This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-01-324

 

Jon H. Billigmeier,
Respondent,

vs.

Concorde Marketing, Inc., et al.,
Appellants.

 

 

Filed December 4, 2001

Affirmed in part, reversed in part, and remanded

Peterson, Judge

 

Hennepin County District Court

File No. 993693

 

 

Peter W. Johnson, 1055 East Wayzata Boulevard, Suite 300, Wayzata, MN  55391 (for respondent)

 

 

Paul W. Chamberlain, Chamberlain Law Firm, 445 Lake, Suite 333, Wayzata, MN  55391 (for appellants)

 

 

            Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

This case involves a stock buy-out valuation and wage dispute between two owners of a closely held corporation.  In this appeal from the judgment and post-trial orders, appellants (a) contend that the district court improperly found a contract between the parties; (b) raise a number of issues relating to the payment of commissions, including a statute of limitations issue under Minn. Stat. 541.07 (2000); (c) challenge the valuation of the corporation; (d) dispute the placement of a constructive receivership on appellant Glenn P. Willing; (e) challenge an award of attorney fees to respondent under Minn. Stat. § 181.171, subd. 3 (2000); and (f) contend that the court improperly considered proposed findings submitted after the 15-day jurisdictional limit in Minn. R. Civ. P. 52.02.  We affirm in part, reverse in part, and remand.

FACTS

            Respondent Jon H. Billigmeier and appellant Glenn P. Willing own a small, closely held corporation, appellant Concorde Marketing, Inc.  Concorde Marketing was initially formed in 1983 by three shareholders, Willing, Billigmeier, and Michael Calhoun.  Concorde Marketing was formed to market lawnmowers, snowblowers, and other products manufactured by MTD Products, Inc., and its affiliates, AgriFab and Arnold.  All three shareholders intended to be actively employed as salespeople by Concorde Marketing and to serve as officers and directors of the corporation.

            In 1986, Calhoun left Concorde Marketing, and the corporation redeemed his stock shares.  Following the redemption of Calhoun’s stock shares, Willing owned 64% of Concorde Marketing’s stock, and Billigmeier owned 36%.

            In 1989, Billy Stoner began working with Concorde Marketing as an independent manufacturers’ representative promoting a varied line of products to Target Stores, Inc.  Concorde Marketing expected to profit from the relationship by using Stoner to market MTD products to Target.  The record contains evidence that when Stoner began working with Concorde Marketing, he, Willing, and Billigmeier orally agreed to a compensation plan for salespersons.  Under the plan, all commissions earned by Stoner, Willing, and Billigmeier would be deposited into the corporate checking account.  Each salesperson would be paid the commissions earned on his accounts and would be charged for any expenses associated with his accounts.  If more than one salesperson was involved with an account, commissions and expenses would be allocated among them.  For example, Billigmeier testified that 60% of the commissions earned on the Target account were allocated to Stoner, and 40% were allocated to Willing.  Billigmeier testified that on split-commission accounts, the percentage of commissions paid to each salesperson “depend[ed] upon a predetermined agreement.”  Stoner also testified that the percentage of commissions to be allocated to each salesperson on various accounts was agreed to when he began working with Concorde Marketing.  A formula was used to allocate overhead and operating expenses among Stoner, Willing, and Billigmeier.  The record shows that generally one-third of overhead and operating expenses was allocated to each of them.

            Effective January 1, 1997, Stoner formed his own corporation but continued to be affiliated with Concorde Marketing.  Later in 1997, Concorde Marketing hired Wade Malcolm as a salesperson.  On May 4, 1998, Concorde Marketing terminated Billigmeier’s employment.  The record contains evidence that when Billigmeier’s employment was terminated, Concorde Marketing owed him unpaid commissions and that after his termination, the corporation continued to receive commissions on orders that had been placed with Billigmeier.

