Toyota-Lift of Minnesota, Inc., Appellant,

This opinion will be unpublished and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
A19-0302

Toyota-Lift of Minnesota, Inc.,
Appellant,

vs.

American Warehouse Systems LLC, et al., Defendants and Third Party Plaintiffs,

Mark C. Juelich, et al., defendants and third party plaintiffs,
Respondents,

vs.

Les Nielsen, Third Party Defendant.

Filed December 23, 2019
Affirmed in part and reversed in part
Rodenberg, Judge

Hennepin County District Court
File No. 27-CV-12-9725

Paul W. Chamberlain, Ryan R. Kuhlmann, Chamberlain Law Firm, Wayzata, Minnesota
(for appellant)

Ryan R. Dreyer, Morrison Sund PLLC, Minnetonka, Minnesota (for respondents)

Considered and decided by Ross, Presiding Judge; Rodenberg, Judge; and Jesson,
Judge.

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U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
In this appeal from a judgment awarding a ttorney fees against appellant Toyota-Lift
of Minnesota, Inc. (TLM) under Minn. Stat. § 181.171, subd. 4 (2018), TLM argues that
(1) the district court erred by granting additional fees following a decision of this court in
a previous attorney-fee appeal that did not include a remand; and, alternatively (2) the
district court abused its discretion in determ ining the amount of reasonable attorney fees.
Respondents Mark Juelich and Steven Thoemke assert in their cross-appeal that the district
court erred by denying their request for attorney fees incurred in litigating before this court
and a United States bankruptcy court.
We affirm in part and reverse in part.
FACTS
In April 2012, TL M sued Juelich and Thoemke, its former employees, and the
company they formed to purchase the assets of TLM’s allied-products division, American
Warehouse Systems, LLC (AWS). Among other things, TLM alleged breach of the asset-
purchase agreement and unjust enrichment. Juelich and Th oemke counterclaimed for
breach of their employment contracts and violation of Minn. Stat. § 181.14 (2018), arguing
that TLM unlawfully withheld part of their earned commissi ons in 2009. They sought
recovery of the unpaid commissions and, under Minn. Stat. § 181.14, subd. 2, penalties for
failure to pay the commissions when demanded.
Following a week-long trial, the district court found that AWS breached the asset-
purchase agreement and unjustly retained customer payments owed to TLM. It awarded

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TLM judgment against AWS for approximately $815,000. The district court further found
that TLM failed to pay the fu ll commissions that Juelich and Thoemke earned in 2009. It
awarded Juelich and Thoemke approximately $1 04,000 as a result, but determined that
Juelich and Thoemke were not entitled to the statutory penalties under Minn. Stat.
§ 181.14, subd. 2, because TLM’s judgment against AWS more than offset the unpaid
commissions it owed to Juelich and Thoemke. Therefore, the district court deducted from
the amounts owing to TLM the amount of the unpaid commissions owed to Juelich and
Thoemke. After it declined to award Ju elich and Thoemke penalties under Minn. Stat.
§ 181.14, the district court awarded TLM costs and disbursements as the prevailing party.
Juelich and Thoemke appealed, and TLM file d a cross-appeal. This court affirmed
the district court on all issues except the di strict court’s interpretation and application of
Minn. Stat. § 181.14. Toyota-Lift of Minn., Inc. v. Am. Warehouse Sys., LLC, 868 N.W.2d
689, 693 (Minn. App. 2015), aff’d, 886 N.W.2d 208 (Minn. 2 016). We concluded that
Minn. Stat. § 181.14 requires a district cour t to determine whether an employer owes a
penalty for failure to promptly pay co mmissions by comparing the amount that the
employer tendered in good faith and the am ount of wages and commissions that the
employee was actually owed. Id. at 702. TLM owed $104,000 in wages and commissions,
none of which it tendered to Juelich and Thoemke. TLM therefore owed a penalty on the
unpaid commissions. We reversed in part and remanded in part, requiring the district court
to “determine the proper amount of penalties that TLM owes under Minn. Stat. § 181.14.,
subd. 2.” Id. The Minnesota Supreme Court granted review and affirmed. Toyota-Lift of
Minn., Inc. v. Am. Warehouse Sys., LLC, 886 N.W.2d 208, 209-10 (Minn. 2016).

