Brekke v. THM Biomedical, Inc.

GILBERT, Justice

(concurring in part, dissenting in part).

I concur with the majority’s conclusion that Minn.Stat. § 181.79 (2002) applies to the loan deduction taken from Dr. Brekke’s wages without his consent. I respectfully dissent from the majority’s reaching a waiver and estoppel issues because they were not preserved on appeal and, even if they were, the record supports the district court’s rejection of the affirmative defenses.

The majority opinion has created a slippery judicial slope that erodes the protection of working people that was created by the legislature. The majority, in doing so, describes our precedent “that everyone is presumed to know the law” as a “time worn but often misused concept,” and adopts new law relating to fiduciary obligation under the statute. In the process, the majority has shifted the burden to this employee of informing an employer of the employee’s knowledge of the law. Now, an employee’s knowledge of Minn.Stat. § 181.79 could relieve an employer from complying with this very statute at issue unless the employee informs the employer of his knowledge of the statute. This reasoning is contrary to the whole purpose of the statute: to prevent an employer from an unauthorized, unilateral action resulting in the deduction from wages due and owing an employee. Accordingly, I would affirm the court of appeals, which affirmed the district court.

The district court concluded that none of the defenses asserted by THM excused the wrongful deduction from Brekke’s wage or affected his right to recover under the statute. The district court reasoned in its memorandum accompanying the findings of fact and conclusions of law as follows:

Plaintiffs position as an officer and director of the corporation does not *780change his position as an employee pursuant to the employee agreement- or defendant’s obligations as an employer under the statute prohibiting deductions from wages without prior written consent. That which the statute is designed to protect against is exactly what occurred in this case. Plaintiff did not want the amounts of the notes deducted from his wages, plaintiff did not agree to such a deduction, and defendant, using the leverage which employers have, made the deduction anyway.
At trial defendant made a point of noting that plaintiff never informed defendant of his knowledge of the statute or his possible intention to seek the penalty. Nothing that this Court has seen suggests that an employee is under any obligation to do so or that failure to do so somehow becomes the equivalent of a written consent to the deduction. The fact that the statute contains a written consent requirement eliminates the ability of an employer to argue that somehow there is some kind of implied consent and that that excuses the statutory violation. Under the clear language of the statute, it does not.

The district court rejected THM’s affirmative defenses, as did the court of appeals. Brekke v. THM Biomedical, Inc., 667 N.W.2d 452, 456 (Minn.App.2003). The court of appeals specifically rejected the two equitable defenses of accord and satisfaction and estoppel. The court of appeals reasoned:

Although Brekke testified that his attorney informed him about the penalty provision, Minn.Stat. § 181.79 the night before he cashed the check, he also testified that he did not intend to pursue the claim and that he filed a claim only after THM demanded the interest on the loans.

Id. at 456. I agree with the court of appeals.

THM sought further review of the court of appeals’ decision from this court. The appellant petitioned for review of two issues from the court of appeals and they are as follows:

(1) Must an officer, director, shareholder, and employee of a closely held corporation disclose material information to fellow officers and directors, namely a penal statute prohibiting certain offsets from “employee” wages under Minn. Stat. § 181.79? If so, does the fiduciary’s breach of this duty preclude him from personally benefiting from his breach by collecting the statutory penalty as an “employee”?
(2) Did the trial court abuse its discretion by failing to make any factual findings regarding respondent’s fiduciary duties?

In their briefs, both parties employed the exact same language to frame the issues presented to this court. The first part of question one only presents a question of law that does not require any discussion of waiver or estoppel. The second part of question number one only raises a breach of fiduciary duty that also does not require a separate discussion of waiver and estop-pel. Moreover, the fiduciary duty issues raised in the petition were not even pled as an affirmative defense in THM’s amended answer. The second question solely relates to factual findings regarding the respondent’s fiduciary duties. Waiver and estoppel issues are plainly missing from the petition for review to this court. The majority concedes that “[ajlthough the issues were not perfectly framed before the court of appeals or in the petition for further review, we conclude that these defenses are before us because the arguments before the court of appeals and in the petition for further review raise questions that have no relevance except to the defense of waiver and estoppel.” It is true *781that these defenses were raised at the court of appeals. However, they were simply not brought forth in the petition for review. The majority then concludes that the above two questions “have no relevance to the construction of the statute but are central to the application of the defenses of waiver and estoppel.” However, the majority stretches and supplements the actual issues raised in the petition for review in order to reach the separate and distinct issues of waiver and estoppel. The questions raised in the petition for review relate to statutory construction and breach of fiduciary duty. Contrary to what the majority holds, waiver and estop-pel have no relevance to and should not have been commingled with the two straightforward issues addressed by the parties. This argument ignores the clear statutory language and the findings of fact and conclusions of law issued by the district court, which are clearly supported by the record. Finally, this approach embarks upon an expansive view of what is required in the petition for review of a court of appeals’ decision contrary to our precedent. “When submitting a petition for review, a party should bring issues ripe for review to the supreme court’s attention with specificity, or waive the opportunity to have them reviewed.” Peterson v. BASF Corp., 675 N.W.2d 57, 67 (Minn.2004); see Minn. R. Civ.App. P. 117, subd. 3(a). The waiver and estoppel issues the majority decides were simply not preserved as such on appeal and they should not be addressed.1

