This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Overson Lumber Company,
Inc., d/b/a Wabasso Building Center,
William F. Guetter, d/b/a Northern States Elevator Construction,
Kevin L. Kremin,
Redwood County District Court
File No. C3030638
Brian L. White, White Law Office,
David R. Von Holtum, Von Holtum, Malters & Shepherd, 607 Tenth Street, Box 517, Worthington, MN 56187-0517 (for appellant)
Considered and decided by Klaphake, Presiding Judge; Stoneburner, Judge; and Wright, Judge.
Appellant challenges the district court’s enforcement of a mechanic’s lien based on its determination that for purposes of prelien notice, appellant was not an “owner” of property to which respondent delivered construction supplies. Because the district court’s findings of fact are not clearly erroneous and the district court did not err in its application of the law, we affirm.
Robert Butler worked for respondent
Overson Lumber Company, Inc., d/b/a
On October 16, 2002, appellant Kevin L. Kremin entered into a purchase agreement with Guetter to purchase the Milroy property for $1,000. At Guetter’s request, WBC began delivering materials to the Milroy property on October 21. Guetter gave Kremin a warranty deed to the property on October 28, but Kremin did not take possession of the property until the end of December, and did not record the deed until February 7, 2003.
On December 12, 2002, WBC completed deliveries to the property. Kremin paid Guetter for the materials on December 20, 2002, but Guetter did not pay WBC for the materials. WBC filed and served a mechanic’s lien statement on Guetter and Kremin on April 4, 2003, and later sued for a money judgment on the mechanic’s lien. Appellant answered, asserting that WBC’s failure to provide him with prelien notice precluded enforcement of the mechanic’s lien against him.
At a bench trial, there was
testimony that during the improvement project, Guetter, at Kremin’s request,
directed WBC to include a reference to “Kremin Welding” on the invoices that
were sent to Guetter. Kremin testified
that he demanded such a notation on all invoices for supplies for the building
because he knew that Guetter was involved in other projects at the same time,
and he wanted to be able to track supplies used on this project.
Guetter testified that, at some
point, he told
The district court held that Kremin was not an “owner” for prelien notice purposes during the time that WBC delivered materials to the property, therefore WBC was not required to give Kremin prelien notice, and WBC was entitled to enforce the mechanic’s lien.
When reviewing the result of a bench
trial, appellate courts are limited to determining whether the district court’s
findings are “clearly erroneous, either without substantial evidentiary support
or induced by an erroneous view of the law.”
Reserve Mining Co. v. State,
310 N.W.2d 487, 490 (
Subd. 2. Subcontractor to give notice. (a) Every person who contributes to the improvement of real property so as to be entitled to a lien pursuant to section 514.01, except a party under direct contract with the owner must, as a necessary prerequisite to the validity of any claim or lien, cause to be given to the owner . . . not later than 45 days after the lien claimant has first furnished labor, skill or materials for the improvement, a written notice . . . .
. . . .
Subd. 5. Owner defined. For the purposes of this section, “owner” means the owner of any legal or equitable interest in real property whose interest in the property (1) is known to one who contributes to the improvement of the real property, or (2) has been recorded or filed for record if registered land, and who enters into a contract for the improvement of the real property.
statute “was intended to protect homeowners and small businessmen who out of
ignorance might be forced to pay first the contractor and then the
subcontractor.” Master Asphalt Co. v. Voss Constr. Co., Inc., of
In this case, because Kremin failed to record the deed to the
property until after WBC’s final delivery, the issue is whether WBC had
knowledge of Kremin’s ownership interest in the property. Minn. Stat. § 514.011, subd. 5(1), requires
“actual, not constructive, notice.” Marque Plumbing, Inc. v. Barris, 380
N.W.2d 174, 178 (
Kremin relies on
Guetter’s testimony that he informed
Q: Did you tell [WBC] that you were talking to Kevin Kremin about selling the property?
Q: You did? You specifically remember that?
A: I am sure I did as far as my recollection goes.
Q: Okay. So what – what exactly did you tell them? Did you tell –
A: I am not really sure.
Q: Did you tell them that Kevin bought the building?
A: I don’t know what we all talked about yet at that time.
Q: Or did you just tell them that you might be selling the building and Kevin might be one of the purchasers?
A: I said I am probably going to be selling it because I really don’t need it.
Q: All right. You told that to Bob Butler?
A: I think so.
Q: You think so, but you don’t specifically remember?
A: Well, I am not sure how everything all went. I can’t –
Q: Well, I am trying to determine whether – at the time you talked to the Building Center about a bid for the materials whether you had sold the building or not.
A: I can’t remember if I had it sold already or not.
And, at trial, Guetter testified as follows:
Q: Did you ever tell Bob Butler that the property had been sold?
A: I think that one day I went over and told him that I would probably be selling it, and everything should be changed over into Kremin Welding.
Q: You think, do you remember specifically?
A: Well, I’m sure I did.
. . .
Q: But when you first contacted Bob Butler you didn’t know whether you were going to sell the building or not, did you?
A: I wasn’t sure what I was going to do.
. . .
Q: Mr. Guetter, I have just a few. As I understand it, you are sure you told Mr. Butler that Kevin Kremin had bought the property?
A: I’m positive I did it –
however, was not able to recall when he told
“The finder of fact is not required
to accept even uncontradicted testimony if the surrounding facts and
circumstances afford reasonable grounds for doubting its credibility.” Varner
v. Varner, 400 N.W.2d 117, 121 (
Kremin argues that WBC was sufficiently aware of his interest
in the property and that WBC had a duty to inquire and could not “put on
blinders” and still be protected by the actual knowledge requirement in the
statute. See Custom Design Studio v. Chloe, Inc., 584 N.W.2d 430, 433 (
Kremin argues that the discussions
between Guetter and