In re the SUPERVISED Estate of Nancy Eileen Flatgard, Deceased.

STATE OF MINNESOTA
IN COURT OF APPEALS
A24-0784

In re the SUPERVISED Estate of Nancy Eileen Flatgard, Deceased.

Filed November 25, 2024
Affirmed
Frisch, Judge

Hennepin County District Court
File No. 27-PA-PR-23-404

Jonathan P. Baker, Baker Law Office, Walker, Minnesota (for appellant Brian T. Carlson)

Kathy S. Kimmel, Amy Papenhausen, Fox Rothschild LLP, Minneapolis, Minnesota
(for respondent Fiduciary Foundation, LLC)

Considered and decided by Reyes, Presiding Judge; Frisch, Judge; and
Florey, Judge.
∗
SYLLABUS
1. Under rule 11 of the Minnesota Rules of Civil Procedure, whether a party
has withdrawn a frivolous claim within the safe-harbor period is a question of fact.
2. A district court acts within its discretion to impose sanctions pursuant to rule
11 of the Minnesota Rules of Civil Procedure when a party does not clearly and
unequivocally withdraw a frivolous claim within the safe-harbor period.

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
OPINION
FRISCH, Judge
In this probate matter, appellant argues that the district court erred by granting
respondent’s motion for sanctions pursuant to rule 11 of the Minnesota Rules of Civil
Procedure and Minn. Stat. § 549.211 (2022) because (1) appellant withdrew the claims
underlying the district court’s sanctions order during the safe-harbor period, (2) appellant
did not engage in sanctionable conduct, and (3) the sanctions imposed were unnecessarily
severe. We affirm the sanctions judgment because the district court did not clearly err in
finding that appellant had not withdrawn frivolous claims within the safe-harbor period,
and the district court otherwise acted within its discretion in ordering sanctions.
FACTS
This matter arises out of claims brought by appellant Brian T. Carlson against the
estate of his sister Nancy Flatgard, who died in December 2022. Flatgard was survived by
Carlson and one adult child who was her sole heir. 1 Flatgard was the sole beneficiary of
the estate of W.S.C., who was Flatgard and Carlson’s brother. Carlson previously brought
an unsuccessful petition to appoint a special administrator to investigate Flatgard’s conduct
in relation to W.S.C.’s estate (the W.S.C. matter). See In re Est. of Carlson, No. A22-0957,
2023 WL 1771649 , at *1 (Minn. App. Feb. 6, 2023), rev. denied (Minn. Apr. 26, 2023).
In May 2023, Carlson made a claim against Flatgard’s estate arising out of what he
described as an interest in “[c]osts, expenses, attorney’s fees and sanctions awarded” to

