This opinion will be unpublished and

may not be cited except as provided by

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




James C. Huppert, as the

Personal Representative of the

Estate of James J. Huppert,



Twin Cities Featherlite

Trailer Sales, Inc.,


Filed December 23, 1997

Affirmed; motions granted in part

Foley, Judge**

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

Dakota County District Court

File No. C9-96-9254

Paul W. Rogosheske, Thomas Pugh, Thuet, Pugh, Rogosheske & Atkins, Ltd., 833 Southview Blvd., South St. Paul, MN 55075 (for appellant)

Jonathan C. Miesen, Doherty, Rumble & Butler, P.A., 2800 Minnesota World Trade Center, 30 East Seventh Street, St. Paul, MN 55101-4999 (for respondent)

Considered and decided by Kalitowski, Presiding Judge, Short, Judge, and Foley, Judge.


FOLEY, Judge

Appellant challenges the trial court's ruling, ordering it to pay respondent for commissions owed to his deceased son, as well as a penalty pursuant to Minn. Stat. § 181.145 (1996), attorney fees pursuant to Minn. Stat. § 181.171 (1996), and double costs pursuant to Minn. Stat. § 181.17, which was repealed by 1996 Minn. Laws ch. 386 § 13. We affirm the judgment, grant respondent's motion to strike, and award attorney fees to the respondent for this defense of the judgment.


James J. Huppert (decedent) died on October 11, 1995, while employed as a sales representative for appellant Twin Cities Featherlite Sale, Inc. After his son's death, respondent James C. Huppert was appointed as personal representative of the estate. Featherlite admitted to respondent that his son had "quite a lot of money coming" and said that it would "settle up in [a] couple weeks." Featherlite claimed it needed time to calculate decedent's commissions because he did not compute his own commissions, but rather had Featherlite advance him payments on his commission.

In August 1996, after repeatedly attempting to collect his son's commissions, respondent sued Featherlite for payment. Despite repeated requests by respondent, Featherlite did not turn over decedent's sales records. Finally, after respondent threatened to seek a default judgment, Featherlite turned over seven files containing records and summaries of decedent's commissions. Featherlite had a total of 15 sales files containing records of decedent's sales, however it refused to turn over the remaining records because they had not been reviewed. Featherlite used the calculations from the first seven files to estimate the commissions it owed decedent from all 15 files then subtracted any amounts that it had advanced to decedent. Featherlite concluded that it owed decedent $18,232.75.

The morning of trial, Featherlite revealed that it had reviewed the remaining half of the sales files and discovered that there had been five sales cancellations. Thus, it claimed that the total commission owed to decedent was not $18,232.75, but rather $12,842.11. Respondent objected to Featherlite's attempt to introduce the second half of the sales files and new calculations. The trial court allowed Featherlite to present evidence, but reserved a final ruling until after the trial.

The trial court awarded respondent $18,232.75 for commissions owed to his son, plus a penalty of $18,232,75 pursuant to Minn. Stat. § 181.145, as well as $4,062.74 in attorney fees pursuant to Minn. Stat. § 181.171. The trial court also awarded respondent double costs pursuant to Minn. Stat. § 181.17. However, this statute was repealed in 1996, thus the court administrator only awarded respondent his actual costs in the amount of $1,313.70. The trial court noted that Featherlite had been in possession of all the sales records the entire time, had chosen to use only part of the sales records in calculating the commissions owed to decedent, and had quoted that amount as $18,232.75 throughout the proceedings up to the day of trial. Therefore, respondent had a right to rely on Featherlite's calculation and waive its right to ask for a continuance of trial in order to make his own calculations.

Featherlite brought a posttrial motion for amended findings of fact and conclusions of law or, in the alternative, a new trial. Featherlite argued that under Minn. Stat. § 181.145, sanctions were only available to a living employee or a surviving spouse. Respondent brought a motion to recover the balance of his attorney fees in the amount of $3,869.76 and to strike from the record certain documents that were not introduced at trial. The trial court granted respondent's motion to strike, but denied all other motions.



Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given the trial court to judge the credibility of the witnesses. Minn. R. Civ. P. 52.01. The reviewing court will only reverse a trial court's findings of fact if, upon review of the entire evidence, it is "left with the definite and firm conviction that a mistake has been made." In re Guardianship of Dawson, 502 N.W.2d 65, 68 (Minn. App. 1993) (quoting Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987)), review denied (Minn. Aug. 16, 1993).

Featherlite argues that the trial court's findings of fact concerning the amount of commissions owed to decedent son are clearly erroneous based upon the evidence and testimony presented at trial. Featherlite specifically asserts that the trial court erred in finding:

[Respondent] and his attorney have not disputed the calculations because [Featherlite] did not respond to [respondent's] interrogatories and demand to produce documents for information to compute commissions due * * *. Because of the day of trial response to [respondent's] discovery request, [respondent] had a right to rely on [Featherlite's] computations and waive its right to ask for a continuance of trial in order to make his own calculations and commissions due.

We disagree.

First, there is no clear evidence in the record that Featherlite ever complied with respondent's discovery request to turn over the sales files. Featherlite testified that it made the remaining sales files available to respondent's attorney to copy, but he declined. However, respondent's attorney testified that he was never offered the remaining sales files. Furthermore, the record contains numerous demands by respondent to turn over the remaining sales files, including a letter from respondent's attorney to Featherlite, informing Featherlite that if it was not ready to settle, to "immediately calculate the commissions due on the remaining 145 transactions and produce Files H through O pursuant to the outstanding discovery in this case." Therefore, we cannot say the trial court erred in making the above finding because Featherlite has failed to demonstrate this finding is clearly erroneous.

Second, there is also no clear evidence in the record that the trial court erred in concluding that respondent had a right to rely on Featherlite's computations. It is undisputed that up until the morning of trial, respondent was under the impression that the amount of commissions owed to decedent was $18,232.75. Since there is no clear evidence in the record that Featherlite made the remaining sales files available to respondent, and Featherlite explained to respondent how it arrived at the $18,232.75, we cannot conclude that the district court erred in concluding that it was reasonable for respondent to rely on Featherlite's computations.


A reviewing court is not bound by and need not defer to a trial court's decision on a legal issue. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984). The construction of a statute is a question of law subject to de novo review on appeal. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985).

Featherlite claims that the trial court erred in its construction and application of Minn. Stat. § 181.145 (1996), because the penalties set forth in this statute do not apply when an action is brought by a personal representative of the decedent's estate. We disagree.

Minn. Stat. § 181.145, subd. 3 provides:

If the employer fails to pay the salesperson commissions earned though the last day of employment on demand within the applicable period as provided under subdivision 2, the employer shall be liable to the salesperson, in addition to earned commissions, for a penalty for each day, not exceeding 15 days, which the employer is late in making full payment or satisfactory settlement to the salesperson for the commissions earned through the last day of employment. The daily penalty shall be in an amount equal to 1/15 of the salesperson's commissions earned through the last day of employment which are still unpaid at the time that the penalty will be assessed.

Under Minn. Stat. § 181.171, subd. 1 (1996),

[a] person may bring a civil action seeking redress for violations of sections * * * 181.145 * * * directly to district court. An employer who is found to have violated the above sections is liable to the aggrieved party for the civil penalties or damages provided for in the section violated. An employer who is found to have violated the above section shall also be liable for compensatory damages and other appropriate relief including but not limited to injunctive relief.

(Emphasis added.)

Under Minn. Stat. § 181.171, subd. 1, any "aggrieved party" may recover civil penalties and damages, not merely employees or sales representatives. Furthermore, Minn. Stat. § 573.01 (1996) provides:

A cause of action arising out of an injury to the person dies with the person of the party in whose favor it exists, except as provided in section 573.02. All other causes of action by one against another, whether arising on contract or not, survive to the personal representatives of the former and against those of

the latter.

