This opinion will be unpublished and

may not be cited except as provided by

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







John Westphall,





Cathy Tormondsen,




Filed July 30, 2002


Anderson, Judge


Cook County District Court

File No. C401032


Thomas W. Spence, 52 Cliff Cove Road, P.O. Box 26, Schroeder, MN† 55613 (for respondent)


James W. Weisberg, 21 West Second Street, Suite E, P.O. Box 417, Grand Marais, MN† 55604 (for appellant)


††††††††††† Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Anderson, Judge.


U N P U B L I S H E D† O P I N I O N




Appellant, a contractor, brought an action to enforce a mechanicís lien for the balance he claimed was due for labor performed at respondentís residence.† Respondent brought a counterclaim to recover the costs of correcting appellantís allegedly negligent work and the diminution in value of her home.† Appellant now challenges the district courtís judgment awarding respondent damages, arguing that respondent presented insufficient evidence that appellantís negligence was the proximate cause of the damage to her home.† We affirm.



††††††††††† Appellant John Westphall entered into a written contract with respondent Cathy Tormondsen to perform construction work at Tormondsenís home.† The total price for the completed project, which appellant estimated would take 30 working days to complete, was $27,840.†

††††††††††† Five months later, respondent had paid appellant over $40,000, but appellant had still not completed the project.† Respondent fired appellant and hired another worker to finish and correct appellantís work.† Appellant billed respondent approximately $4,600 for labor and materials.† Respondent paid the bill after deducting approximately $4,000, the amount she had spent to complete or correct appellantís tasks.†

Appellant then served respondent with a mechanicís lien for work and material provided pursuant to Minn. Stat. ß 514.08, subd. 2 (2000).† Appellant brought an action to enforce the lien.† Respondent brought a counterclaim in tort to recover the cost of repairing appellantís allegedly negligent work and the diminution to her homeís value due to appellantís negligence.†

††††††††††† As soon as trial began, appellant acknowledged that he did not have a contractorís license when he recorded his mechanicís lien.† Appellant dismissed the mechanicís lien, recognizing it was not valid, and amended his complaint to allege an equitable lien against respondentís property for the same amount as the mechanicís lien.

††††††††††† At trial, respondent presented evidence, including testimony and photographs, of numerous deficiencies in appellantís contracting performance, including the improper or incomplete construction and installation of deck posts, floors, walls, ceilings, door openings, heating units, and the roof.† Respondent estimated that had the work been done according to her expectations, her home would be worth approximately $315,000, and that the homeís value as a result of appellantís negligence was approximately $300,000.†

††††††††††† The district court awarded respondent $20,749 for damage to her home, less $4,071.17 due appellant for work already performed.† Appellant moved for a new trial or to amend the findings of fact and conclusions of law, arguing that respondent had failed to prove causation.† The district court denied the motion, and this appeal followed.†



We review a district courtís denial of a motion for a new trial for an abuse of discretion.† LaValle v. Aqualand Pool Co., 257 N.W.2d 324, 328 (Minn. 1977).† In actions tried to the district court without a jury, findings of fact based on oral and documentary evidence shall not be set aside unless clearly erroneous, and due deference is given to the opportunity of the trial court to judge the credibility of witnesses.† Minn. R. Civ. P. 52.01; Hasnudeen v. Onan Corp., 552 N.W.2d 555, 557 (Minn. 1996).† Weighing conflicting evidence with respect to damages is a credibility determination by the district court to which we must defer.† See Alstores Realty, Inc. v. State, 286 Minn. 343, 353, 176 N.W.2d 112, 118 (1970).† We view the record in the light most favorable to the district courtís judgment, and will not reverse that judgment merely because it views the evidence differently.† Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999).†

††††††††††† Appellant challenges the district courtís conclusion that appellantís work was the proximate cause of damage to respondentís house.† Appellant argues that the damage is attributable to preexisting conditions or intervening causes and that respondent is claiming as damage what is really work left unfinished because respondent prematurely fired appellant.† Appellantís causation argument repeatedly asks that we invade the province of the factfinder by reweighing the evidence and revisiting trial testimony to discover possible causes of damage other than appellantís poor workmanship.† We are unwilling to do so.

††††††††††† Appellant also argues that the district court erred by adopting respondentís damages estimate instead of his own lower estimate.† The amount of damages occasioned by a contractorís negligence is a fact question.† Knutson v. Lasher, 219 Minn. 594, 603, 18 N.W.2d 688, 694 (1945).† Moreover, ď[a] trial court is not bound by the opinion of any witness concerning values, and its finding will be sustained if it is within the limits of the evidence as to values.Ē† Id. at 604, 18 N.W.2d at 695 (citation omitted).The amount of damages awarded by the district court came well within the limits of the evidence presented.

††††††††††† The record contains ample evidence that most, if not all, of the work appellant performed for respondent was neither timely nor proficient, and did not meet any reasonable standard of workmanship.† Appellantís argument that he would have finished the project to respondentís satisfaction but for respondent firing him is unsupported by the record, which shows that appellant far exceeded his time and expense estimates without satisfactorily completing the project.† The district court appropriately denied appellantís motion for a new trial.

††††††††††† Affirmed.