This opinion will be unpublished and

may not be cited except as provided by

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








Timothy P. Kelley, et al.,





Brian S. Grey, et al.,




Filed September 18, 2002


Robert H. Schumacher, Judge


Hubbard County District Court

File No. CX-97-735



James B. Wallace, 201 East First Street, Park Rapids, MN 56470 (for appellants)


John E. Valen, P.O. Box 1105, Walker, MN 56484 (for respondents)


            Considered and decided by Minge, Presiding Judge, Schumacher, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


            Timothy P. Kelley and Michael P. Kelley (Kelleys) appeal the trial court's judgment granting respondents Brian S. Grey, Theresa M. Grey, and First National Bank of Walker (collectively Greys) damages under a contract in which the Kelleys were to perform carpentry services for the Greys.  The Kelleys claim the trial court erred in finding that they were due less than the full contract price, that the trial court miscalculated any damages that the Greys were due, and that the Greys did not meet their burden of proof.  The Kelleys also claim that the court erred in denying them collection of a mechanic's lien filed against the Greys because the Kelleys were not licensed and did work in more than one specialty.  We affirm. 


In July 1996, the Greys contracted with the Kelleys to perform carpentry services on a house the Greys were building for a price of $18,859.   Brian Grey, a tile contractor by trade, was the general contractor on the project.

The Kelleys began work on the house in August 1996 and completed all of the contract work except a portion of the interior trim work and some other minor work by November 1996.  The siding also could not be completed because defective siding was supplied by the Greys and replacement siding had to be ordered.

            On or about December 8, 1996, the Greys terminated the contract before its completion claiming that the Kelleys breached the contract due to delays.  The Greys hired a new contractor to finish the work.  The Kelleys submitted a bill for $7,277.25.  The Kelleys gave the Greys a credit of $2,744.45 off the full contract price for the work the Kelleys did not complete.  When the Greys refused to pay the full amount charged by the Kelleys, they filed a mechanic's lien. 

In their amended counterclaim, the Greys claimed the Kelleys were negligent in the installation of the floor trusses, which the Greys claim caused damage to floor tiles and the flooring system in the home.

A court trial was held, and the Greys were awarded damages for the costs incurred to complete the contract.  The trial court found that the Kelleys improperly installed the floor trusses in the house, which caused damages to the Greys' tile floor.  The Kelleys moved the court for amended findings of fact and law, or for a new trial.  The court amended its findings of fact and conclusions of law to deny the Kelleys' statute of limitations and mechanic's lien claims.


1.            The district court awarded the Greys their costs for completing the work.  On appeal, the Kelleys claim they are entitled to the full contract amount because the Greys and not the Kelleys breached the contract by terminating it before the work was completed.

            This court will generally not consider matters not argued and considered in the court below.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  The Kelleys never claimed in the court trial that they were entitled to the full amount of the contract due to the Greys' termination of the contract.  Throughout the trial court proceedings, the Kelleys only argued that the amount of damages was miscalculated.  Neither at trial nor in their motion for amended findings of fact, or in their motion for a new trial, did the Kelleys claim that they were entitled for the full amount for the contract.  Thus, we will not consider that claim here.

2.            The Kelleys claimed that the trial court miscalculated the damages that the Greys were due by not accounting for a credit that the Kelleys gave the Greys when the contract was terminated. 

            Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.  Minn. R. Civ. P. 52.01.  If the underlying findings of fact made by the district court are undisputed or sustainable (because not clearly erroneous), the district court's "ultimate" findings must be affirmed in the absence of a demonstrated abuse of the district court's broad discretion.  Maxfield v. Maxfield, 452 N.W.2d 219, 221 (Minn. 1990).

When reviewing whether the district court's findings are clearly erroneous, we view the record in the light most favorable to the district court's judgment.  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999).  In this case, the evidence was clear before the trial court that the Kelleys had given the Greys a credit of $2,774 off the total contract price.  The court ruled that the Greys were entitled to $8,230 in damages, which represented the damages due to the improper installation of the floor trusses, the replacement of the floor tiles, and reimbursement for expenses and costs incurred by in the installation of the doors and framing of the interior windows.  The court found that the Kelleys were entitled to $5,277 for the work they had completed.  This was based on the amount the Greys incurred to finish the work the Kelleys had contracted to do as compared with the original contract price.  The Kelleys claimed that the value of their services was miscalculated because they already gave the Greys a credit of $2,744.

