    
    arising from the performance of the contract. The district court denied Barta’s motion in
    
    its entirety explaining, “[Carlson’s] claim is based on negligence, not breach of contract.
    
    Moreover, there are facts in the record that support the breach [of duty] occurred prior to
    
    execution of the contract.”    The court then reiterated its prior ruling regarding the
    
    “exculpatory clause” and stated, “[o]ne of the most longstanding duties in our law is that
    
    of a landowner to its entrant, and this Court finds waiver of this duty through the use of
    
    an exculpatory clause violates public policy.”
    
    
    
    
                                                5
              The district court ordered judgment against Barta in the amount of $110,898.39 for
    
    property damage and lost income, consistent with the jury’s special verdict. Barta
    
    appeals, asking us to reverse the judgment against him and order dismissal of Carlson’s
    
    action.
    
                                           DECISION
    
              Barta appeals from judgment, challenging the district court’s denial of his motion
    
    for summary judgment. Barta contends that because the “denial of summary judgment is
    
    based on a question of law, its denial is . . . reversible on appeal from the judgment.”
    
    Carlson does not dispute that contention. In fact, Carlson addressed the merits of the
    
    district court’s summary-judgment ruling in his brief and at oral argument.
    
              A pretrial summary-judgment ruling is reviewable on appeal when it is based on a
    
    question of law. Schmitz v. Rinke, Noonan, Smoley, Deter, Colombo, Wiant, Von Korff,
    
    & Hobbs, Ltd., 
    783 N.W.2d 733
    , 744 (Minn. App. 2010), review denied (Minn. Sept. 21,
    
    2010). The district court’s summary-judgment ruling was based, in part, on its legal
    
    conclusion that the parties’ contract does not bar Carlson’s negligence claim.4 See City of
    
    Duluth v. Fond du Lac Band of Lake Superior Chippewa, 
    843 N.W.2d 577
    , 581 (Minn.
    
    2014) (stating that contract interpretation presents a question of law that is reviewed de
    
    novo and that when contractual language is clear, a court enforces the parties’ agreement
    
    as expressed in the language). We recognize that the district court also reasoned that
    
    “[t]he record is replete with conflicting averments that demonstrate the existence of
    
    4
      The district court also rejected Barta’s argument for summary judgment under a
    retained-control theory, concluding that “[t]he theory of retained control is not applicable
    in this case.”
    
                                                  6
    significant and genuine issues of fact,” but the district court did not identify those factual
    
    issues.     The district court appears to have been referring to factual disputes regarding
    
    Barta’s duty of care as a landowner, which the district court discussed in its summary-
    
    judgment memorandum. However, we discern no factual dispute regarding the legal
    
    question of whether Carlson’s negligence claim is contractually barred. And because the
    
    denial of summary judgment was based on that legal issue, the denial is within our scope
    
    of review. See Schmitz, 783 N.W.2d at 744.
    
              “A motion for summary judgment shall be granted when the pleadings,
    
    depositions, answers to interrogatories, and admissions on file, together with the
    
    affidavits, if any, show that there is no genuine issue of material fact and that either party
    
    is entitled to a judgment as a matter of law.” Fabio v. Bellomo, 
    504 N.W.2d 758
    , 761
    
    (Minn. 1993). “[Appellate courts] review a district court’s summary judgment decision
    
    de novo. In doing so, we determine whether the district court properly applied the law
    
    and whether there are genuine issues of material fact that preclude summary judgment.”
    
    Riverview Muir Doran, LLC v. JADT Dev. Grp., LLC, 
    790 N.W.2d 167
    , 170 (Minn.
    
    2010) (citation omitted).
    
                                                  I.
    