1 Upon petition from Flatgard’s heir, respondent Fiduciary Foundation, LLC was appointed
as special administrator and later personal representative of Flatgard’s estate.
3
Carlson that “have been, and will be incurred, in [the W.S.C. matter].” We describe the
history of Carlson’s actions with respect to his brother’s estate and Flatgard’s estate, which
informed the district court’s award of sanctions against Carlson and is relevant to our
review of the district court’s sanctions order on appeal.
In 2020, Carlson petitioned the district court “for the appointment of himself as
special administrator” of W.S.C.’s estate. Carlson, 2023 WL 1771649, at *2. Flatgard
served as W.S.C.’s attorney-in-fact before he died. Id. at *1. Carlson asserted that he
should be appointed special administrator to investigate Flatgard’s actions while she was
serving as W.S.C.’s attorney-in-fact. Id. at *2. The district court denied Carlson’s petition,
“conclud[ing] that it is unnecessary to appoint a special administrator because [W.S.C.’s]
1984 will devised all of his property to [Flatgard] and because any causes of action that a
special administrator might assert against [Flatgard] are now time-barred.” Id.
Carlson appealed, and we affirmed. Id. at *1-2. We concluded that the district court
did not abuse its discretion by considering W.S.C.’s 1984 will and determining that a
special administrator was not necessary to preserve W.S.C.’s estate. Id. at *3-5. Carlson
petitioned the supreme court for further review. While that petition for further review was
pending, Carlson filed a demand for notice in the Flatgard estate matter that he “may have
a financial or property interest” in the estate based on a “[p]otential claim” which “may be
awarded” in the W.S.C. matter.
On April 26, 2023, the supreme court denied Carlson’s petition for further review
in the litigation involving the W.S.C. matter. A few days later, Carlson initiated a claim
against Flatgard’s estate for an “amount, yet to be determined, [that] will be set by the court
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after a Petition and Request for an award by [Carlson] against [Flatgard’s estate] in the
matter of [W.S.C.’s estate].” The claim contains an acknowledgment that “[t]here may or
may not be an award by the Court,” and that “[i]f there is no award this claim will be
withdrawn.” Respondent Fiduciary Foundation, LLC, as special administrator of
Flatgard’s estate, notified Carlson that this claim would be disallowed without a petition
for allowance before the district court.
On July 14, Carlson petitioned the district court to allow his claim of “attorney’s
fees and costs and disbursements” totaling $229,000, which he represented to be the
amount of his attorney fees incurred during his litigation in the W.S.C. matter. The petition
also provides that these fees constitute “damages for the breach of fiduciary duty by
[Flatgard]” and seeks enforcement of a trust or constructive trust over W.S.C.’s estate.
Carlson also filed a notice of intervention in a related foreclosure matter, asserting that the
mortgage at issue was void because Flatgard did not have valid title to property formerly
owned by W.S.C.
On August 4, Fiduciary Foundation moved to dismiss Carlson’s petition for failure
to state a claim upon which relief can be granted, arguing that Carlson’s petition in the
Flatgard estate matter “recast” his prior unsuccessful petition in the W.S.C. matter which
had been “litigated to conclusion” or “otherwise barred as a matter of law.” Later in
August, Fiduciary Foundation moved to disqualify Carlson from representing himself
because of his prior legal representation of Flatgard.2