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During the pendency of the first appe al, AWS filed for Chapter 11 bankruptcy
protection. Juelich and Thoemke’s counsel f iled a proof of claim in AWS’s bankruptcy
case for $120,002.98 in unpaid legal fees in curred prior to the filing date of AWS’s
bankruptcy petition.
After this case was remanded to the dist rict court, Juelich and Thoemke moved the
district court to order TLM to pay them penalties under Minn. Stat . § 181.14, subd. 2;
award them costs, disbursements, witness fees, and attorney fees under Minn. Stat.
§ 181.171 (2018); and award them costs under Minn. Stat. § 181.14, subd. 3. The district
court granted the motions. It awarded Juelich $12,207.75 and Thoemke $8,930.10 in wage
penalties. It awarded Juelich and Thoemke costs and disbursements of $20,287.12, and
attorney fees of $217,209.11.
TLM again appealed to this court. It argued that the district court abused its
discretion in calculating attorney fees and that it exceeded the scope of remand by awarding
attorney fees, costs, and disbursements. We affirmed the district c ourt in all respects.
Toyota-Lift of Minn. Inc. v. Am. Warehouse Sys., LLC, No. A18-0199, 2018 WL 4201188
(Minn. App. Sept. 4, 2018).
After our second decision, Juelich and Thoemke moved the district court for an
additional $100,035.50 in attorney fees. At the motion hearing, their attorney referred to a
spreadsheet that reflected that $38,746.50 of their request was for attorney fees incurred on
appeal, that $6,824.75 of the request was for attorney fees incurred in the bankruptcy
proceeding, and that the remaining request for $54,464.25 was for a ttorney fees incurred
in the district court. The spreadsheet was not produced or made part of the record.

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The district court determined that it c ould not grant any atto rney fees incurred on
appeal, reasoning that Juelich and Thoemke “should have moved for attorneys’ fees in the
Minnesota Court of Appeals.” The district c ourt also determined that it could not grant
fees incurred in the bankruptcy proceeding because those fees were incurred in a separate
case and that “only those attorneys’ fees expended on the litigation involving Defendants’
wage claims are recoverable.” It jointly awarded Juelich and Thoemke the remaining
$54,464.25 for attorney fees incurred in district court.
TLM appeals the award of attorney fees. Juelich and Thoemke, by notice of related
appeal, challenge the district court’s denial of attorney fees incurred on appeal and in the
bankruptcy court.
D E C I S I O N
The district court had the authority to award additional attorney fees after the court
of appeals affirmed without remand in the previous appeal.

TLM argues that the district court lacked jurisdiction to award attorney fees because
our 2018 decision affirming th e district court without remand effectively ended the
litigation.
“We review a district court’s a pplication of the law de novo.” Harlow v. State Dep’t
of Human Servs., 883 N.W.2d 561, 568 (Minn. 2016).
In Kellar v. Von Holtum , Kellar argued that a district court’s jurisdiction to hear
motions regarding attorney fees did not exte nd past the conclusion of an appeal. 605
N.W.2d 696, 700 (Minn. 2000), superseded by rule on other grounds , Minn. R. Civ. P.
11.03. The Minnesota Supreme Court rejected Kellar’s argument and held that district

6
courts do retain jurisdiction to hear motions for attorney fees after an appeal has been
completed. Id. The court reasoned that “[c]ollateral matters, such as motions for attorney
fee sanctions . . . are independent of the underlying decision and do not seek to modify the
underlying decision in any way.” Id.; see Spaeth v. City of Plymouth , 344 N.W.2d 815,
825 (Minn. 1984) (providing that a claim for attorney fees s hould be treated as an issue
independent of the merits of the litigation).
TLM asserts that it was improper for the district court to consider Juelich and
Thoemke’s motion for additional attorney fees because we “a ffirmed the final judgment
[in the 2018 appeal] with no remand.” But under Kellar, the district court retained
jurisdiction to award attorney fees in the absence of a remand. Kellar, 605 N.W.2d at 700.
Because it retained jurisdiction over the matter, the district court did not err in hearing
Juelich and Thoemke’s motion for additional attorney fees.
TLM also argues that the district cour t erred because it was barred from awarding
additional attorney fees under the doctrine of res judicata. TLM contends that “a judgment
on the merits constitutes an ‘absolute bar’ to a second suit for the same cause of action.”
Res judicata applies as an absolute bar to a subsequent action when “(1) the earlier
claim involved the same set of factual circum stances; (2) the earlier claim involved the
same parties or their privies; (3) there was a final judgment on the merits; (4) the estopped
party had a full and fair opportunity to litigate the matter.” Hauschildt v. Beckingham, 686
N.W.2d 829, 840 (Minn. 2004). “Once there is an adjudication of a dispute between
parties, res judicata prevents either party from relitigating claims arising from the original
circumstances. . . .” Id. at 837.

