This opinion will be unpublished and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

C5-96-1515

The Coast Distribution Systems,

Respondent,

vs.

The W. W. Holes Manufacturing Co.

d/b/a Marine Outlet,

Appellant.

Filed April 15, 1997

Affirmed

Crippen, Judge

Hennepin County District Court

File No. 9517322

The W.W. Holes Manufacturing Company, d/b/a Marine Outlet, 975 South Highway 10, St. Cloud, MN 56304 (Appellant)

David Yarosh, 600 Baker Building, 706 Second Avenue South, Minneapolis, MN 55402 (for Respondent)

Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and Foley, Judge.[*]

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

CRIPPEN, Judge

Appellant W.W. Holes Manufacturing Co. challenges the trial court's summary judgment that respondent Coast Distribution Systems was entitled to return of a $26,882 payment mailed to Holes in error. We affirm.

FACTS

Respondent Coast distributes marine equipment to dealers and manufacturers and Marine Outlet, run by Holes, is one of its suppliers. In October 1994, Coast sent Marine Outlet checks for $23,270.78 and $3,611.52. Marine Outlet received the checks and deposited them. Two months later, Coast received a call from another seller of marine equipment, Marine Development and Research Corporation, requesting payment of $27,283.58 for materials ordered by Coast. Coast then realized that the checks were mistakenly sent to Marine Outlet instead of Marine Development. Coast contacted Marine Outlet and explained the problem, but Marine Outlet refused to return the money.

Coast filed suit against Holes and the trial court granted Coast's motion for a $26,882.30 summary judgment. The court also awarded Coast its attorney fees.

DECISION

Coast is entitled to summary judgment if Marine Outlet is unable to establish any genuine issue of material fact. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

1. Mistaken payment

Appellant Holes claims that the checks received by Marine Outlet were rebates from Coast in the ordinary course of business. But appellant provides no evidence to support its rebate theory. And Coast offers evidence that it was not involved in a rebate program with Marine Outlet and has never paid this supplier a rebate in the three years of doing business with it. Sales from Marine Outlet to Coast totalled only $10,508 in their entire business relationship. There is no rational explanation for a $27,000 rebate payment by Coast to Marine.

Appellant asks the court to rely on two receipts written by Marine Outlet when the checks were received. These receipts state that the checks were received as rebates. This is self-serving evidence created by appellant. The checks themselves do not contain rebate language. Appellant also states that Marine Outlet is engaged in rebate programs with many other distributors, but this fact does not explain an irrational rebate payment by Coast.

Appellant also relies on the fact that the invoice from Marine Development is for a sum greater than the amount of the checks sent to Marine Outlet. But Marine Development's invoices show a 10% discount for early payment, and Coast's checks reflect this discount.

2. Attorney fees

Absent an abuse of its discretion, we must affirm the trial court's award of attorney fees or costs under Minn. Stat. § 549.21 or Rule 11. Radloff v. First Am. Nat'l Bank, 470 N.W.2d 154, 156 (Minn. App. 1991), review denied (Minn. July 24, 1991); see Minn. Stat. § 549.21 (1996) (allowing attorney fees to be imposed against parties who act in bad faith, assert a frivolous claim, make assertions solely to delay proceedings or harass the opponent, or commit fraud upon the court); Minn. R. Civ. P. 11 (allowing sanctions to be imposed against parties who submit pleadings, motions, or other paper not well-grounded in fact, unwarranted by law, or interposed for an improper purpose).

Appellant contends that it did not offer its defense in bad faith. But the statute and the rule extend as well to frivolous and unwarranted claims and to unnecessary delay of court proceedings.[1] Given the absence of even slight merit to appellant's claim, we conclude that the trial court acted within its discretion in awarding attorney fees.

Affirmed.

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

[ ]1Coast served Marine Outlet with requests for admissions that, under Minn. R. Civ. P. 36.01, were required to be admitted or objected to within 30 days unless given more time by the court. Marine Outlet responded 49 days after service. Id.