Importantly, the majority concedes that Brekke was an employee of THM, his accrued wages were earned and due, and THM made an unauthorized deduction of a debt running from the employee to the employer for wages due. It further contends that Brekke’s unique position as an officer, director and shareholder of a closely held corporation imposed upon him a fiduciary duty, which required him to disclose his knowledge of the law contained in Minn.Stat. § 181.79. However, the legislature specifically enumerated only four exceptions to the unauthorized wage deduction law. See Minn.Stat. § 181.79. Therefore, the text of the statute demonstrates that the legislature considered the universe of exceptions to the wage deduction statute and, in its discretion, chose to refrain from creating additional exceptions similar to what THM proposes — an exception based on the employee’s status as an officer, director or shareholder or, for those who failed to disclose their knowledge of this statute. We presume that the legislature’s omission of additional exemptions was deliberate. See Willmus v. Comm’r of Revenue, 371 N.W.2d 210, 214 (Minn.1985) (stating that the court will not supply a statute with additional language where the legislature has intentionally omitted or inadvertently overlooked including such language). The majority acknowledges that waiver and estoppel are not exceptions to the statute but rather concludes that they are “common law defenses.” The majority is basically creating an exception to the statute beyond what the statute expressly provides and beyond what was presented in THM’s petition for review.

Although the $120,000 amount of the penalty is large in this case, the legislature chose not to limit or cap the amount of the penalty, but instead made it a multiple of the wrongfully held amount. In relative *782terms, the penalty is twice what was wrongfully withheld and amounts to only 1.08% of the $11,100,000 purchase price resulting from the sale of THM’s assets.

In an attempt to avoid the clear statutory language, the majority discusses whether or not this statute “should be interpreted as superceding or abrogating common law defenses that would otherwise be available to preclude enforcement of the statutory remedy.” The majority then cites to our Stiff v. Associated Sewing Supply Co., 436 N.W.2d 777 (Minn.1989), decision. However, the holding in Stiff clearly does not apply to the present case. In Stiff, there was a specific finding that the wages or commissions from which a deduction had been taken, were not earned. Stiff, 436 N.W.2d at 780. In this case, wages are not in contention and it is undisputed that Brekke had a claim of unpaid wages amounting to $194,642.22. In Stiff, we concluded that “[i]n this case it is the earnings, themselves, which are in dispute. Respondent had the burden of proving the earnings to which he claimed to be entitled but failed to do so primarily because the relevant records did not exist substantially because of his participatory misconduct.” Id. We then held that “the employer’s statutory liability is limited to those wages or commissions ‘actually earned and unpaid.’ In this case respondent failed to establish the amount of the commissions earned and unpaid. The trial court found that Stiff had skimmed cash, appropriated the company’s customers, and had participated in dismantling the company’s business records. In those circumstances, he never earned his commissions during the years in question.” Id. The majority is now effectively overruling Stiff by misreading its holding. The majority’s conclusion that Minn.Stat. § 181.79 was not intended to supercede or abrogate the common law defenses of waiver and estoppel is not even mentioned in Stiff and Stiff is a limited discussion of the “old forfeiture doctrine.” Id.

