This opinion will be unpublished and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
Shepherd of the Valley Lutheran Church of Hastings,
Hope Lutheran Church of Hastings, et al.,
Filed June 11, 2002
Affirmed in part, reversed in part
Dakota County District Court
File No. CX998791
Eric J. Magnuson, Timothy J. Nolan, Kathy S. Kimmel, Rider, Bennett, Egan & Arundel, L.L.P., 333 South Seventh Street, Suite 2000, Minneapolis, MN 55402 (for respondent)
George L. May, Terence G. O’Brien, Jr., May & O’Brien Law Offices, 204 Sibley Street, Suite 202, Hastings, MN 55033 (for appellants)
Considered and decided by Peterson, Presiding Judge, Willis, Judge, and Huspeni, Judge.*
U N P U B L I S H E D O P I N I O N
In this appeal from a district court order and amended judgment after remand, appellants challenge the award of damages to respondent for appellants’ use of the property in dispute during the pendency of appellants’ prior appeal. Appellant Gregory Collins contests the ruling that he is jointly and severally liable for the award of damages. We affirm the damages award but reverse as to Collins’s joint and several liability for damages that exceed the amount of the supersedeas bond.
A dispute arose among congregants at respondent Shepherd of the Valley Lutheran Church (SOTV) as to whether their pastor should be retained. Appellant Gregory Collins, then vice president of SOTV, led the formation of a new church, appellant Hope Lutheran Church (Hope), and became its president. Hope then obtained possession of SOTV’s church property through a warranty deed executed by Collins as vice president of SOTV.
SOTV sued Hope and Collins, seeking ejectment, a determination of adverse claims to title, and damages from Collins for breach of fiduciary duty. The jury found in favor of SOTV and awarded $7,782.99 in damages against Collins for breach of fiduciary duty. The court ordered judgment accordingly but stayed entry of judgment for 30 days. After posttrial motions, the court issued an order amending findings and denying appellants’ motions for JNOV and for a new trial, and denying SOTV’s motion for costs and disbursements. The court lifted the stay and ordered ejectment and transfer of the property.
Hope and Collins appealed, and SOTV filed a notice of review. Appellants then sought a supersedeas bond to stay the proceedings. The court ordered a bond of $32,800 to secure $7,782.99 for the damages awarded against Collins for breach of fiduciary duty and $25,000 for SOTV’s loss of the use of the church property for the six months anticipated for appeal. Challenges to the amount of the bond in the district court and in this court were unsuccessful, and appellants posted the bond.
This court affirmed the district court as to appellants’ challenges but reversed and remanded the denial of SOTV’s motion for costs and disbursements. Shepherd of the Valley Lutheran Church v. Hope Lutheran Church, 626 N.W.2d 436, 444 (Minn. App. 2001), review denied (Minn. July 24, 2001), cert. denied, 122 S. Ct. 814 (2002).
After the remand, SOTV, in relevant part, moved the district court for enforcement of the judgment, an award of damages for wrongful dispossession of the church property during the pendency of the appeal, and an award of costs and disbursements. The district court, in relevant part, declared null and void the warranty deed that purported to transfer the church property from SOTV to Hope, ordered Hope to vacate the property, and ordered issuance of a writ of restitution directing the sheriff to remove Hope from the property. The court also awarded SOTV damages of $60,927.96 for wrongful dispossession of its church property for one year while the appeal was pending and ordered payment from the supersedeas bond, with the balance reduced to a money judgment against appellants jointly and severally. The court also awarded SOTV $3,074.51 of the $4,065.28 it had sought for costs and disbursements, and an amended judgment was entered.
D E C I S I O N
The district court’s exercise of discretion will not be reversed unless there was an abuse of discretion. See Duffey v. Duffey, 432 N.W.2d 473, 476 (Minn. App. 1988). Questions of law are reviewed de novo. Hibbing Educ. Ass’n v. Pub. Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985).
1. Appellants contend that because, in the prior appeal, this court remanded only for a determination of costs and disbursements, the district court exceeded its scope of review on remand when it ordered damages for wrongful dispossession of property during the pendency of the appeal. We disagree.
When a matter is remanded, the district court’s duty is “to execute the mandate of [the appellate] court strictly according to its terms.” Halvorson v. Village of Deerwood, 322 N.W.2d 761, 766 (Minn. 1982) (citation omitted). “The trial court has no power to alter, amend, or modify [the] mandate.” Id. (citation omitted). If the remand does not specify how the trial court should proceed, the court may exercise its discretion and “proceed in any manner not inconsistent with the remand order.” Duffey, 432 N.W.2d at 476 (citation omitted). The trial court’s decision may not be reversed absent an abuse of discretion. See id.
This court remanded for a determination of costs and disbursements to be awarded to SOTV as the prevailing party. Shepherd of the Valley Lutheran Church v. Hope Lutheran Church, 626 N.W.2d 436, 444 (Minn. App. 2001), review denied (Minn. July 24, 2001), cert. denied, 122 S. Ct. 814 (2002). After this remand, SOTV made several motions to the district court that were scheduled to be argued in one hearing. One of these motions was for an award of costs and disbursements. The district court awarded costs and disbursements, and the parties do not dispute the award. The other motions, which SOTV made separately from the motion for costs and disbursements, were postjudgment motions to enforce the judgment and to recover damages for appellants’ use of the disputed property during the pendency of the prior appeal. It is the latter motion that is in dispute.
When a judgment directs the sale or delivery of possession of real property, an appellant may obtain a stay of the judgment by providing a supersedeas bond, with the bond conditioned on
payment of the value of the use and occupation of the property from the time of the appeal until the delivery of possession of the property if the judgment is affirmed.
Minn. R. Civ. App. P. 108.01, subds. 1, 5.