2 At the time he filed the petition, Carlson was licensed to practice law in Minnesota.
5
On September 5, Fiduciary Foundation notified Carlson that it intended to pursue
sanctions under rule 11 of the Minnesota Rules of Civil Procedure and Minn. Stat.
§ 549.211. In this correspondence, Fiduciary Foundation informed Carlson that “the
sanctionable document is the Petition for Allowance of Claim and for Other Relief
(‘Petition’) – and the included claims and allegations – that you filed against the Estate.”
On September 15, Fiduciary Foundation emailed Carlson reiterating its intent to pursue
sanctions and stating that it would serve the motion the following Monday (September 18).
Carlson did not respond to either communication.
On September 18, Fiduciary Foundation served Carlson with a notice of motion and
motion for sanctions. On October 2, Carlson emailed Fiduciary Foundation’s counsel
stating that he would “withdraw the Petition as written to eliminate any potential violation
of the Rules” and that he would “send appropriate documentation” upon his return from
vacation. Carlson also stated that he was without internet or email access while on
vacation. Two days later, counsel for Fiduciary Foundation responded by email, requesting
that Carlson clarify his course of action because his communication “suggests [he]
intend[s] to proceed with the Petition (of some nature)” against the estate. Fiduciary
Foundation informed Carlson that it wished to review Carlson’s referenced withdrawal
documentation before determining whether to continue pursuing sanctions. Carlson did
not respond to this email. Around this time, the district court granted Fiduciary
Foundation’s motion to disqualify Carlson from representing himself.
On October 16, having still not heard from Carlson, Fiduciary Foundation filed its
motion for sanctions with the district court. The next day, Carlson retained counsel who
6
subsequently emailed Fiduciary Foundation that Carlson would be “formalizing his
October 2, 2023 claim withdrawal by filing a written withdrawal of claim with prejudice.”
On October 20, Carlson filed a document with the district court withdrawing the claims set
forth in the May statement of claim and July petition for allowance of claim with prejudice.
A week later, Carlson moved to withdraw his motion to intervene in the foreclosure matter.
The district court granted Fiduciary Foundation’s motion for sanctions, determining
that Carlson “engaged in conduct violating Rule 11 and Section 549.211” in his petition by
making frivolous claims against the estate and in his notice of intervention in the
foreclosure case. In pertinent part, the district court ordered Carlson to pay Fiduciary
Foundation’s attorney fees incurred in connection with the motion to dismiss the petition,
the motion to disqualify Carlson, and the sanctions motion, amounting to $51,297, which
was half of that requested by Fiduciary Foundation.
Carlson appeals.
ISSUES
I. Did the district court clearly err in determining that Carlson had not withdrawn
frivolous claims within the safe-harbor period?
II. Did the district court abuse its discretion by determining that Carlson engaged in
sanctionable conduct?
III. Did the district court otherwise abuse its discretion in sanctioning Carlson?
ANALYSIS
Each of Carlson’s arguments on appeal arises from the district court’s sanctions
judgment. Pursuant to rule 11 of the Minnesota Rules of Civil Procedure, when an attorney
presents a claim to the court, the attorney certifies that, to the best of their knowledge,
7
information, and belief, the claim is not presented for an improper purpose, that the claim
is warranted by existing law or an extension of that law, and that allegations, denials, and
other factual contentions are supported by evidence. Minn. R. Civ. P. 11.02(a)-(e). A
district court may impose sanctions on a party or their counsel upon determination that a
violation of rule 11.02 has occurred. Minn. R. Civ. P. 11.03. A n alternative, parallel
scheme for the imposition of sanctions exists under Minn. Stat. § 549.211, which overlaps
substantially with rule 11. Johnson ex rel. Johnson v. Johnson, 726 N.W.2d 516, 518-19
(Minn. App. 2007).
Carlson asserts that the district court erred in three ways: (1) by finding that Carlson
had not withdrawn his frivolous claims within the safe-harbor period, (2) by determining
that Carlson engaged in sanctionable conduct, and (3) by imposing impermissibly severe
sanctions. We reject each of Carlson’s challenges.
I. The district court did not clearly err in finding that Carlson had not withdrawn
his frivolous claims within the safe-harbor period.
Carlson first argues that the district court erred in imposing sanctions because he
withdrew the offending claims within the safe-harbor period. Rule 11.03(a)(1) of the
Minnesota Rules of Civil Procedure requires a party seeking sanctions to serve a notice of
motion and motion on an opposing party 21 days before filing the motion with the court.
If “the challenged document, claim, defense, contention, allegation, or denial is not
withdrawn or appropriately corrected” within the 21-day safe-harbor period, the party
seeking sanctions may then file its motion. Minn. R. Civ. P. 11.03(a)(1). This safe-harbor
8
period allows an “offending party time to withdraw the improper papers or otherwise
rectify the situation.” Johnson, 726 N.W.2d at 518-19 (quotation omitted).
Carlson asserts that the district court erred as a matter of law in sanctioning him
because he withdrew his claims in the October 2 email and therefore could not be
sanctioned. He argues that the language in the email definitively establishes that he
withdrew the offending claims at that time, and consequently, the district court had no
authority to impose sanctions because he corrected the sanctionable conduct within the
safe-harbor period. In support of this argument, Carlson cites several cases from other
jurisdictions in which a district court determined that certain actions undertaken by a party
amounted to a withdrawal of an offending claim under rule 11. 3 But none of the cited
cases—nor any authority in Minnesota—stand for the proposition that a party’s withdrawal
of an offending claim under rule 11 is a question of law, or that a district court lacks the
authority to determine, based on the individual circumstances of a particular case, a party’s
compliance with the rule 11 procedures required to bring a sanctions motion. And unlike
the definite and fixed notice and timing procedures required of a party seeking sanctions
set forth in rule 11, the withdrawal of an offending claim is neither definite nor fixed and

