This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
All American Builders of Duluth, Inc., et al.,
Filed July 11, 2006
Toussaint, Chief Judge
William D. Paul, William Paul Law Office, 1217 East First Street, Duluth, MN 55805 (for appellants)
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
In this dispute over commissions owed respondent-employee Robert K. Pearson from appellants All American Builders of Duluth, Inc. and All American Builders of Rice Lake, Inc. after he resigned, the district court awarded attorney fees under Minn. R. Civ. P. 11 to respondent for his motion to dismiss a frivolous counterclaim and granted partial summary judgment to respondent based on a concession by appellants’ counsel. Appellants argue that granting summary judgment was erroneous because there were genuine issues of material fact and that the district court abused its discretion in awarding rule 11 attorney fees. Because appellants were not given proper notice of the motion for rule 11 attorney fees and the opportunity to withdraw or correct the counterclaim, we reverse the award of rule 11 attorney fees. Because the district court properly relied on the concession, we affirm summary judgment.
Respondent sued appellants for $13,447.64 in commissions that he asserted he had earned through and after the last day of employment, a civil penalty, and statutory attorney fees. Appellants counterclaimed, seeking a monetary set-off to recover their costs for correcting mistakes and errors allegedly made by respondent in bids and contracts. Appellants challenge the district court’s grant of attorney fees to respondent based on a determination that their counterclaim was frivolous and partial summary judgment to respondent for commissions owed.
district court granted respondent’s motion to dismiss the set-off counterclaim,
finding that no legal authority supported the claim and that it was
frivolous. The court also granted respondent’s
request for costs and attorney fees under Minn. R. Civ. P. 11. An appellate court will not reverse the
district court’s award of sanctions under rule 11 unless there was an abuse of
discretion. Uselman v. Uselman, 464 N.W.2d 130, 145 (
contend that the district court abused its discretion in imposing rule 11
sanctions because (a) their conduct did not warrant a sanction under rule 11
and (b) the court imposed sanctions without proper notice. A district court may impose sanctions for
violation of rule 11.02 only after notice and a reasonable opportunity to
Here, respondent did not make a separate motion for sanctions but instead, at the end of his memorandum in support of his motion for partial summary judgment on the counterclaim, he sought dismissal of respondent’s counterclaim and an award of attorney fees for the motion. Under rule 11.03(a)(1) and Gibson, the district court abused its discretion in awarding sanctions because appellants were not given notice by separate motion and were not given the opportunity for safe harbor in which to withdraw the counterclaim. In view of this procedural error, we need not address the issue of whether appellants’ conduct warranted a rule 11 sanction.
district court granted respondent’s motion for partial summary judgment on
commissions owed him by appellants. An appellate court will review an appeal from summary
judgment to determine whether there are genuine issues of material fact and
whether the district court erred as a matter of law. State
by Cooper v. French, 460 N.W.2d 2, 4 (
employee quits, “the wages or commissions earned and unpaid” at that time must
be paid in full, generally on the next scheduled pay day.
Respondent supported his motion for partial summary judgment with a schedule that appellants’ counsel had sent to respondent’s counsel indicating that respondent actually owed appellants money. The schedule listed a number of jobs, the amounts respondent earned for commissions on each job, which totaled $3,573.90, and the amount respondent owed appellants for errors and additional deductions, which totaled $5,526.55. Respondent sought summary judgment for $3,573.90 and advised the court that, if his motion were granted, he would dismiss the remaining claims. Appellants opposed the motion, asserting that factual issues remained as to whether respondent earned these commissions and the set-off.
argue that the work on which the challenged commissions was based was not
completed until after respondent quit employment, and, at a minimum, a fact
issue exists as to whether respondent earned the commissions he is claiming. But the district court
did not base its decision on disputed fact questions. The court’s findings are supported by the
record, namely the schedule prepared by appellants’ counsel in which appellants
conceded that they owed respondent commissions totaling $3,573.90. Appellants do not explicitly challenge the
decision by the district court to rely on the concession, but we note that a
district court may consider concessions of counsel in resolving a
summary-judgment motion. See Lundgren v. Eustermann, 370 N.W.2d
877, 881 n.1 (
Affirmed in part and reversed in part.
 Appellants do not challenge the award of a penalty or attorney fees under Minn. Stat. §§ 181.14, subd. 2 (penalty), 181.171, subd. 3 (attorney fees).