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Here, Juelich and Thoemke’s request for a ttorney fees after resolution of the 2018
appeal arises out of a completely different se t of circumstances than the earlier claim. In
its 2018 appeal, TLM sought review of the district court’s award of $217,209.11 incurred
up until that appeal. The present issue concerns attorney fees incurred after the 2018 appeal
was commenced.
Res judicata also requires that there be a “subsequent action.” Id. at 840. The
additional attorney fees awarde d and challenged in this appeal are all part of the same
action that originated in 2012. Res judicata has no application here.
We generally refuse to consider issues not raised in the distri ct court, and a party
may not “obtain review by raising the same general issue litigated below but under a
different theory.” Thiele v. Stich, 425 N.W.2d 580, 58 2 (Minn. 1988). In its brief, TLM
argues that Juelich and Thoemke cannot recove r additional attorney fees “because they
failed to properly raise and preserve these cl aims.” Although TLM’s response to Juelich
and Thoemke’s motion for additional attorney f ees presents a myriad of arguments, the
record does not reflect that TLM argued that Juelich and Thoemke “failed to preserve their
claims for other fees” to the district court. And nothing in the district court’s order indicates
that it addressed this issue in awarding additional attorney fees.
Although the “failure to preserve” argumen t is not properly befo re this court, it
seems to dovetail with TLM’s next argument— that Juelich and Thoemke’s “post-appeal
motion for fees is untimely under” Minn. R. Civ. App. P. 139.06.
1

1 The Minnesota Rules of Civil Appellate Procedure were reordered and renumbered by
the Minnesota Supreme Court effective Septem ber 1, 2019, and the provisions of the

8
Minn. R. Civ. App. P. 139. 06, subd. 1, provided that “[ a] party seeking attorneys’
fees on appeal shall submit such a request by motion under Rule 127.” Rule 139.03
imposed a 15-day limitation for th e application to be submitted to the court of appeals.
Minn. R. Civ. App. P. 139.03. If a party fails to request fees, the request is deemed waived.
Id. However, Minn. R. Gen. Prac. 119, wh ich governs the procedure for requesting
attorney fees in district court, is silent on the length of time a party has to request attorney
fees.
TLM contends that, because we issued our decision on September 4, 2018, Juelich
and Thoemke were required to request any and all attorney fees under Minn. R. Civ. App.
P. 139 by September 19, 2018, an d that they waived their right to request fees when they
failed to do so. TLM argues that rule 139.06 should be strictly construed to read that “[a]ll
motions for fees must be submitted no later than [within] ” the 15 days provided. Juelich
and Thoemke’s fee petition was made under Minn. R. Gen. Prac. 119.02. Juelich and

former rule 139.06 now appear in rule 139.05. See Order Promulgating Amendments to
the Rules of Civil Appellate Procedure, No. ADM09-8006 (Minn. May 30, 2019). As part
of that same reorganization, the timing prov ision formerly contained in rule 139.03,
requiring applications for attorney fees on appeal to be served and filed within 15 days, has
been moved to rule 139.03, subdivision 1, and the period within which the application for
attorney fees must be served and filed has be en amended. Minn. R. Civ. App. P. 139.03,
subd. 1 (requiring a party seeking costs and di sbursements on appeal to “file and serve a
notice of taxation of costs and disbursements within 14 days of the filing of the court’s
order or decision”); Minn. R. Civ. App. P. 139.05, subd. 1 (requiring that any request for
attorney fees “must be submitted no later than within the time for taxation of costs, or such
other period of time as the court directs”). Because this rule change became effective after
the award of fees from which this appeal is taken and after the parties had fully briefed this
appeal, we refer herein to the rules as they formerly existed and were numbered. Neither
the alteration of the timing re quirement for fee applications nor any other detail of the
reorganization of the rules has any effect on the outcome of this appeal.