              We first address the district court’s conclusion that the parties’ contract is
    
    irrelevant to the resolution of Carlson’s negligence claim because Carlson’s lawsuit
    
    sounds in tort and not in contract. People are free to contract away claims and remedies
    
    they would otherwise have. See Indep. Sch. Dist. No. 877 v. Loberg Plumbing & Heating
    
    Co., 
    266 Minn. 426
    , 434, 
    123 N.W.2d 793
    , 798 (1963) (“It is well established that the
    
    
                                                  7
    parties could, by contract, without violation of public policy, protect themselves against
    
    liability resulting from their own negligence.”); Restatement (Second) of Torts § 496B
    
    cmt. b (1965) (“There is no general policy of the law which prevents the parties from
    
    agreeing that the defendant shall be under no such general or specific duty to the
    
    plaintiff.”). Thus, a contract may provide a defense to a tort claim. See, e.g., Morgan Co.
    
    v. Minn. Mining & Mfg. Co., 
    310 Minn. 305
    , 312, 
    246 N.W.2d 443
    , 448 (1976) (holding
    
    that a clause that limited defendant’s liability precluded plaintiff’s ordinary negligence
    
    claim); Beehner v. Cragun Corp., 
    636 N.W.2d 821
    , 827-28 (Minn. App. 2001) (holding
    
    that a valid exculpatory clause barred plaintiff’s ordinary negligence claim), review
    
    denied (Minn. Feb. 28, 2002).
    
           Such is the case here: Barta raised a contractual defense to Carlson’s negligence
    
    claim. The parties’ contract therefore is relevant when determining whether Carlson’s
    
    claim is viable. Specifically, we must determine whether the liability clause in the
    
    contract is enforceable and, if so, whether it precludes Carlson’s claim. We address each
    
    issue in turn.
    
                                                II.
    
           Although exculpatory clauses are valid under certain circumstances, the law
    
    generally disfavors them and courts strictly construe them against benefited parties.
    
    Schlobohm v. Spa Petite, Inc., 
    326 N.W.2d 920
    , 923 (Minn. 1982). An exculpatory
    
    clause is unenforceable if (1) it is ambiguous in scope, (2) it purports to release the
    
    benefited party from liability for intentional, willful, or wanton conduct, or (3) enforcing
    
    
    
    
                                                 8
    it would contravene public policy. Id. To determine whether enforcement would violate
    
    public policy, courts consider two factors:
    
                  (1) whether there was a disparity of bargaining power
                  between the parties (in terms of a compulsion to sign a
                  contract containing an unacceptable provision and the lack of
                  ability to negotiate elimination of the unacceptable
                  provision), and (2) the types of services being offered or
                  provided (taking into consideration whether it is a public or
                  essential service).
    
    Id. (citation omitted).
    
           Indemnification clauses also must be expressed in “clear and unequivocal terms”
    
    and must not contravene public policy. Yang v. Voyagaire Houseboats, Inc., 
    701 N.W.2d 783
    , 791 (Minn. 2005) (quotation omitted). But courts “examine the enforceability of
    
    exculpatory and indemnification clauses under different standards.”          Id. at 792 n.6.
    
    “Indemnification clauses are subject to greater scrutiny [than exculpatory clauses]
    
    because they [not only] release negligent parties from liability, but also may shift liability
    
    to innocent parties.” Id. With these principles in mind, we consider whether the liability
    
    clause in this case is enforceable.
    
           Ambiguity
    
           In district court, Carlson conceded that the liability clause is not ambiguous. He
    
    does not argue otherwise on appeal. Ambiguity therefore is not a basis for determining
    
    that the clause is unenforceable.
    
           Intentional, Willful, or Wanton Conduct
    
           The district court reasoned that the liability clause was unenforceable because it
    
    “may in some situations [excuse a landowner’s] intentional, willful, or wanton behavior.”
    
    
                                                  9
    “Willful and wanton conduct” is defined as “the failure to exercise ordinary care after
    
    discovering a person or property in a position of peril.” Beehner, 636 N.W.2d at 829.
    