There was adequate evidence in the record to support the trial court's finding of the value of the Kelleys' services based on the Greys' cost to finish the contracted work.

3.            The Kelleys claimed that the Greys' counterclaim for damages caused by the Kelleys' work is barred by the statute of limitations.  The Greys' amended counterclaim was filed in December 2000, and they noticed the problem with his tile in the spring of 1997.             Minn. R. Civ. P. 15.03 provides:

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth  * * * in the original pleading, the amendment relates back to the date of the original pleading.


Whether an amended pleading satisfies the requirements of Minn. R. Civ. P. 15.03 to have the amendment relate back is a question of law, subject to de novo review.  Bigay v. Garvey, 575 N.W.2d 107, 109 (Minn. 1998).

Relation back under rule 15.03 is not limited to amendments that do not state a new cause of action.  Id.  "[T]he rule requires only that the amendment arise out of the 'conduct, transaction, or occurrence' set forth in the original pleading."  Id. (citations omitted).  In determining whether the claim arose from the same conduct, transaction, or occurrence, we must consider three factors: (1)  whether the defendant had notice of the claim that the plaintiff is now asserting; (2)  whether the plaintiff will rely on the same kind of evidence offered in support of the original claim to prove the new claim; and (3) whether unfair surprise to the defendant would result if the court allowed the amendment.  Id.

The Kelleys' claim was based on the value of the services they performed, including any damages that resulted from their services.  In the Greys' first and second amended answer and counterclaim, the Greys claimed they were entitled to damages based on the Kelleys' breach of the contract.  Any damages would naturally include the value of the work performed.  The Kelleys' should have been on notice that a breach of contract claim would include any damages caused by their work.  The same evidence would thus be used in the Greys' claim for damages caused by negligent installation as would have been used for their claim of breach of contract.  There was no unfair surprise that the Greys would question the quality and value of the work done by the Kelleys.  Thus, the trial court was correct in determining that the Greys' claims relate back to the original pleading and were within the two-year statute of limitations. 

4.            The Kelleys also claimed that a comparative-fault analysis should have been used to determine the amount of damages. 

When reviewing mixed questions of law and fact, the court of appeals will correct erroneous applications of law but accord the district court discretion in its ultimate conclusions and review such conclusions under the abuse-of-discretion standard. Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997).

Minn. Stat. § 604.01 (2000) provides,

Contributory fault does not bar recovery in an action by any person * * * to recover damages for fault resulting * * * in injury to * * * property, or in economic loss, if the contributory fault was not greater than the fault of the person against whom recovery is sought, but any damages allowed must be diminished in proportion to the amount of fault attributable to the person recovering. 


The trial court ruled that

the Kelleys improperly installed floor trusses and as a result the floor tile installed by [Brian Grey] cracked and he incurred expenses in correcting the trusses in the amount of $3,980.00. 


The ruling puts the Kelleys 100% at fault. 

There was adequate evidence in the record showing that trial court was within its discretion when it made the decision that the Kelleys were 100% at fault.  There was testimony that the Kelleys improperly installed the floor truss system.  There was also evidence that the improper installation was the cause of the cracked tiles.  Comparative-negligence analysis did not have to be used because the Kelleys were completely at fault.

5.            The Kelleys also claimed that the Greys failed to meet their burden of proof in this case.  While there was evidence presented at trial suggesting that something other than the Kelleys' negligence caused the damage to the Greys' property, the trial court ruled that the Kelleys were solely liable for the damages.  The trial court made a credibility determination on this issue, and this court generally will not disturb such a determination.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).  As stated above, there was adequate evidence supporting the trial court's decision, and the court did not abuse its discretion.

6.            Finally, the Kelleys claim that they were improperly denied their right to collect on the mechanic's lien they filed against the Greys.

Based on our findings that the Kelleys are not entitled to damages, we do not consider their mechanic's lien claim.