This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).


Dan W. Brehmer,


Gerald R. Smith,

Filed January 27, 1998
Huspeni, Judge

Beltrami County District Court
File No. C8951429

David L. Brehmer, Brehmer & Rosen, P.L.L.P., 5001 W. 80th St., Suite 745, Bloomington, MN 55437 (for appellant)

Carl C. Drahos, Drahos and Young, 1005 Paul Bunyan Dr. N.W., Bemidji, MN 56601-2134 (for respondent)

Considered and decided by Klaphake, Presiding Judge, Huspeni, Judge, and Harten, Judge.



The trial court determined that appellant, a former employee of respondent, was entitled to recover a portion of the wages he contends were owed him but was not entitled to amend his complaint to add a claim for punitive damages or to recover statutory penalties or costs. Both parties challenge the recovery of wages, and appellant challenges the other determinations. Because we see no abuse of discretion and no erroneous application of the law, we affirm.


Appellant Dan Brehmer and respondent Gerald Smith are both experienced CPAs. In 1988, appellant became an associate in respondent's firm. A handwritten note on a letter from appellant to respondent stated the terms "$20,000 or 50%." The parties refer to this as "the 50% deal" and agree that it meant appellant would be paid the greater of the two amounts. However, while appellant thought the deal referred to 50% of his billable hours, respondent thought it meant 50% of appellant's total billings.

From 1988 to 1992, respondent paid appellant $800 every two weeks, an annual total of $20,800. Neither party discussed or referred to "the 50% deal" until 1993, when appellant presented a claim, based on a worksheet listing his annual billings as calculated by himself, for over $9,000 in wages owed him from 1989-1992 pursuant to the 50% deal. After two meetings and an exchange of letters, respondent offered appellant $1,500. Appellant accepted three checks for $500 each, thanked respondent in writing for "the settlement," and did not mention the 50% deal or his claim for additional wages from 1989-1992 again until bringing this action in 1995.

In 1992, respondent initiated a SEP plan for his employees, using the 5305A forms intended to be used for employee salary reduction plans. Respondent contends that his plan was actually a 5305, or employer contribution plan, which did not affect appellant's salary, and says his use of the 5305A forms was erroneous. Appellant contends that respondent's plan was in fact a salary reduction plan, and that respondent failed to place into the plan the amounts allegedly withheld from appellant's salary.

Appellant sued respondent in conciliation court for $11,735. The conciliation court awarded appellant its maximum, $7,500. Respondent removed the matter to district court.

Following a trial de novo, the court held that the $1,500 was not an accord and satisfaction, that the relevant statute of limitations was three years because respondent's nonpayment of wages was "willful and not the result of mistake or inadvertence," that because appellant did not bring his conciliation court action until August 1995, his claims for wages owed prior to August 1992 were time-barred, and that respondent owed appellant $305.07 plus five percent annual interest of $65.74, a total of $370.81. This figure was obtained pursuant to the 50% deal for the period from August 11, 1992, to September 4, 1992.

With regard to the SEP issue, the trial court held that the plan was a 5305A plan; that appellant's claims under the plan prior to August 11, 1992, were barred by Minn. Stat. § 541.07(5); and that appellant was entitled to $1,725.68 for the period August 11, 1992-May 28, 1994. Five percent interest was included in these calculations.[1]

The trial court further concluded that there was no basis for a penalty pursuant to Minn. Stat. § 181.13 because respondent treated the SEP plan as a 5305 plan and no basis for awarding appellant costs pursuant to Minn. Stat. § 549.21; the court denied appellant's posttrial motion to amend the complaint to include punitive damages because the motion did not conform to the evidence presented at trial pursuant to Minn. R. Civ. P. 15.02 .

Judgment was entered for appellant in the amount of $2,096.49 ($370.81 on the unpaid wage claim and $1,725.68 on the SEP claim).


1. Wage Loss Issues

A. Statute of Limitations

Minn. Stat. § 541.07 (1996) reads:

[T]he following actions shall be commenced within two years: * * * (5) for the recovery of wages of overtime or damages, fees, or penalties accruing under any federal or state law respecting the payment of wages or overtime or damages, fees or penalties except, that * * * if the nonpayment is willful and not the result of mistake or inadvertence, the limitation is three years.

