This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In Re: Estate of Leonard A. Evanoff, Sr., Deceased.

In Re: LAE Properties, Inc.

In Re: Evanoff Properties, Inc.

Filed June 17, 1997


Schumacher, Judge

Dakota County District Court

File No. P2928163

Robert A. Manson, 2006 First Avenue North, Suite 205, Anoka, MN 55303 (for Appellant David Evanoff)

Harry E. Eliason, Personal Representative of the Estate of Leonard A. Evanoff, 136A Ululani Street, Hilo, HI 96720 (Respondent)

Raymond D. Rossini, Anthony R. Rossini, Jonathan H. Adams, 5353 Gamble Drive, Suite 150, Minneapolis, MN 55416 (for Respondent Kathleen Middlecamp)

James M. Crist, Steinhagen & Crist, 5200 Wilson Road, Suite 314, Edina, MN 55424 (for Respondent Leonard Evanoff, Jr.)

Christine Evanoff, 9375 Parkside Drive, St. Paul, MN 55125-7508 (Respondent Pro Se)

Penelope Brown, 1429 Windemere, Minneapolis, MN 55421 (Respondent Pro Se)

Philip Evanoff, 206 South Street West, South St. Paul, MN 55075 (Respondent Pro Se)

Jeanne Chilton, 218 South Street West, South St. Paul, MN 55075 (Respondent Pro Se)

Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Schumacher, Judge.



Appellant David Evanoff argues that the district court erred in granting a motion for amended findings. We affirm.


This action involves disputes among seven children over the division of the estate of Leonard A. Evanoff, Sr., their father. After the children entered into a mediated settlement agreement, the district court held a three-day hearing to interpret the terms of the agreement. On appeal, this court affirmed the judgment and remanded for consideration of respondent Kathleen Middlecamp's motion for amended findings to challenge the calculation of abatement percentages.

On remand, the district court heard various motions brought by several of the parties. The district court affirmed Middlecamp's motion for amended findings and an amended judgment was entered. David Evanoff appeals.


1. Evanoff argues that the district court "exceeded its authority" in granting Middlecamp's motion. Evanoff's argument that the district court lacked subject matter jurisdiction to decide Middlecamp's motion on remand is without merit. Once a party files an appeal, the district court's jurisdiction is suspended as to those matters necessarily involved in the appeal. Spaeth v. City of Plymouth, 344 N.W.2d 815, 824 (Minn. 1984) (quoting State v. Barnes, 249 Minn. 301, 302-03, 81 N.W.2d 864, 866 (1957)). Here, the district court once again retained jurisdiction upon remand.

Evanoff argues that Middlecamp's motion on remand was not heard within the requisite time limitations. See Minn. R. Civ. P. 52.02 (motion for amended findings governed by time limitations for motion for new trial); Minn. R. Civ. P. 59.03 (motion for new trial shall be heard within 30 days after service of notice of filing of decision). We disagree. First of all, our remand to the district court did not limit the time in which to hear Middlecamp's motion. Second, the time limitations in rule 59.03 have no practical effect upon remand from an appellate court. Third, the record reflects that the parties agreed to postpone the hearing to allow the parties' motions to be heard all at once. Evanoff effectively waived any objection he may have had to the hearing date by agreeing to the postponement. See Imperial Developers, Inc. v. Seaboard Sur. Co., 518 N.W.2d 623, 628 (Minn. App. 1994) (party waived any objection it may have had to timeliness of hearing date for posttrial motions by not objecting to hearing date when first scheduled), review denied (Minn. Aug. 24, 1994).

Evanoff argues that the district court based its decision to amend the abatement percentages on new evidence. In considering a motion for amendment of its findings, the district court must apply the evidence as submitted during the evidentiary hearing and may not consider new evidence. Rathbun v. W. T. Grant Co., 300 Minn. 223, 238, 219 N.W.2d 641, 651 (1974). The district court received a "corrected" version of a chart detailing each beneficiary's shareholdings in decedent's two corporations. Without providing any specificity, Evanoff argues that the corrected exhibit contains new calculations and explanations. During the hearing on Middlecamp's motion, the district court expressly denied Middlecamp's request to present new evidence. When Middlecamp's counsel requested that the corrected exhibit be substituted for the original, the district court again responded that it would not reopen the evidentiary hearing. We conclude that the district court received the corrected exhibit only after reviewing the record and determining that the corrected exhibit did not contain any new evidence.

Evanoff argues that the amended findings are clearly erroneous. See Minn. R. Civ. P. 52.01 (findings of fact shall not be set aside unless clearly erroneous). Clearly erroneous means "manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole." Northern States Power Co. v. Lyon Food Products, 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). On this record, and after reviewing the hearing transcript, we conclude that the district court's amended findings were not clearly erroneous.

2. The district court did not rule on Evanoff's motion requesting that the court specify the maximum liability of each heir, declare the properties deeded by decedent to the heirs are part of the estate, and declare any conveyances are void. Evanoff requests that, in the interests of justice, this court address the issues raised in his motion or direct the district court to rule on the motion on remand. While the issues in Evanoff's motion were raised to the district court, the issues were not decided by the district court, and we decline to consider them on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (generally, appellate courts refuse to address issues and theories not raised to and decided by district court).