Thondee Pongmalee, et al., Plaintiffs,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1716

Thondee Pongmalee, et al.,
Plaintiffs,

Jeffrey K. Priest, et al.,
Respondents,

vs.

Wat Lao Sirithammaraam,
Appellant.

Filed June 17, 2019
Affirmed
Cleary, Chief Judge

Washington County District Court
File No. 82-CV-17-3673

Jeffrey K. Priest, Priest Law Firm, Eagan, Minnesota (attorney pro se and for respondents);
and

Kay Nord Hunt, Lommen Abdo, P.A., Minneapolis, Minnesota (for respondents)

Mark A. Olson, Olson Law Office, Burnsville, Minnesota (for appellant)

Considered and decided by Cleary, Chief Judge; Florey, Judge; and Cochran, Judge.

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U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
Appellant challenges the district court’s denial of its motion for sanctions, arguing
that its notice of intent to seek sanctions complied with and s atisfied the safe-harbor
provisions of Minn. Stat. § 549.211 (2018) and Minn. R. Civ. P. 11. We affirm.
FACTS
On August 24, 2017, plaintiffs Thongdee Pongmalee, 1 Inthong Keodouangdy,
Sengaloun Sayoudone, Christina Vilay, May Vilay, Bonavahn Neuki rcher, and other
unnamed persons involved in the formation and operation of appe llant Wat Lao
Sirithammaram2 temple (Wat Lao), filed a summons and complaint against Wat La o,
alleging claims that are not relevant to this appeal.3 On August 29, 2017, Wat Lao served
a document entitled “notice of int ent to seek sanctions.” The document stated that Wat
Lao would move the district court “by a stand alone separate mo tion, to seek sanctions
against Defendants [sic] and counsel pursuant to Rule 11 and § 549.211, in the event that
said Plaintiffs do not dismiss their pretended cause of action in this matter within 21 days
of this notice.” The alleged sanctionable conduct was never co rrected. In early February
2018, the district court dismissed the underlying matter without prejudice.

1 The case caption in the distric t court identifies this plainti ff as “Thondee Pongmalee”;
however, appellant’s brief identifies this plaintiff as “Thongd ee Pongmalee.” We use
“Thongdee Pongmalee” in the body of this opinion.
2 The case caption in the district court identifies appellant as “Wat Lao Sirithammaraam”;
however, appellant appears in the record as “Wat Lao Sirithammaram.” We use “Wat Lao
Sirithammaram” in the body of this opinion.
3 Respondents Jeffrey K. Priest, Richard D. Crabb, and the Pries t Law Firm represented
plaintiffs in the underlying action.

3
In July 2018, Wat Lao served and filed a notice of motion and motion for sanctions
on the same day. In August 2018, the district court held a hea ring on the motion. The
district court denied Wat Lao’s motion, concluding that, by fil ing and serving its motion
on the same day, Wat Lao had failed to comply with the 21-day s afe-harbor provisions of
Minn. R. Civ. P. 11.03(a)(1) and Minn. Stat. § 549.211, subd. 4(a).
This appeal follows.
D E C I S I O N
Wat Lao argues that it satisfied the 21-day safe-harbor provisions of Minn. R. Civ.
P. 11.03(a)(1) and Minn. Stat. § 549.211, subd. 4(a), because i ts notice of intent to seek
sanctions substantially complied with the requirement to serve a motion for sanctions 21
days before filing it with or presenting it to the district court. We disagree.
We review the district court’s order regarding a rule 11 sancti on for an abuse of
discretion. In re Progressive Ins. Co. , 720 N.W.2d 865, 874 (Minn. App. 2006), review
denied (Minn. Nov. 22, 2006). But the application of a statute or pr ocedural rule to
undisputed facts presents a ques tion of law that is reviewed de novo. Poppler v. Wright
Hennepin Coop. Elec. Ass’n, 845 N.W.2d 168, 171 (Minn. 2 014) (applying rules of civil
procedure); Anderson v. Christopherson, 816 N.W.2d 626, 630 (Minn. 2012) (applying a
statute).
By presenting a document to a court, an attorney certifies that the document is not
presented for an improper purpose and that the contentions in the document are warranted
and have, or are likely to have, evidentiary support. Minn. Stat. § 549.211, subd. 2; Minn.
R. Civ. P. 11.02. “If, after notice and a reasonable opportuni ty to respond, the court

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determines that [this principle] has been violated, the court may . . . impose an appropriate
sanction . . . .” Minn. Stat. § 549.211, subd. 3; Minn. R. Civ. P. 11.03.
A motion for sanctions . . . must be made separately from other
motions or requests and describe the specific conduct alleged
to [constitute the violation]. It must be served . . . but may not
be filed with or presented to the court unless, within 21 days
after service of the motion, or another period as the court may
prescribe, the challenged paper , claim, defense, contention,
allegation, or denial is not withdrawn or appropriately
corrected.