The construction of a statute is a question of law and thus fully reviewable by an appellate court. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985). Both parties challenge the trial court's application of the statute of limitations.

Appellant argues that the limitation period did not begin until his termination in July 1994, or in the alternative until January 1993 when he learned that respondent did not intend to pay him more than the $1,500 he had already received on his wage claims. Both alternatives proposed by appellant conflict with the holding of Roaderick v. Lull Engineering Co., Inc., 296 Minn. 385, 208 N.W.2d 761 (1973). Roaderick has similar facts. For six years after the parties had agreed that an employee would receive a salary and a commission, the employee accepted the salary and occasional bonuses and made no reference to the commission agreement. He then brought an action to recover the commission payments he claimed to be owed. Roaderick construed Minn. Stat. § 541.07(5):

This action [for wages under Minn. Stat. § 541.07(5)] was commenced on June 16, 1969. Therefore, all claims which accrued more than 2 years prior to that date are barred, and the cause of action, if any, must be for the period June 16, 1967, to May 13, 1969, the date of the termination of plaintiff's employment.

Id. at 387-88, 208 N.W.2d at 763. Consistent with the rationale of Roaderick, the trial court correctly concluded that the limitation period in this case began to run when appellant first had a claim for unpaid wages. See also Hendrickson v. Magney Const. Co., 402 N.W.2d 194, 197 (Minn. App. 1987) (holding that a claim for bonuses for work completed in 1976 and 1977 by an employee who took no action until 1981 was barred by Minn. Stat. § 541.07(5)).

Respondent challenges the court's application of the three-year limitation based on its finding that respondent's nonpayment of appellant's wages was "willful and not the result of mistake or inadvertence."

Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.

Minn. R. Civ. P. 52.01. Respondent twice testified that he had the ultimate responsibility for determining how much appellant was owed under the 50% deal and that he had not made this determination. Appellant testified that when he confronted respondent with a demand for wages owed under the 50% deal, respondent said he did not want to go through all the records and do the calculations. The record supports the finding that the nonpayment was willful; the court did not err in using the three-year limitation period and awarding appellant $370.81 for wage loss incurred after August 11, 1992.[2]

Accord and Satisfaction

Respondent challenges the trial court's determination that there was no accord and satisfaction. Our standard of review on this issue is narrow.

The question of accord and satisfaction is one of fact to be determined by the court or jury. The function of this court is not to weigh the evidence as if trying the matter de novo, but to determine from an examination of the record if the evidence as a whole sustains the trial court's findings. Since it does, it is immaterial that the record might also provide a reasonable basis for inferences and findings to the contrary.

Total Equipment Leasing Corp. v. LaRue Inv. Corp., 357 N.W.2d 347, 350 (Minn. App. 1984), review denied (Minn. Feb. 19, 1985) (citations omitted). The trial court based its finding that there was no accord and satisfaction in part on the lack of evidence that respondent's payment of $1,500 was offered in full settlement of appellant's claim for unpaid wages for 1989-1992 and in part on respondent's failure to obtain full knowledge of the facts regarding appellant's unpaid wage claim. While we may have decided these issues differently had we been the finders of fact, the record supports the determinations made by the trial court. The checks were not labeled "settlement" and respondent admitted that he did not do the calculations necessary to have full knowledge of appellant's claim. The fact that parts of the record might support a finding of accord and satisfaction is irrelevant, see id.; there is evidence to sustain the trial court's finding.

2.. Punitive Damages Issues

Amending the Claim

Amendment of claims to conform to the evidence is permitted by Minn. R. Civ. P. 15.02. "Whether to allow an amendment is committed to the trial court's discretion." Utecht v. Shopko Dept. Store, 324 N.W.2d 652, 654 (Minn. 1982). Similarly, imposition of civil penalties is within the trial court's discretion. State v. Alpine Air Prods., 490 N.W.2d 888, 890 (Minn. App. 1992), aff'd 500 N.W.2d 788 (Minn. 1993).

