This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).







Michael Dahlberg,





Howard Buffington,



Filed October 3, 2000

Affirmed in part and reversed in part

Peterson, Judge


Kandiyohi County District Court

File No. C4981202



John E. Mack, Mack & Daby P.A., 26 Main Street, P.O. Box 302, New London, MN 56273 (for appellant)


Robert D. Stoneburner, Stoneburner Law Office, 100 Washburne Avenue, P.O. Box 202, Paynesville, MN 56362 (for respondent)


            Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges the denial of his posttrial motion and the award of rule 11 sanctions.  Respondent challenges the adequacy of the rule 11 award.  We affirm the denial of the posttrial motion and reverse the rule 11 award.


            Around 5:00 a.m. on September 14, 1997, appellant Michael Dahlberg drove two passengers to respondent Howard Buffington’s cabin and waited in his car while the passengers pried open a screen and entered the cabin.  Buffington was goose hunting nearby when his security service notified him about a possible break-in.  He drove to the cabin and confronted the Dahlberg vehicle as it drove away from the cabin.  Buffington shot the rear tire of the vehicle with his 12-gauge shotgun.  Dahlberg, then a juvenile, pleaded delinquent to aiding and abetting burglary.  Buffington was charged with assault with a weapon and pleaded guilty to an uncased-firearm charge.

            Dahlberg brought an action against Buffington for assault and defamation.  Buffington brought counterclaims for assault, intentional infliction of emotional distress, and loss of property.  The case was tried to a jury.  At the close of evidence, Dahlberg dismissed his defamation claim and moved to amend his complaint by adding a battery claim.  The motion was granted.  The jury found that Buffington had committed a battery, not an assault, and that Dahlberg caused a loss of property but did not commit an assault.  The jury awarded Dahlberg $20 as damages for the battery and Buffington $250 for loss of property, and judgment was entered accordingly.

            Buffington moved for an award of attorney fees, costs, and disbursements pursuant to Minn. R. Civ. P. 11 and Minn. Stat. § 549.211 (1998).  Dahlberg filed a motion seeking a new trial on damages for the battery, permission to add a claim for punitive damages, and additur in the amount of $5,000.  The trial court denied Dahlberg’s motion and awarded Buffington $300 in attorney fees as a rule 11 sanction.  On appeal, Dahlberg challenges the denial of his posttrial motion and the attorney-fee award.  By notice of review, Buffington challenges the attorney-fee award, arguing that he is entitled to $7,150 in attorney fees. 


1.         Dahlberg contends he is entitled to a new trial because of an inadequate damage award. 

A trial court’s denial of a motion for a new trial on the grounds of inadequacy of damages will not be overturned except in the most unusual circumstances which constitute a clear abuse of discretion.


Hennen v. Huff, 388 N.W.2d 408, 411 (Minn. App. 1986), review denied (Minn. Aug. 13, 1986). 

Dahlberg argues that the trial court should have granted a new trial on damages for battery because Buffington’s counsel made prejudicial remarks during closing argument.  Buffington’s counsel stated:

If for some reason * * * you decide in your wisdom as jurors to depart from what I have argued for, and if you for some reason answer yes on [assault] or yes on [battery], then I have these brief comments.  The dollar amount you should fill in [for damages on those claims] should be zero.  Why?  Because this man aided and abetted burglary of the Buffington cabin and should not be awarded money damages as a recovery for what he did.


Dahlberg contends that the jury awarded him only $20 due to prejudice caused by the comment that he should not be awarded any damages because he aided and abetted burglary.

When determining whether to grant a new trial for improper remarks of counsel, the primary consideration is whether any prejudice resulting from the remarks is sufficient to affect the outcome of the trial.  Ellingson v. Burlington N. R.R., 412 N.W.2d 401, 404 (Minn. App. 1987), review denied (Minn. Nov. 13, 1987).  The trial court is in a better position than an appellate court to make this determination.  Id.  In denying a new trial, the trial court reasoned that even if counsel’s argument was improper, jury instructions before and after final argument mitigated any prejudicial effect the remarks might have had on the jury.  Before final arguments, the jury was instructed that they were to follow the law as given them by the court regardless of any personal likes or dislikes, opinions, prejudices, or sympathy.  They were also instructed that in determining damages, they should consider the amount that would fairly compensate a party for injuries sustained.  After final arguments, they were again instructed that they must not permit sympathy, prejudice, or emotion to influence their verdict. 

Because the jury was properly instructed regarding the determination of damages, and because the jury did not follow the suggestion of counsel to award zero damages, we cannot conclude that the trial court erred when it concluded that counsel’s remarks did not affect the outcome of the trial.  The trial court did not abuse its discretion by denying a new trial on damages.

2.         Dahlberg argues that the trial court should have granted additur.  “[W]hether to grant additur rests almost wholly within the trial court’s discretion.”  Krutsch v. Walter H. Collin GmBh Verfahrenstechnik Und Maschinenfabric, 495 N.W.2d 208, 216 (Minn. App. 1993) (alteration in original) (quotation omitted), review denied (Minn. Mar. 22, 1993).  “In reviewing a damage award, this court must consider the evidence in the light most favorable to the verdict.”  Imperial Developers, Inc. v. Seaboard Sur. Co., 518 N.W.2d 623, 626 (Minn. App. 1994) (citation omitted), review denied (Minn. Aug. 24, 1994).  A compensatory “damage verdict may be disturbed only if it is manifestly and palpably contrary to the evidence.”  Pine Valley Meats, Inc. v. Canal Capital Corp., 566 N.W.2d 357, 364 (Minn. App. 1997) (quotation omitted), review denied (Minn. Sept. 18, 1997).

