may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Hennen Dirt Works,
Concrete Curb, Inc.,
Dakota County District Court
File No. CO-96-9157
Stuart E. Gale, 210 Valley Office Park, 10800 Lyndale Avenue South, Bloomington, MN 55420 (for appellant)
Considered and decided by Short, Presiding Judge, Amundson, Judge, and Harten, Judge.
This claim arises out of an agreement between appellant contractor and respondent subcontractor, in which appellant agreed to pay respondent a prorated amount from monies recovered from a mechanics' lien settlement. Respondent was not paid any money from the settlement that resulted, and successfully sued appellant for his share. Appellant argues that the district court erred in its judgment. We affirm.
Concrete Curb placed a mechanics' lien on Brandondale in the amount of $39,946.23, including $6,718 for work done by Hennen. Concrete Curb agreed to pay Hennen a prorated portion of any settlement or judgment arising from the lien. Hennen agreed to pay 16.82% of reasonable costs and attorney fees incurred by Concrete Curb in recovering payment. Ultimately, Concrete Curb received $7,766.67 from Brandondale, but did not pay Hennen. Hennen sued Concrete Curb for $8,800.58 plus interest, attorney fees, and costs. The district court awarded Hennen $6,718. This appeal followed.
[Concrete Curb's] claim that [Hennen's] claims are barred by the Statute of Limitations is without merit, as [Hennen's] claim arose when [Concrete Curb] received the settlement check on December 5, 1991.
The district court did not find that Concrete Curb's answer and counterclaim were time-barred; rather, it concluded that Concrete Curb's argument based on the statute of limitation was without merit. The answer and counterclaim were rejected on the merits, not because of any lack of timeliness.
The answer and counterclaim made three essential points in support of Concrete Curb's contention that it is not required to pay Hennen anything. The district court concluded correctly that all were without merit. As the district court found in its memorandum, Concrete Curb failed to produce any reliable evidence to support the negligence claim. Concrete Curb also failed to produce adequate documentation to support the claimed attorney fees. Finally, the June 1, 1990 agreement between the parties specified the amount owed to Hennen and no additional reduction of amounts paid before that date is warranted.
Finally, on the matter of Concrete Curb's insolvency, Mr. Strasburg testified that they quit doing business in late 1989 and he could not recall their having any assets at that time. These facts, coupled with the fact that the settlement proceeds were applied in their entirety to corporate debt, lead to the inescapable conclusion that the business was either insolvent or on the verge of insolvency.
While the evidence pointing to Concrete Curb's 1989 insolvency is somewhat inferential, the finding is not clearly erroneous.
by concluding that Concrete Curb and Hennen intended that the $6,718 was a net amount after the $3,500 payment.
Judge Roland C. Amundson