Minn. Stat. § 549.20 (1996) provides for punitive damages in civil actions "only upon clear and convincing evidence that the acts of the defendant show deliberate disregard for the rights or safety of others." Appellant argues that "the evidence adduced at trial indicated an ongoing atmosphere, created and perpetrated by [respondent], of intimidation, humiliation, and denial of employee rights, benefits, and wages * * *." Appellant cites no reference to the transcript or the exhibits, however, to support this statement. A review of the transcript does not show that respondent maintained an atmosphere of intimidation and humiliation of his employees or habitually denied their rights, benefits, and wages.

The transcript does show that the parties did not agree on the meaning of the 50% deal, the type of SEP plan being provided, or how to treat and bill some of their clients, and that appellant was sometimes concerned about meeting respondent's performance standards. However, this testimony does not provide a basis for concluding that the trial court abused its discretion in denying the motion to amend.

B. Damages under Minn. Stat. §§ 181.13 and 181.17[3]

Minn. Stat. § 181.13 (1996) provides that an employee who is owed wages or commissions at the time of discharge and who demands those wages or commissions may collect up to 15 days' pay if payment is not made within 24 hours of the demand. Minn. Stat. § 181.17 (1995) provides that employees who successfully bring actions for unpaid wages are allowed double statutory costs as well as disbursements. The construction of a statute is clearly a question of law and thus fully reviewable by an appellate court. Hibbing Educ. Ass'n, 369 N.W.2d at 529.

Appellant argues that he should recover under these statutes because, by failing to make the appropriate payments into his SEP account, respondent was actually withholding wages due appellant. The trial court determined that even though the plan was in fact a 5305A plan and respondent owed appellant money under it, respondent had not failed to pay wages or commissions within the meaning of Minn. Stat. § 181.13 because respondent did not deduct SEP monies from appellant's paychecks but made what he considered to be contributions to the plan. Moreover, the parties disputed both what amount was owed and whether the amount owed was wage, commission, or SEP contribution. Respondent did not withhold wages within the meaning of the statutes, and appellant is not entitled to recover under them.

3. Motion for Costs under Minn. Stat. § 549.213[4]

"The standard of review of decisions on * * * costs under * * * Minn. Stat. § 549.21 * * * is whether the trial court abused its discretion." Radloff v. First American Nat'l Bank, 470 N.W.2d 154, 156 (Minn. App. 1991), review denied (Minn. July 24, 1991). Minn. Stat. § 549.21 provides that costs, disbursements, and attorney fees may be awarded against a party who acted in bad faith, asserted a frivolous claim, asserted an unfounded position to delay or harass, or committed a fraud on the court.

Appellant, in attempting to demonstrate his entitlement to an award under section 549.21, cites respondent's insistence that the SEP plan was a 5305 plan rather than a 5305A plan. However, as the trial court found, respondent treated the plan as a 5305 plan by not deducting amounts from appellant's wages and paying instead what respondent perceived to be a contribution. Consequently, respondent's argument that the plan was a 5305 plan was consistent with his own acts and was not in bad faith or a fraud upon the court. The decision to deny relief under Minn. Stat. § 549.21 was not an abuse of discretion.

The trial court did not err in holding that the statute of limitations was three years which began running when appellant's wage claims accrued, that there was no accord and satisfaction, that appellant was not entitled to amend his complaint to add a claim for punitive damages, nor was he entitled to statutory damages under Minn. Stat. §§ 181.13 or 181.17, or to costs under Minn. Stat. § 549.21. The judgment of the trial court is affirmed in all respects.


[1] Neither party challenges the amount of the SEP award on appeal. In his brief to this court, appellant does raise the issue of statutory interest, arguing that the trial court denied his request for interest on the amounts he was awarded. However, the judgment clearly states that five percent annual interest was included in the calculation of all awards.

[2] This testimony also defeats respondent's argument on appeal that the burden of proving wages were owed was appellant's, not his. In addition, because respondent did not raise this argument to the trial court, it is not properly before this court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

[3] Minn. Stat. § 181.17 was repealed on August 1, 1996, but this action commenced in August 1995.

[4] Minn. Stat. § 549.21 was repealed by 1997 Minn. Laws ch. 213, art. 1, but still applies to causes of action arising before August 1, 1997. Appellant's cause of action arose in August 1995.