The evidence on damages consisted of testimony by Dahlberg’s mother that he became very depressed and paranoid after the incident and evidence that the wheel and tire on Dahlberg’s car were damaged.  In denying additur, the trial court stated:

Very little evidence was submitted at trial regarding any damage [Dahlberg] may have incurred as a result of [Buffington’s] action.  There was evidence that [Dahlberg’s] emotional response to the incident was due to his decision to participate in the burglary and the subsequent criminal prosecution.  The jury award was not manifestly and palpably contrary to the evidence because [Dahlberg] did not adequately prove substantial damages.


Because there was conflicting evidence regarding the cause of Dahlberg’s emotional response to the incident and minimal evidence that Buffington’s conduct caused Dahlberg emotional harm, we agree that the damage award was not manifestly and palpably contrary to the evidence.  The denial of additur was not an abuse of discretion.

3.         The trial court imposed sanctions under Minn. R. Civ. P. 11 on the grounds that there was no evidentiary support for Dahlberg’s defamation claim or for the allegation in Dahlberg’s complaint that “Buffington shot bullets into the vehicle well above the tire-line, including the entire back trunk of the car.”[1]   Dahlberg argues that the rule 11 sanctions were improper.  Buffington contends that the $300 award was not sufficient.

We apply an abuse-of-discretion standard when reviewing a district court's decision to impose either statutory or rule 11 sanctions.  Uselman v. Uselman, 464 N.W.2d 130, 140, 145 (Minn. 1990).  Rule 11 “should be construed somewhat narrowly” as it is preferable that some sanctionable conduct escape discipline rather than causing the deterrence of legitimate or arguably legitimate claims. Id. at 142.

In Kellar v. VonHoltum, 605 N.W.2d 696, 701 (Minn. 2000), an opinion that was released after the trial court made its decision in this case, the supreme court explained that

[t]he goal of * * * rule [11] is not to punish the offender or to shift fees, but to deter bad faith litigation.  Adopting deterrence as the driving policy serves the purpose of protecting a party from the costs of having to defend oneself from bad faith litigation.


(Citation omitted).  Because deterrence is the goal of rule 11, it is important that a party who seeks protection from bad-faith litigation provide notice of intent to seek sanctions under rule 11.  Id.  To achieve the goal of deterrence, before rule 11 sanctions are imposed,

“the attorney or party must have fair notice of both the possibility of a sanction and the reason for its proposed imposition.  Since one of the primary purposes of Rule 11 is to deter litigation abuse, this notice should be given as early as possible during the proceedings to provide the attorney and party the opportunity to correct future conduct.  A policy of deterrence is not well served by tolerating abuses during the course of an action and then punishing the offender after the trial is at an end. * * * Only in very unusual circumstances will it be permissible for the trial court to wait until the conclusion of the litigation to announce that sanctions will be considered or imposed.  Similarly, a party intending to seek sanctions should notify the court and other parties with specificity of that intention.”


Id. (quoting Uselman, 464 N.W.2d at 143). 

            The supreme court held in Kellar that a party who brought a pretrial motion for sanctions, which included a 15-page memorandum that detailed the party’s allegations of bad-faith litigation, had given adequate notice to be awarded attorney fees as a sanction.  Id. at 702 & n.4.  The supreme court also held, however, that a party who did not give notice of intent to seek sanctions until after the appeals process had concluded had not given adequate notice to be awarded attorney fees as a sanction.  Id. at 703.

            Buffington did not bring a motion seeking sanctions until after trial.  Before that time, the only indication that Buffington would seek sanctions was a statement in his answer that

[Buffington] prays that [Dahlberg] take nothing by this pretended cause of action, and that the court enter judgment for [Buffington] for all attorney and witness fees, statutory costs and disbursements incurred to defend this meritless cause of action.  [Buffington] specifically notifies [Dahlberg],  pursuant to Minnesota Civil Rule 11, and Minn. Stat. Sec. 549.211 (subds. 2,3), of his intention to claim such fees and costs.


            Because this statement was preceded by general and specific denials of virtually all of the allegations in the complaint, it cannot be fairly read as anything more specific than a request for sanctions for bringing a meritless cause of action.  The request did not identify specific conduct, arguments, or assertions alleged to be in bad faith, beyond the general assertion that the entire cause of action was meritless. 

             We conclude that this general request for sanctions did not provide adequate notice to permit Buffington to be awarded sanctions based on specific conduct that was later identified in his posttrial motion.  The general request for sanctions did not further the deterrent purpose of sanctions because it did not specifically identify the litigation abuses that Buffington sought to end.

            Unlike the party in Kellar whose sanctions award was affirmed, Buffington did not make detailed allegations of litigation abuses in a motion for sanctions.  Buffington essentially claimed that bringing suit at all was a litigation abuse.  Because Dahlberg prevailed on his claim that Buffington committed a battery by shooting Dahlberg’s car, we cannot conclude that bringing suit merited sanctions.  Rather than identifying abuses at the time they occurred and pursuing a sanctions motion to stop them, Buffington made a general statement about litigation abuses and then completed the trial before seeking sanctions for specific abuses.

We agree with the trial court’s determination that there were litigation abuses in this case that warranted sanctions.  In particular, Dahlberg’s allegation that Buffington shot bullets into the entire back trunk of the car appears to have no factual basis whatsoever, and Dahlberg’s attorney could have discovered this by simply looking at the car.  But Buffington could have deterred this and the other alleged abuses by specifically identifying the abuses in a motion for sanctions before the trial ended.  Because he failed to do so, Dahlberg did not have fair notice of the reason for proposed sanctions, and the trial court erred by awarding sanctions.

            Affirmed in part and reversed in part.


[1] The trial court determined that sanctions could not be appropriately awarded under Minn. Stat. § 549.211 (1998) because there was no motion for sanctions as required under Minn. Stat. § 549.211, subd. 4.