Because these damages do not involve an injury to decedent, but rather deal with commissions that were owed him under his employment contract, we believe that respondent should be able to collect civil penalties under Minn. Stat. § 181.171, subd. 1, in his son's place. Respondent, as personal representative of the estate, is an "aggrieved party" under Minn. Stat. § 181.171, subd. 1, because the pecuniary interest of decedent's estate was directly and adversely affected by Featherlite's refusal to pay the commissions it owed decedent.

Furthermore, we believe that allowing Featherlite to avoid payment of civil penalties under these circumstances would violate the purpose of Minn. Stat. § 181.145, subd. 2, which is to encourage an employer to make prompt payment of commissions for services that were provided for its benefit.

Featherlite also argues that the trial court erred in awarding respondent double costs under Minn. Stat. § 181.171. However, this issue is moot since the court administrator did not award respondent double costs because Minn. Stat. § 181.17 was repealed in 1996. 1996 Minn. Laws ch. 386, § 13.


"On review, this court will not reverse a trial court's award or denial of attorney fees absent an abuse of discretion." Becker v. Alloy Hardfacing & Eng'g Co., 401 N.W.2d 655, 661 (Minn. 1987). It is fundamental that the reasonable value of attorney fees is a question of fact, and the trial court's findings must be upheld by a reviewing court unless clearly erroneous. Amerman v. Lakeland Dev. Corp., 295 Minn. 536, 537, 203 N.W.2d 400, 400-01 (1973).

Respondent claims that the trial court's decision to award him only half of his attorney fees was clearly erroneous. He argues that the legal bills that were submitted to the trial court do not show any "duplicate charges," thus he is entitled to attorney fees of $7,932.50. We disagree.

Respondent claimed attorney fees in the amount of $7,932.50, but the trial court only awarded respondent $4,062.74 pursuant to Minn. Stat. § 181.171, subd. 3 (1996), because it found that respondent's repeated review of the same matters were "duplicate charges." The record demonstrates that respondent's attorney billed 26.05 hours for trial preparation. It was not clearly erroneous for the trial court to conclude that these charges were a duplicate and excessive charge, considering that respondent had billed for time spent reviewing the same material for a default judgment. Based upon the evidence, we believe that the trial court's award of $4,062.74 for respondent's attorney fees was fair and reasonable.


Pursuant to Minn. R. Civ. App. P. 110.05, respondent made a motion to strike the following information from the record: (1) all documents that were previously stricken from the record pursuant to an order by the trial court; (2) trial exhibit 13; and (3) certain irrelevant and derogatory statements made in appellant's brief concerning the probate of decedent's estate.

Respondent's motion to strike is granted. First, the trial court did specifically strike the documents found in appellant's appendix at pages 62, 71, and 98. Second, the record demonstrates that exhibit 13 was never clearly offered or received into evidence. See Plowman v. Copeland, Buhl & Co., Ltd., 261 N.W.2d 581, 583-84 (Minn. 1977) (matters not produced and received into evidence at trial may not be considered on appeal). Third, there is no evidence in the record to support Featherlite's claims that respondent or his attorney improperly and/or illegally withheld any information from the Wisconsin probate court.


Respondent also submitted a motion to this court for attorney fees incurred in connection with this appeal. Respondent's attorney claims he has incurred $7,140 in researching and preparing respondent's brief. This represents 42 hours of work at an hourly rate of $170.

A party who prevails at the trial court level and who is awarded statutory attorney fees may be entitled to recover attorney fees on appeal. Bunko v. First Minn. Sav. Bank, F.B.S., 471 N.W.2d 95, 99 (Minn. 1991). Because we believe that the trial court properly granted respondent attorney fees pursuant to Minn. Stat. § 181.171, subd. 3, we grant respondent's motion for attorney fees on appeal. However, because this appeal involves the same issues and arguments presented at trial, we believe an award of $7,140 is unreasonable. Therefore, we award respondent $2,500 for attorney fees incurred in this appeal.

Affirmed; motions granted in part.