This opinion will be unpublished and

may not be cited except as provided by

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




Michael Mooney,

individually and on behalf of

all similarly situated shareholders of

Burtness Growth Incorporated,



Richard K. Burtness, et al.,



Shamrock Development, Inc., intervenor,


Filed May 5, 1998


Foley, Judge**

Scott County District Court

File No. 96-5823

Richard A. Beens, Paul H. Yoo, Jon M. Hopeman, Felhaber, Larson, Fenlon & Vogt, P.A., 601 Second Ave. S., Suite 4200, Minneapolis, MN 55402-4302 (for appellant)

Phillip R. Krass, Timothy F. Moynihan, Krass Monroe, P.A., 1100 Southpoint Office Center, 1650 West 82nd St., Bloomington, MN 55431-1447 (for respondent Burtness)

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

James M. Neilson, Felix A. Mannella, Randall J. Fuller, Babcock, Locher, Neilson & Mannella, 118 East Main St., Anoka, MN 55303 (for respondent Shamrock Development)

Considered and decided by Toussaint, Chief Judge, Foley, Judge, and Mulally, Judge.**


FOLEY, Judge

Appellant Michael Mooney challenges the trial court's award of attorney fees and costs against him and in favor of respondent Richard K. Burtness. By notice of review, Burtness appeals the court's denial of his request for damages. Also by notice of review, respondent Shamrock Development appeals the court's denial of its request for attorney fees and costs. We affirm.


In 1994, respondent Richard K. Burtness, through one of his business entities, purchased a 55-acre parcel of real property known as "the Wilds North." The $1,330,000 purchase price was financed by a $1,800,000 loan, secured by a mortgage on the property. Burtness then formed Burtness Growth Incorporated (BGI) to develop the property. The property was conveyed to BGI, subject to the mortgage, and Burtness

**Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. Art. VI, § 10.*

began soliciting investors for BGI. By August 1995, he had sold 33,750 of his 100,000 BGI shares to ten investors, including 4,500 shares to appellant Michael Mooney.

In early 1996, Burtness began discussing the sale of his remaining BGI shares with both Mooney and respondent Shamrock Development, Inc. (Shamrock). Shortly after Burtness informed Mooney that he was selling his BGI shares to Shamrock, Mooney brought suit against Burtness and BGI, alleging fraud, breach of fiduciary duties, and conversion of corporate assets. At the same time, Mooney obtained an ex parte temporary restraining order (TRO) (and later a temporary injunction) preventing Burtness from selling his BGI shares or the Wilds North. The court ordered Mooney to deposit a $200,000 bond. Under Minn. Stat. § 302A.751, Mooney later sought a court buy-out order directing Burtness and all other BGI shareholders to sell their shares to him.

The mortgagee foreclosed on its mortgage and purchased the Wilds North on May 6, 1996 (with a redemption period to expire one year later). Also on May 6, Shamrock purchased a judgment against Burtness (from an unrelated matter). Shamrock then obtained a writ of execution and levied against Burtness's BGI shares. On the day set for the execution sale, the court cancelled the sale. Shamrock, which unsuccessfully attempted to have the injunction dissolved by the trial court and by this court, then intervened in this suit.

Following a court trial, the court dismissed Mooney's claims, denied his buy-out request, and lifted the TRO. Mooney moved for amended findings or a new trial, which the court denied. There was no appeal from this order. Respondents Burtness, BGI, and Shamrock moved for damages and attorney fees and costs. The trial court denied all but Burtness's request for attorney fees and costs, and the parties now bring this appeal.


"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). "Requisite to an award of statutory sanctions is that counsel [or a party] proceeded in bad faith." Uselman v. Uselman, 464 N.W.2d 130, 140 (Minn. 1990); Minn. Stat. § 549.21, subd. 2 (1996). The existence of bad faith is an issue of fact best determined by the trial court. Uselman, 464 N.W.2d at 140.

I. Award of Attorney Fees and Costs to Burtness

The trial court determined that Burtness was entitled to recover $62,703.50 in attorney fees and $1,847.69 in costs, to be paid by Mooney from the injunction bond. The court based its award on Minn. Stat. § 549.21, subd. 2 (1996) and Minn. Stat. § 302A.751, subd. 4 (1996). Minn. Stat. § 549.21, subd. 2, provides:

Upon motion of a party * * * the court in its discretion may award to that party costs, disbursements, reasonable attorney fees and witness fees if the party or attorney against whom costs, disbursements, reasonable attorney and witness fees are charged acted in bad faith; asserted a claim or defense that is frivolous and that is costly to the other party; asserted an unfounded position solely to delay the ordinary course of the proceedings or to harass; or committed a fraud upon the court.

