This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-98-1827

Lynn Schultz,

Respondent,

vs.

Maverick Construction Co., et al.,

Appellants.

Filed April 27, 1999

Affirmed

Amundson, Judge

Wright County District Court

File No. C5-97-518

Rolf E. Sonnesyn, Tomsche, Sonnesyn & Tomsche, P.A., 888 Lumber Exchange Building, Ten South Fifth Street, Minneapolis, MN 55402 (for respondent)

Mark J. Kallenbach, 2260 Ridge Drive, Suite 13, Minneapolis, MN 55416 (for appellants)

Considered and decided by Anderson, Presiding Judge, Crippen, Judge, and Amundson, Judge.

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

AMUNDSON, Judge

After a court trial, appellants Maverick Construction Company and Mavco, Inc. (Mavco), defendants in an action claiming unpaid commissions, argue the trial court erred because: (1) the evidence is insufficient to support its award of unpaid commissions to respondent Lynn Schulz, Mavco's former employee; (2) its findings of fact fail to satisfy the requirements of Minn. R. Civ. P. 52.01; and (3) respondent is not entitled to attorney fees and statutory penalties under Minn. Stat. § 181.171 (1998). We affirm.

FACTS

After a bench trial in this action for unpaid commissions, the trial court entered an order for judgment awarding Schulz commissions in the amount of $30,285, attorney fees in the amount of $5,000, and statutory penalties in the amount of $1,000. Thereafter, Mavco moved the trial court for amended findings of fact, conclusions of law, and order for judgment or, in the alternative, for a new trial. This motion was denied in September 1998, and Mavco is now appealing only from that order.

The salient facts are as follows: Mavco, a construction contractor specializing in fire restoration work, hired Schulz as a commissioned salesperson in November 1992. It is undisputed that Schulz was hired as an employee of Mavco, not an independent contractor. Bryan Reitzner, the owner of Mavco, and Schulz entered into an oral employment contract. Reitzner and Schulz verbally agreed that Schulz would be paid thirty percent of the gross profit for each construction job he procured, less a draw of $32,000 per year and less advanced expenses. The commissions were to be paid on a quarterly basis. Schulz testified that Reitzner told him that only the "direct job costs on a project" would be taken out to establish gross profits.

In 1995, disputes arose between Schulz and Mavco concerning Mavco's accounting for the costs of jobs procured by Schulz. Sometime during 1995 Mavco began to impose additional "direct job costs;" and Schulz took issue with these costs. Schulz continued working for Mavco, while attempting to solve these problems with Reitzner. However, unable to resolve these issues, Schulz resigned his position with Mavco, effective October 31, 1995.

After leaving Mavco, Schulz requested an accounting for his unpaid commissions on jobs he procured prior to his resignation. Some of those jobs had not been followed through to completion. Mavco ignored the request. Ultimately, Schulz was sued to collect unpaid commissions.

D E C I S I O N

Standard of Review

<"The standard of review of a bench trial is broader than the standard for jury verdicts." Runia v. Marguth, Inc., 437 N.W.2d 45, 48 (Minn. 1989). The trial court's factual findings are reviewed under a clearly erroneous standard of review and this court must give due regard to the opportunity of the trial court to judge the credibility of witnesses. Minn. R. Civ. P. 52.01. Clearly erroneous means not "reasonably supported by evidence in the record considered as a whole." Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 441 (Minn. 1983). Further, it is elementary that evidence on appeal is viewed in the light most favorable to the prevailing party. Weber v. United Parcel Serv., 358 N.W.2d 476, 477 (Minn. App. 1984). This court, however, need not give deference to the trial court's findings on purely legal issues. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

I.

On appeal, Mavco asserts that, although Schulz was entitled to some unpaid commissions, the amount awarded was excessive. Mavco contends that, taking the evidence in the light most favorable to Schulz, Schulz is entitled to only $1,282.59, rather than the $30,285 awarded by the trial court. Mavco arrived at this amount by utilizing its own trial exhibit, exhibit 101. Mavco erroneously relies on this exhibit to set forth its claim on appeal. Our limited standard of review does not allow us to re-examine specific exhibits to see if they could possibly support a contrary determination. See In re Welfare of M.D.O., 462 N.W.2d 370, 374-75 (Minn. 1990) (stating that the role of the court of appeals is to correct errors, not to find facts). Instead, we determine whether the record, taken as a whole, supports the trial court's findings. Hubbard, 330 N.W.2d at 441.

