This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-00-1132

 

Ray H. Brandt, d/b/a Brandt Engineering & Surveying,

Respondent,

 

vs.

 

Johnson-Reiland Construction, Inc.,

Appellant,

 

Paul C. Thoemke, et. al.,

Defendants.

 

Filed March 13, 2001

Affirmed

Randall, Judge

 

 Dakota County District Court

File No. C0-99-6337

 

Russell L. Streefland, Streefland, Groves, & Jagow, Skyline Square, Suite 250, 12940 Harriet Avenue South, Burnsville, MN  55337 (for respondent)

 

LuAnn M. Petricka, 4100 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for appellant)

 

            Considered and decided by Randall, Presiding Judge, Peterson, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

R. A. RANDALL, Judge

            Appellant argues that the record does not support the district court's finding that respondent was entitled to enforcement of a mechanic's lien.  Appellant claims the lien was based on repetitive work arising solely from respondent's own negligence in surveying and platting the original lots in appellant's multi-family housing development.  Appellant further contends that, even if it is responsible for compensating respondent for his replatting work, the compensation respondent sought is not a fair and reasonable value for his services.  Appellant also argues that the district court's dismissal of appellant's counterclaim with prejudice is not supported by the record.  We affirm on all issues.

FACTS

In spring 1994, appellant Johnson-Reiland Construction, Inc. hired respondent Ray H. Brandt as its project engineer for Summit Shores, a multi-family housing development in Burnsville.  Brandt, a licensed civil engineer, was responsible for surveying and platting the lots as well as creating the utilities, grading, and curb and gutter plans, and submitting the plans to the city for approval.  Brandt finished the work previously started by a landscape architect hired by Johnson-Reiland.  Using various floor plans Johnson-Reiland gave him (termed the "Bloodgood plans"), Brandt created the final plats for the first three divisions of Summit Shores.  The number of floor plans that Brandt used is in dispute.  Johnson-Reiland asserts that Brandt knew about all floor plans when he created the plats for Summit Shores, while Brandt contends that he did not know about the largest floor plan until after he finished working on the project.

Summit Shores' lots 29 and 30 had to be replatted, but the parties dispute the reason for the replatting.  Johnson-Reiland believes the lots had to be replatted because Brandt did not correctly assess the county road setback requirement adjacent to the property.  Brandt contends he had to replat the lots because Johnson-Reiland asked him to stake a different floor plan than the one used in the original plat, which encroached on the setback requirement.   

In the summer of 1998, Johnson-Reiland hired James R. Hill, Inc. to continue the platting and construction phase of the development project, which had previously been performed by Brandt.  According to Johnson-Reiland, James R. Hill had to replat more of the lots Brandt originally platted because Brandt did not correctly establish the ordinary high water mark (OHW) for the lake adjacent to Summit Shores and because Brandt used the incorrect floor plans when platting the lots.  Johnson-Reiland contends that Brandt's plats were negligently drawn, causing Johnson-Reiland to lose considerable time and money in replatting the lots.  Brandt believes that his OHW lines were correct and that James R. Hill used a larger floor plan that was not available to Brandt at the time he platted the lots.

            Johnson-Reiland refused to pay Brandt for his services to replat Summit Shores' lots 29 and 30.  On January 29, 1999, Brandt filed an action to foreclose his mechanic's lien against Summit Shores, claiming Johnson-Reiland owed him $3,368.24.  Although Brandt named several defendants in his action, all defendants but Johnson-Reiland were disposed of before trial.  On March 3, 1999, Johnson-Reiland filed its answer along with a counterclaim that alleged Brandt negligently performed engineering and surveying work on the Summit Shores.  A bench trial was held on March 14-15, 2000.  On April 28, 2000, the district court's order was filed, awarding Brandt his mechanic's lien, plus $369.58 in interest.  The court also awarded Brandt $522.98 in costs and disbursements plus $5,317.55 in attorney fees.  In the same order, the district court dismissed Johnson-Reiland's counterclaim with prejudice.  Johnson-Reiland appeals from this judgment.

D E C I S I O N

An appellate court may not reverse the district court's judgment merely because it views the evidence differently. Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999).  Rather, an appellate court must uphold the district court's findings of fact, whether based on oral or documentary evidence, unless the findings are clearly erroneous.  Minn. R. Civ. P. 52.01.  The district court's findings are clearly erroneous if the appellate court is "left with the definite and firm conviction that a mistake has been made."  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted).  When determining whether the district court's findings are clearly erroneous, an appellate court views the record in the light most favorable to the district court's judgment.  Rogers, 603 N.W.2d at 656.

I.                   Mechanic's Lien

Johnson-Reiland argues that the record does not support the district court's finding that Brandt was entitled to enforce his mechanic's lien.  Specifically, Johnson-Reiland contends that it should not be required to pay Brandt for repetitive work arising solely from Brandt's negligence in surveying and platting the original lots.