Minn. Stat. § 302A.751, subd. 4 states:

If the court finds that a party to a proceeding brought under this section has acted arbitrarily, vexatiously, or otherwise not in good faith, it may in its discretion award reasonable expenses, including attorneys' fees and disbursements, to any of the other parties.

A. Award of Attorney Fees and Costs

The trial court stated that "an air of bad faith surrounded Mooney's conduct throughout this action." Mooney professed that his goal in bringing this lawsuit was to protect his investment in BGI, but the court found that "Mooney's actual purpose was to force Burtness to sell his shares to Mooney." This is consistent with Mooney's request for a court buy-out order directing all BGI shareholders to sell their shares to him. This is also consistent with Mooney's decision not to appeal the trial court's denial of his request for amended findings or a new trial because "the dissipation of BGI's assets has made such an appeal moot." Mooney, however, brought suit against Burtness for breach of fiduciary duties and for converting BGI's assets. If the trial court erred in finding against Mooney, he would be entitled to damages against Burtness. That damage claim is not made moot by the dissipation of BGI's assets. Only Mooney's desire to obtain a majority holding in the Wilds North was made moot by the mortgagee's foreclosure on the property.

Another purpose professed by Mooney for bringing the lawsuit and for seeking injunctive relief was to prevent Burtness from receiving a "windfall" from the sale of his BGI shares to Shamrock. Mooney testified at trial, however, that he had made an offer on the BGI stock. Further, the record includes an unsigned purchase agreement (prepared by Mooney's attorneys) stating that Mooney Development Corporation desires to purchase all of Burtness's BGI stock.

Also, the trial court found:

Mooney's failure to investigate his claims before bringing them into court rises to the level of perpetration of a fraud upon the court, and it certainly indicates bad faith.

Here, the court is referring to Mooney's allegation in his complaint and his repeated statements at the injunction hearing that Burtness had done nothing to develop the Wilds North property. The record shows, however, that before bringing suit neither Mooney nor his attorneys inspected the City of Prior Lake's files that document Burtness's efforts to bring the property within city sewer and water service and to prepare for rezoning.

The court also referred to Mooney's allegation at the TRO hearing that a sale of Burtness's BGI stock to Shamrock would jeopardize the rights of BGI shareholders. Before bringing his motion for a TRO, however, Mooney had not inquired into Shamrock's property development experience or its intentions for the property. In fact, Shamrock had extensive development experience and its proposed plan for the property was very similar to the BGI proposal.

The trial court found that Mooney had "acted in contradiction to his own assertions, also indicating bad faith." For example, Mooney had asserted that the TRO was necessary to maintain the status quo pending the outcome of the litigation. After bringing the suit, however, Mooney attempted to buy the shares of the other minority shareholders, obviously seeking to change the status quo. Also, although Mooney asserted that the financial projections provided by Burtness omitted key details, Mooney used the same projections in his attempts to secure investors to assist him in buying out Burtness's shares.

Finally, the trial court found that Mooney was not truthful in his allegation that he had not received a copy of a confidential BGI memorandum before his purchase of the BGI shares. This court defers to the fact-finder's assessment of witness credibility. General v. General, 409 N.W.2d 511, 513 (Minn. App. 1987).

In response, Mooney argues that, because his action survived a motion for directed verdict, his claims are not frivolous as a matter of law. He relies on Uselman v. Uselman, 464 N.W.2d 130, 143-44 (Minn. 1990), which holds that sanctions are not appropriate if imposed without notice and a party has withstood pretrial motions for summary judgment or dismissal.

The trial court here, however, distinguished its decision from Uselman by stating that "Mooney and his counsel had every reason to surmise that sanctions were a possibility." The trial court also justified its denial of respondents' motion for a directed verdict by stating that

it seemed more efficient to hear the remaining testimony. This allowed the court to support its decision with more extensive findings and conclusions than would have resulted had the court granted a directed verdict * * *. It was obvious that this court did not deny the directed verdict motions because of the strength of Mooney's case.

Cf. Norwest Bank Midland v. Shinnick, 402 N.W.2d 818, 826 (Minn. App. 1987) (upholding attorney fees awarded by trial court after respondent's motion for directed verdict had been denied, when motion came during trial and court wanted to let jury decide case because it had already "come this far").

Also, the trial court, unlike in Uselman, did not base its determination that Mooney's conduct merited the imposition of sanctions on the frivolity of his lawsuit. The trial court predicated its sanctions on Mooney's "consistent bad faith, his commission of fraud upon the court, and the harassing and vexatious nature of his claims." Further, under Minn. Stat. § 302A.751, the court may award attorney fees if it finds that a party acted arbitrarily or vexatiously. Pedro v. Pedro, 489 N.W.2d 798, 804 (Minn. App. 1992)), review denied (Minn. Oct. 20, 1992).

