This opinion will be unpublished and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

C7-98-791

Charles F. Leekley,

Respondent,

vs.

James J. Dunn, et al.,

Appellants.

Filed December 29, 1998

Affirmed

Kalitowski, Judge

Hennepin County District Court

File No. 972969

Glen A. Norton, Ross & Norton PLLP, 1057 Stoughton Avenue, Chaska, MN 55318 (for respondent)

Glenn P. Bruder, Glenn P. Bruder, P.A., 4005 West 65th Street, Suite 200, Edina, MN 55435 (for appellants)

Considered and decided by Kalitowski, Presiding Judge, Shumaker, Judge, and Holtan, Judge.[*]

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

KALITOWSKI, Judge

After a trial to the court, appellants James J. Dunn and the Lakeside Marina, Inc., defendants in an action claiming unpaid commissions, contend the district court erred by: (1) refusing to consider appellants' setoff claims; (2) finding Dunn personally liable to respondent Charles Leekley for wages and commissions; (3) awarding respondent commissions for the boat auction; (4) unfairly limiting appellants' ability to present a defense; and (5) awarding excessive damages and attorney fees. We affirm.

D E C I S I O N

On appeal, we review the factual findings of the trial court using a clearly erroneous standard of review, giving 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). We must view the evidence in the light most favorable to the trial court's decision. Id.

We are not bound by and 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). If we determine the trial court ruling is not supported by the evidence, we may re-apply the law to the facts as found by the trial court. Edwards v. Hennepin County, 397 N.W.2d 584, 586 (Minn. App. 1986).

I.

Appellants claim respondent owes appellants more in setoffs than appellants owe respondent in commissions. Contrary to appellants' assertion, the district court considered the setoff claim but denied it. Appellant was found by the district court not to be a credible witness, and thus, the court determined there was no basis to award the setoff claims. Because credibility determinations are in the province of the finder of fact, we defer to the district court on this issue. See DeMars v. State, 352 N.W.2d 13, 16 (Minn. 1984).

II.

Appellant Dunn contends the district court erred in piercing the corporate veil and finding him personally liable. Because it is undisputed that the judgment has been satisfied, we decline to address this issue.

III.

Appellants claim the district court erred in finding respondent was entitled to commissions for the boat auction. Appellants contend respondent violated the implied covenant of good faith and fair dealing by undermining the auction in which the commissions were earned. We need not determine whether Minnesota courts imply such a covenant into employment contracts because the district court's finding of good faith is supported by evidence at trial that: (1) the actions respondent took with respect to the auction were taken at the behest of the auctioneers; and (2) respondent did not attempt to undermine the auction by influencing potential sellers to require high minimum bids. We affirm the district court's finding of good faith because it is reasonably supported by evidence in the record.

IV.

Appellants assert they did not receive a fair trial because the district court unfairly limited their testimony and exhibited a general bias against them. In order to show entitlement to a new trial, a litigant must show both that there was an irregularity in the proceedings, and that the litigant was deprived of a fair trial by the irregularity. Nachtsheim v. Wartnick, 411 N.W.2d 882, 890 (Minn. App. 1987), review denied (Minn. Oct. 28, 1987). Although appellants claim they were denied adequate time to present their case, they did not request additional time at trial. We conclude appellants failed to meet their burden of showing that there was an irregularity in the trial, and that they received an unfair trial.

V.

Finally, appellants contend the district court erred in basing its damage award on Minn. Stat. § 181.145, subd. 3 (1996), which relates to independent contractors, rather than on Minn. Stat. § 181.13 (1996), which relates to employees, because respondent did not refer to the independent contractor statute in his pleadings. We disagree.

Respondent was not required to plead his damages with specificity. Rule 8.01 states:

[a] pleading which sets forth a claim for relief * * * shall contain a short and plain statement of the claim showing that the pleader is entitled to relief and a demand for judgment for the relief sought * * *.

Minn. R. Civ. P. 8.01. Minnesota rules do not require the claim to state how the damages are to be figured, and pleadings may be based upon either allegations of fact or allegations of law. See First Nat'l Bank v. Olson, 246 Minn. 28, 37-38, 74 N.W.2d 123, 129 (1955). Where allegations of fact are made, a specific legal theory need not be alleged if the factual allegations put the other party on notice of the claim. Padco, Inc. v. Kinney & Lange, 444 N.W.2d 889, 891 (Minn. App. 1989), review denied (Minn. Nov. 15, 1989).

Here, the allegations asserted in conciliation court were taken as the pleadings. See Minn. R. Gen. Prac. 522. The allegations in conciliation court included factual allegations regarding the commissions. Also, appellants were given specific notice several months before the trial that Minn. Stat. § 181.145, subd. 3, would be used, when respondent sent appellants a settlement letter using section 181.145, subdivision 3, to calculate damages. We conclude respondent was not required to plead the use of Minn. Stat. § 181.145, subd. 3, in order to have the court use it to calculate damages.

Appellants claim that even if respondent was not procedurally barred from using Minn. Stat. § 181.145, subd. 3, respondent was not entitled to damages under it. Appellants contend respondent cannot claim he was an independent contractor because he previously requested and received reemployment benefits. We disagree.

We have held that administrative decisions of the Department of Jobs and Training should not be given collateral estoppel effect in subsequent proceedings. Clapper v. Budget Oil Co., 437 N.W.2d 722, 727 (Minn. App. 1989), review denied (Minn. June 9, 1989). Moreover, trial courts are given broad discretion in deciding whether to apply collateral estoppel offensively. White Earth Band of Chippewa Indians v. Alexander, 683 F.2d 1129, 1134 (8th Cir. 1982).

Here, the district court found that at the time respondent earned the commissions at issue, he was paid on a commission basis only, and he paid his own taxes. These findings are not challenged. Because the evidence is sufficient to conclude respondent was an independent contractor, the district court did not err in using Minn. Stat. § 181.145, subd. 3 (1996), to figure damages.

Appellants contend the award of attorney fees was not justified because the district court made no finding of bad faith. A finding of bad faith is not necessary, however, because Minn. Stat. § 181.171, subd. 3 (1996), requires the court to assess attorney fees in any action based upon Minn. Stat. § 181.145. 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 this subdivision gives no discretion to the court, the district court properly awarded attorney fees.

Finally, we conclude respondent is entitled to attorney fees on appeal. "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) (reasoning that to deny attorney fees in such a situation would undermine the purpose of the statutory requirement). Therefore, we award attorney fees of $700 to respondent for this appeal.

Affirmed.

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