This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA

IN COURT OF APPEALS

A14-1403

Anthony Patrick Huber,

Appellant,

vs.

Jason R. Vohnoutka, et al.,

Respondents,

Darlene Heimerl, et al.,

Defendants.

Filed April 6, 2015

Reversed and remanded

Johnson, Judge

Anoka County District Court

File No. 02-CV-13-3735

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

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

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

respondent)

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

Larkin, Judge. 
2

U N P U B L I S H E D O P I N I O N

JOHNSON, Judge

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

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

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

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

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

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

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

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

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

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

under false pretenses. Therefore, we reverse and remand.

FACTS

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

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

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

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

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

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

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

petition.
3

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

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

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

I give my permission and request that the following 

information be released for the purpose of a custody or 

parenting time evaluation, mediation or resolution counseling 

or other assessment purposes.

I hereby authorize you to disclose to Marcia Young the 

information requested below. I also give my permission for 

the above staff person to exchange information with you.

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

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

testing.” 

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

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

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

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

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

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

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

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

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

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

2009. Vohnoutka reviewed the previous attorney’s file, which included a copy of 
4

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

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

states as follows:

The undersigned has been substituted as counsel for 

Petitioner in the above-captioned matter in the place and stead 

of James Gerharter, Esq. Accordingly, enclosed please find a 

copy of the substitution of counsel.

Your patient Anthony Huber is a party to the abovecaptioned custody case. You were previously requested by 

Marcia Young, the Custody Evaluator in this case, to provide 

counseling records relative to Mr. Huber’s sessions. 

Mr. Huber executed an Authorization for release of that 

information. To date no information has been received from 

you. The matter is scheduled for trial on October 8, 2009, 

and review of those records is necessary prior to that trial.

Accordingly, enclosed and served upon you by mail, 

please find a Subpoena to produce documents. In lieu of 

producing Mr. Huber’s counseling records at my office, you 

may produce certified copies of those same and forward them 

to my office via mail. You are entitled to reasonable 

compensation for your time and expense involved in 

producing those documents. Please determine the amount of 

those expenses and inform me of such and those reasonable 

expenses will be paid immediately.

Please telephone me if you have any questions or 

concerns or wish to discuss this.

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

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

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

that Vohnoutka’s client, but no one else, received a copy of the letter. On September 23, 
5

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

intentional infliction of emotional distress against Vohnoutka, (3) a claim of negligence 
6

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

against Heimerl and Vohnoutka.

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

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

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

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

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

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

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

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

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

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

resolved his claims against her.

D E C I S I O N

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

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

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

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

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

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

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

for the non-moving party. Frieler v. Carlson Mktg. Grp., Inc., 751 N.W.2d 558, 564 
7

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

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

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

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

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

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

of the statute is the following rule of proscription:

A provider, or a person who receives health records 

from a provider, may not release a patient’s health records to 

a person without:

(1) a signed and dated consent from the patient or 

the patient’s legally authorized representative authorizing the 

release;

(2) specific authorization in law; or

(3) a representation from a provider that holds a 

signed and dated consent from the patient authorizing the 

release.

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

for a violation of section 144.293, subdivision 2:

A person who does any of the following is liable to the 

patient for compensatory damages caused by an unauthorized 

release or an intentional, unauthorized access, plus costs and 

reasonable attorney fees:

(1) negligently or intentionally requests or releases 

a health record in violation of sections 144.291 to 144.297;

(2) forges a signature on a consent form or 

materially alters the consent form of another person without 

the person’s consent;
8

(3) obtains a consent form or the health records of 

another person under false pretenses; or

(4) intentionally violates sections 144.291 to 

144.297 by intentionally accessing a record locator service 

without authorization.

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

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

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

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

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

arguments: (1) he did not use false pretenses when seeking to obtain Huber’s mentalhealth records; (2) in the alternative, he did not obtain Huber’s mental-health records 

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

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

compensable injury.

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

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

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

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

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

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

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

that the release was authorized by Huber’s signed consent form. Vohnoutka also hints 
9

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

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

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

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

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

sake of clarity, we will review the reasons why Heimerl’s release of Huber’s mentalhealth records to Vohnoutka was not authorized by either Huber’s signed consent form or 

by the subpoena duces tecum.

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

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

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

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

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

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

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

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

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

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

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

subd. 2(1).

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

“specific authorization in law.” Minn. Stat. § 144.293, subd. 2(2). Vohnoutka prepared a 
10

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

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

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

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

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

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

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

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

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

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

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

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

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

because of improper service).

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

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

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

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

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

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

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

behalf it was issued, to sanctions.” Minn. R. Civ. P. 45.01(e); Minn. R. Civ. P. 45, 2007 
11

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

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

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

lack of notice).

1

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

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

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

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

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

invalid and unenforceable.

