This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Leo E. Miller, et al.,
Pioneer Abstract & Title Co.,
Filed December 20, 2005
Fillmore County District Court
File No. C3-03-50
Roger E. Petersen, Roger Petersen Law Office, 119 6th Street Southwest, Suite B, Rochester, MN 55902 (for respondents)
Peter C. Sandberg, Dunlap & Seeger, P.A., 206 South
Considered and decided by Kalitowski, Presiding Judge; Toussaint, Chief Judge; and Halbrooks, Judge.
Appellant disputes the measure of damages and attorney fees awarded for losses incurred as a result of a negligently prepared abstract, arguing that damages should be limited to an amount less than the entire value of the affected property and that attorney fees are not warranted. Because the damage award is not shocking and does not result in plain injustice and because the district court did not abuse its discretion in awarding attorney fees, we affirm.
Appellant Pioneer Abstract & Title Co. challenges an award of damages and attorney fees to respondents Leo E. Miller and Jodi L. Miller, arguing that damages suffered where deeds had overlapping descriptions of property were not suffered as a result of appellant’s error, but as a result of respondents’ failure to timely file their deed. Therefore, appellant contends that it should not be liable for those damages.
In 1972, Carl and Dorothy Grell conveyed 23 acres of land to David and Eleanor Dunn through a contract for deed. The Dunns did not record their contract. In 1978, the Grells conveyed 80 acres to respondents through a contract for deed. Approximately 6 of those 80 acres overlapped the acreage conveyed to the Dunns in 1972. Respondents did not record their contract.
In 1982, the Grells gave the Dunns a warranty deed for the 23 acres, and the Dunns recorded the deed. Later, Carl Grell died. Dorothy Grell remarried, then died in 1998. Thereafter, respondents decided to pay off their contract with the Grells and hired appellant to prepare an abstract for the 80-acre tract. The abstract, furnished on June 4, 1998, did not list or index the Dunns’ warranty deed. Respondents paid off the remaining balance of $13,154.12 for the 80-acre tract and received a personal representative’s deed, which they recorded the same year.
February 2000, the Dunns sued respondents to determine the proper ownership of
the overlapping parcel. The district
court concluded that the Millers were good-faith purchasers, entitled to
protection under Minn. Stat. § 507.32 (2000),
In January 2003, respondents sued appellant for damages incurred by their loss of the overlapping parcel, as well as attorney fees and costs associated with the Dunn litigation and the instant litigation. During trial, respondents’ expert testified that the reasonable market value of the overlapping parcel was approximately $65,000. The district court granted respondents judgment of $79,324.13: $65,000 for loss of the overlapping parcel and $14,324.13 for attorney fees in defense of the Dunn litigation. Appellant moved for amended findings or a new trial. In response, the district court amended one finding to read: “Prior to the hearing, [appellant], through its attorney, admitted [appellant] was negligent and/or breached its contract with [respondents], and the only issue for this Court to decide was damages and whether or not the damages were a direct cause of [appellant’s] breach or negligence.” The district court denied the motion for other amended findings and denied the request for a new trial. This appeal follows.
concedes that it provided respondents with an incorrect abstract in June
1998. The main issue therefore is the
district court’s application of the law to those facts in deciding damages and
attorney fees. A reviewing court need
not defer to the district court’s application of the law when the material
facts are not in dispute. Hubred v. Control Data Corp., 442 N.W.2d
308, 310 (
law provides that an abstracter must file either a bond or insurance “for the
payment by such abstracter of any damages that may be sustained by or accrue to
any person by reason of or on account of
any error, deficiency or mistake arising wrongfully or negligently in any
abstract . . . made by and issued by such abstracter.”
The district court concluded that “[b]ecause of [appellant’s] negligence and/or breach of contract [respondents] lost six acres of land. This court concludes that [respondents’] loss was a result of [appellant’s] actions and not as a result of them failing to record their contract.” The district court found that, had respondents known of the Dunns’ interest in the overlapping parcel, respondents would not have paid in 1998 the outstanding balance on the 1978 contract for deed and that instead respondents would have insisted upon a correction or other resolution of the problem. Because of the erroneous abstract, respondents lost the opportunity to resolve the overlapping-parcel problem.
contests the district court’s measure of damages. At trial, respondents presented an expert who
testified that the value of the overlapping parcel was between $59,900 and
$69,900. Appellant did not present any
evidence at trial to controvert that testimony.
In fact, appellant did not present any witnesses at trial, nor did
appellant cross-examine respondents’ witnesses.
Thus, the district court was well within its discretion when it found
that respondents sustained $65,000 in damages “as a result of [appellant’s]
actions.” Such an award is not shocking,
nor does it result in plain injustice.
Because an abstracter is liable for “any damages that may be sustained
by or accrue to any person by reason of or on account of any error, deficiency
or mistake arising wrongfully or negligently in any abstract,” appellant is
liable for the $65,000 in damages incurred as a result of appellant’s
The American Rule provides that
parties should be responsible for their own attorney fees and thereby generally
prevents a party from shifting its attorney fees to its adversary. Kallok
v. Medtronic, Inc., 573 N.W.2d 356, 363 (
fees are an appropriate element of damages when “[t]he embarrassing dilemma” in
which a party is placed is “due solely to the wrongful act of [the other
party].” Bergquist, 158