This opinion will be unpublished and

may not be cited except as provided by

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






Wayne L. Johnson,


Vincent Johnson,


Filed December 19, 2000

Klaphake, Judge


Ramsey County District Court

File No. C7999416


John G. Westrick, Westrick & McDowall-Nix, P.L.L.P., 400 Minnesota Building, 46 East Fourth Street, St. Paul, MN  55101 (for respondent)


Luther M. Amundson, Brian R. McDaniel, Maser & Amundson, P.A., 6600 France Avenue South, #425, Minneapolis, MN  55435 (for appellant)


            Considered and decided by Harten, Presiding Judge, Klaphake, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N


Respondent Wayne L. Johnson sued his brother, appellant Vincent Johnson, alleging that appellant tortiously interfered with an inheritance respondent claimed he would have received from their mother, who died in March 1998.  Appellant moved for summary judgment, arguing that Minnesota does not recognize such a cause of action and that even if it did, respondent failed to present evidence to support his claim.  Appellant also moved for a hearing on fees under Minn. R. Civ. P. 11 and Minn. Stat. § 549.211 (1998).

The district court granted summary judgment and awarded appellant attorney fees of $750 “for the necessity of having to defend in bringing this motion.”  Appellant thereafter moved for additional fees of $8,386 under rule 11 and section 549.211.  The district court assessed costs of $721, but otherwise refused to award additional attorney fees.  The court entered an amended order, assessing fees against respondent individually, not against respondent’s attorney.  Judgment was entered on the three orders and against respondent in the amount of $1,471.

Because the district court did not abuse its discretion in its original fee award or in its refusal to award additional fees, and because the district court did not err in granting summary judgment dismissing respondent’s complaint, we affirm.


            Summary Judgment

            In his notice of review, respondent argues that the district court erred in granting summary judgment.  Respondent agrees that tortious interference with inheritance is not a recognized cause of action in Minnesota, but asserts that it has been recognized in several other jurisdictions.  See, e.g., Huffey v. Lea, 491 N.W.2d 518, 520 (Iowa 1992); Harris v. Kritzik, 480 N.W.2d 514, 517 (Wis. Ct. App. 1992) (citing Restatement (Second) of Torts § 774B (1979)).

            Even if we were inclined to recognize this cause of action, we would still affirm the district court’s grant of summary judgment because the undisputed facts fail to establish a prima facie case.  Respondent’s complaint alleged that in 1990 his mother drafted a codicil to her will, which changed the provisions of that will to his detriment, and that appellant used “fraudulent inducement, coercion, intimidation, manipulation, and/or undue influence” to cause their mother to sign the codicil.

            In support of his motion for summary judgment, however, appellant presented two affidavits, one by the attorney who drafted the 1990 codicil and another by himself.  In those affidavits, the attorney stated that he never discussed the codicil with appellant and that, to the contrary, he was instructed by the parties’ mother to send the original of the codicil to respondent; appellant confirmed this and stated that he did not even know about the codicil until 1993.

            Once a motion for summary judgment is made and supported by evidence that shows no genuine issue of material fact exists, the party opposing such a motion cannot rely upon “mere averments or denials,” but must present “specific facts showing that there is a genuine issue for trial.”  Minn. R. Civ. P. 56.05.  To overcome appellant’s motion, respondent presented statements from the parties’ sister that “if the will had been changed, it was instigated by my brother Vincent.”  When asked how she knew that appellant had instigated the change, however, the sister could only respond:  “Because he was never happy with the will; he was never happy.”  These statements fail to show that appellant tortiously induced his mother to draft the codicil and were insufficient to overcome appellant’s evidence that he did not even know the codicil existed until 1993.  The district court therefore did not err in granting summary judgment and in dismissing respondent’s tortious interference with inheritance claim.

            Attorney Fees

            The decision to award attorney fees under rule 11 or section 549.211 is discretionary with the district court.  Uselman v. Uselman, 464 N.W.2d 130, 145 (Minn. 1990); Whalen v. Whalen, 594 N.W.2d 277, 281-82 (Minn. App. 1999).  A district court has wide discretion to award the type of sanctions it deems necessary in a particular case.  Kellar v. Von Holtum, 605 N.W.2d 696, 702 (Minn. 2000).  The goal is not to make the other party whole or to punish the sanctioned party, but to deter the sanctioned party from similar conduct in the future.  Id. at 701.  Thus, the district court retains discretion to impose the “least severe sanction necessary to effectuate the purpose of deterrence.”  Uselman, 464 N.W.2d at 145 (citation omitted).  The district court may also apply its discretion by withholding sanctions in an otherwise sanctionable case.  See Peterson v. Hinz, 605 N.W.2d 414, 417 (Minn. App. 2000), review denied (Minn. Apr. 18, 2000).

            Respondent argues that the district court abused its discretion by awarding any fees at all, because his action was merely a good faith attempt to extend existing law.  However, the “possibility of characterizing an issue as one of first impression does not preclude the district court from awarding sanctions against a party * * * for pursuing such an issue if the conduct of the party * * * is otherwise sanctionable.”  Cole v. Star Tribune, 581 N.W.2d 364, 370-71 (Minn. App. 1998) (citations omitted).  Here, appellant alleged, and the district court essentially agreed, that respondent’s action was taken merely to harass appellant and delay proceedings in a breach of contract action that had been brought against respondent in Anoka County by appellant, who was serving as the personal representative of their mother’s estate.  Given the timing of the filing of this suit alleging tortious interference with inheritance and its lack of any substantial basis in fact, the district court did not abuse its discretion in awarding appellant attorney fees of $750.

            Appellant also argues that the district court “erred” in refusing to award him $8,386.60 in additional attorney fees.  He argues that the award of $750 in attorney fees was intended to reimburse him only for the necessity of having to bring his summary judgment motion and that the district court therefore failed to award him any fees for respondent’s violation of rule 11 or section 549.211.  As discussed, the goal of these types of sanctions is not to make the other party whole or to punish the offender, but to deter the offender from similar conduct in the future.  See Kellar, 605 N.W.2d at 701.  Given this, we cannot conclude that the district court abused its discretion by refusing to award appellant all of his claimed fees.

            The district court’s grant of summary judgment and award of attorney fees is affirmed.