Had appellants not filed the supersedeas bond to stay the proceedings, SOTV could have obtained a writ of restitution and gained possession of the property during the pendency of the appeal. See Pushor v. Dale, 242 Minn. 564, 570, 66 N.W.2d 11, 14 (1954) (noting that when supersedeas bond not obtained in unlawful-detainer action, writ of restitution may issue to allow recovery of property during pendency of appeal). But because filing the bond stayed the judgment, SOTV could not seek possession of the property while the appeal was pending.
The district court did not exceed the scope of the remand when it considered SOTV’s motion for damages for wrongful dispossession of the church property during the pendency of the appeal; it considered a separate issue that could not be addressed while the appeal was pending. The manner in which the district court proceeded was not inconsistent with the remand order.
Appellants next argue that SOTV’s wholesale failure to comply with the rules of civil procedure and the general rules of practice precluded consideration of SOTV’s motion. Appellants contend that SOTV failed to comply with the procedural requirements because it gave only six days’ notice for the hearing and failed to provide supporting memoranda. See, e.g., Minn. R. Civ. P. 56.03 (requiring 10 days’ notice for summary judgment motion); Minn. R. Gen. Pract. 115.03(a) (requiring 28 days’ notice for dispositive motions); Minn. R. Gen. Pract. 115.04(a) (requiring 14 days’ notice for nondispositive motions).
Appellants’ argument is based on a mischaracterization of SOTV’s motion. In its initial action against appellants, SOTV obtained an order ejecting appellants from SOTV’s church property. But under Minn. R. Civ. App. P. 108.01, subd. 1, the district court’s authority to enforce this judgment was suspended when appellants filed a supesedeas bond in their first appeal. After the appeal was concluded and the case was remanded to the district court for a determination of costs and disbursements, SOTV moved to recover the value of the use of the property during the appeal. SOTV did not move for summary judgment.
Because there was no motion for summary judgment, the timing requirements in Minn. R. Civ. P. 56.03 did not apply to the motion. Furthermore, the timing provisions in Minn. R. Gen. Pract. 115 do not apply to posttrial motions. The 1997 advisory committee comment to rule 115 states:
The rule applies to all motions except the timing provisions do not apply to post-trial motions. * * * Other post-trial motions excluded from this rule include those relating to entry of judgment, stays, taxation of costs, and approval of supersedeas bonds. See Minn. R. Civ. App. P. 108.01, subd. 1. These matters are routinely and necessarily heard on shorter notice than that required by the rule.
Also, failure to give sufficient notice on a motion is not jurisdictional. Bowman v. Pamida, Inc., 261 N.W.2d 594, 596 n.1 (Minn. 1977). While the notice requirement may be enforced upon a showing of prejudice, appellants did not raise the issue of lack of timely notice below, move the district court for a continuance, or show prejudice.
Finally, appellants contend that there was a factual dispute regarding the damages for the use of property. They contend that the court abused its discretion and violated their right to due process by not permitting a full hearing with testimony and opportunity for cross-examination. But appellants did not request an evidentiary hearing before the district court, and, therefore, they may not raise this issue for the first time on appeal. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). We do note, however, that appellants have had a full opportunity to make their arguments regarding damages for the use of the property. The issues had been presented several times to the district court, which had been supplied with affidavits and evidence from both sides.
2. The second issue is whether the district court erred in holding Collins jointly and severally liable with Hope for the $60,927.96 awarded as damages for wrongful dispossession during the pendency of the appeal. The court ordered payment from the supersedeas bond, with the balance reduced to a judgment for which appellants were jointly and severally liable.
Collins asserts that because his liability was limited to his breach of fiduciary duty as an officer of SOTV, and that during the pendency of the appeal he was an officer of Hope, there is no basis to hold him jointly liable for damages awarded for the use of the church property during the appeal. He asserts that, generally, corporate officers are not personally liable to third parties for the acts of corporations in which they did not participate. See Furlev Sales & Assocs., Inc. v. N. Am. Auto. Warehouse, Inc., 325 N.W.2d 20, 26 (Minn. 1982) (holding corporate officers are shielded from personal liability for interference with contracts); Ellingson v. World Amusement Serv. Ass’n, 175 Minn. 563, 572, 222 N.W. 335, 339 (1928) (holding officer who took part in commission of tort is personally liable for damages).
Appellants posted a supersedeas bond in the amount of $32,800, which states:
Hope Lutheran Church of Hastings, Minnesota, and Gregory D. Collins, as principals, and our insurer Mid-Century Insurance Company, as surety, are held and firmly bound onto the above-named Plaintiff, in the sum of THIRTY-TWO THOUSAND EIGHT HUNDRED AND NO/100 DOLLARS ($32,800.00), lawful money of the United States to be paid onto said Plaintiff, its successors or assigns, for which payment well and truly to be made, we jointly and severally bind ourselves, and our heirs, executors, and administrators firmly by these presents.
(Emphasis added.) A surety bond is a contract that will be interpreted to reflect the intent of the parties. Peterson v. Peterson, 395 N.W.2d 443, 446 (Minn. App. 1986). Under the language of the bond, appellants are jointly and severally liable as to the bond amount. But as to the amount of damages awarded in excess of the bond, SOTV does not cite any basis to conclude that Collins caused the damages, and therefore, there is no authority for holding Collins jointly and severally liable. Instead, Hope is solely liable for the amount in excess of the bond. Therefore, we reverse the portion of the district court’s ruling that holds Collins jointly liable for the amount of damages awarded in excess of the bond.
Affirmed in part and reversed in part.
 Contrary to appellants’ arguments, the postjudgment motions were not part of the motion for costs and disbursements on remand.
 Appellants’ arguments were directed toward the total amount of the damages, without distinguishing between the amount secured by the bond and the amount in excess of the bond.