3 See, e.g., Carruthers v. Flaum, 450 F. Supp. 2d 288, 306-07 (S.D.N.Y. 2006) (concluding
that a party withdrew a challenged claim whe n the party’s counsel signed a stipulation to
withdraw an offending claim because it was a “step leading to the withdrawal of the
offending claim”); Mourabit v. Klein, 393 F. Supp. 3d 353, 364, 365 n.6 (S.D.N.Y. 2019)
(finding a party’s email stating that it was “prepared to file a notice of voluntary dismissal”
was “sufficient to bring it within the protection of safe harbor”), vacated in part on other
grounds on reconsideration, No. 18 Civ. 8313, 2019 WL 4392535 (S.D.N.Y. Sept. 13,
2019), aff’d, 816 F. App’x. 574 (2d Cir. 2020). Unlike the circumstances set forth in these
cases, Carlson did not offer to execute or actually execute any document to be filed with
the district court stipulating to the withdrawal of the offending claims.
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instead requires a district court to engage in an individualized assessment of a party’s
compliance. See Johnson, 726 N.W.2d at 518 -19 (concluding that the district court erred
as a matter of law by sanctioning appellant when opposing counsel did not provide notice
to the sanctioned party before filing in district court). We therefore hold that under rule 11
of the Minnesota Rules of Civil Procedure, whether a party has withdrawn a frivolous claim
within the safe-harbor period is a question of fact.
We review the district court’s factual findings that Carlson did not withdraw his
frivolous claims within the safe-harbor period for clear error. See Minn. R. Civ. P. 52.01
(“Findings of fact, whether based on oral or documentary evidence, shall not be set aside
unless clearly erroneous.”). A finding is clearly erroneous if it is “manifestly contrary to
the weight of the evidence or not reasonably supported by the evidence as a whole.” In re
Civ. Commitment of Kenney, 963 N.W.2d 214, 221 (Minn. 2021).
We conclude that the district court did not clearly err in finding that Carlson had not
withdrawn his frivolous claims within the safe-harbor period. The district court found that
Fiduciary Foundation served the motion for sanctions on September 18 and that Carlson
did not withdraw his claims until October 20, at the earliest. These findings are supported
by the record. On October 20, Carlson filed a document with the district court stating his
intention to “hereby withdraw, with prejudice” his petition, claims, and “any other
affirmative claim for relief” he had made against Flatgard’s estate. On October 27, Carlson
filed a motion in the foreclosure matter to withdraw his motion to intervene and for other
relief. Both filings occurred well past the 21-day safe-harbor period, which had expired on
10
October 9 because Fiduciary Foundation had served Carlson with a notice of motion and
motion for sanctions on September 18.
Notably, the district court expressly rejected Carlson’s argument that he withdrew
the petition and notice of intervention by sending an email to Fiduciary Foundation on
October 2 that stated: “I withdraw the Petition as written to eliminate any potential
violation of the Rules. I am in Italy on vacation and cannot send or receive internet/email
until my return to MN. Will send appropriate documentation upon my return.” The district
court found that this email did not amount to a withdrawal of the offending claims under
rule 11 because the language in the email reflected “a cagey message that suggested
[Carlson] was going to continue to pursue claims and remedies against the Estate, even if
in a different form than what was written in the Petition.”
The district court did not clearly err in making the ultimate finding that the email
was equivocal because, as the district court found, the email failed to address the offending
claim in the notice of intervention in the foreclosure matter; based on the parties’ history,
Fiduciary Foundation “reasonably construed” Carlson’s email “as stating he would
continue to assert claims” against the estate; Fiduciary Foundation had asked for
clarification of the email and Carlson did not respond; and Carlson had historically
provided the court with “demonstrably misleading and conflicting information about his
knowledge of the sanctions motion and his ability to communicate with [Fiduciary
Foundation].” And the district court discredited Carlson’s representation that he was
unable to access the internet or send or receive email while on vacation, noting that Carlson
emailed Fiduciary Foundation on October 2 while he was on vacation. These findings are
11
supported by the record and are otherwise grounded in the district court’s credibility
assessment of Carlson, which we do not disturb on appeal. Sefkow v. Sefkow, 427 N.W.2d