    Because the liability clause in the parties’ contract refers to “any and all claims,” it could,
    
    in theory, apply to an action based on intentional conduct. But Carlson’s claim is not
    
    based on an intentional, willful, or wanton act. Carlson’s complaint alleges only that
    
    Barta was “negligent in disclosing the location of the pond.” There is no assertion that
    
    Barta intentionally withheld the pond’s location or failed to exercise ordinary care after
    
    discovering Carlson in peril.
    
           Moreover, we are unaware of any reported case in which a clause that purportedly
    
    released liability for intentional, willful, or wanton conduct was held unenforceable as
    
    applied to a routine negligence claim (i.e., a claim that was not based on intentional,
    
    willful, or wanton acts).5 In fact, this court has stated that, when a challenged portion of
    
    a release is not at issue, “[i]t would subvert the parties’ manifested intent to effect a
    
    release of liability for negligence if the broader language were given precedence.”
    
    Anderson v. McOskar Enters., Inc., 
    712 N.W.2d 796
    , 801 (Minn. App. 2006). We stated
    
    that the “better interpretation of the law is that any ‘term’ in a contract which attempts to
    
    5
      Carlson contends that “[a] very similar clause, one also not limited to negligence, was
    found to be invalid” in McCarthy Well Co. v. St. Peter Creamery, Inc., 
    389 N.W.2d 514
    (Minn. App. 1986), rev’d on other grounds, 
    410 N.W.2d 312
     (Minn. 1987). His reliance
    is misplaced. In McCarthy, we held that the district court properly excluded a contractual
    defense to a negligence claim because the relevant exculpatory clause was
    unconscionable and invalid. Id. at 518. We further stated in dictum that the “clause is
    not limited to the permissible exoneration from liability for negligence and hence is
    invalid.” Id. However, the supreme court declined to reach that issue on review.
    McCarthy Well Co. v. St. Peter Creamery, Inc., 
    410 N.W.2d 312
    , 315 (Minn. 1987).
    Instead, the supreme court found it sufficient “to invalidate the clause because it is
    unreadable,” which was the basis for the district court’s ruling. Id.
    
                                                  10
    exempt a party from liability for gross negligence or wanton conduct is unenforceable,
    
    not the entire contract.” Id. (quotation omitted). In Anderson, we therefore enforced the
    
    parties’ “clear intention to release liability” for negligence despite the contract’s “broad
    
    language” that released the defendant from “any and all responsibilities or liabilities from
    
    injuries or damages.” Id. at 799, 801. Other holdings of this court are in accord. See
    
    Nimis v. St. Paul Turners, 
    521 N.W.2d 54
    , 57-58 (Minn. App. 1994) (declining to enforce
    
    only that portion of a clause that was ambiguous and that appeared to release property
    
    owner from injuries caused intentionally, instead of the entire clause); Malecha v.
    
    St. Croix Valley Skydiving Club, Inc., 
    392 N.W.2d 727
    , 729-30 (Minn. App. 1986)
    
    (holding that clause, which “could be construed to extend beyond acts of negligence,”
    
    was limited to release of liability for negligence and noting that plaintiff alleged only that
    
    defendant had been negligent), review denied (Minn. Oct. 29, 1986).
    
           In sum, Barta does not rely on the contract to avoid liability for a willful, wanton,
    
    or intentional act. See Schlobohm, 326 N.W.2d at 923 (noting that the plaintiff’s claims
    
    “are based on negligence, and they make no claim that [the defendant] or its employees
    
    acted willfully, intentionally or wantonly”). Enforcement of the liability clause therefore
    
    does not violate the rule that “[a] contract cannot release a party from intentional or
    
    willful acts.” In re Peer Review Action, 
    749 N.W.2d 822
    , 829 (Minn. App. 2008), review
    
    dismissed (Minn. Sept. 23, 2008).
    