            The case was tried to the court.  The district court concluded that Billigmeier was entitled to judgment against appellants in the amount of $93,312 plus statutory interest for his stock shares in Concorde Marketing and $251,727.13 plus statutory interest for unpaid commissions and frustration of reasonable expectations of continued employment. Based on its conclusion that Willing had acted in a manner unfairly prejudicial to Billigmeier, the district court enjoined appellants from transferring any of Concorde Marketing’s assets until the judgment was paid in full and retained jurisdiction to order further equitable relief.  The district court also awarded Billigmeier reasonable attorney fees.  The district court rejected Billigmeier’s age-discrimination and corporate-waste claims.

            Appellants filed a motion for amended findings of fact and conclusions of law or, alternatively, a new trial.  Following a hearing, the district court issued an amended order increasing the award to Billigmeier for unpaid commissions and frustration of reasonable expectations of continued employment to $280,099.85 plus statutory interest.

D E C I S I O N

This court defers to the district court’s findings of fact and will uphold them unless they are clearly erroneous.  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999).

            1.  Appellants argue that the district court erred in finding that a contract existed between the parties regarding the payment of commissions to salespersons.  When disputed, the existence and terms of a contract are questions of fact.  Powell v. MVE Holdings, Inc., 626 N.W.2d 451, 460 (Minn. App. 2001), review denied (Minn. July 24, 2001).  The essential elements of a contract are an offer, acceptance, and consideration.  S O Designs, Inc. v. Rollerblade, Inc., 620 N.W.2d 48, 53 (Minn. App. 2000) (citing Cederstrand v. Lutheran Bhd., 263 Minn. 520, 521-22, 117 N.W.2d 213, 220-21 (1962)), review denied (Minn. Feb. 21, 2001).  “Whether a contract has been formed is judged objectively by the parties’ conduct, not by the parties’ subjective intent.”  Powell, 626 N.W.2d at 460.

Appellants argue that the method of paying commissions to salespersons that was agreed to when Stoner began working with Concorde Marketing in 1989 was terminated pursuant to the parties’ agreement at the end of 1993.  Appellants cite Billigmeier’s testimony as showing that from 1994 through 1998, Billigmeier and Willing would analyze each account on a case-by-case basis and determine what percentage of commissions and expenses to assign to each salesperson.  But Billigmeier testified only that the salespersons sometimes disagreed about the allocation of expenses on split-commission accounts, and, when that happened, they would discuss the situation and come to an agreement that would be shown in the year-end report.  He testified that the percentage of commissions paid to each salesperson on split-commission accounts “depend[ed] upon a predetermined agreement.”  Stoner’s testimony also shows that commissions on split-commission accounts were allocated among salespersons on a predetermined basis.  Although appellants presented evidence that only Stoner was paid on a commission basis and that Billigmeier and Willing continued to be paid on the salary plus bonus basis, Billigmeier’s testimony supports the district court’s finding that Billigmeier was paid on a commission basis.

            Appellants also cite evidence regarding Willing’s dissatisfaction with the method of paying commissions as showing that the 1989 agreement was terminated.  Evidence that Willing raised objections to the method of paying commissions is insufficient to show that the parties terminated the 1989 agreement.  The evidence supports the district court’s finding that “Willing did not propose an alternative compensation plan and gave Billigmeier no notice that the compensation policy would be changed prospectively or retroactively.”

The district court’s findings that Concorde Marketing was obligated to pay Billigmeier commissions according to the 1989 agreement are not clearly erroneous.

            2.  Appellants argue that the district court erred in failing to deduct sufficient overhead and operating expenses for 1998 and 1999 from the commissions awarded to Billigmeier.  In reviewing a damage award, this court must consider the evidence in the light most favorable to the verdict.  Rayford v. Metro. Transit Comm’n, 379 N.W.2d 161, 165 (Minn. App. 1985), review denied (Minn. Feb. 14, 1986).  This court reviews a district court’s award of damages under an abuse-of-discretion standard.  Holiday Recreational Indus., Inc. v. Manheim Servs. Corp., 599 N.W.2d 179, 183 (Minn. App. 1999).  The party seeking reversal has the burden of demonstrating error.  Bloom v. Hydrotherm, Inc.,499 N.W.2d 842, 845 (Minn. App. 1993), review denied(Minn. June 28, 1993).