203, 210 (Minn. 1988) (explaining that appellate courts defer to district court credibility
determinations).
We therefore conclude that the district court did not clearly err in finding that
Carlson’s October 2 email did not withdraw the challenged claims under rule 11.
II. The district court did not abuse its discretion in determining that Carlson
engaged in sanctionable conduct.
Carlson next argues that sanctions were improper because he did not engage in
conduct in violation of rule 11 and Minn. Stat. § 549.211. We “review[] the district court’s
award of sanctions under either provision for an abuse of discretion.” Collins v. Waconia
Dodge, Inc., 793 N.W.2d 142, 145 (Minn. App. 2011), rev. denied (Minn. Mar. 15, 2011).
The district court determined that Carlson engaged in sanctionable conduct by making
claims in his petition that were not supported by existing law or a nonfrivolous argument
to change the law, and by advancing factual allegations with no evidentiary support. And
the district court determined that Carlson maintained these frivolous claims beyond the
safe-harbor period because his October 2 email did not clearly and unequivocally withdraw
the frivolous claims. We discern no abuse of discretion in the district court’s
determinations.
When presenting pleadings or motion papers to the court, an attorney “certifies that
the claims are not being presented for an improper purpose, such as harassment; that they
are supported by existing law or a nonfrivolous argument to change the law; and that factual
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allegations or their denials have evidentiary support.” Collins, 793 N.W.2d at 145 (citing
Minn. Stat. § 549.211; Minn. R. Civ. P. 11.02). Thus, rule 11 prescribes “an affirmative
duty” on counsel “to investigate the factual and legal underpinnings of a pleading.” Id.
(quotation omitted). “A district court may impose sanctions against an attorney or a party
who violates these requirements.” Id. But sanctions “should not be imposed when an
attorney has an objectively reasonable basis for pursuing a factual or legal claim or when
a competent attorney could form a reasonable belief that a pleading is well-grounded in
fact and law.” Gibson v. Coldwell Banker Burnet, 659 N.W.2d 782, 787 (Minn. App. 2003)
(quotation omitted).
Before the supreme court denied review of the W.S.C. matter , Carlson asserted a
contingent claim for attorney fees that he alleged to have incurred against Flatgard’s estate,
asserting that he “contribute[d] to the benefit of th[at] estate.” See Minn. Stat. § 524.3-720
(2022) (providing for attorney fees in probate matters). But after Carlson filed the
contingent claim , the supreme court denied Carlson’s petition for further review in the
W.S.C. matter. Once the W.S.C. matter concluded with finality when the supreme court
denied the petition for further review, Carlson no longer had a contingent clam in the
W.S.C. matter, and he asserted no other separate claims in or related to that action. See
Carlson, 2023 WL 1771649, at *4 (affirming the district court’s determination that
appointing Carlson as a special administrator “would not result in any benefit to any
party”). That is when Fiduciary Foundation served its notice of motion and motion for
sanctions, demanding that Carlson withdraw the offending claims within the safe-harbor
period and, when he failed to respond within the safe-harbor period, filed the same in
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district court. We therefore conclude that the district court’s determination that Carlson’s
litigation activities did not benefit W.S.C.’s estate is supported by the record and that
Carlson had no “objectively reasonable basis” to support a claim against Flatgard’s estate.4
The district court also acted within its discretion to impose sanctions because
Carlson’s “cagey” October 2 email did not withdraw his frivolous claims. The district
court rejected Carlson’s argument that his email amounted to a withdrawal of the frivolous
claims and instead found that the email was at best equivocal and unclear, leaving the
district court with the discretion to sanction Carlson for the offending conduct. 5
Accordingly, we hold that a district court acts within its discretion to impose sanctions
pursuant to rule 11 of the Minnesota Rules of Civil Procedure when a party does not clearly
and unequivocally withdraw a frivolous claim within the safe-harbor period.
III. The district court did not otherwise abuse its discretion in sanctioning Carlson.
Carlson makes additional arguments asserting that the district court abused its
discretion in determining the amount of sanctions and in sanctioning him for asserting