           Public Policy
    
           The district court also reasoned that the parties’ liability clause is unenforceable
    
    because “[r]elieving landowners of their obligation to repair dangerous conditions, or to
    
    
                                                 11
    provide invited persons with adequate warning of the same . . . contravenes public
    
    policy.” When determining whether a clause is unenforceable because it contravenes
    
    public policy, a court considers the factors set forth by the supreme court in Schlobohm:
    
    disparity of bargaining power and type of service offered. 326 N.W.2d at 923.
    
           An exculpatory clause that is the product of disparate bargaining power violates
    
    public policy. Id. The use of an adhesion contract, which is “drafted unilaterally by a
    
    business enterprise and forced upon an unwilling and often unknowing public for services
    
    that cannot readily be obtained elsewhere,” may indicate disparate bargaining power. Id.
    
    at 924. Here, the contract was drafted by the DNR. Both parties voluntarily agreed to the
    
    contract, and it did not involve an otherwise unattainable service. Carlson, a logger for
    
    about nine years at the time of signing, was familiar with the DNR contract. He was not
    
    unwilling or unknowing, and the contract was not forced on him. These circumstances
    
    do not reflect disparate bargaining power.        In fact, Carlson arguably had greater
    
    knowledge of the contract’s subject matter and therefore a superior bargaining position.
    
           An exculpatory clause may also violate public policy if it governs the provision of
    
    a public or essential service. Id. at 923. A service is considered public or essential if it
    
    “is the type generally thought suitable for public regulation.” Id. at 925. A court
    
    considers “whether the party seeking exoneration offered services of great importance to
    
    the public, which were a practical necessity for some members of the public.” Id. at 926.
    
    Public or essential services include “common carriers, hospitals and doctors, public
    
    utilities, innkeepers, public warehousemen, employers and services involving extra-
    
    hazardous activities.”   Id. at 925 (footnotes omitted).      The contract at issue here
    
    
                                                12
    benefitted only Carlson and Barta. It did not involve a service of great importance to the
    
    public, nor was it essential.
    
              Because there was no disparity of bargaining power and the contract did not
    
    involve a public or essential service, the parties’ liability clause does not violate public
    
    policy.
    
              Exculpatory vs. Indemnification Clauses
    
              Carlson argues that the liability clause in the parties’ contract is one for
    
    indemnification and that the clause is therefore subject to greater scrutiny.
    
    “Indemnification clauses are subject to greater scrutiny because they release negligent
    
    parties from liability, but also may shift liability to innocent parties.” Yang, 701 N.W.2d
    
    at 792 n.6. But Carlson is not an “innocent party.” The jury apportioned 35% of fault for
    
    the accident to him. Moreover, we have considered every possible legal basis to hold that
    
    the clause is unenforceable, and we discern no basis to do so. We therefore conclude that
    
    the liability clause in the parties’ contract is enforceable whether it is construed as an
    
    exculpatory clause or one for indemnification.
    
                                                III.
    
              Having determined that the liability clause is enforceable, we next determine
    
    whether it bars Carlson’s negligence claim. The district court stated that because “the
    
    alleged breach of duty occurred prior to execution of the parties’ contract, the exculpatory
    
    clause does not control.” The record indicates that the district court reasoned that Barta
    
    may have breached the common-law duty of care that a landowner owes to entrants on
    
    his land by failing to disclose the location of the pond during Carlson’s first visit to
    
    
                                                 13
    Barta’s property. The district court therefore reasoned that because the underlying breach
    
    occurred before the contract was formed, the contract does not bar Carlson’s negligence
    
    claim. The district court’s reasoning seems to be based on an implicit conclusion that
    
    respondent’s negligence claim accrued when Barta failed to disclose the pond’s location
    
    during Carlson’s initial visit to Barta’s land. That legal conclusion is flawed.
    
           The elements of a negligence claim are duty, breach of duty, injury, and causation.
    