            The district court awarded Billigmeier damages for unpaid commissions earned in 1998 and 1999 as follows:

1998 commission income

$264,458

Allocated expenses (including salary)

 ($53,605)

Stoner & Associates commissions paid directly to Billigmeier

($11,817)

Employees’ expense allocation

    Paula Dvergsten 50%

    Wade Malcolm 85%

 

($12,357)

( $9,979)

Total commissions

 1998 inventory bonus due

$176,700

+ $7,175

 

 

1999 commissions earned during employment prior to May 4, 1998

 

Northern Hydraulics

 $32,279

United Hardware

  $7,788.88

MidStates/L&M Supply

  $4,615.65

Total

$44,884.44

 

The district court specifically rejected the argument that expenses should be deducted from the 1999 commissions, finding “that most of the work related to these sales had been done by Billigmeier before his termination and he should be entitled to the full commissions for such sales.”

            In 1998, Billigmeier earned $457,339 in commissions and $53,233 was deducted from that amount for overhead and operating expenses, representing 11% of overhead and operating expenses for the entire year and 21% of the total commissions earned by Billigmeier.  Appellants argue that one-third of the total overhead and operating expenses for 1998, which equals $160,672 and represents 62% of the total commissions earned by Billigmeier in 1998, should have been deducted from the commissions awarded to Billigmeier for 1998.  That amount would have been consistent with the amounts deducted in 1996 and 1997.

Appellants, however, cite no evidence that overhead and operating expenses were charged as a percentage of commissions.  Rather, the evidence shows that they were divided equally among Stoner, Willing, and Billigmeier.  Billigmeier was terminated effective May 4, 1998, and by the end of July 1998, Concorde Marketing had completely stopped assessing overhead and operating expenses against his account.  Once Billigmeier’s employment was terminated, he no longer had use of Concorde Marketing’s office facilities, support staff, or other items associated with overhead and operating expenses.

            Appellants also contend that after Billigmeier’s employment was terminated, considerable work was necessary to finalize orders that had been placed to him.  But the evidence shows only that minor follow-up work was necessary on a few orders.  For example, one order failed to note that a retailer had been promised free light kits on equipment.  Willing contacted the manufacturer to confirm that it would include the light kits with the order, and Malcolm then did some follow-up work on the order, submitting a revised order form to the manufacturer and verifying that it was approved by the manufacturer.  Malcolm  testified that he also facilitated some changes to quantities and amounts requested by the retailer on one of Billigmeier’s orders and performed routine follow-up work on at least one other order of Billigmeier’s.

Absent evidence that Concorde Marketing’s practice was to assess a percentage of overhead and operating expenses against commissions or that specific expenses were attributable to the commissions awarded to Billigmeier for 1998 and 1999, we cannot conclude that the district court erred by declining to deduct additional expenses from the commissions awarded to Billigmeier for 1998 and 1999.

            3.  Appellants argue that the district court erred in holding Willing personally responsible for unpaid commissions owed to Billigmeier when it specifically found that Willing “did not act arbitrarily, vexatiously, or in bad faith.”  But the district court also found that Willing acted “in a manner unfairly prejudicial toward John Billigmeier in his capacity as a shareholder, director, and employee of a closely held corporation.”  The court concluded:

Willing is personally responsible for the unpaid commissions owed to Jon H. Billigmeier because the nonpayment derives as a direct and immediate result of his actions in oppressing Jon Billigmeier as a minority shareholder in violation of Minn. Stat. § 302A.751, Subd. 1, (b)(3) and § 302A.751, Subd. 3(a).