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Thoemke moved the district court to award attorney fees and costs incurred both on appeal
and in the bankruptcy and district court. As discussed below, the district court declined to
award attorney fees incurred on appeal and in the bankruptcy case.
The district court properly determined that the former Minn. R. Civ. App. P. 139.06
applies only to attorney fees on appeal. It has no application to fees incurred before the
district court or the bankruptcy court. Ju elich and Thoemke’s request for fees was not
subject to the 15-day limitation under the form er Minn. R. Civ. App. P. 139.06. The
applicable timing rule is Minn. R. Gen. Prac. 119.02.
The district court abused its discretion by awarding Jue lich and Thoemke an
additional $54,464 .25 in attorney fees.

TLM argues that the district court misapp lied the lodestar method because it failed
to make an independent determination in computing the fee award and in awarding attorney
fees of $54,464.25.
Appellate courts review an award of atto rney fees for an abuse of discretion.
Kvidera v. Rotation Eng’g & Mfg. Co. , 705 N.W.2d 416, 424 (Minn. App. 2005). “An
abuse of discretion occurs when a district court errs as a matter of law in applying improper
standards in an award of fees.” Green v. BMW of N. Am., LLC , 826 N.W.2d 530, 534-35
(Minn. 2013) (quotation omitted). “We will not set aside a district court’s factual findings
underlying an award of attorney fees unless they are clearly erroneous.” County of Dakota
v. Cameron, 839 N.W.2d 700, 711 (Minn. 2013) (quotation omitted).
In general, Minnesota courts use th e lodestar method when determining the
reasonableness of statutory attorney fees. Green, 826 N.W.2d at 535. The lodestar method

10
requires a district court to “determine the number of hours reasonably expended on the
litigation and multiply that number by a reasonable hourly rate.” Dakota, 839 N.W.2d at
711 (quotations omitted). The district court must consider all relevant circumstances when
evaluating the reasonableness of the hours extended by the attorneys and their hourly rates.
Green, 826.N.W.2d at 536. Such relevant circumstan ces include: “the time and labor
required; the nature and difficulty of the responsibility assumed; the amount involved and
the results obtained; the fees customarily charged for similar legal services; the experience,
reputation, and ability of counsel; and the fe e arrangement existing between counsel and
the client.” Id. (quotations omitted).
At a November 15, 2018 motion hearing, Ju elich and Thoemke argued to the district
court that they were entitled to $100,035.50 for atto rney fees incurred on appeal, in the
bankruptcy court, and in the district court. Counsel for Juelich and Thoemke stated that he
“created a spreadsheet” that documented the breakdown of the fees incurred in each court.
Counsel indicated that he “didn’t print [the spreadsheet] off,” but that he could “certainly
give it to the [c]ourt afterwards.” The record does not contain the spreadsheet, and nothing
in the record shows that the district court was actually provided with the spreadsheet or any
other breakdown of attorney fees.
During the hearing, the district court asked Juelich and Thoemke’s counsel which
portions of the $100,035.50 request consisted of fees incurred in the bankruptcy court and
fees incurred in the court of appeals. In its order, the district court provided that, “[a]t the
hearing, [respondents’] counsel stated that $38,746.50 out of the $100,035.50 total
accounts for attorneys’ fees incurred on appeal, $6,824.75 out of the total accounts for

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attorneys’ fees in connection with the ba nkruptcy proceedings.” The district court
concluded that “the remaining $54,464.25 accounts for attorneys’ fees incurred in district
court proceedings.”
On this record, it is diffi cult to discern how the district court could have done a
proper lodestar analysis b ecause the record does not show that the district court
independently determined the attorney-fee award. It seem s to have accepted counsel’s
unsworn and otherwise undocumented assertion th at $54,464.25 of the total claimed fees
were for legal services before the district court. The time log containing fee requests
submitted by Juelich and Thoemke’s counsel makes no dis tinction between the attorney
fees incurred on appeal, in the bankruptcy court, or in the district court. Nearly every fee
entry is labeled “Toyota-Lift Appeal/Debtor in Possession.”
In the final analysis, the error is attribut able to Juelich and Thoemke, who failed to
provide the district court with adequate evidence to show what attorney fees they actually
incurred in district court. The record shows the total attorney fees included in the time log
between May 3, 2017, and Fe bruary 2, 2018, to be ap proximately $31,901.50, not
$54,464.25—the amount asserted by counsel fo r Juelich and Thoemke. In other words,
the total amount of attorney fees reflected by the time log comes up some $22,000 short of
the amount counsel indicated would be refl ected by the undisclosed spreadsheet. The
district court was never provided with admi ssible evidence identifying the amount of
attorney fees incurred in the district court after the earlier appeal.
At oral argument, Juelich and Thoemk e’s counsel seemed to reference TLM’s
motion filed in response to Juelich and Thoemk e’s request for attorney fees as providing