    Doe 169 v. Brandon, 
    845 N.W.2d 174
    , 177 (Minn. 2014). A claim does not accrue until
    
    it may be brought without dismissal for failure to state a claim on which relief may be
    
    granted. Molloy v. Meier, 
    679 N.W.2d 711
    , 720 (Minn. 2004). “Accrue” is defined as
    
    “to come into existence as an enforceable claim.” Id. at 721 (quotation omitted). A
    
    “basic element[] necessary to maintain a claim for negligence” is “that [the] plaintiff did
    
    in fact suffer injury.” Schmanski v. Church of St. Casimir of Wells, 
    243 Minn. 289
    , 292,
    
    
    67 N.W.2d 644
    , 646 (1954). The supreme court has “repeatedly held that a negligent act
    
    is not itself sufficient for a negligence cause of action to accrue.” MacRae v. Grp. Health
    
    Plan, Inc., 
    753 N.W.2d 711
    , 719 (Minn. 2008). “[A] cause of action accrues when some
    
    injury or damage from the negligent act actually occurs.” Id. “Alleged negligence
    
    coupled with the alleged resulting damage is the gravamen in deciding the date when [a]
    
    cause of action accrues.” Offerdahl v. Univ. of Minn. Hosps. & Clinics, 
    426 N.W.2d 425
    ,
    
    429 (Minn. 1988). In sum, a cause of action for negligence will not accrue “until the
    
    plaintiff has suffered some injury, so the question is: What is the injury and when did it
    
    occur?” Molloy, 679 N.W.2d at 721.
    
    
    
    
                                                 14
           Carlson’s injury occurred when his harvester broke through the ice on Barta’s
    
    property. Assuming, without deciding, that Barta breached a common-law duty during
    
    Carlson’s first visit to Barta’s property, that purported precontract breach did not give rise
    
    to a negligence claim. See MacRae, 753 N.W.2d at 719. Carlson’s negligence claim did
    
    not accrue until his harvester broke through the ice on Barta’s property, because that is
    
    when Carlson suffered an injury.
    
           In sum, Barta’s purported precontract breach did not ripen into a negligence claim
    
    until Carlson’s harvester went through the ice on Barta’s property during Carlson’s
    
    performance under the contract.       Thus, Carlson’s negligence claim arose from the
    
    performance of the contract. Because Carlson expressly agreed to release Barta from
    
    liability for “any and all claims, penalties or expenses of any nature, type or description
    
    whatsoever, arising from the performance of this contract, whether asserted by [him] or
    
    any individual,” his negligence claim is barred under the plain language of the parties’
    
    contract. Fond du Lac Band of Lake Superior Chippewa, 843 N.W.2d at 581 (stating that
    
    when contractual language is clear, a court enforces the parties’ agreement as expressed
    
    in the contractual language).
    
                                                 IV.
    
           Carlson raises additional arguments in support of affirmance. For example, in his
    
    brief to this court, he argued that he and Barta entered into an oral contract that did not
    
    contain the liability clause prior to signing the written contract, that Barta had a duty to
    
    provide a site map, and that the liability clause is barred under Minnesota Statutes section
    
    337.02 (2012). At oral argument to this court, Carlson also argued that the contract is
    
    
                                                 15
    unenforceable because Barta signed the contract in the box labeled “Approved and agreed
    
    to by the Seller” instead of in the box adjoining it labeled “Signature of Seller.” None of
    
    those arguments was considered or determined in the district court.
    
           “A reviewing court must generally consider only those issues that the record
    
    shows were presented and considered by the trial court in deciding the matter before it.”
    
