This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2002).






Hometech Construction Corporation,





Christopher J. Klein, et al.,



Standard Federal Bank, FSB, et al.,



Filed April 29, 2003


Kalitowski, Judge


Hennepin County District Court

File No. 01-3815


Robert J. Bruno, Robert J. Bruno, Ltd., 1601 East Highway 13, Suite 107, Burnsville, MN 55337; and


Gavin P. Craig, Gavin P. Craig, P.A., 14300 Minnehaha Place, Wayzata, MN 55391 (for respondent)


David D. Hammargren, Nicholas L. Klehr, Hammargren, Meyer & Paulson, P.A. 7301 Ohms Lane, Suite 360, Minneapolis, MN 55439 (for appellants)


††††††††††† Considered and decided by Minge, Presiding Judge, Kalitowski, Judge, and Hudson, Judge.


U N P U B L I S H E D†† O P I N I O N


††††††††††† On appeal from a verdict against them, appellant homeowners claim that (1) the district court made findings of fact that are clearly erroneous and should be reversed; (2) they lawfully withheld payment due to respondentís breaches of contract; and (3) they, rather than respondents, are entitled to attorney fees in this action.† We affirm.



††††††††††† A district courtís 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 district 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 not clearly erroneous, the district courtís ďultimateĒ findings must be affirmed in the absence of a demonstrated abuse of the district courtís broad discretion.  Maxfield v. Maxfield, 452 N.W.2d 219, 221 (Minn. 1990).† When reviewing whether the district courtís findings are clearly erroneous, we view the record in the light most favorable to the district courtís judgment.† Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999).

††††††††††† Here, the parties presented mostly testimonial evidence to support their respective positions.† Each partyís evidence directly conflicted with the evidence offered by the opposing party.† At oral arguments, counsel for appellants drew our attention to three specific findings they argue are clearly erroneous.† First, appellants challenged the finding that there was no evidence that penetrations in the roof and siding existed and needed to be repaired.† But, the district court specifically found that appellants had failed to show where a leak existed that needed repair.† At trial, appellants introduced a video, depicting water dripping from the ceiling in their living room as evidence that leaks existed in the roof and siding.† The president of respondent contractor testified that the area of the house where the water can be seen is not part of the remodeling project.† If a leak existed, he said, he could test the roof to locate the source of the leak.† He also testified that his insulation contractor had instructions to seal any potential roof penetrations while installing insulation at the home, but was turned away when he arrived at the home.† We cannot say the district court erred in finding appellants failed to present specific evidence that this leak was the result of respondentís defective workmanship on either the roof or siding.

Next, appellants challenged the district courtís finding that appellants failed to show that aluminum window wraps on existing windows were defectively installed.† While appellants presented opinion evidence at trial that suggested that the wraps were not satisfactory, one of their witnesses admitted that he saw no evidence of water penetrations through the windows.† Respondent called the siding contractor whose company installed the window wraps, who testified that he checked the workmanship and made some caulking repairs at appellantsí request.† Further, the city building inspector did not issue any correction notices regarding the windows.† The district court found that appellants did not present evidence of how a properly wrapped window should look, or how the window wraps on their home differed from that.† We cannot say this finding was clearly erroneous.

Finally, counsel challenged the finding that appellants had failed to show that the roof installed by respondent was defective before it was replaced shortly before trial.† Appellants replaced the roof due to storm damage suffered after the remodeling project, and were fully compensated by their insurance company.† As evidence that respondentís roofing work had been defective, appellants introduced the testimony of the roofing contractor who performed the roof replacement.† This witness testified that not enough ice and water shield material had been installed under the shingles, a building code violation.† He presented photographs that showed appellantsí roof, shingles removed, and pointed to the lack of ice and water shield material.† But, the testimony was unclear as to exactly which parts of the roof in the photos were part of respondentís work, and no correction notices were issued regarding the roof after it was installed.† Further, aside from the leak described above, appellants did not present evidence that the roof was defective or caused any problems before it was removed and they discovered the alleged ice and water shield problem.† Because there was not clear evidence that the roof was defective, we cannot conclude that the district courtís finding is clearly erroneous.

The district court gave both parties ample opportunity to examine and cross-examine witnesses, and frequently posed additional questions to witnesses.† This court must view the evidence in the light most favorable to the district courtís judgment.† Id.†† This case involved a volume of conflicting testimony and evidence. Bound by our standard of review, we cannot conclude that the district courtís findings are clearly erroneous on this record, and therefore we must affirm.


††††††††††† Appellants also challenge the district courtís determination that they were not entitled to withhold payment from respondent.† Appellants claim that respondent breached the partiesí contract by failing to tender lien waivers from subcontractors on request and by failing to perform and complete its work according to the contract terms.† We disagree.

††††††††††† The partiesí contract specifies that appellants were entitled to withhold payment for 120 days after completion of the project if lien waivers had not been provided to them.† The district court found that respondent had not tendered all lien waivers to appellants.† But, the district court also found that respondent had not otherwise failed to perform and complete the project and was entitled to payment.† The district court fashioned an equitable remedy by determining that respondent should provide the lien waivers before the judgment was satisfied, but that respondentís failure to have previously provided the waivers did not justify appellantís refusal to pay for large portions of the project.† Appellants were not entitled by law to permanently refuse payment based on the nonprovision of lien waivers.† And, as discussed above, the district courtís findings regarding the adequacy and completion of the work are not clearly erroneous.


Finally, appellants claim that they are entitled to attorney fees in this matter, rather than respondent.† We disagree.† This court will not reverse an award of attorney fees absent an abuse of discretion.† Becker v. Alloy Hardfacing & Engíg Co., 401 N.W.2d 655, 661 (Minn. 1987).† Reasonable attorney fees may be awarded to a successful mechanicís lien claimant under Minn. Stat. ß 514.14 (2002), as part of its foreclosure costs.† Obraske v. Woody, 294 Minn. 105, 108, 199 N.W.2d 429, 431 (1972).† The award is within the district courtís discretion if it has given due consideration to the evidence and made observations of services rendered.† 109, 199 N.W.2d at 432.†

Here, the district court found that respondent was the prevailing party and that appellants had failed to show that the work was defective.† The district court considered the time and effort required, the difficulty of the issues, the skill of the attorney, and the reasonable relationship to the judgment in determining that respondent was entitled to the attorney fees requested.† See Lyman Lumber Co. v. Cornerstone Const., Inc., 487 N.W.2d 251, 255 (Minn. App. 1992).† Respondentís attorney submitted an affidavit detailing his time and expenses in pursuing the action, and the court awarded respondent $16,136.52 in attorney fees.† Based on the record, and the above factors, we conclude the district court did not abuse its discretion.†