 

            Minn. Stat. § 302A.751 (2000), states:

Subdivision 1. When permitted.   A court may grant any equitable relief it deems just and reasonable in the circumstances or may dissolve a corporation and liquidate its assets and business:  * * *

(b) In an action by a shareholder when it is established that:  * * *

            (3) the directors or those in control of the corporation have acted in a manner unfairly prejudicial toward one or more shareholders in their capacities as shareholders or directors of a corporation that is not a publicly held corporation, or as officers or employees of a closely held corporation[.]

 

            * * * *

 

            Subd. 3. Condition of corporation. In determining whether to order equitable relief, dissolution, or a buy-out, the court shall take into consideration the financial condition of the corporation but shall not refuse to order equitable relief, dissolution, or a buy-out solely on the ground that the corporation has accumulated or current operating profits.

 

This court has interpreted the phrase “in a manner unfairly prejudicial toward * * * shareholders” to mean conduct that frustrates the reasonable expectations of all shareholders in their capacity as shareholders or directors of a corporation that is not publicly held or as officers or employees of a closely held corporation.  Berreman v. W. Publ’g. Co., 615 N.W.2d 362, 374 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000).

            The district court found that appellants acted in an unfairly prejudicial manner towards Billigmeier by intentionally refusing to pay commissions owed to him.  The district court specifically found that appellants had the information necessary to calculate the amount of commissions owed to Billigmeier and that appellants’ failure to pay Billigmeier was intentional and not the result of mistake or inadvertence.  The district court also found:

Since the date of Jon Billigmeier’s termination, Glenn Willing has continued to operate the corporation without any recognition of the rights of Jon Billigmeier as a minority shareholder with a reasonable expectation of continued employment.  Jon Billigmeier has not had any access to Company resources and has not had any benefit from the Company’s activities.  Glenn Willing has converted to himself all benefits associated with the Corporation’s long-term relationship with MTD Products, Inc.  Glenn Willing made all spending decisions on behalf of the Company after Jon Billigmeier’s termination.

 

Based on our conclusion that the evidence supports the district court’s finding that the 1989 agreement regarding payment of commissions remained in effect, we reject appellants’ argument that the evidence does not support the district court’s finding that appellants had sufficient information to calculate most of the amounts owed to Billigmeier.  Appellants also contend that, based on the amount of the judgment awarded in favor of Billigmeier and the amount of Concorde Marketing’s outstanding bank loans, the corporation is insolvent and, therefore, paying the judgment owed to Billigmeier would be an invalid preference of creditors.  Appellants, however, cite no evidence showing that they were justified in withholding payment of commissions to Billigmeier when they became due.

            The district court also found:

            The Company paid amounts shown due to commissioned salespeople in the year-end reports when the Company had sufficient liquid funds.  During 1996 and 1997 the Company was unable to pay commissions in full to Jon Billigmeier because Glenn Willing had taken funds out of the Corporation on behalf of a new enterprise he was starting, Concorde Group.  In 1996, Concorde Group voluntarily repaid some amounts to the Company.

 

The evidence supports this finding.  Corporate reports show that Willing withdrew more money than he earned from Concorde Marketing beginning in 1994.  At the end of 1996, Willing was overdrawn by $94,587.36.  Billigmeier testified that Willing used the money to fund an independent venture, Concorde Group, to market MTD’s products in the Chicago area.

