This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






D.E. Frey & Company, Inc. a corporation,


Guy Luedke,


Filed October 2, 2001


Peterson, Judge


Hennepin County District Court

File No. 0011063


Dawn C. Van Tassel, David P. Graham, Oppenheimer Wolff & Donnelly, LLP, 45 South Seventh Street, Suite 3300, Minneapolis, MN  55402 (for respondent)


Robert A. Manson, 2233 Hamline Avenue North, Suite 609, Roseville, MN  55113 (for appellant)


            Considered and decided by Peterson, Presiding Judge, Amundson, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N




            In this appeal from a judgment, appellant Guy Luedke challenges the district court’s dismissal of his counterclaim against respondent D.E. Frey & Company, Inc., for failure to comply with Minn. R. Civ. P. 8.01.   We affirm.


            D.E. Frey served a summons and complaint on Luedke asserting a claim for a balance due on a loan.  Luedke responded by writing a letter to D.E. Frey’s attorney denying the allegations in the complaint.  In the letter, Luedke stated

I have not been paid commissions on securities transactions consummated while I was licensed at Frey which amount to well in excess of $100,000.00.  I would contend that Frey neglected my interests entirely in favor of its relationship with others in the securities industry.  Particularly its Clearing Firm, Paine Webber.  The lack of collection of commissions due to me from these firms should certainly have taken place in which case we would not be involved in this discussion and I would have been compromised financially as I have been.


I assure you if this action is not terminated immediately I will vigorously pursue through arbitration and legal actions any and all remedies as the various regulatory agencies and the court system provides, including the amounts of money which clearly owed to me by Frey and/or its cooperating securities dealers.


D.E. Frey did not pursue the litigation, but it placed the claim with a collection agency that attempted to collect the debt.  Luedke decided to pursue his claim for unpaid commissions and retained an attorney.

            Discovery was served upon D.E. Frey’s attorney, but D.E. Frey did not respond.  The matter was filed in district court.  D.E. Frey moved to voluntarily dismiss its action.  The district court granted the motion and also dismissed Luedke’s claim for unpaid commissions.


            “A trial court’s dismissal of an action for procedural irregularities will be reversed on appeal only if it is shown that the trial court abused its discretion.”  Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990).

            Minn. R. Civ. P. 41.01 (b) states:

            Except as provided in clause (a) of this rule[1] an action shall not be dismissed at the plaintiff’s instance except upon order of the court and upon such terms and conditions as the court deems proper.  If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiff’s motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim may remain pending for independent adjudication by the court.  Unless otherwise specified in the order, a dismissal herein is without prejudice.


Minn. R. Civ. P. 8.01 states

            A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain a short and plain statement of the claim showing that the pleader is entitled to relief and a demand for judgment for the relief sought * * *.


            Luedke argues that his letter served as an answer and counterclaim and met the requirements of Minn. R. Civ. P. 8.01. 

            One of the purposes of rule 8 is 

to permit the pleading of events by way of a broad general statement which may express conclusions rather than, as was required under code pleading, by a statement of facts sufficient to constitute a cause of action.  The functions of a pleading today are simply to give fair notice to the adverse party of the incident giving rise to the suit with sufficient clarity to disclose the pleader’s theory upon which his claim for relief is based, to permit the application of the doctrine of res judicata, and to determine whether the case must be tried by the jury or the court.  No longer is a pleader required to allege facts and every element of a cause of action.


Northern States Power Co. v. Franklin, 265 Minn. 391, 394-95, 122 N.W.2d 26, 29 (1963) (citations and footnote omitted).

Luedke’s letter put D.E. Frey on notice of Luedke’s theory that he had not been paid all of the commissions he had earned while working for D.E. Frey.  But the letter failed to comply with one essential element of Rule 8.01; it did not contain a “demand for judgment for the relief sought.”  Instead, Luedke stated in the letter that he would pursue litigation if D.E. Frey persisted in its action against him.  The district court correctly stated, “There are no rules which allow for contingent claims.”  The district court did not abuse its discretion when it concluded that Luedke’s letter did not properly plead a counterclaim and, accordingly, dismissed D.E. Frey’s action and Luedke’s purported counterclaim.


[1] Clause (a) does not apply to the dismissal in this case.