Minn. Stat. § 549.211, subd. 4(a); see also Minn. R. Civ. P. 11.03(a)(1) (establishing the
same 21-day notice requirement). This 21-day notice requiremen t is referred to as the
“safe-harbor provision.” See, e.g., Johnson ex rel. Johnson v. Johnson , 726 N.W.2d 516,
518 (Minn. App. 2007); Progressive Ins. Co., 720 N.W.2d at 874.
Compliance with the safe-harbor provision is mandatory. Johnson, 726 N.W.2d at
518. A court that fails to apply the safe-harbor provision “err[s] as a matter of law.” Id. at
519 (“While the district court has the authority to assess sanc tions . . . that authority is
circumscribed by the 21-day safe-harbor provisions of the statute and the rule.” (quotation
marks omitted)).
Here, Wat Lao did not initially s erve a motion for sanctions, b ut instead served a
notice of intent to seek sanctions. A “motion” is “[a] written or oral application requesting
a court to make a specified ruling or order.” Black’s Law Dictionary 1168 (10th ed. 2014).
Wat Lao’s notice of intent to seek sanctions was not a motion a s mandated by the rule. It
was not in the form of an application requesting a court to make a specified order, but was
instead a threat that such a mo tion might be filed sometime in the future. The notice of

5
intent appears to be an attempt to get the case dismissed at an early stage, rather than an
outright request for sanctions. It was also not substantively identical to the motion that
Wat Lao eventually filed 11 months later. In its notice of intent to seek sanctions, Wat Lao
argued the following: plaintiffs failed to follow proper proce dures in seeking to inspect
corporate records; plaintiffs’ cl aim for damages for wrongful e viction fails on its face;
plaintiffs failed to properly plead damages; plaintiffs failed to follow the proper procedures
for seeking a writ of quo warranto under Minn. Stat. § 480.04 ( 2018); plaintiffs failed to
plead a proper cause of action under Minn. Stat. § 317A.411 and misstated facts; plaintiffs
failed to state a cause of action under Minn. Stat. § 317A.751; and plaintiffs are not entitled
to injunctive relief.
Wat Lao’s later notice of motion and motion, served and filed on the same day in
July 2018, did not specify on what basis sanctions were appropr iate. In his affidavit
supporting the motion, appellant’s counsel stated that “[t]he a ction was entirely without
any factual or legal basis or merit and made some outright provable false statements.” He
went on to assert that a number of specific factual claims made by respondents, acting as
plaintiffs’ counsel, were false. Wat Lao also maintained, in i ts memorandum supporting
the motion, that counsel “violate d [Minn. Stat. § 549.211, subd . 2] by making claims or
other legal contentions that were not warranted by existing law and could not be taken as
a non-frivolous extension of exist ing law.” The only substanti ve overlap between Wat
Lao’s notice of intent to seek sanctions and its later motion for sanctions was the allegation
that false facts were alleged in the complaint. However, the s pecifics of those facts were
not made clear in the notice of intent to seek sanctions.

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The purpose of the safe-harbor provision is to provide a party with a 21-day
opportunity to withdraw a pleading or address deficiencies that violate Minn. Stat.
§ 549.211 and Minn. R. Civ. P. 11. This purpose is not served when an actual motion for
sanctions is not filed until 11 mont hs after a notice of intent document, alleging
substantially different deficiencies. Indeed, “[a] policy of deterrence is not well served by
tolerating abuses during the course of an action and then punis hing the offender after the
trial is at an end.” Empire Fire & Marine Ins. Co. v. Carlson, 476 N.W.2d 666, 669 (Minn.
App. 1991) (quotation omitted).
We have previously held, and now reaffirm, that substantial com pliance with the
safe-harbor provision is in sufficient in Minnesota. See Dyrdal v. Gold en Nuggets, Inc. ,
672 N.W.2d 578, 590 (Minn. App. 2003) (rejecting substantial-co mpliance argument),
aff’d on other grounds , 689 N.W.2d 779 (Minn. 2004). As in Dyrdal, “applying the
doctrine of substantial compliance in this case would ignore the unambiguous, mandatory
statutory requirement that a motion for sanctions be made separ ately from other motions
or requests.” Id. The district court did not err in denying Wat Lao’s motion for sanctions
based on its failure to comply with the safe-harbor provisions of Minn. Stat. § 549.211 and
Minn. R. Civ. P. 11.03.
Affirmed.