            In sum, the district court found that Billigmeier’s employment was terminated when he had a reasonable expectation of continued employment, that appellants intentionally withheld commissions owed to Billigmeier, and that Willing withdrew money from Concorde Marketing to fund his independent venture, Concorde Group.  Those findings, taken together, are sufficient to support the finding that appellants acted in a manner unfairly prejudicial to Billigmeier.  See Pedro v. Pedro, 489 N.W.2d 798, 802 (Minn. App. 1992) (Pedro II) (stating that the reasonable expectations of close-corporation shareholders include a job, a salary, and a significant place in management), review denied (Minn. Oct. 20, 1992); Pedro v. Pedro, 463 N.W.2d 285, 289 (Minn. App. 1990) (Pedro I) (stating that “the primary expectations of minority shareholders include an active voice in [the] management of the corporation and input as an employee”), review denied (Minn. Jan. 24, 1991); Minn. Stat. Ann. § 302A.751 reporter’s notes 1982-84 (West 1985) (noting that the statute includes “the discharge of a shareholder-employee as a ground [for relief], if that discharge was ‘unfairly prejudicial’”).  This court has indicated that imposing personal liability is a permissible form of equitable relief under Minn. Stat. § 302A.751.  See Pedro II, 489 N.W.2d at 803 (stating in dicta that “Minn. Stat. § 302A.751 allows a trial court to grant any equitable relief it deems just and reasonable under the circumstances” and “[a]ppellants cite no authority that prohibits a trial court’s ability to order joint and severally liability”).  Moreover, imposing personal liability is consistent with the broad statutory language of Minn. Stat. § 302A.751, subd. 1, which permits the district court to “grant any equitable relief it deems just and reasonable in the circumstances.”  The district court did not err in imposing personal liability against Willing.

4.  Appellants argue that the district court erred in valuing Concorde Marketing without accounting for its liability to Billigmeier for unpaid commissions.

[F]air value, in ordering a buy-out under the Minnesota Business Corporations Act, means the pro rata share of the value of the corporation as a going concern.  To determine fair value, the trial court may rely on proof of value by any technique that is generally accepted in the relevant financial community and should consider all relevant factors, but the value must be fair and equitable to all parties.

 

Advanced Communication Design, Inc. v. Follett, 615 N.W.2d 285, 290 (Minn. 2000).

            The district court valued Concorde Marketing as follows:

            38.  Evidence adduced at trial established that the proper method for valuing the stock in Concorde Marketing, Inc. is to base the evaluation upon annual revenues and discount that amount to reflect unique features of Concorde Marketing, Inc.  At trial, the testimony of Larry Plowman, an experienced CPA, was unrebutted. 

 

            39.  Valuation of the stock interest of Jon Billigmeier should, to the extent possible, reflect the value of the Company on the date his employment was terminated.  Larry Plowman testified that to determine a valuation of Concorde Marketing as of May 1998 he would look to revenues for a 3-5 year period around 1998.  In his testimony, he valued Concorde Marketing at approximately $600,000.00 at the time of Jon Billigmeier’s termination.

 

            40.  The unrebutted testimony of Larry Plowman, CPA, established that the value of a manufacturer’s representative business would range from 80% of gross revenues to 120% of gross revenues depending upon the financial strength of the Company and the overall strength of the markets in which the manufacturer’s representative participates.  It is appropriate that valuation of the stock incorporate a maximum discount of 20% to reflect the questionable financial strength of Concorde Marketing and the difficulties faced by Concorde Marketing in the marketplace.

 

Plowman also testified that the valuation should incorporate a 40% discount because revenues generated by Concorde Marketing are based primarily on its relationship with a narrow group of vendors and that a key-person discount of five to ten percent should be applied if a company does not have a long-established relationship with its vendor group or lacks a reasonable succession plan.  The district court applied those discounts but declined to impose a minority discount on Billigmeier’s stock shares because his departure from Concorde Marketing was involuntarily imposed by the majority shareholder.  The court found:

            The reasonable value of Jon Billigmeier’s 36% share of Concorde Marketing, Inc. on May 4, 1998 was $93,312.00. [$600,000 valuation X 80% valuation discount = $480,000 X 60% sole vendor discount = $288,000 X 90% keyman discount = $259,200 X 36% ownership interest of Billigmeier = $93,312]

 

            Appellants argue that the district court should have applied an additional discount to account for the $288,099 judgment in favor of Billigmeier for unpaid commissions.  Appellants argue that Concorde Marketing has a value of about negative $170,000 when the amount of the bank loan, $170,000, and the amount of the judgment for unpaid commissions, $288,099, are subtracted from the district court’s valuation of Concorde Marketing, $288,000.  Therefore, appellants argue, Concorde Marketing has no value as a going concern.

