This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-96-2211

First Deposit National Bank,

Respondent,

vs.

Harold H. Edwards,

Appellant.

Filed July 1, 1997

Affirmed as Modified

Schumacher, Judge

Dakota County District Court

File No. C6959945

Kris A. Wittwer, Allan J. Zlimen, Stewart, Zlimen & Jungers, 430 Oak Grove Street, Suite 200, Minneapolis, MN 55403 (for Respondent)

Eric L. Crandall, 275 South Third Street, Suite 205, Stillwater, MN 55082 (for Appellant)

Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.

U N P U B L I S H E D O P I N I O N

SCHUMACHER, Judge

Appellant Harold H. Edwards challenges the summary judgment in favor of respondent First Deposit National Bank (First Deposit), arguing (1) that there are material fact issues about whether First Deposit engaged in false advertising and deceptive trade practices and (2) that the district court erred in its award of attorney fees to First Deposit. We affirm, although we modify the attorney fee award.

FACTS

First Deposit is a national bank that offers a loan program through the mail called a "capital cash account." First Deposit mailed to Edwards a brochure about a capital cash account along with an application. A simulated check showed a loan amount of $7,500 and an example of a monthly payment was based on a $7,500 loan. The brochure, however, explained that

[t]his is a firm, unconditional offer of a Capital Cash account with a loan amount and credit line of at least $300. In addition, you will be considered for a higher loan amount and credit line of up to $7,500. When we receive your signed Request Card, we will review your credit, income, and the information you provide to us to determine the maximum initial loan amount and credit line for your account.

Edwards applied, and First Deposit determined he qualified for a $5,000 loan. First Deposit sent a $5,000 cashier's check and agreement. Edwards deposited the $5,000 check. The following statement appears above Edwards's endorsement of the check:

Endorsement or deposit is acceptance of this cash advance under the credit Account Agreement issued by FIRST DEPOSIT NATIONAL BANK which I have received and agree to be bound by.

The agreement provided that Edwards would pay "when due all amounts borrowed," as well as "collection costs we incur including, but not limited to, reasonable attorney's fees and court costs."

Edwards defaulted on the loan, and First Deposit brought this action. In his answer and counterclaim, Edwards claimed, among other things, that First Deposit engaged in false advertising and violated the uniform deceptive trade practices act. First Deposit moved for summary judgment and to amend the caption of its complaint. The court granted the motion, ruling that the caption should be amended and that First Deposit was entitled to judgment for the unpaid balance of the loan as well as attorney fees and costs of $6,210. The court later reduced the attorney fee award by $250 (to $5,960), stating that First Deposit should not recover fees for time spent amending the case caption.

D E C I S I O N

On review of summary judgment, an appellate court asks whether there are any genuine issues of material fact and whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

1. Minnesota law prohibits advertising that is "untrue, deceptive, or misleading." Minn. Stat. § 325F.67 (1996). In order to prevail on a consumer protection claim, the plaintiff has the burden of proving that the defendant violated the statute. Wexler v. Brothers Entertainment Group, Inc., 457 N.W.2d 218, 221 (Minn. App. 1990).

Edwards contends that First Deposit engaged in false advertising because the materials it sent to him had numerous references to a $7,500 loan, but First Deposit extended only a $5,000 loan to Edwards. Edwards claims that the materials, taken as a whole, give the impression that First Deposit was making an offer for a pre-approved $7,500 line of credit. We disagree. The undisputed facts demonstrate that the materials sent to Edwards were not deceptive, misleading, or untrue. The brochure stated that it was an "offer * * * with a loan amount and credit line of at least $300" and that applicants would "be considered for a higher loan amount and credit line of up to $7,500." (Emphasis added.) First Deposit did not violate Minn. Stat. § 325F.67.

2. The uniform deceptive trade practices act prohibits the advertising of "goods or services with [the] intent not to sell them as advertised * * * ." Minn. Stat. § 325D.44, subd. 1(9) (1996). Edwards argues that because he only received a $5,000 loan, the references to a $7,500 loan in the materials sent to him amount to advertising a product with the intent not to sell it. We disagree.

As explained above, the advertising materials stated that applicants would receive a loan only for an amount for which they qualified. An affidavit of First Deposit's operations officer states that Edwards only qualified for a $5,000 loan. The undisputed evidence shows that First Deposit did not advertise a product with the intent not to sell it as advertised. See Ford Motor Credit Co. v. Russell, 519 N.W.2d 460, 463 (Minn. App. 1994) (rejecting appellant's argument under section 325D.44, subd. 1(9), that credit company used "bait and switch" tactic by advertising car price based on 11% interest rate even though appellant qualified only for 13.75% interest rate, reasoning that appellant received same terms as other customers and "merely did not qualify for the same interest rate"), review denied (Minn. Sept. 28, 1994). Edward's claim under section 325D.44, subd. 1(9), fails.

3. Edwards argues that the district court erred in its award of attorney fees and costs to First Deposit. In its original complaint, First Deposit sought attorney fees of $500. When First Deposit sought to amend its complaint to change the case caption, it also amended the ad damnum clause, seeking "reasonable attorney's fees incurred herein."

After a responsive pleading has been served, a party may amend a complaint "only by leave of court or by written consent of the adverse party." Minn. R. Civ. P. 15.01. Amendments should be freely allowed when justice so requires. Id. Because First Deposit sought to amend its complaint after Edwards served his answer and counterclaim, First Deposit was required to have court approval for the amendment. Edwards argues that although the district court ruled that the caption should be amended to reflect First Deposit's proper name, the court never explicitly granted a motion to amend with respect to the ad damnum clause. Given the fact that the district court awarded attorney fees of nearly $6,000, we conclude that the court accepted the amended complaint in its entirety. We find the award of attorney fees, however, to be unreasonable.

The district court has broad discretion in awarding attorney fees. Roth v. Roth, 406 N.W.2d 77, 80 (Minn. App. 1987). The amount of the award should, however, be reasonably related to the amount of the judgment secured. Bloomington Elec. Co. v. Freeman's, Inc., 394 N.W.2d 605, 608 (Minn. App. 1986), review denied (Minn. Dec. 17, 1986). Here, attorney fees of $5,960 to secure a judgment of less than $5,000 is unreasonable. See Asp v. O'Brien, 277 N.W.2d 382, 385 (Minn. 1979) (reducing plaintiff's attorney fee award from $2,400 to $1,000 where plaintiff successfully foreclosed on mechanic's lien, defended against defendant's counterclaim, and received judgment of approximately $4,500, noting that "amount of the lien recovered is small in comparison to the attorney's fees assessed"). We reduce First Deposit's award of attorney fees to $2,000.

Affirmed as modified.