2

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

 

1

In 2010, the rules were amended again to prevent the “misuse” of a subpoena, 

including the use of a subpoena without notice to an opposing party. The advisory 

committee stated that “notice of issuance of a subpoena is required in order that all 

parties have an opportunity to participate in the production and to curtail use of a 

subpoena for ex parte investigation.” Minn. R. Civ. P. 45, 2010 advisory committee 

comment, ¶ 1. A new provision was added to require the party issuing a subpoena duces 

tecum to “make available to all parties” any documents or other things produced pursuant 

to the subpoena duces tecum, to require the party serving the subpoena duces tecum to 

give all parties seven days’ notice if the time or place of a production of documents is 

changed from what is shown on the face of the subpoena, and to give all parties a right to 

“attend and participate in any noticed or rescheduled production or inspection” pursuant 

to the subpoena duces tecum. Minn. R. Civ. P. 45.04(a)(5); see also Minn. R. Civ. P. 45, 

2010 advisory committee comment, ¶ 2. The 2010 amendments, however, did not 

become effective until July 1, 2010, after Vohnoutka obtained Huber’s mental-health 

records.

2Because the subpoena duces tecum in this case is invalid and unenforceable

because it was not properly served on Heimerl, we need not consider or decide whether a 

valid subpoena duces tecum would constitute “specific authorization in law” for the 

release of health records. See Minn. Stat. § 144.293, subd. 2(2). Health records typically 

contain information that is protected by a medical privilege. See Minn. Stat. § 595.02, 

subd. 1(d), (g) (2014). The privilege “belongs to the patient” and, thus, “may be waived 

only by the patient.” Wenninger v. Muesing, 307 Minn. 405, 407, 240 N.W.2d 333, 335 
12

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

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

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

A. Use of False Pretenses

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

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

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

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

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

 

(1976), superseded by statute on other grounds, Minn. Stat. § 595.02, subd. 5 (2014). A 

person waives the medical privilege if he or she “voluntarily places in controversy” his or 

her physical or mental health in the course of a pending civil action. Minn. R. Civ. P. 

35.03. If a person has waived the medical privilege pursuant to rule 35.03, the disclosure 

of the patient’s health records is governed by rule 35.04, which provides a means for the 

disclosure of medical records “as to which privilege has been waived.” Minn. R. Civ. P. 

35.04(b). In that event, it appears that rule 35.04 is “the exclusive means” of conducting 

discovery into the medical issues for which the privilege has been waived. See 

Wenninger, 307 Minn. at 412, 240 N.W.2d at 337. In that context, an attorney’s 

disclosure of health records to a rule 35 examiner is specifically authorized by law and, 

thus, permitted by the Minnesota Health Records Act. Newman v. Brendel & Zinn, Ltd., 

691 N.W.2d 480, 483 (Minn. App. 2005), review denied (Minn. Mar. 29, 2005). Rule 35 

applies in a child-custody proceeding to govern the disclosure of mental-health records, 

at least with respect to the petitioning party’s mental-health records. See Morey v. 

Peppin, 353 N.W.2d 179, 183 (Minn. App. 1984), rev’d on other grounds, 375 N.W.2d 

19 (Minn. 1985). If rule 35.03 applies, an attorney should obtain medical records 

pursuant to rule 35.04, which allows the district court to supervise the discovery process 

and to “use its protective authority to prevent disclosures that are irrelevant to the custody 

question or otherwise annoying, embarrassing, oppressive, or unduly burdensome.” 

Morey, 353 N.W.2d at 183 (citing Minn. R. Civ. P. 26.03). Thus, if rule 35 applies, it 

appears that an attorney should not seek to obtain medical records pursuant to rule 45. 

See Wenninger, 307 Minn. at 412, 240 N.W.2d at 337. Similarly, in a criminal case, an 

attorney should seek to obtain medical records of a victim only pursuant to a court order. 

See Minn. R. Crim. P. 22.01, subd. 2.
13

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

mental-health records.

The district court concluded that Vohnoutka was entitled to summary judgment 

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

Heimerl.” Huber argues that the district court erred because “[t]he record contains 
14

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

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

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

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

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

More specifically, Huber contends that the circumstantial evidence in the 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

understanding of the law and the consent form. 
15

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

misleading the other party.” M.H. v. Caritas Family Servs., 488 N.W.2d 282, 288 (Minn. 
16

1992) (holding that plaintiff’s evidence was sufficient to defeat defendant’s summaryjudgment motion on plaintiff’s claim of negligent misrepresentation). In addition, a 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

B. Causation

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

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

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

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

district court. A party may not make an argument for the first time on appeal and thereby 
17

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

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

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

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

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

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

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

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

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

consider the argument on appeal.

C. Evidence of Compensable Injury

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

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

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

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

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

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

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

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

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

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

the district court’s decision. See Day Masonry, 781 N.W.2d at 331.
18

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

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

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

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

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

experienced “mental anguish.”

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

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

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

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

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

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

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

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

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

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

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

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

 

3We assume without deciding that the Minnesota Health Records Act authorizes 

an award of compensatory damages for a plaintiff’s emotional distress or mental anguish 

arising from an unauthorized release of health records. Vohnoutka does not argue that

the statute does not allow an award of damages for such an injury. A person who violates 

the act “is liable to the patient for compensatory damages.” Minn. Stat. § 144.298, 

subd. 2. But the act does not describe the types of injuries for which compensatory 

damages may be awarded.
19

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

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

concerning damages.”

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

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

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

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

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

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

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

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

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

grounds.

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

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

Reversed and remanded.