In addition to voluminous trial exhibits, the transcript consists of more than 300 pages of witness testimony. In making its findings, the trial court had the opportunity to review the exhibits and make witness-credibility determinations, both functions within the providence of the trial court. See Markowitz v. Ness, 413 N.W.2d 843, 845 (Minn. App. 1987) (commenting that witness credibility determinations are left to the trier of fact). While Mavco argues that this case rests merely on documentary evidence, this assertion fails to recognize the importance of witness testimony in this matter.

Exhibit 101, now portrayed as "accurate" by Mavco, is essentially an accounting by Mavco that was prepared in anticipation of trial. The very issue at the heart of this action, however, was Schulz's mistrust of Mavco's accounting procedures. Further, the trial court had exhibit 101 before it at the time it made its determinations. Indeed, because of the very nature of the dispute between the parties, the trial court's opportunity to judge the credibility of Schulz and Reitzner, the only two witnesses in this court trial, was essential. The court heard testimony regarding the parties' oral contract, including their agreement as to the calculation of commissions. Both parties also explained how they arrived at the calculations and figures compiled in their exhibits.

The court found Schulz's testimony to be more credible, awarding Schulz more than $30,000 in unpaid commissions. The record, taken as a whole, supports this award, and the award is not clearly erroneous.

II.

Mavco also asserts that the trial court's findings of fact were insufficient to satisfy the requirements of Minn. R. Civ. P. 52.01. Rule 52.01 requires that

[i]n all actions tried upon the facts without a jury * * * the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment.

While Mavco argues that Rule 52.01 requires the trial court to articulate the reasons for its decision, either on the record or in a memorandum accompanying its decision, Mavco misinterprets the rule. Rule 52.01 merely gives trial courts flexibility in making findings of fact and conclusions of law, stating that it will be sufficient if they are stated orally on the record or if they appear in a memorandum accompanying a decision. Rule 52.01 does not require such a memorandum, it merely provides an alternative to separately listing findings of fact and conclusions of law, as the trial court did here. The trial court's findings satisfied the dictates of Rule 52.01.

III.

Mavco also contends that the award of statutory penalties and attorney fees was not justified, arguing that the statutory provisions were not in effect at the time of the accrual of the action. Because Mavco failed to make this argument in the trial court, and thus, it was not addressed by the trial court, we will not address Mavco's new argument regarding the applicability of this statute. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

Minn. Stat. § 181.171, subd. 3 (1998), requires the court to assess attorney fees in any action based upon Minn. Stat. § 181.145 (1998). Section 181.145, subdivision 2 requires prompt payment of commissions earned through the last day of employment to a commissioned sales person who resigns his position. Absent prompt payment

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 * * *. 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.

Minn. Stat. § 181.145, subd. 3 (1998). Section 181.171, subdivision 3, reads:

In an action brought under subdivision 1 [which includes violations of § 181.145], the court shall order an employer who is found to have committed a violation to pay to the aggrieved party reasonable costs, disbursements, witness fees, and attorney fees.

Minn. Stat. § 181.171, subd. 3 (emphasis added). Because these subdivisions give no discretion to the court, it appears the trial court properly awarded statutory penalties and attorney fees.

Finally, respondent requests attorney fees in the amount of $5,032.50 on appeal, submitting an affidavit in support of these appellate attorney fees. "Where a prevailing plaintiff is entitled by statute to recover attorney fees at trial, that plaintiff may also be entitled to attorney fees on appeal." Bucko v. First Minn. Sav. Bank, 471 N.W.2d 95, 99 (Minn. 1991) (stating that to deny attorney fees in such a situation would undermine the purpose of the statutory requirement). We award attorney fees to respondent in the amount of $2,000 for this appeal.

Affirmed.