            Plowman’s valuation method, however, was not based on book value.  To the contrary, Plowman testified “that the book value of the assets and liabilities of the company are unrelated to the value that will be the result of the [revenue-based] analysis” that he used.  Plowman testified that the base value of a manufacturer’s representative’s business can range from 80% to 120% of annual gross revenues.  Plowman testified that the 80% multiplier was consistent with Concorde Marketing owing a $170,000 line of credit and was also consistent with Concorde Marketing owing a $250,000 line of credit.  Although the district court did not expressly account for the corporate debt owed to Billigmeier, the court did consider the company’s financial situation, applying the low-end multiplier of 80% to reflect Concorde Marketing’s “questionable financial strength.”  Because the valuation method used by Plowman was unrelated to book value and because the record contains no evidence that the debt owed to Billigmeier invalidates the 80% multiplier, we cannot conclude that the district court’s valuation of Concorde Marketing is clearly erroneous.

            5.  Appellants argue that the district court erred in applying a three-year statute of limitations to Billigmeier’s claim for unpaid commissions.  An action for the recovery of wages shall be commenced within two years “except * * * if the nonpayment is willful and not the result of mistake or inadvertence, the limitation is three years.”  Minn. Stat. § 541.07(5) (2000).  The term “wages” includes commissions.  Id.  Under Minnesota law, a “willful” failure to pay back wages includes the intentional and deliberate breach of an obligation to pay agreed-on wages, as opposed to a knowing failure to pay based upon a misunderstanding of the extent of the contractual obligation.  McGoldrick v. DataTrak Int’l., Inc., 42 F. Supp. 2d 893 (D. Minn. 1992).

Appellants argue that they legitimately disputed the amount of commissions owed to Billigmeier, and, therefore, the evidence does not support the district court’s finding that the nonpayment of commissions to Billigmeier was willful.  But, as we have already discussed, the evidence supports the district court’s finding that the 1989 agreement regarding payment of commissions remained in effect and that finding supports the finding that appellants had sufficient information to calculate most of the amounts owed to Billigmeier.

Appellants also contend that the nonpayment was not willful because it was due to Concorde Marketing’s cash-flow problems and the resulting inability to pay.  The evidence supports the district court’s finding that the inability to pay was due to Willing taking money out of Concorde Marketing to fund Concorde Group and that finding supports the finding of willfulness.

            6.  Appellants argue that the district court erred in applying a constructive receivership to Willing’s personal assets.  Minn. Stat. § 302A.467 (2000) states:

If a corporation or an officer or director of the corporation violates a provision of this chapter, a court in this state may, in an action brought by a shareholder of the corporation, grant any equitable relief it deems just and reasonable in the circumstances and award expenses, including attorneys’ fees and disbursements, to the shareholder.

 

See also Minn. Stat. § 302A.751 (allowing equitable relief when party in control of a corporation acts in a manner unfairly prejudicial to a shareholder).

            “Granting equitable relief is within the sound discretion of the trial court.  Only a clear abuse of that discretion will result in reversal.”  Nadeau v. County of Ramsey, 277 N.W.2d 520, 524 (Minn. 1979).

            The district court permanently enjoined Willing

from transferring any of the following, directly or indirectly, except upon order of this Court, until the full amount of damages awarded hereunder, including post-judgment interest, has been fully paid and satisfied:

            a.  The manufacturing accounts currently represented by Concorde Marketing, Inc.;

            b.  Any other assets of Concorde Marketing, Inc.; and

            c.  Any personal assets of Glenn P. Willing, including any assets that he may own in joint tenancy or as a tenant in common.

 

            Appellants cite no authority that limits equitable relief permissible under Minn. Stat. § 302A.467, .751.  Because we have concluded that the district court did not err in imposing personal liability against Willing, we also conclude that the district court did not clearly abuse its discretion by extending the receivership to Willing’s personal assets.