The trial court's findings support its award of attorney fees and are not clearly erroneous. See Minn. R. Civ. P. 52.01 (trial court findings "shall not be set aside unless clearly erroneous"). The trial court did not abuse its discretion in awarding attorney fees and costs in favor of Burtness and against Mooney.

B. Award of Damages against Injunction Bond

The trial court awarded Burtness's attorney fees and costs against Mooney's injunction bond. Mooney argues that only attorney fees and costs flowing from the injunction can be awarded against an injunction bond. See Electro-Craft Corp. v. Controlled Motion, Inc., 370 N.W.2d 465, 466 (Minn. App. 1985) (to recover on injunction bond, party must establish that damages were proximately caused by wrongfully issued restraining order), review denied (Minn. Sept. 19, 1985).

The trial court found that Mooney's "ultimate purpose in this litigation was to prevent Burtness from selling his BGI shares to [Shamrock], so that Mooney could acquire the shares himself." This is confirmed by Mooney's August 8, 1996, buy-out motion, whereby Mooney sought the court's order directing all BGI shareholders to sell their shares to Mooney. Mooney was seeking the same result from both the main action and the TRO/injunction: a buy-out of the BGI shares. Cf. Pelkey v. National Surety Co., 143 Minn. 176, 178, 173 N.W. 435, 436 (1919) (where sole purpose of action is to obtain injunction, attorney fees incurred in defending main action are damages within terms of injunction bond). The trial court did not abuse its discretion in awarding Burtness's attorney fees from Mooney's injunction bond.

II. Denial of Request for Damages

Respondent Burtness claims that he was damaged by Mooney's TRO because it prevented him from selling his stock to Shamrock. The trial court denied Burtness's request for damages on the ground that it was not convinced that Burtness had reached an enforceable agreement to sell the stock before the imposition of the TRO. On appeal, Burtness points to no such agreement for the sale of the BGI stock made before the imposition of the TRO. Without evidence of a contract, the trial court had no basis on which it could award damages under the bond. See Arons v. Allstate Ins. Co., 363 N.W.2d 832, 833 (Minn. App. 1985) (finder of fact may not base damage award on "speculation or conjecture").

Burtness's proffered reason why he should receive damages is that the court, in its order granting the TRO, found that Burtness would have received $600,000 in consideration for selling his BGI stock to Shamrock. This is a misstatement of the court's finding, which was "[t]hat the Shamrock Development, Inc. proposed agreement would yield defendant Burtness an approximately $600,000.00 profit." (Emphasis added.) The trial court did not abuse its discretion in denying damages.

Respondent Burtness also requests attorney fees and costs on appeal. Because there is case law that says sanctions should not be levied against a party whose claims survive a summary judgment or pretrial motion for dismissal, Uselman, 464 N.W.2d at 144, and because the court awarded attorney fees to be paid from the injunction bond, this appeal is not frivolous. Accordingly, Burtness's request for attorney fees on appeal is denied.

III. Shamrocks Request for Attorney Fees

Shamrock argues that it is entitled to attorney fees and costs necessitated by the wrongfully issued temporary injunction. The trial court determined that Shamrock was not entitled to damages, attorney fees, or costs because it was not "a party restrained or enjoined" by Mooney's injunction. See Minn. R. Civ. P. 65.03 (TRO or injunction may be granted only upon giving of security for payment of costs and damages incurred by party who is wrongfully enjoined or restrained).

At the time the TRO was issued, Shamrock was not a party to this lawsuit, there was no enforceable agreement between Shamrock and Burtness regarding the sale of Burtness's BGI shares, and Shamrock was not a creditor of Burtness or BGI. Shamrock became involved, after the TRO was issued, when it purchased a judgment against Burtness and then chose to levy against Burtness's BGI shares, rather than against other assets of Burtness not protected by the restraining order. The attorney fees and costs claimed by Shamrock arose, not as a result of the TRO or injunction, but from Shamrock's attempts to acquire the BGI shares by circumventing the TRO.

The injunction bond was intended to protect Burtness and BGI from any losses they might sustain if the injunction was wrongfully issued. It was not intended to protect Shamrock, which subsequently and voluntarily entered this lawsuit to further its own interests. Shamrock provides no convincing argument as to why it is entitled to its attorney fees and costs. The trial court did not abuse its discretion in denying Shamrock's request for attorney fees and costs.