This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1179

 

Paul William Ciuro,

Respondent,

 

vs.

 

Carla Y. Wilson,

Appellant.

 

Filed June 22, 2004

Affirmed

Lansing, Judge

 

Hennepin County District Court

File No. AC 02-12548

 

 

Paul William Ciuro, 8452 Boseck Drive, Apartment 234, Las Vegas, NV 89145-2462 (pro se respondent)

 

Carla Y. Wilson, 4228 Cedar Avenue, Apartment 3, Minneapolis, MN 55407 (pro se appellant)

 

††††††††††† Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Lansing, Judge.

U N P U B L I S H E D†† O P I N I O N

LANSING, Judge

††††††††††† In this landlord-tenant dispute, Carla Wilson appeals the district courtís determination that she is liable to Paul Ciuro under the terms of a residential lease for $1,850 in property damage and rent.† Because the record as presented supports the district courtís determination on the defaulted rent payment and on the existence and amount of damages, we affirm.†

F A C T S

††††††††††† This litigation, which originated in conciliation court, involves a dispute over the condition of the premises at the conclusion of Carla Wilsonís tenancy in an apartment in south Minneapolis.† Wilson rented the apartment from Paul Ciuro under a lease that provided for a month-to-month tenancy beginning March 1, 2001.† The lease specified that if the landlord gave notice of termination of tenancy, the tenant must ďvacate the property in as good a condition as it was when the lease started, with the exception of reasonable wear and tear.Ē† Wilson paid a security deposit of $600, which the lease provided could be used at the end of the tenancy to clean the property, repair damage, or cover defaulted rent.

††††††††††† Ciuro timely notified Wilson that he was terminating her tenancy, effective April 30, 2002.† Wilson moved out on May 5, 2002, but did not pay rent for the month of May.† After Wilson moved out, Ciuro inspected the apartment.† Following the inspection Ciuro notified Wilson that he was retaining her security deposit because of the poor condition of the apartment, particularly the damaged kitchen floor and stove.† Wilson disputed any damage other than normal wear and tear.†

††††††††††† Ciuro sued Wilson in conciliation court for rent and damage to the property totaling $1,656.† Wilson filed a counterclaim for $744.14, computed on the balance of her security deposit, less rent for holding over, plus damages for Ciuroís asserted bad faith.

The conciliation court granted judgment for Ciuro in the amount of $1,036 and denied Wilsonís counterclaim.† Wilson removed the case to district court for a trial de novo.† Following trial the district court entered judgment of $1,250 for Ciuro against Wilson.† This appeal followed.†

D E C I S I O N

††††††††††† To recover on a claim for damages, the law does not require absolute mathematical precision.† Duchene v. Wolstan, 258 N.W.2d 601, 606 (Minn. 1977).† A claimant must prove, by a preponderance of the evidence, the fact of loss to a reasonable, although not absolute, certainty.† Leoni v. Bemis Co., 255 N.W.2d 824, 826 (Minn. 1977).† On review, a determination of damages will be upheld unless it is manifestly and palpably contrary to the evidence.† Levienn v. Metro. Transit Commín, 297 N.W.2d 272 (Minn. 1980).† Because a district courtís findings are a product of direct observation of testimony, we defer to its assessment of witness credibility and the weight to be given to a witnessís testimony.† Nelson v. Lutheran Mut. Life Ins. Co., 311 Minn. 527, 529, 249 N.W.2d 445, 447 (1976).

At the de novo trial, Wilson and Ciuro each presented testimony and documentary evidence on the condition of the apartment at the termination of Wilsonís tenancy.† Both appeared pro se, and the district court carefully explained the trial procedures and assisted them in introducing exhibits and presenting their case.† The submitted exhibits included Ciuroís receipts for replacement of the stove and the vinyl flooring, miscellaneous receipts for other items, and Wilsonís and Ciuroís color photographs of the apartment at the end of the tenancy.† Wilsonís photographs do not show excessive damage; Ciuroís photographs show an extremely dirty oven and a stained kitchen floor in poor condition.† Neither Ciuro nor Wilson provided photographic evidence of the condition of the apartment when Wilson moved in, but Ciuro testified it was in good condition.† Wilson did not directly dispute that the apartment was in good condition at the beginning of her occupancy but testified that during her tenancy she talked to Ciuro about the need to replace the stove.

The district court found that Ciuro was entitled to $500 damages for stove replacement, $1,050 for flooring replacement, and $300 for miscellaneous expenses, for total damages of $1,850.† The court then subtracted the security deposit of $600 and entered judgment of $1,250 for Ciuro.† The court asked both Ciuro and Wilson questions during the trial and, in its findings, rejected part of Ciuroís claimed expenses.† Specifically, the court allowed only $1,050 of the $2,100 Ciuro claimed for flooring replacement and allowed only half of Ciuroís claimed miscellaneous expenses, finding that the remaining amounts were either unsubstantiated or part of normal maintenance that could be expected any time a renter moves out of a unit.

The district courtís findings and conclusions are supported by the record.† Although the testimony conflicted to some degree, it is the function of the district court to resolve those conflicts; we cannot retry the facts or assess credibility on appeal.† See Minn. R. Civ. P. 52.01 (ďFindings 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.Ē).

Wilson also lists in her statement of the issues on appeal the issue of whether Ciuro was entitled to amend his complaint to allege new claims.† This issue was not argued in the district court nor was it briefed on appeal.† Ordinarily we do not address an issue that is not properly raised or argued in the appellate briefs.† See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (issues not briefed on appeal are waived); Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (this court generally considers only matters argued in district court).†

But even if we were to consider Wilsonís procedural issue, the record does not demonstrate error.† The pleadings filed in conciliation court constitute the pleadings when an action is removed to district court. †Minn. R. Gen. Pract. 522.† Although the district court ordered a different allocation among categories of damages than Ciuro had requested in his conciliation court complaint, the total amount of damages Ciuro recovered in district court, $1,250, is within the amount that he originally requested in conciliation court, $1,656.† The district courtís allocating damages differently from the allocation sought at the conciliation court level does not invalidate the determination of damages; instead, it takes into account the more informal nature of conciliation court proceedings.† See Jorissen v. Miller, 399 N.W.2d 82, 84 (Minn. 1987)(describing the purpose of conciliation courts ďto encourage members of the public to settle minor disputes quickly and inexpensively in an informal setting without the usual procedural safeguardsĒ).

The district courtís findings on damages are supported by the evidence, and the total amount does not exceed the amount requested in the conciliation court.† We affirm the district courtís determination on the existence and amount of damages.

Affirmed.†

†††††††††††