            7.  Appellants argue that the district court erred in considering Billigmeier’s proposed amended findings of fact because they were untimely.  The court may amend its findings or make additional findings upon motion by a party.  Minn. R. Civ. P. 52.02.  The motion must be served within 15 days after service of notice by a party of the filing of the decision or order.  Id.; Minn. R. Civ. P. 59.03.

Billigmeier filed his proposed amended findings more than 15 days after service of the notice of filing.  Billigmeier did not bring his own motion for amended findings, but, in his proposed amended findings, raised the issue of whether the district court erred in charging the value of a vehicle against the commissions owed to him.  The court amended the finding as requested by Billigmeier and did not deduct the vehicle’s value from the commissions owed to Billigmeier.

The supreme court has stated:

Rule 52.02 itself places no restrictions on the court in ruling upon a motion for amended findings.  A party may, of course, choose to challenge only selected findings, but by making the motion the party is in essence asking the judge to reexamine all of the evidence in the case to see if his initial findings accurately reflect his view of that evidence.  Since findings of fact are frequently interrelated, and since a number of findings may be based upon a single piece of evidence or the testimony of a single witness, the trial judge must be free to review all of the evidence and all of his findings when such a motion is made.  The judge may find that in some cases new findings in favor of the moving party are appropriate, while in others revision unfavorable to the movant is appropriate.  * * * [A] party moving for amended findings may not “pick and choose” among the findings in the hope of thereby limiting the trial court’s review of the record only to those parts supporting the motion.  The trial judge must be free to examine all of the evidence before him, and then to enter amended findings as appear to him warranted by his review of the record as a whole.

 

McCauley v. Michael, 256 N.W.2d 491, 499-500 (Minn. 1977).  Under Michael, the district court was authorized to amend the finding regarding the vehicle.

            8.  Billigmeier seeks review of the district court’s deduction of the value of a life insurance policy from the commissions owed to him.  The district court deducted from the commissions owed to Billigmeier a cash value of $82,279.31 for a life insurance policy that was transferred to Billigmeier in 1997.  Concorde Marketing’s tax returns and accounting records, which identify the policy as a receivable, support the district court’s decision to deduct the policy’s cash value from the commissions owed to Billigmeier.

            9.  Appellants challenge the award of attorney fees to Billigmeier.   The initial findings of fact and conclusions of law contained the following conclusion:

            Billigmeier is entitled to judgment against Concorde Marketing, Inc. and Glenn P. Willing, jointly and severally, as follows:  * * *

            e.  For reasonable attorney’s fees incurred in collecting and enforcing Jon H. Billigmeier’s rights herein.  [Billigmeier’s] counsel shall submit an Affidavit detailing attorney’s fees expended herein within 10 days of this Order for Judgment.

 

Although that provision is eliminated in the amended findings and conclusions and the amended judgment does not contain a provision regarding attorney fees, by separate order filed July 3, 2000, the district court awarded Billigmeier $45,338.03 in attorney fees and costs and $956 for an expert witness fee.  In both the initial judgment and the amendment judgment, the district court found that Concorde Marketing failed to pay earned commissions to Billigmeier and that Billigmeier was entitled to the remedies provided by Minn. Stat. §§ 181.13, .171, subd. 3 (2000).  Those statutory remedies include attorney fees, but neither statute authorizes the imposition of personal liability against a corporate shareholder, director, or officer.  We interpret the elimination of the attorney fees provision from the conclusion setting forth damages for which Willing is jointly and severally liable as a conclusion that Willing was not personally liable for those fees.

            Appellants also argue that the affidavit of attorney fees submitted by Billigmeier was not sufficiently detailed to meet the requirements of Minn. R. Gen. Pract. 119.02.  The affidavit does not indicate the amount of fees incurred in pursuing Billigmeier’s claim for unpaid commissions.  We, therefore, reverse the award of attorney fees and remand for a determination of the amount of fees incurred in pursuing Billigmeier’s claim for unpaid commissions.

            Affirmed in part, reversed in part, and remanded.



*   Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.