At trial, conflicting oral testimony was presented regarding whether Brandt was entitled to enforcement of his mechanic's lien.  To support its argument, Johnson-Reiland relies on the testimony of its vice-president, Dan Reiland.  Reiland testified that Brandt was given one set of floor plans to prepare the Summit Shores' plats and that Brandt did not correctly estimate the county road setback when preparing the plats. Johnson-Reiland argues that because of this error, Brandt had to replat lots 29 and 30 to account for the correct setback.  Brandt, however, testified that Johnson-Reiland asked him to stake out a different building plan, which did not comply with the setback requirement, thus he had to replat lots 29 and 30.  He believed that the platting performed by James J. Hill did not comply with the setback requirement because it used a larger building size than Brandt used.  Brandt further explained that this building plan, designated plan "H," was not available to him when he originally platted or replatted the lots.

Deference must be given to the district court's opportunity to judge the credibility of witnesses.  Minn. R. Civ. P. 52.01; Hasnudeen v. Onan Corp., 552 N.W.2d 555, 557 (Minn. 1996) (concluding deference should be given to district court's factual findings where issue rests largely on witnesses' credibility and weight to be given to their testimony).

The district court believed Brandt's testimony over Johnson-Reiland's version of why lots 29 and 30 had to be replatted.  The district court found that all of Brandt's services were provided "at the specific request of Dan Reiland, Managing Officer" of Johnson-Reiland.  The court further found that Brandt was not negligent in performing his services and that Brandt's work was not the cause of "any loss of lots or additional work done by third parties."  Based on the district court's entitlement to weigh credibility, the district court's findings are supported by the record and are not clearly erroneous. 

Johnson-Reiland further contends that, even if it is responsible for compensating Brandt for his replatting work, the compensation Brandt sought is not a fair and reasonable value for his services.  In making this argument, Johnson-Reiland contends that the district court erred by incorrectly finding that Brandt's original platting was performed properly. 

Essentially, this is the same argument as Johnson-Reiland made above.  As stated previously, there is evidence in the record to support the district court's findings that Brandt properly performed his work.  Thus, the court's findings on compensation are not clearly erroneous.

Johnson-Reiland argues that Brandt failed to show that his requested compensation was similar to compensation charged by others in the same field for similar services.  Johnson-Reiland relies on the testimony of Harold Peterson, a licensed land surveyor for James R. Hill.  Peterson testified that James R. Hill would have charged approximately $1,250 plus the cost of staking and miscellaneous fees to replat lots 29 and 30.  In contrast, Brandt testified in great detail regarding the work he performed and why he had to perform it.  He testified that he charged $75 per hour for his services in 1996, which he raised to $85 per hour in 1997.  Additionally, Brandt submitted detailed time sheets documenting each phase of his work, and each was labeled with an invoice number that corresponds to the invoices he sent to Johnson-Reiland.  Brandt's hourly rates correlate with the documented amount of time on each time sheet.

As stated previously, deference is given to the district court's opportunity to judge the credibility of witnesses.  Minn. R. Civ. P. 52.01.  The district court found that the fair and reasonable value of Brandt's services was $3,368.24, the total amount of Brandt's outstanding invoices.  This finding is supported by Brandt's testimony and the time sheets he submitted for actual work performed.  We cannot conclude that the trial court erred in coming to the dollar figure it did.

II.                Dismissal of Johnson-Reiland's Counterclaims

Johnson-Reiland argues that the district court erred by dismissing its counterclaim.  Johnson-Reiland contends that, contrary to the district court's findings, the record supports Johnson-Reiland's contention that Brandt's final grading plan negligently established (a)  the ordinary high water mark setback, and (b) the retaining walls that could not be built given the construction limits set by the city.

The district court's factual findings "are given great deference, and shall not be set aside unless clearly erroneous."  Fletcher, 589 N.W.2d at 101 (citation omitted). The district court's factual findings will not be disturbed if there is reasonable evidence to support them.  Id.

Here, the district court's findings are supported by the record.  Johnson-Reiland offered oral testimony that the OHW mark should have been surveyed in the field. Brandt testified that he did manually check the marks in the field rather than relying on the information obtained from the city of Burnsville.  Further, although Johnson-Reiland offered oral testimony that the retaining walls could not be built, Brandt refuted this assertion through his own testimony.  Brandt explained that the walls could be built as boulder walls, which do not need reinforcement and would not interfere with the city's construction requirements.

            The district court believed Brandt's testimony that he had correctly established the OHW mark and retaining walls in his final grade plan for Johnson-Reiland.  See Minn. R. Civ. P. 52.01 (stating due regard should be given to district court's opportunity to judge witness credibility).  The district court found Brandt's work "was not a cause, direct, concurring, or superceding, of any loss of lots or additional work done by third parties at the request of [Johnson-Reiland]."  Given this record, the district court's findings were not clearly erroneous.

            It should be noted that Johnson-Reiland's counterclaim was tried with Brandt's mechanic's lien by agreement of the parties.  Originally, Brandt waived his right to a jury trial, while Johnson-Reiland requested a jury trial.  Accordingly, Brandt moved to bifurcate his mechanic's lien from Johnson-Reiland's counterclaim.  On the day of trial, Johnson-Reiland waived its right to a jury trial, so Brandt waived his motion to bifurcate, and the two claims were tried together as a bench trial.  The end result is that both parties had their day in court on all claims.

            Affirmed.