The majority then concedes that “although THM did violate the statute by offsetting the loan against Dr. Brekke’s wages, and that violation would have provided Dr. Brekke with the right to seek the statutory remedy, Dr. Brekke may have waived that right or be estopped from asserting it by conduct that is wholly separate from that on which the claimed indebtedness is based. Dr. Brekke may be estopped by conduct that is independent of the indebtedness and that makes enforcement of the penalty inequitable.” The majority does not cite any authority in support of that proposition. Importantly, that proposition also ignores the conclusion that the district court made on the equitable defenses raised by THM. Specifically, the court concluded that there was not an accord and satisfaction between the parties and it further concluded that “none of the defenses asserted by defendant excuse the wrongful deduction from plaintiffs wages or affect plaintiffs right of recovery under the statute.” The record supports this conclusion. The uncontradicted testimony of Brekke indicates that he was not going to make a claim under this statute until THM demanded interest in October of 2000.

The majority then asserts that “THM’s claim of estoppel is based on Dr. Brekke’s separate and independent breaches of contract and fiduciary duties. * * * Dr. Brekke may have waived that right or be estopped from asserting it by conduct that is wholly separate from that on which the claimed indebtedness is based.” So, what is this conduct?

The only conduct in this record relates to Dr. Brekke’s alleged knowledge of Minnesota law through Minn.Stat. § 181.79, which was not disclosed to THM. First of all, it must be remembered that it *783has long been held that “[a]ll members of an ordered society are presumed either to know the law or, at least, to have acquainted themselves with those laws that are likely to affect their usual activities.” State v. King, 257 N.W.2d 693, 697-98 (Minn.1977). This principle of law is not a “time worn” concept but is still part of our common law. Furthermore, during the entire period that THM was actively engaged in business, Minn.Stat. § 181.79 was part of Minnesota’s law and THM was a sophisticated entity that ultimately sold its assets for over $11 million. Therefore, although the statute may contain material information, it is also reasonable to presume that THM either knew the law or, at least, would have acquainted themselves with the laws that are likely to affect their usual activities. As the district court found, “[t]hat which the statute is designed to protect against is exactly what occurred in this case.” The district court further reasoned that “nothing that this [c]ourt has seen suggests that an employee is under any obligation to [inform THM of his knowledge of the statute] or that the failure to do so somehow becomes the equivalent of a written consent to the deduction.” I agree with the district court and with the court of appeals.

On July 13, 2000, one of the principals of THM presented plaintiff with a pro forma check, including a deduction for their loan amount but not for the interest. On July 14, 2000, a net check was issued by THM to Brekke in the amount of $59,700.71. The deductions from this check included not only taxes but the $60,000 loan balance. At this point in time, on July 14, 2000, THM had already violated the statute and had indicated its intent to violate the statute since the July 11, 2000 board meeting where the decision to net out the loan was made. Brekke only learned about the statute himself after the wrongful conduct of THM, which was the night before he actually cashed the check. The majority does not discuss this timing and does not discuss the fact that members of an ordered society are presumed to either know the law or at least have acquainted themselves with the law in this instance. The majority has, in effect, shifted the burden of explaining what the legal- requirements are to run a business on the employee who has already suffered from the illegal actions of the employer’s wrongful deduction.

The conduct of THM is also put into dispute beyond the statutory violation. In October of 2000, THM indicated to Brekke that it would seek interest on the note. (THM ultimately demanded $42,506.76 in interest). However, by that time, the sale to Kensey Nash of all of its assets had occurred. The sale included all receivables, such as the $42,506.76 of interest, which was not disclosed as a receivable of THM in the asset purchase agreement of September 1, 2000 or in the accompanying financial statements of December 31, 1999, June 30, 2000, and the certificate of representation of warranties or in any of the closing documents. The Bill of Sale simply sold all of the assets of THM. As the district court found, this interest receivable was also sold to Kensey Nash and Kensey owns the right to pursue any remaining liability of Brekke on the notes. Yet, Brekke testified that it was THM’s wrongful assertion of this claim that triggered his claim for the penalty pursuant to Minn.Stat. § 181.79. “[I]t is a maxim of equity that ‘he who seeks equity must do equity, and he who comes into equity must come with clean hands.’ ” Gully v. Gully, 599 N.W.2d 814, 825 (Minn.1999). This case should end here with an affirmance.

. The majority also overlooks the significant prejudice to Brekke resulting from addressing issues that were not properly raised by THM. By predicating its ruling on waiver and estop-pel issues, neither of which were briefed by either party to this court, the majority stripped Brekke of the opportunity to advance counterarguments with respect to these issues either in his brief or at oral argument.