12
some support for the $54,464. 25 calculation. Review of the motion, however, indicates
that TLM disputed the claimed attorney fees in their entirety. Moreover, TLM notes that
Juelich and Thoemke were billed on one date for a 1.1-hour “telephone conference.”
Although labeled “telephone conference,” Jue lich and Thoemke’s coun sel conceded that
the billing entry was nothing mo re than a voicemail. Absent the spreadsheet or other
evidence, it is impossible to know on this record how the attorney-fee request was
computed.
Because it did not conduct an d could not have conducted a proper lodestar analysis
on this record, the district court exceeded its discretion when it awarded Juelich and
Thoemke $54,464.25 in additional attorney fees. The record provided to the district court
is insufficient to support any award of fees , and we therefore reverse the award without
remand.
The district court did not err by declinin g to award Juelich and Thoemke attorney
fees incurred before the court of appeals and the U.S. Bankruptcy Court.

By notice of related appeal, Juelich a nd Thoemke challenge the district court’s
determination that Juelich and Thoemke may not recover attorney fees incurred in the
earlier appeal because they did not move the c ourt of appeals for attorney fees under rule
139.06.
As stated above, rule 139.06 provided th at, when a party seek s attorney fees on
appeal, that party “shall submit such a request by motion under Rule 127.” Minn. R. Civ.
App. P. 139.06 (emphasis added); see Minn. Stat. § 645.44, subd. 16 (2018) (defining
“shall” is mandatory). The rule stated that motions for such fees “must include sufficient

13
documentation to enable the appellate court to determine the appropriate amount of fees.”
Id. (emphasis added).
The district court noted that the advisory committee co mments from the 1998
amendments to rule 139 state that “[i]f a part y seeks an award of attorneys’ fees for work
done on the appeal, as opposed to seeking a ppellate court affirmance of an award made
below, the party should seek the award in the appellate cour t.” Minn. R. Civ. App. P.
139.06 1998 advisory committee note. In its order, the district court reasoned that, “[e]ven
where the Minnesota Supreme Court interpre ted the attorneys’ fees provision in
Minnesota’s eminent domain statute to include fees incurred in the appellate court, the
court still noted that the petitioner ‘shall comp ly with the requirements of Minn. R. Civ.
App. P. 127 a nd 139.06.’” See DeCook v. Rochester Int’ l Airport Joint Zoning Bd. , 811
N.W.2d 610, 616 (Minn. 2012).
Juelich and Thoemke argue that the district court erred in its determination because
their “right to attorney fees comes from Minn. Stat. § 181.1 71.” However, as the district
court determined, the language of the former Minn. R. Civ. App. P. 139.06 is clear: “shall”
is not discretionary. We agree with the district court that Juelich and Thoemke should have
moved for attorney fees in the court of appeals. Because they failed to do so, the district
court did not err in denying Juelich and Thoe mke’s motion for attorn ey fees incurred on
appeal.
Additionally, the district court declined to award Juelich and Thoemke attorney fees
for legal fees and costs incurre d in the bankruptcy case. Minn. Stat. § 181.171, subd. 3,
provides that “[i]n an action brought under” the payment of wages act, “the court shall

14
order an employer who is found to have commi tted a violation to pay the aggrieved party
. . . attorney fees.” “In construing the statut es of this state, . . . words and phrases are
construed according to rules of grammar and according to thei r common a nd approved
usage . . . .” Minn. Stat. § 645.08(1) (2018).
Based on the plain language of the statute, the district court reasoned that “[t]he
dispositive word within Minn. Stat. § 181.171 is ‘an.’” The district court observed that the
“normal grammatical understanding of a singular article is just that, singular,” and that “the
most reasonable interpretation is to conclude that attorneys’ fees are only recoverable in
the singular action in which a litigant seeks redress for violations of the Payment of Wages
Act.” The attorney fees eligible for award under Minn. Stat. § 181.171 are those incurred
in the action under that section.
Juelich and Thoemke nonethel ess assert that the bankruptcy action and this case are
“inextricably linked.” They cite no caselaw or legal authority in support of this contention.
Although the cases may be related, the district court’s reasoning is sound. Fees in the
bankruptcy court were not incurred in the state court action. The district court did not err
in declining to grant attorney fees incurred in the bankruptcy case.
Affirmed in part and reversed in part.