4 Because we conclude that the district court did not abuse its discretion in ruling that
Carlson’s petition violated rule 11, we decline to reach Carlson’s challenge to the district
court’s determination that his claims were also precluded by the doctrines of res judicata
and collateral estoppel. See Minn. R. Civ. P. 11.02(b).

5 We note that even if Carlson’s email amounted to a withdrawal of his frivolous claims,
the district court might still have acted within its discretion to impose sanctions. A district
court may, in its discretion, impose sanctions even when an offending claim is withdrawn
during the safe-harbor period. Buscher v. Montag Dev., Inc., 770 N.W.2d 199, 211 (Minn.
App. 2009), rev. denied (Minn. Oct. 28, 2009) (affirming rule 11 sanctions when the party
amended a challenged affidavit within the safe-harbor period).
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frivolous claims beyond those set forth in the petition. We discern no abuse of discretion
in the district court’s sanctions award.
Carlson’s arguments that the district court imposed an excessive sanction and did
not consider his ability to pay ignore the district court’s explicit consideration of these
issues. In its sanctions order, the district court weighed the severity of the sanction
requested by Fiduciary Foundation “in light of [Carlson’s] fixed income” and the money
Carlson spent in the W.S.C. matter, considering Carlson’s “former status as an attorney
and his knowledge and ability [to] navigate the legal system.” The district court then noted
that Carlson had been twice disqualified from serving as his own attorney yet continued to
pursue previously litigated, and adversely decided, claims. Ultimately, the district court
determined that “without proper deterrence ,” Carlson may again attempt to pursue
frivolous claims and that “effectuating deterrence requires levying a higher fee than the
minimum requested by [Fiduciary Foundation].” The district court’s determinations are
supported by the record and do not constitute a misapplication of the law. See Collins, 793
N.W.2d at 145.
We are similarly unpersuaded by Carlson’s argument that the district court abused
its discretion in sanctioning him for his conduct in the foreclosure matter because that issue
was “not raised in respondent’s notice of motion and motion.” But we do not read the
district court’s sanctions order as bifurcating an amount of sanctions related to Carlson’s
offending conduct in separate proceedings. Instead, we read the district court’s order as
sanctioning Carlson for advancing multiple frivolous claims of an identical nature. And
the record reflects that Fiduciary Foundation repeatedly notified Carlson that it sought
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sanctions related to the same conduct. Carlson does not contest that Fiduciary Foundation
properly served its notice of motion, motion for sanctions, and supporting documents upon
him. And Carlson likewise does not contest that in those filings, Fiduciary Foundation
explicitly noted that its sanctions motion included “a memorandum of law, a declaration
with exhibits, and a proposed order.” Fiduciary Foundation’s memorandum of law
provides that the basis for sanctions includes Carlson’s actions in the foreclosure matter,
which reassert the same frivolous claim as set forth in the petition. If “fair notice has been
given and the subject party has an opportunity to respond,” a district court has “wide
discretion to award the type of sanctions it deems necessary.” Gibson, 659 N.W.2d at 790
(quotation omitted). Because these documents fairly and repeatedly notified Carlson that
Fiduciary Foundation sought sanctions related to all of Carlson’s frivolous claims,
including those set forth in the foreclosure matter, and Carlson was fairly notified as to the
scope of his offending conduct and did not timely correct the same, we conclude that the
district court did not abuse its discretion in sanctioning him for this conduct. 6
DECISION
We hold that under rule 11 of the Minnesota Rules of Civil Procedure, whether a
party has withdrawn a frivolous claim within the safe-harbor period is a question of fact.
We further hold that a district court acts within its discretion to impose sanctions pursuant
to rule 11 of the Minnesota Rules of Civil Procedure when a party does not clearly and

6 Carlson also argues that the district court abused its discretion in its sanctions order
because it overlooked F iduciary Foundation’s duty to mitigate its fees. This argument
relies on a conclusion that Carlson’s October 2 email withdrew his frivolous claims, which
we have already rejected.
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unequivocally withdraw a frivolous claim within the safe-harbor period. Because the
district court did not clearly err in finding that Carlson had not withdrawn his frivolous
claims within the safe- harbor period, and the district court did not abuse its discretion in
determining that Carlson engaged in sanctionable conduct or in determining the severity of
sanctions, we affirm.
Affirmed.