    Thiele v. Stich, 
    425 N.W.2d 580
    , 582 (Minn. 1988) (quotation omitted). “[A] party [may
    
    not] obtain review by raising the same general issue litigated below but under a different
    
    theory.” Id.; see also Sec. Bank of Pine Island v. Holst, 
    298 Minn. 563
    , 564, 
    215 N.W.2d 61
    , 62 (1974) (“It is elementary that on appeal a case will be considered in accordance
    
    with the theory on which it was pleaded and tried, and a party cannot for the first time on
    
    appeal shift his position.” (quotation omitted)). These principles apply equally to a
    
    plaintiff who prevailed in the district court. See Mattson v. Underwriters at Lloyds of
    
    London, 
    414 N.W.2d 717
    , 721-22 (Minn. 1987) (stating that plaintiffs who won their case
    
    at trial but later lost on appeal “were under an obligation to preserve their alternative
    
    theories,” that “if plaintiffs had any concern about sustaining the trial court’s ruling on
    
    appeal, they should have taken measures to preserve their other arguments,” and that
    
    “[f]ailing to take some such precaution and then attempting to raise the ‘new’ theory
    
    leaves a party vulnerable to a claim that the party is impermissibly shifting theories on
    
    appeal”).
    
           Because Carlson’s additional arguments were not considered or determined by the
    
    district court, Barta argues that they are not properly before this court on appeal.
    
    
    
    
                                                16
    Nonetheless, Barta addresses the merits of Carlson’s new arguments. Because the new
    
    arguments are generally unsupported and easily rejected, we address them briefly.
    
           As to Carlson’s assertion that the liability clause is barred by statute, section
    
    337.02 provides:
    
                         An indemnification agreement contained in, or
                  executed in connection with, a building and construction
                  contract is unenforceable except to the extent that: (1) the
                  underlying injury or damage is attributable to the negligent or
                  otherwise wrongful act or omission, including breach of a
                  specific contractual duty, of the promisor or the promisor’s
                  independent contractors, agents, employees, or delegatees; or
                  (2) an owner, a responsible party, or a governmental entity
                  agrees to indemnify a contractor directly or through another
                  contractor with respect to strict liability under environmental
                  laws.
    
    (Emphasis added.)
    
           A “building and construction contract” is defined as “a contract for the design,
    
    construction, alteration, improvement, repair or maintenance of real property, highways,
    
    roads or bridges.” Minn. Stat. § 337.01, subd. 2 (2012). Because the definition is
    
    unambiguous, we do not engage in statutory construction; we apply the plain meaning of
    
    the statutory language. See State v. Bluhm, 
    676 N.W.2d 649
    , 651 (Minn. 2004) (“[W]hen
    
    the legislature’s intent is clear from plain and unambiguous statutory language, [an
    
    appellate] court does not engage in any further construction and instead looks to the plain
    
    meaning of the statutory language.” (quotation omitted)).
    
           Under the plain language of the statute, Barta and Carlson’s contract is not a
    
    building and construction contract. The contract is titled “Timber Sale Contract.” It
    
    identifies the seller, the purchaser, the amount purchaser agreed to pay seller, the timber
    
    
                                                17
    species, the estimated volume, the unit price, and the bid value. The contract in no way
    
    describes “the design, construction, alteration, improvement, repair, or maintenance of
    
    real property.” Minn. Stat. § 337.01, subd. 2. Moreover, Carlson does not cite authority
    
    supporting his contention that a contract for the sale of timber, which involves cutting
    
    and removing timber from real property, is a building and construction contract. We
    
    therefore reject Carlson’s argument under section 337.02.             Carlson’s other new
    
    arguments are similarly unsupported and without merit.          We reject them without
    
    discussion. See Bartl v. City of New Ulm, 
    245 Minn. 148
    , 154, 
    72 N.W.2d 303
    , 307
    
    (1955) (“Plaintiff’s other assignments of error . . . have been carefully examined. We
    
    conclude that they are without merit and are not of sufficient importance as to require
    
    discussion.”).
    
           In conclusion, we hold that the liability clause in the parties’ contract is
    
    enforceable, that it bars Carlson’s negligence claim, and that the district court erred by
    
    denying Barta’s motion for summary judgment. Carlson’s claim should not have been
    
    tried to the jury. We therefore reverse the judgment against Barta.
    
           Reversed.
    
    
    
    
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