This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-96-753

Mid-Minnesota Concrete & Excavating, Inc.,

Respondents,

vs.

Wayne German, d/b/a Riviera Homes, Inc.,

Appellant,

Frank D'Aigle, et al.,

Defendants.

Filed October 8, 1996

Affirmed

Parker, Judge

Wright County District Court

File No. C0951264

Jonathan C. Lewis, 325 Cedar Street, Suite 300, St. Paul, MN 55101 (for respondents)

Barry A. Sullivan, 2140 Fourth Avenue North, Anoka, MN 55303 (for appellant)

Considered and decided by Short, Presiding Judge, Parker, Judge, and Crippen, Judge.

U N P U B L I S H E D O P I N I O N

PARKER, Judge

Appellant Wayne German appeals from a district court judgment entered in favor of respondent Mid-Minnesota Concrete and Excavating, Inc. (Mid-Minnesota). German argues that the district court (1) abused discretion in admitting as evidence of damages the job cost detail report (the report); (2) erred in calculating damages; and (3) erred in concluding that German is personally liable for the judgment. We affirm.

D E C I S I O N

1. The admission of evidence rests within the broad discretion of the district court. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). A new trial will not be ordered in the absence of prejudicial error. Id. Before we can consider the merits of German's argument that the district court abused discretion in admitting the report, however, we must consider the effect of German's failure to move for a new trial and failure to raise a hearsay objection to the district court.

Under Minnesota law, "evidentiary rulings * * * are subject to appellate review only if there has been a motion for a new trial in which such matters have been assigned as error." Tyrol v. Private Label Chems., Inc., 505 N.W.2d 54, 56 (Minn. 1993) (quoting Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn. 1986)). Because German failed to move for a new trial and assign as error the district court's admission of the report, we will not consider the admission of the report on appeal.

Additionally, only those matters submitted to the district court for decision are reviewable on appeal. In re Welfare of K.T., 327 N.W.2d 13, 16-17 (Minn. 1982). Similarly stated, an appellate court considers only those matters and theories presented to and considered by the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (citing Thayer v. American Financial Advisors, Inc., 322 N.W.2d 599, 604 (Minn. 1982)). A party is limited to appellate review of the specific objection raised to the district court at the time the evidence was offered. Dix v. Harris Mach. Co., 240 Minn. 218, 228, 60 N.W.2d 628, 634 (1953). Because German did not raise a hearsay objection to the district court, we will not consider such argument for the first time on appeal. The purpose of appellate review is not to try a case de novo and entertain objections that should have been raised to the district court. German did, however, raise a lack of foundation argument both to the district court and in this court. We would, therefore, consider such argument on appeal if indeed German had moved for a new trial. German did not, however, move for a new trial.

2. When an appellant does not move for a new trial or amended findings, the scope of appellate review is limited to whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and the judgment. Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976). Determination of actual damages is a question of fact. Neilan v. Braun, 354 N.W.2d 856, 858 (Minn. App. 1984). Findings of fact 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.

Minnesota law on mechanic's liens provides that the extent of a lien is for "the reasonable value of the work done, and of the skill, material, and machinery furnished." Minn. Stat. § 514.03, subd. 1 (1994). Construction overhead can be awarded on a mechanic's lien. Enviro-Fab, Inc. v. Blandin Paper Co., 349 N.W.2d 842, 848 (Minn. App. 1984), review denied (Minn. Sept. 12, 1984). Costs, disbursements, and attorney fees are also recoverable. Id. Interest awarded on a mechanic's lien shall be at the legal rate. Minn. Stat. § 514.135 (1994).

The district court found that $11,313.14 represented the total reasonable value of labor and materials supplied by Mid-Minnesota ($9,837.52), plus the cost of overhead ($1,475.62). The court also added interest of $1,120, attorney fees of $1,500, and $326.50 in costs and disbursements, resulting in a total judgment of $14,259.64.

German contends the court erred in calculating damages. We disagree and conclude that the record supports the court's finding on damages based both on the report and on the testimony of Mid-Minnesota's president, Rick Lewandowski. While German testified that the work done by Mid-Minnesota was worth only $4,000 to $5,000 rather than $9,837.52, the court was not required to give credence to such testimony. See Roy Matson Truck Lines, Inc. v. Michelin Tire Corp., 277 N.W.2d 361, 362 (Minn. 1979) (the district court, when sitting without a jury, is the sole judge of witness credibility and may accept all or only part of a witness' testimony). Obviously, the court viewed the evidence submitted by Mid-Minnesota as more credible than German's oral testimony.

3. The district court concluded that German is personally liable to Mid-Minnesota for the judgment. The court, in its findings, determined that "Wayne German personally contracted with plaintiff Mid-Minnesota Concrete." German misstates the issue on appeal by contending the court erred by disregarding the corporate entity. This case was not presented to the district court as an issue of whether to "pierce the corporate veil" but, rather, as an issue of whether Mid-Minnesota in fact contracted with German personally rather than with German's corporation, Riviera Homes, Inc. (Riviera). Neither German nor Mid-Minnesota argued for disregarding the corporate entity or otherwise presented Minnesota's test for disregarding the corporate entity found in Victoria Elevator Co. v. Meriden Grain Co., 283 N.W.2d 509, 512 (Minn. 1979). Indeed, the court's order makes no mention of disregarding the corporate entity. Thus, the determination whether Mid-Minnesota contracted with German personally or with Riviera is a finding of fact to which this court applies the "clearly erroneous" standard of Rule 52.01.

We conclude that the district court did not clearly err in finding that Mid-Minnesota contracted with German personally. Although Lewandowski listed "Riviera Homes" on the mechanic's lien statement, Lewandowski testified that he contracted with German personally. German presented no documentary evidence to show that Mid-Minnesota's contract was actually with Riviera and, in fact, the real estate was in German's name, individually. While German testified that in the past he paid Mid-Minnesota with corporation checks, no written contract existed between the parties that would establish whether Mid-Minnesota contracted with German personally or with Riviera.

Affirmed.